Public Order Bill
Monday 23rd May 2022
(2 years, 6 months ago)
Commons ChamberRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts
21:49 - The House divided: - Ayes: 200 / Noes: 292 - Question accordingly negatived.
22:03 - The House divided: - Ayes: 292 / Noes: 202 - Question accordingly agreed to.
Madam Deputy Speaker (Dame Eleanor Laing)
The reasoned amendment in the name of the Leader of the Opposition has been selected.
The Secretary of State for the Home Department (Priti Patel)
I beg to move, That the Bill be now read a Second time.
From day one, this Government have put the safety and the interests of the law-abiding majority first. We have put 13,500 more police on the streets, and we are on track to reach nearly 20,000 new police officers by March next year.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
Will the Home Secretary give way—already?
Priti Patel
I think I will make some progress, if that is okay.
This Conservative Government understand that if we are to cut crime, level up the country and make sure that people feel safe in their homes, on public transport and on the street, we need to back our police officers by giving them the powers and the tools they need to fight crime and protect the public. That was one of the main purposes of the Police, Crime, Sentencing and Courts Act 2022, which Opposition Members voted against. It also requires proper investment, which is why we are funding the police to the tune of almost £17 billion this year. We are helping the police to tackle violence against women and girls through major investment in safer streets measures—closed circuit television and more street lighting—and initiatives across the country. Earlier this month, I announced that I am strengthening stop-and-search powers, because stop and search is vital to get knives and weapons off our streets and save lives. Each weapon removed from our streets is a potential life saved. More than 50,000 weapons have been seized since 2019 already. I have also authorised special constables to carry and use Tasers.
The police service is not just an institution, but a collection of professional and dedicated people. They are extremely brave, as are their families. The introduction of the police covenant ensures that we will do right by officers and their loved ones, who do so much to support them.
Recently, we have seen a rise in criminal, disruptive and self-defeating tactics from a supremely selfish minority. Their actions divert police resources away from the communities where they are needed most to prevent serious violence and neighbourhood crime. We are seeing parts of the country grind to a halt. Transport networks have been stopped, printing presses blocked and fuel supplies disrupted. People have been unable to get to work and go about their lives free from harassment. Shamefully, they have even been prevented from getting to hospital. This is reprehensible behaviour and I will not tolerate it.
Mr Richard Holden (North West Durham) (Con)
I am particularly interested in seeing whether this Bill will target people such as Extinction Rebellion founder Roger Hallam. I was reading about him recently. He said that he would block an ambulance carrying a dying patient in order to make his political point. Will the Home Secretary ensure that people who would go to those extremes will be properly targeted by that legislation and thrown in jail if they carry out such actions?
Priti Patel
My hon. Friend is absolutely right. We should not tolerate behaviour that prevents people from going about their day-to-day business and stops them getting to hospital and living their lives.
We brought forward measures to address some of these matters in the Police, Crime, Sentencing and Courts Bill. While the Bill was enacted last month, the unelected other place blocked several measures, egged on by Opposition Members. We should not be surprised: Labour is weak on crime and weak on the causes of crime. It seems to care only about the rights of criminals.
Since January 2019, more than 10,000 foreign national offenders have been removed from the United Kingdom. In the past month alone, flights have gone to Albania, Romania, Poland, Lithuania and Jamaica. It was actually a Labour Government who oversaw the UK Borders Act 2007, which requires a deportation order to be made when a foreign national has been convicted of an offence in the UK and sentenced to 12 months or more, unless an exception applies. However, Labour Members, including members of the shadow Cabinet, now demand that we stop the removal of dangerous foreign criminals. They refused to support the Nationality and Borders Act 2022, which makes it easier to remove people with no right to be here, including foreign national offenders.
Many dangerous criminals, including paedophiles, murderers and rapists, are still in this country because of Labour Members. It is no surprise that Labour thinks mobs should be allowed to run riot, but I will not stand by and let antisocial individuals participate in criminal damage and disruptive activity that stops people living their lives and causes chaos and misery. The Public Order Bill will empower the police to take more proactive action to protect the public’s right to go about their lives in peace.
Richard Burgon (Leeds East) (Lab)
I thank the Home Secretary for giving way, and I hope she gives way to my Front-Bench colleague, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), in due course.
I have been listening carefully to the Home Secretary. In the context of this cost of living emergency, the Government are threatening anti-trade union legislation and pursuing voter suppression through voter ID, and draconian anti-protest laws are now being brought in. Will the Home Secretary come clean and admit that this Government know that their economic policies will be increasingly unpopular, so they want to remove everyone’s right to resist and fight back, whether through voting, industrial action or peaceful protest?
Madam Deputy Speaker (Dame Eleanor Laing)
Order. The hon. Gentleman indicated to me that he would like to speak in the debate, and that he would like to speak not at the end of the debate. He has just made half of his speech, which puts me in rather a difficult position, and I hope everyone else will remember that. Interventions are good for debate, but they must be short.
Priti Patel
Let me put the hon. Gentleman’s remarks into context. First and foremost, the right to protest is part of the freedom and democracy that we all cherish in our country, and no one should interfere with that right at all. But I suggest to all hon. Members on the Opposition Benches—some of them write to me frequently to complain about the removal of criminals, foreign national offenders and so forth—that the types of protest specific to the Bill are those where a significant amount of disruption has been caused. He speaks about economic policies, the cost of living and costs to taxpayers. The protests around High Speed 2 have led to an estimated cost of £122 million. Policing Extinction Rebellion protests between April and October 2019 cost the public purse £37 million. The “Just Stop Oil” protests—as Essex Members of Parliament, Madam Deputy Speaker, we will appreciate this, along with our constituents—left Essex police alone with costs of £4.6 million. That is resource from the frontline that is used elsewhere. That resource could be used to protect our communities. That is why these measures are so important.
We all passionately believe in causes. The hon. Gentleman and others on both sides of the House speak with passion on a range of causes—we in this House are advocates and representatives of the people—but we do not make policy as a country through mob rule, or disruption in the way in which we have seen. No democracy can do that. No democracy needs to do that. The protesters involved in the examples that I presented have better, alternative routes to make their voices heard, and they know that.
Priti Patel
I give way to my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis) and then I will come back to the other hon. Members.
Jonathan Gullis
The Home Secretary talks about the “Just Stop Oil” protests. Does she share my concern that those protesters seem to think that cooking oil is something we should be stopping in this country?
Priti Patel
I thank my hon. Friend for his intervention. Again, as a country and as a House, we are confronted with challenges around livelihoods, wellbeing and cost of living right now. These protesters are not doing a great deal to support individuals to get to work and to go out and support their families. We must be very conscious about all that.
Several hon. Members rose—
Priti Patel
I will give way to the hon. Member for Weaver Vale (Mike Amesbury) because he stood up first.
Mike Amesbury
I thank the Home Secretary for giving way. In the Trident retail park in my constituency, a young woman has just been beaten senseless. Her jaw has been broken in four places. The Home Secretary spoke about mob rule. A bunch—a minority—of young people believe that they are given free rein. There is a lack of neighbourhood and community policing. Cuts have consequences. Twenty-two thousand police were cut over 12 years and that has serious consequences for people’s lives. What is the Home Secretary going to do about that? That is a real noise in communities.
Priti Patel
The hon. Gentleman highlights an absolutely appalling case of serious violence against his constituent —an appalling level of violence. No, we should not tolerate that at all. But with all respect to him, he represents a party that has voted against the Government’s work on police, crime, sentencing and courts as well as the resources that we put into policing. He asked what we are doing about that. Our unequivocal support and backing of the police is absolutely based on that, along with ensuring that criminal sentencing and prosecutions go up, working with the Ministry of Justice and, alongside that, ensuring that we provide the resources to ensure that perpetrators are brought to justice. With respect, the Labour party has repeatedly voted against that.
Chris Bryant
I prefer the cheery version of the Home Secretary, if I am honest. In my constituency, we have a high level of domestic abuse—it is higher than in any neighbouring constituency—and the local police want to do something about it, working with all the other agencies, but one of the problems is that, because of shift patterns, often, the police officer who starts dealing with a case is not the one available when the victim of the domestic abuse has to get back in touch. How can we restructure the police so that we really tackle the big issues that affect places such as the Rhondda?
Priti Patel
First, let me thank the hon. Gentleman for his intervention. If I may, I am going to offer him the chance to come and have a conversation with me about local policing in his area. There are a couple of points I want to make here first. He asks a useful question about structuring policing. A lot of work is taking place right now on domestic abuse and domestic violence. We want consistency across all police forces on how victims are treated, how to address the whole issue around perpetrators, the support that goes directly to the frontline and raising the bar. He is very welcome to come and have further conversations about that but, in the context of the Bill, if the police were not having to use the amount of resourcing that these protesters are consuming, there would be more policing in the community and more support for his and all our constituents. That is something we would all welcome.
Edward Timpson (Eddisbury) (Con)
Five years ago, in the run-up to the 2017 general election, an organised group of people forced their way on to my property, where my family were living. We had just had a baby and we were forced out for three days under police protection while the group stayed on top of our roof with loudhailers. Unfortunately, the police were not able to move them on because at that time trespass was just a civil matter. Although we have strengthened the law since then, what is in the Bill that could help people who may find themselves in, if not exactly that situation, a similar situation, which is very distressing and harassing for people on their own private property?
Priti Patel
I thank my hon. Friend for his question. He highlights the appalling nature of what we see. That is not peaceful protest at all, but threatening and intimidating. He will know only too well, as someone in public life, the implications of that. He asks directly about the Bill. Serious disruption prevention orders will help hugely with that, which is why the Bill is so significant. Protesters have routes to have their voices heard, and with that better routes and avenues to change policy, and they know that.
A free society does not tolerate interference in our democratic free press, and in the printing or distribution of our newspapers. As we know, we have also seen that in the last few years. Nobody civilised would dream of stopping someone getting to work or children going to school, let alone blocking ambulances. I am afraid we have seen all those examples all too frequently. So we will not be deterred from backing the police and standing up for the law-abiding majority, and that is what this Public Order Bill does.
First, the Bill introduces a new offence for locking on and going equipped to lock on, criminalising the protest tactic of people intentionally causing pandemonium by locking themselves on to busy roads, a building or scaffolding. Locking on can be an extremely dangerous and disruptive tactic. Protesters locking on from great heights place at risk not only themselves but police removal teams. I spent a great deal of time with specialist, highly trained and equipped police removal teams. The tactics they are experiencing are heavily dangerous and, as we touched on, drain a significant amount of police time and resources.
Stewart Hosie (Dundee East) (SNP)
On the offence of locking on, the Bill states:
“It is a defence for a person charged…to prove that they had a reasonable excuse for the act mentioned”.
If their excuse is that they were trying to stop the destruction of a historic building or to protect a site of special scientific interest from destruction, would that be reasonable? Would that be a defence of the purported crime of locking on?
Priti Patel
The right hon. Gentleman naturally raises the type of questions that will also be brought up in the Bill Committee. To use a recent example, which he may be familiar with, during the High Speed 2 work, specific sites and all sorts of significant places were targeted under the guise of environmental concerns. The Bill has to, and should, take such considerations into account in terms of police commitments, the level of violence and the serious disruption that some of these tactics also bring.
Secondly, we are strengthening the security of our transport networks, oil terminals and printing presses by creating new criminal offences of obstructing major transport works and interfering with key national infrastructure.
Dr Luke Evans (Bosworth) (Con)
On the offence of locking on, we have seen people gluing themselves to various roads and gates and such things. Would that be covered under the Bill?
Priti Patel
Yes, and my hon. Friend highlights just some of the tactics that are used. I have seen the sheer manpower and excessive resource used by our specialist policing teams to literally de-glue protesters. It takes hours and hours and comes with a significant cost and use of resources. That is just one example, along with the example of locking on.
We cannot be passive when individuals target our infrastructure and major infrastructure works and projects. I mentioned HS2; HS2 Ltd estimates that ongoing protester action has already cost it more than £122 million. The recent action by Just Stop Oil against oil terminals and fuel stations, including forecourts, have shown further that the police need additional powers to deal with and combat that.
Thirdly, we are providing the police with the power to stop and search people for equipment used for certain public order offences, so that they can prevent the disruption from happening in the first place. I am sure the House will be interested to hear that during the last year—in fact, in just over a year—the police have found the equivalent of training camps, where these tactics and groups come together and where they hoard and harvest equipment. The police now have the powers to disrupt that type of activity in the first place.
The police have indicated that these powers will help them practically to prevent the disruption that offences such as locking on can cause, while the suspicion-less stop-and-search powers will help the police to respond quickly in a fast-paced protest.
Janet Daby (Lewisham East) (Lab)
I am really concerned that the Bill will allow police officers to stop and search protesters without suspicion. Does the Secretary of State really think that it is fair and right that innocent people should be—or are allowed to be—stopped and searched when there is no suspicion? Does she also think that that is the best use of police time and resources?
Priti Patel
To put this into context, I remind the House that Her Majesty’s inspectorate of constabulary and fire and rescue services has argued that stop-and-search powers would be an effective tool for the police in this case. Stop and search is a critical tool in policing and, as I highlighted, is absolutely crucial when it comes to saving lives and preventing the loss of life.
Dr Julian Lewis (New Forest East) (Con)
I am a little concerned about the point raised by the right hon. Member for Dundee East (Stewart Hosie), because many, if not most, of these protesters feel that their cause is the most important thing in the world—in fact, some of them think that they are saving the world. If, therefore, they can give excuses of that sort by way of a reasonable explanation of what they are doing, is not the legislation leaving a loophole? In particular, I have in mind some previous cases where anti-nuclear protesters broke into military bases and damaged military equipment, and certain courts felt that they should be acquitted because their motives were to try to prevent nuclear war, even if, in fact, it has the opposite effect.
Priti Patel
Outcomes will be for the court to decide, but it is worth noting the numbers of arrests at recent protests: more than 4,000 with Extinction Rebellion, more than 1,000 with Insulate Britain and more than 800 with Just Stop Oil. I have already touched on the cost of policing, but there is also an associated level of criminality and criminal damage, which is why those cases have gone further.
The fourth measure that we are introducing is a new preventive court order. The serious disruption prevention order will target protesters who are determined to inflict disruption repeatedly on the public and cause serious criminal damage, which is one of the most recent disruptive features that we have been seeing. I have to say that there have also been threats to public safety, particularly at oil protests. I have recently visited some of the sites and been in touch with companies whose sites have been targeted. The threats to life and threats to local areas from the tactics being used are very serious.
For a serious disruption prevention order, an individual will have to have been convicted of two or more protest-related offences or instances of behaviour at protests that caused, or could have caused, serious disruption. Courts will have the discretion to impose any requirements and prohibitions that they deem necessary to prevent individuals from inflicting further serious disruption at protests.
Andy McDonald (Middlesbrough) (Lab)
Is the Home Secretary aware that there is a direct comparison between the Russian law on assemblies that has been passed by Putin, and the measures that she is proposing? [Interruption.] Conservative Members can chunter, but these measures go further than Vladimir Putin’s laws on assembly. Is the Home Secretary not slightly embarrassed and uncomfortable about that comparison?
Priti Patel
With respect to the hon. Gentleman, equating the actions of the Russian state to suppress the views of brave Russian citizens who speak out to oppose Putin’s brutal war with our proportionate updating of the long-established legal framework for policing protests is just wrong and misguided. Let me be very clear: these measures are not about clamping down on free speech, but about protecting the public from serious disruption of their daily lives by harmful protests.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
My constituents are horrified by disruption that prevents people from getting to hospital or work and children from getting to school, but they are also concerned about the huge economic impact. Can the Home Secretary tell us how much these policing operations have cost? My constituents and I believe that the money could be much better spent on proper policing, rather than on having to police protesters causing disruption.
Priti Patel
My hon. Friend is absolutely right; her constituents are right to be outraged and concerned, and she is voicing their concerns as their representative in the House. In 2019 alone, the cost to the public purse of the Extinction Rebellion protests was £37 million. The cost of the HS2 protests is estimated at £122 million. In my county of Essex, where I have spent a great deal of time with the amazing teams, the cost has been more than £4.6 million. When I visited the Navigator site, I met police officers from Scotland, Wales, Devon and Cornwall, such is the extent of the resources that have to be brought in to police these protests.
Richard Fuller (North East Bedfordshire) (Con)
I may be the sole dissenting voice on the Government Benches about some of these provisions. When my right hon. Friend talks about specific examples, particularly those relating to infrastructure, the population can get strongly behind her points. However, several clauses of the Bill are drawn very broadly and there is legitimate concern about how they will be applied. What reassurance can she give me that she seeks a tightly scripted Bill, rather than a general threat to our individual freedoms?
Priti Patel
I thank my hon. Friend for his question and comments; he is absolutely right. That is the purpose of scrutiny of the Bill. We know from the past two years of protest activity that the police are seeking clarification about certain requests and powers. We are looking at how the courts can work much better to take action, and how to ensure that policing resources are not being cannibalised or used in this way. That is why I think we are right to focus on the core aspects of disruption and the key tenets that need to be addressed, and the Policing Minister has been working on that in particular.
Finally, we are lowering the rank of officer to whom the commissioners of the City of London and Metropolitan Police Forces can delegate powers to prohibit or set conditions on protests. The rank is being lowered from assistant commissioner to commander. That is very significant in London, because of the extent of the activity that we have seen there. It will bring London forces into line with forces across England, Wales and Scotland, whose chief officers can already delegate their powers to the commander-equivalent rank of assistant chief constable.
It is not only criminals who have rights. The public need Parliament to put the law-abiding majority first, and that means backing the Bill, which will enable that law-abiding majority to go about their day-to-day business and live their lives freely.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
I beg to move,
That this House declines to give a Second Reading to the Public Order Bill because, notwithstanding the importance of safeguarding vital national infrastructure alongside the right to protest peacefully, the Bill does not include provisions for cooperation between police, public and private authorities to prevent serious disruption to essential services, includes instead measures that replicate existing powers, includes powers that are too widely drawn and which erode historic freedoms of peaceful protest, ignores the need for effective use of existing powers and does not recognise emergency NHS services as vital national infrastructure.
The Minister for Crime and Policing (Kit Malthouse)
Will the right hon. Lady give way?
Yvette Cooper
Do you know what, Madam Deputy Speaker? I actually will. I was deeply disappointed that once again the Home Secretary, sadly, would not take an intervention from me. It was deeply disappointing to note how frit she seemed to be of any of the questions that I tried to raise, which, once again, would have been extremely factual. I will give therefore way to the hon. Gentleman, if he can explain why crime has gone up and prosecutions have gone down since he became Policing Minister.
Kit Malthouse
When Labour Front Benchers called for “an immediate nationwide ban” on Just Stop Oil, did they have the support of their own Back Benchers? If not, is that why the right hon. Lady has performed the most enormous reverse ferret in the amendment that she has put before the House?
Yvette Cooper
I think that there is a strong case for using injunctions to deal with the kind of disruption that we saw from Just Stop Oil, but that is not dealt with at all in the Bill, which is part of the problem with it. It does not address a great many of the problems about which the Home Secretary is supposedly concerned; instead, it will cause alternative huge and serious problems. Most significantly, it fails to deal with some of the very serious issues about which the Home Secretary should be most concerned at this moment.
This is the first of the Government’s Queen’s Speech Bills of the Session. This is the Bill to which they have chosen to give pride of place, and what does it contain? There is no action to deal with the cost of living, although inflation is hitting its highest level for decades and millions of people are going without food to get by; nor is there any action to deal with the crisis facing victims of crime. There is no victims Bill, even though 1.3 million victims of crime who have lost confidence in the criminal justice system dropped out last year, and even though crime is rising and prosecutions are falling.
Instead, what we have are rehashed measures from last year’s Bill. We have a second round of measures on public order, even though the Government had plenty of time to work out what they wanted to do in last year’s Bill; even though the Home Secretary claimed that that Bill would solve all these problems—she said then that it would
“tackle dangerous and disruptive protests”;
even though the Government have not even implemented the measures from last year’s Bill, or assessed them to see what impact they are having before coming back for more, as any sensible Government would do; even though, for seven years running, the Home Secretary and her party have been promising a victims Bill; and even though, over those seven years, support for victims has become staggeringly worse. The number of victims dropping out because they have lost confidence has doubled since that victims Bill was first promised. That is more victims being let down and more criminals being let off.
Dr Caroline Johnson
The right hon. Lady has made an assertion that the Bill does nothing to help victims or to reduce crime, but does she accept that the prevention of disruptive protests will save a lot of money in the policing budget that can be redirected into preventing crime and helping victims?
Yvette Cooper
No, I do not. I will come on to that point later, because both HMRC and, astonishingly, the Home Office itself have said that those kinds of disruption orders are in fact unworkable.
Wera Hobhouse (Bath) (LD)
In addition to what the right hon. Lady has just said, does she agree that the terrible statistics on rape convictions are exactly the reason that rape victims do not come forward, and that the Government should have done a lot more on this?
Yvette Cooper
The rape prosecution rate is one of the most shocking figures of all. For only 1.3% of reported rapes to be going to prosecution is totally shameful. The Government had the opportunity to do something about this. Right now in this House, we could have been debating proposals to provide more support for rape victims and to bring in stronger measures to ensure that police forces took action and had specialist rape investigation units in every force, not just in some, yet the Government have chosen not to do that.
Janet Daby
My right hon. Friend is making a powerful speech. Does she agree that protests are noisy, and that in this Chamber we are also noisy when we are protesting or disagreeing during a debate? When the Prime Minister enters the Chamber, Government Members cheer as though they were at a football match—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. This should be an intervention, not a speech. The hon. Lady should not be reading an intervention. Interventions should be so short that Members do not have to read them. If she has something brief that she wants to say to the shadow Home Secretary, she may do so.
Janet Daby
Thank you, Madam Deputy Speaker. Does my right hon. Friend agree that the Government need to recognise that noise has a way of releasing tension so that people can get their point across and be heard and recognised?
Yvette Cooper
My hon. Friend is certainly right to suggest that it is an unwise Government who try to silence those who disagree with them; it is also an undemocratic Government who seek to do so.
Yvette Cooper
I will in due course.
The Home Secretary said to us this afternoon:
“From day one, this Government have put the safety and the interests of the law-abiding majority first.”
She claimed that she was prosecuting more criminals, but the opposite is the case. Since she came to office in 2019, crime has gone up by 18% and prosecutions have gone down by 18%, so I have to ask her what planet she is living on. Just because she says things stridently, that does not make them true. When she wonders about being on the side of criminals, maybe she should remember that it is a Conservative Government, and a Conservative Home Secretary, who are literally letting more criminals off—literally. There are hundreds of thousands’ fewer prosecutions every single year than there were under the Labour Government. Prosecutions, cautions and community penalties are going down, even now when crime is going up, and that genuinely means that rapists, abusers, serious offenders, thieves and thugs are all less likely to be prosecuted than they were seven years ago. There is just a one in 20 chance of someone being prosecuted on this Home Secretary’s watch.
The Home Secretary said too that she would not “stand by” while antisocial behaviour caused misery for others, but she is. There are 7,000 fewer neighbourhood police than there were six years ago, and the police are failing to send officers to more than half of all reported antisocial behaviour offences. People and communities across the country are expressing serious concerns about antisocial behaviour being ignored time and again by this Home Secretary.
Yvette Cooper
I will give way first to the right hon. Member for New Forest East (Dr Lewis), and then to the hon. Gentleman in due course.
Dr Julian Lewis
I cannot see what these general points about the record of individual Ministers have to do with the substance of the Bill. What does have to do with the substance of the Bill is the difference between the right to protest peacefully within the rules and the right to insist on repeatedly bellowing a message—on and on and on—irrespective of the fact that other people have heard it and now want to exercise their right to go about their normal life. If I had insisted on intervening on the right hon. Lady when she was not allowing me to do so, that would be the parallel with the sort of abuse these measures are designed to stamp out. I obey the rules, and so should protesters.
Yvette Cooper
I do not think this is about bellowing; I think this is about serious offences and the committing of crimes.
Jonathan Gullis
I have been listening to the right hon. Lady, but I would appreciate some clarity. Does she condemn the behaviour and actions of Insulate Britain, Extinction Rebellion and Just Stop Oil?
Yvette Cooper
I was going to come on to exactly that, because Insulate Britain’s motorway protests were hugely irresponsible and, frankly, dangerous. They put lives at risk, which is why the Department for Transport was absolutely right to put an injunction in place and why the police were right to take prosecution action. Nobody has a right to put other people’s lives at risk with dangerous protests.
What is the Home Secretary offering today? She offers a Bill that targets peaceful protesters and passers-by but fails to safeguard key infrastructure and does nothing to tackle violence against women, nothing to support victims of crime and nothing to increase prosecution rates or to cut crime. This Bill fails on all counts. It will not make our national infrastructure more resilient, and it will not make it easier to prevent serious disruption by a minority of protesters. Instead, it will target peaceful protesters and passers-by who are not disrupting anything or anyone at all.
There should be shared principles throughout the House on this issue. All of us, whatever our party and whatever our political views, should believe that, in a democracy, people need the freedom to speak out against authority and to make their views heard. Yes, that includes bellowing if they feel so strongly about an issue.
We have historic freedoms and rights to speak out, to gather and to protest against the things that Governments or organisations, public or private, do that we disagree with. That goes for protesters with whom we strongly disagree as well as for protesters whose views and values we support, because that is what democracy is all about. But we should also share the view that no one has the right, no matter what they may think they are protesting about, to threaten, to harass or to intimidate others. No one has the right to protest in ways that are dangerous or risk the safety or the lives of others. Nor should they be able to cause serious disruption to essential services and vital infrastructure on which all of us in society depend.
That is why Labour has long defended the rights to speak out, to protest, to be heard and to argue for change, and it is why we called for greater protection for women and staff from intimidatory protests outside abortion clinics. It is why we called for greater protection from harassment and threats outside schools and vaccine clinics after the threatening antivax protests. It is why we made common-sense proposals to give local authorities the powers to act which the Government initially voted against. It is why we condemned the highly irresponsible protests on motorways because, whatever we think about the cause pursued by Insulate Britain or any other organisation, no one should put lives at risk like that, which is why we supported stronger sentences for those wilfully obstructing major roads. It is also why we criticised those involved in Just Stop Oil for causing serious damage and trying to disrupt supplies to petrol stations, which could have stopped people getting to work or pushed up prices in the middle of a cost of living crisis. Those protests were not just against the law, but counterproductive; at a time when they should have been trying to persuade people, they alienated people instead. That is why we called for national action to ensure that speedy injunctions were in place to prevent serious disruption.
Several hon. Members rose—
Yvette Cooper
I will first give way to the hon. Member for North East Bedfordshire (Richard Fuller), next to my right hon. Friend the Member for Hayes and Harlington (John McDonnell) and then come back to the right hon. Member for New Forest East.
Richard Fuller
I was following the right hon. Lady’s argument until this last piece, where she outlined a series of cases—political issues—that the Labour party is against. I am just wondering why and how she differentiates that from the proposals in the Bill, which seem to provide the basis for her to make those moves directly.
Yvette Cooper
That is exactly the point that I am about to make, because the Bill does not address any of those points. All those cases are areas where there are existing offences, but there are and have been problems with enforcement. The Bill does not tackle that issue or solve the problem. Instead, in a whole series of areas, it makes the problem worse.
John McDonnell (Hayes and Harlington) (Lab)
My right hon. Friend will correct me if I am wrong, but if I have got it right, this Bill will criminalise those who are protesting against major transport infrastructure projects, so I want to stand up for the right of one of my colleagues —in fact, my neighbouring MP: the right hon. Member for Uxbridge and South Ruislip (Boris Johnson)—who has committed himself to lying down in front of the bulldozer if there is an expansion of Heathrow airport and a third runway. I would not want to see him locked up—well, not for this anyway.
Yvette Cooper
My right hon. Friend makes an important point: people across the country want to be able to protest against big new projects that are planned for their area, such as major transport projects, or plans to turn a woodland into a car park or to close a library. That is why it is important to ensure that we have our historic freedoms to protest and people’s voices can be heard, and that we have the right to be protected from intimidation and harassment and we fulfil our responsibilities to keep essential services running. There should be a shared understanding across the House that there are rights to be balanced and important principles that should be respected on both sides of the House—for example, the principle that respects the historic freedom to protest, but also ensures that our essential services keep running.
Dr Julian Lewis
I thank the right hon. Lady for giving me a second bite of the cherry. I fear I have to confess that I am possibly the only Member here today who was actually arrested once—for taking part in a counter-demonstration 40 years ago, when we played the national anthem in public against a group of protesters against the Falklands taskforce, which was embarking to the south Atlantic.
The point that I am trying to get over to the right hon. Lady with the use of the words “bellowing” or indeed “incessant bellowing” is this: when the huge pro-nuclear and anti-nuclear demonstrations took place, everybody stopped and allowed each other to have their protest; and then the protest was over, and that was that. The idea that the same people could go on protesting day after day after day without being interfered with by the police, either for obstruction or causing a public nuisance, is ridiculous. What will she do to defend the right of other people to go about their normal lives once the protest has been made but the protesters will not stop?
Yvette Cooper
There are two different issues: there are issues in respect of the kinds of protests that might cause serious disruption to the vital public infrastructure that we all depend on, but there may also be protests that, to be honest, might be a bit annoying but do not actually disrupt anybody at all. In a democracy, we should recognise that even though the right hon. Gentleman and I may think that the world should move on, if people have strong views, they should be able to express them.
There should be a shared understanding across the House—
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
Will the right hon. Lady give way before she moves on?
Yvette Cooper
I will give way once, but I really want to get to the detail of the issues in the Bill.
Angus Brendan MacNeil
Is there perhaps a case for introducing a retrospective clause, given the confession we just heard from the right hon. Member for New Forest East (Dr Lewis)?
Yvette Cooper
A retrospective clause might affect not only the right hon. Gentleman but the Prime Minister —not that the Prime Minister has much of a record of taking seriously offences that he has committed or their consequences.
The problem with the Bill is that not only does it not respect the principles in respect of defending historic freedoms to protest, but nor does it contain sensible measures to safeguard national infrastructure. The Bill does not recognise the powers that the police and courts already have and the need to ensure that they can be used effectively; nor does it address some of the key changes currently faced by the police and authorities. The Bill does not include an effective strategy to avoid disruption to essential services, and there is clear evidence that some of its measures just will not work. At the same time, the Bill does not safeguard historic freedoms to protest—quite the opposite: it undermines those freedoms and targets peaceful protesters and passers-by instead.
Let me look at the proposals in more detail. The police and courts already have a range of powers that they can use in the minority of cases that involve serious disruption or criminal activity. They include powers in respect of wilful obstruction of a highway; criminal damage; aggrieved trespass; public nuisance; breach of the peace; breach of conditions on processions and static protests; harassment; threatening, abusive and disorderly behaviour; trespassory assemblies; preventing others going about their lawful business; and injunctions.
If someone blocks the road outside an oil refinery, they are already covered by the offence of wilful obstruction of a highway. If someone vandalises tankers, they are already committing criminal damage, which is an offence. Indeed, that is why more than 100 people have so far been charged by Kent police and Essex police as a result of Insulate Britain offences, and why the independent report on protests by Her Majesty’s inspectorate of constabulary and fire and rescue services recognised that there were different views, even among police officers, about whether more powers were needed.
I have heard from police officers—including the chief constables and former chief constables of forces that have dealt with protests over many years—both about problems that the Bill does not deal with at all and about their concerns about the Bill’s extension of the powers that they already have, which they say are sufficient. One officer told the inspectorate that
“the powers are sufficient; it is the ability to implement them that is the challenge due to lack of resources”.
There are challenges for the police if they deal with people who are determined to break the law repeatedly and are not deterred by the fact there are offences, but police also referred to concerns that sometimes even when offences had been committed there was no enforcement by the Crown Prosecution Service or the courts because of
“substantial backlogs in court”
and
“so much time passing since the alleged offence that the CPS deemed prosecution to be no longer in the public interest”.
The Bill addresses none of those issues. The inspectorate also raised concerns about lack of training, guidance and co-ordination among forces and authorities—issues that we raised in Parliament when we discussed this issue last year but that the Government dismissed.
We have heard from officers who have said that the most effective measures that they use in the face of potentially serious disruption and problems are injunctions, but the problem is the delays involved in public and private authorities getting injunctions in place. The advantage of injunctions is that they can be targeted at the problem. They often come with much swifter enforcement processes than individual offences, with the courts taking them seriously and escalating penalties. Not only can they act as a deterrent but, crucially, they include judicial oversight, which ensures that powers are not misused. Yet we have heard from police officers frustrated by the slow response from private and public authorities that have the ability to seek such injunctions, but instead leave the responsibility to tackle disruption to the police rather than taking greater responsibility themselves. Police chiefs, too, have been frustrated by the fragmented institutional response; there are so many different private contractors and organisations involved that no one takes responsibility.
If the Government were serious about the resilience of our vital infrastructure, they would have much more effective partnerships in place to make sure that companies act and co-operate, and that everyone understood their shared responsibilities. They would make sure that they understood the right to peaceful protest and the responsibility to safeguard essential infrastructure, and could get injunctions in place fast. They would be working to get the capacity, training and guidance in place that the police and the authorities need.
Instead of all of that—instead of those common-sense approaches—the Government have chosen to widen hugely powers on stop and search and on banning orders, which will affect both peaceful protesters and passers-by. Stop and search powers are hugely important as a way of preventing crime, but they can also be very intrusive and humiliating powers, which, if used in the wrong way, can be counterproductive and undermine legitimacy and trust in policing. Rightly, they are designed to be used to prevent the most serious crime—knife crime and drug dealing—and the police themselves have recognised serious concerns about disproportionality and about those who are black being much more likely to be stopped and searched than those who are white. Those powers should be used sensibly and not as a political football.
The police already have the power to stop and search someone who they believe has equipment that could be used for criminal damage, but the Government want to widen that to cover anything linked to a public order offence, including public nuisance and serious annoyance. We should ask the Government what that includes. They believe that noisy protests are a public nuisance, but does that include stopping and searching for a boombox or even for a tambourine? We concede that tambourines can be annoying, but could that be covered by the stop and search powers? That would allow the police to stop and search people not because they suspect them of being involved in a protest but simply because they are passing by an area where a protest is likely to be held.
What would that mean? Let us imagine that police expect an angry protest in a town centre by local residents who are furious that their local library is about to close. Those local residents’ singing and shouting would undoubtedly be a serious annoyance to those who are studying or using the library and reading quietly. Under the Government’s new rules, they could easily be covered by public order offences. In response, a local police inspector could designate the town centre a section 60 area and stop and search not only peaceful protesters but passers-by.
Let us think, too, about what that means for Parliament Square, where there are protests all the time and sometimes, people go too far and commit public order offences and the police rightly have to step in. But the offences that can be used to justify a section 60 stop and search order in this Bill are really broad and now include noisy protests that cause public nuisance and serious annoyance. I have an office that overlooks Parliament Square and I can say that there is definitely noise, loud music and serious annoyance every Wednesday before and after Prime Minister’s questions. With gritted teeth, I defend their right to be seriously annoying but the Government do not, so, again, under this Bill, a police inspector could designate Parliament Square every Wednesday and stop and search MPs, our staff and civil servants on their way to work, and also tourists and passers-by. Does the Home Secretary really think that we should all be stopped and searched every time the Prime Minister comes to Parliament? It sounds totally ludicrous, but that is what this Bill does.
The Government also want to be able to apply serious disruption prevention orders to people who have never been convicted of a crime. They want to be able to restrict where someone goes, who they meet and how they use the internet, even if they contributed only in some broad way to people causing disruption to two or more people. Again, the Government are extending powers that we would normally make available just for serious violence and terrorism to peaceful protest. Police officers themselves have said that this is,
“a severe restriction on a person’s rights to protest and in reality, is unworkable”.
[Interruption.] The Minister for Crime and Policing says that they have not, but that is what it says in the inspectorate’s report.
The inspectorate also said, that it agreed with the view shared by many senior police officers. It said that
“however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk”.
The inspectorate’s report also said:
“This proposal essentially takes away a person’s right to protest and…we believe it unlikely the measure would work as hoped.”
The Policing Minister is right: that is the view not of a police officer, but of the Home Office, which was submitted to the inspectorate.
There is an alternative approach for the Government: to work sensibly with the police, local authorities and those who run public and private infrastructure; to support the right to peaceful protest; to work together to safeguard essential infrastructure; to review the measures that they have just introduced before coming back for more; to work on training, guidance and resources that public order teams need; to work on streamlined plans for injunctions that could protect the smooth running of essential infrastructure if needed; to work in partnership with essential services such as the NHS and not just with oil and gas supplies; to accept that protests that this Government find seriously annoying are a vital part of our democracy; and, ultimately, to drop this Bill.
The Government should use this time to bring in a victims’ Bill that could increase the rape prosecution rate; that could provide more support for victims of crime; and that could take more action to get dangerous criminals behind bars or more community penalties to prevent repeat offending by first-time offenders. Instead of wasting time stopping and searching people outside a library protest, they should do something to tackle the serious antisocial behaviour and rising crime across the country; do the job of a Home Secretary instead of grandstanding and making headlines; and do the proper, practical work of keeping our communities safe.
Madam Deputy Speaker (Dame Eleanor Laing)
I hope that we will manage this afternoon’s debate without a formal time limit, but that will depend on everyone taking less than eight minutes. I am sure that that can be achieved. It will be a much better flowing debate if we do not have a time limit, so I trust Members not to abuse the privilege of having the Floor.
Nickie Aiken (Cities of London and Westminster) (Con)
As is seen week after week, my constituency of the Cities of London and Westminster tends to be the epicentre of political protest in this country. That is hardly surprising, as it is home to the Government, to Parliament and to the UK’s financial heart in the City of London.
I am sure that many hon. and right hon. Members can imagine that the effective management of protests, particularly the most disruptive, is of interest to my constituents. They have first-hand experience of having to negotiate their daily lives with the rights of others to protest.
In the hundreds of letters and emails that I have received from constituents highlighting the disruption that they have suffered during the days and weeks of organised protests, not one has called for the right to protest to be curbed. When it comes to public order, it is especially important to ask ourselves why the measures outlined in this Bill are proper and necessary. What has been made clear to me by both the Metropolitan police and the City of London police is that existing legislation has not kept pace with the evolving tactics of modern-day protesters.
Specifically, the lack of a lock-on offence makes it almost impossible for the police to balance lawful protest and basic civil rights. Provisions in this Bill will change that. Clauses 1 and 2 will allow police pre-emptively to stop highly disruptive, and in some cases dangerous, lock-ons. Clause 1 is of particular importance, as it will make locking on an offence where such an act,
“causes, or is capable of causing, serious disruption”.
That is absolutely right. We have seen individuals glue themselves to vehicles or use lock-on devices on the public highway.
Last August, those tactics were used on Tower Bridge by protestors who brought parts of Central London to a standstill for hours. Protestors have encased their arms in tubes filled with concrete and locked themselves to makeshift structures at huge heights. We have even seen reports of protesters inserting nails and blades into those pipes in an effort to make removing them more difficult and dangerous for our police officers.
We cannot overlook the very real concerns of thousands of ordinary people who are disrupted by demonstrations that go well beyond what is necessary. I utterly disagree with the suggestion that just because we agree with a cause, the disruptive activity is right. It is not. Protest tactics using lock-on devices are not just inconvenient for many, but can have real-life consequences—emergency vehicles unable to attend 999 calls, missed hospital appointments or someone unable to get to a dying loved one to say goodbye.
It also frustrates me and many of my constituents that police officers involved in policing those protests are taken away from policing their neighbourhoods and concentrating on their local policing priorities. It is not just Westminster and City of London police officers being taken away from their daily duties. During a number of major days-long protests, I have seen officers from the home counties and Bedfordshire policing central London. I have even come across police vans in Covent Garden with the word “Heddlu” on them, which is Welsh for police.
Removing lock-on devices safely requires specialist policing teams to be deployed in what can be high-risk environments, which takes time and significant resources. Just one protest group, Extinction Rebellion, had a total of 54 days of protest between 2019 and 2021, costing some £1.2 million a day. I therefore welcome clause 2, which would allow officers to act on reasonable suspicion that satisfies visual and intelligence-based qualifications to prevent the use of highly dangerous lock-ons.
Since the publication of the Bill, I have listened to the argument that the offence is not necessary, and that the offences of wilful obstruction of the highway and aggravated trespass cover these actions. To an extent, that is true. However, they are only applicable after assembly of the structure, by which point we will have seen a chain of events that will ultimately lead to serious impositions on the surrounding area, businesses and local people.
The sticking point in the Lords on the Police, Crime, Sentencing and Courts Act 2022 was provisions specifically relating to noise or limiting freedom of expression. I recognise that, and I accept that, for this kind of legislation, we need to reach an agreement that satisfies both this and the other place. However, I stress that clauses 1 and 2 of this Bill are absolutely necessary to rebalance lawful protest and civil rights. After all, in non-violent protests, the duty of the police is to take a balanced and impartial approach towards all those involved in or affected by the protest—an approach that is consistent with both human rights law and domestic legislation. We must ensure that both lawful protest and everyday life can continue without the basic rights being infringed in respect of either. I believe that the Public Order Bill does exactly that.
Madam Deputy Speaker (Dame Eleanor Laing)
I call SNP spokesman Anne McLaughlin.
Anne McLaughlin (Glasgow North East) (SNP)
“A little inconvenience is more acceptable than a police state”—not my words, but those of a police officer consulted by Her Majesty’s inspectorate of constabulary and fire and rescue services on proposals in the Bill. I agree with the sentiment.
People are fleeing war in Ukraine and multiple other countries. The Home Secretary could be focused on sorting out the dangerously long time it is taking to get them to safety. She could be putting her energy into fixing the chaos at the Passport Office. She could be using her power to solve the supply chain issues that are pushing up food prices, which have made things unaffordable for many on these islands. Instead, she is bringing back populist—according to YouGov and Daily Express polls, at least—draconian, anti-human rights policies that were rejected only a matter of weeks ago in the other place. The reason for that is anyone’s guess. Is it to distract from the aforementioned failings of her Department? To raise her profile for when the Prime Minister surely, inevitably, has to stand down? Or just because she can?
Make no mistake: this, to quote Liberty, is
“a staggering escalation of the Government’s clampdown on dissent”.
It is at odds with people’s right to freedom of thought, belief and religion; freedom of expression; and freedom of assembly and association. For some, it will also lead to a clampdown on their right to respect for private and family life. Those are all rights we enjoy through the Human Rights Act 1998, but I do not expect this Government or many of their Back Benchers to care, because they want to tear that Act up and define the rights that they think we should enjoy.
However, I think that the people out there, who after all elected us, have the right to know that this Government want to control what they think, believe and say. This Bill allows the state to stop and search people who are not suspected of a single wrongdoing. It could lead to someone who has committed no crime having to report to certain places at certain times. I would be interested to hear who they will report to in Scotland, and what consultation has taken place with the Scottish Government on that. The Bill could mean people out there, again having committed no offence, having to wear an electronic tag, and having every single move they make monitored 24/7. That is sinister. The Home Secretary did not like it when the Opposition said this, but it bears striking similarities to what happens in Russia and Belarus. It is all about oppressing and controlling people. It is the stuff of conspiracy theories no more; this is the menacing new reality if you do not agree with the Conservative Government.
Big Brother Watch is concerned that the Bill takes us one step closer to becoming a surveillance state. That may be ideologically in line with this Government’s desire to control the people, but is it necessary? Will it work?
Anne McLaughlin
No, I am not giving way. There is widespread acceptance that the answer to both of those questions is no. Again,
“a little inconvenience is more acceptable than a police state”.
It is not just the one police officer who felt that way. Her Majesty’s inspectorate consulted widely on these powers as early as 2020 and they were rejected across the board, not just because they were incompatible with human rights legislation, but because police concluded that they would not be an effective deterrent. So what is the point?
Existing legislation is already heavily weighted in favour of the authorities, and the 2022 Act has made that even more the case. The former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), said in 2018 that,
“it is a long-standing tradition that people are free to gather together and to demonstrate their views. This is something to be rightly proud of.”
He was right: it was something to be rightly proud of. Where a crime is committed, the police already have the powers to act so that people feel protected. Where there is a clear need to protect critical infrastructure or transport hubs, the UK already has an array of legislation that allows that to happen, as the former Home Secretary said. The Public Order Act 1986 gives the police powers to place restrictions on protests and, in some cases, prohibit those that threaten to cause serious disruption to public order. There is an array of criminal offences that could apply to protesters, including aggravated trespass or obstruction of a highway.
Despite that, the Government waited until the Police, Crime, Sentencing and Courts Bill had completed its passage through this House to slip much of what we have before us today into that Bill at the last minute, when it was in the House of Lords—and the Lords roundly rejected it. Instead of accepting the defeat, one week later, the Government regurgitated most of the measures into the Bill before us today. The Home Secretary should accept that these draconian measures have already been rejected by Parliament and respect the democratic process. After all, this Government keep telling Scotland to do likewise, although the issue we intend to revisit—the matter of Scotland’s independence—was last put before the people eight years ago, not just last month.
Alberto Costa (South Leicestershire) (Con)
We must remember that at the time of the Scottish referendum, the SNP leadership promised that it was a once-in-a-generation referendum. The passage of eight years can hardly be regarded as that, can it?
Anne McLaughlin
What we have here is a once-in-a-fortnight opportunity to bring back legislation that has been rejected in this place. The Government expect us to accept the result of the referendum eight years ago, despite having tested the alternative and despite a series of promises being broken subsequent to Scotland voting no. Why is it acceptable for them to repackage measures a week after they were rejected, even though there has been no time to assess the Police, Crime, Sentencing and Courts Act 2022 for effectiveness, human rights compatibility, or the police’s ability to manage those extensive new powers?
On the matter of Scotland, yes, the Bill and its powers apply to events taking place in here in England and in Wales, but as I said repeatedly throughout proceedings on the Police, Crime, Sentencing and Courts Bill, I and every SNP Member will defend the right of the people of Scotland to peacefully protest against decisions made on our behalf by another Government, in another country, who were not elected by the people of Scotland. Crucially, we will defend the right of the people of Scotland to protest where that Government sit—right here, at the seat of power. The people of Scotland have come to London many times in their thousands to protest against the illegal invasion of Iraq, the billions squandered on nuclear weapons stationed without our permission on the west coast of Scotland, and the daylight robbery foisted on the women who, when they reached state pension age, discovered that the age had gone up and they would not be receiving their state pension after all. We can stand in the middle of Glasgow or outside the Scottish Parliament all we like—and we do—but the Scottish Parliament cannot change any of those things, no matter whether they want to or not.
I will defend the right of my constituents to stand outside this place and make their voices heard, and I will defend their right to not be subjected to the outrageous measures proposed here today—measures such as the serious disruption prevention orders, which can be imposed on people whether or not they have committed an offence. It is these orders that allow for reporting and for GPS monitoring. Remember, an individual does not have to have committed an offence to be subject to one of these orders, and anyone who fails to fulfil one of the obligations can be criminalised and subjected to imprisonment for up to 51 weeks. Similar legislation in Belarus allows sentences of up three years, so no doubt the Government will tell us to think ourselves lucky.
There are also the locking-on measures. My constituent Christine lives in Springburn, and she is a campaigner in the Women Against State Pension Inequality Campaign. She never wanted to be any kind of campaigner, but her state pension was taken from her and she felt compelled to act. If she and other WASPI women come to London to protest, or even just to visit London, and she has glue in her bag because she is a crafter but does not use it, can she be charged? Could she go to jail for 51 weeks? Can the Home Secretary guarantee that she would not? No, she cannot. And how would the glue be found in the first place? It would be found because the Bill also has measures such as suspicionless stop and search. Christine, in her mid-60s and a model citizen, could be stopped and searched regardless of suspicion, just because of where she is and where they think she might go and what she might do—but Christine is not the target, is she?
We already know that stop and search has a disproportionate impact on people who are black; they are seven times more likely to be stopped and searched. But when it comes to suspicionless stop and search, they are 14 times more likely to be stopped and searched. Is it a coincidence that all this legislation to stop people protesting came on the back of an uprising of movements like the Black Lives Matter movement? The important thing about Black Lives Matter is that it was not led by well-meaning white allies like me; it was and is led by campaigners who are black—those whose lives are devastated by those who do not believe that their lives matter as much as the lives of white people.
My partner was the founder of Black Lives Matter Scotland. I have been taken aback by the number of people who, over the past couple of years, have approached him and told him that they never spoke of what they experienced as a black person on these islands until Black Lives Matter. Some of them living in remote areas said that, at times, they thought they might be the only black person in Scotland, but suddenly they found a community who got it, and it transformed their lives and the way they thought about themselves. That is why it is so important to encourage movements like that, but that, along with the nerve of environmental campaigners—trying to save the planet, for goodness’ sake; how dare they—is likely one of the reasons why they annoy this Government so much. If not, what is the excuse for suspicionless stop and search, which the Government know will disproportionately impact black people?
Other than the morality or immorality of this Bill, as with other Bills I have worked on, I am concerned that the terms used are not sufficiently precise. It is all left to be defined by the Secretary of State, which is worrying, given the length of debate on “serious disruption” in the Police, Crime and Sentencing Bill. There is so much uncertainty about where the threshold for serious disruption lies—legal uncertainty being the opposite of what we should be striving for if we are to respect the rule of law.
The Bill is also excessively broad and the pre-emptive nature of it is disturbing. Have you ever watched a film called “Minority Report”, Madam Deputy Speaker? It had pre-cogs who could see into the future, and people would be arrested before they committed a crime. It sounds ridiculous—[Interruption.] I hear a Conservative Back Bencher say, “Good idea.” It sounds ridiculous and so does he. It sounds far-fetched, but in reality if this Bill passes you could be arrested, Madam Deputy Speaker, you could be charged, and you could end up in prison for something that you might have done.
I have barely touched the surface in these remarks, but I will make one final point, which was raised by Justice. Referring to clause 10, Justice points out that, while the clause creates an offence if a person
“intentionally obstructs a constable in the exercise of the constable’s powers”
of stop and search, with or without suspicion, the Met’s own guidance following the tragic murder of Sarah Everard is that people ask “very searching questions” of the officer, and notes that
“it is entirely reasonable for you to seek further reassurance of that officer’s identity and intentions”.
Anyone who did that at or near a designated protest area, as defined by the police, could end up getting 51 weeks in prison, a fine, or both.
The right to protest is the lifeblood of any democracy. It allows us to hold the powerful to account, which is precisely why they do not want it. It allows us to actively participate and to organise in our communities. History shows us that it is protest that often underpins political, economic and social change. Some of the most fundamental freedoms that we now have were won in spite of Governments. I will end by repeating what I said at the start: this Bill is all about oppressing and controlling the people out there, and they need to know about it. The stuff of conspiracy theories no more; this is the menacing new reality for those who do not agree with the Conservative Government. We should all be very afraid.
Dr Ben Spencer (Runnymede and Weybridge) (Con)
This is an important Bill, which I support. During this debate, we have heard a lot from Opposition Members about peaceful protest. I support peaceful protest and peaceful demonstration, but today’s debate suggests to me that there is some confusion about what peaceful protest is and what it is not.
My constituents know what peaceful protest is. As Members of Parliament, we see it every day on Parliament Square—people singing, people heckling us, people making themselves and their opinions known to us as legislators. My constituents also know what peaceful protest is not: it is not people blocking the M25, or roads to hospitals, which I think is particularly egregious. I was horrified years ago watching when ambulances were trying to get through to St Thomas’ Hospital. People from Extinction Rebellion were taking it upon themselves to decide who was worthy to pass the blockade and get urgent medical treatment. We have seen the same thing with the recent M25 protests. Peaceful protest is not stopping people going to work or blocking the distribution of newspapers. It is not blockading fuel at a time of particular pressures around fuel. It is not slashing the tyres of trucks or smashing up petrol stations.
This Bill is not an anti-peaceful protest Bill; it is an anti-criminal behaviour Bill. It is a Bill to tackle the tactics deployed by people with no regard to the consequences of their actions or democratic process and who use criminal damage to try to hold the public to ransom. What really infuriates my constituents is that the people they see deploying these tactics seem to be above the law. They go and lock on and do protesting round and round again, with seemingly no powers to act to stop them. That is why the serious disruption prevention orders are so critical in stopping it. These behaviours are not on and cannot be accepted in any society committed to the rule of law and democracy. This Bill is essential to tackle this criminal behaviour.
Dame Diana Johnson (Kingston upon Hull North) (Lab)
I am sure we can all agree that we need to protect our freedoms of speech, of protest and of assembly as a vital part of our democracy. We already have many laws to deal with protest and to protect the public and our major infrastructure. Any extension of those laws needs to be very carefully considered by this place. I am a little surprised, therefore, that the Government have decided to bring forward this legislation from the Home Office first in this new parliamentary Session, when we are still waiting for the regulations from the protest offences in the Police, Crime, Sentencing and Courts Act 2022, which was the major Home Office Bill in the previous Session.
I was also hoping, as the Chair of the Home Affairs Committee, that the specific recommendations in our recently published report, “Investigation and prosecution of rape”, to improve the experience of victims would be brought forward in legislation through a victims Bill. I was also hoping that our recent report on spiking, which recommended a new offence of spiking, would be in prime place for legislation to be brought forward, but we are where we are today, and this is the Bill before us.
I have several concerns about the Public Order Bill, which I hope Ministers may be able to address. Her Majesty’s inspectorate of constabulary and fire and rescue services considered many of the proposals in the Bill in its report of March 2021, “Getting the balance right? An inspection of how effectively the police deal with protests”. Clearly, looking at the reports of the inspectorate is incredibly helpful in developing evidence-based policy that can stand up to effective scrutiny, and the report has already been quoted widely in the Chamber this afternoon.
The report found that
“most interviewees did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”
The report also concluded that it did not support the introduction of protest banning orders. I noted what the Home Secretary said in her opening remarks about wanting to back the police. That is very important, so will the Policing Minister be able to explain when winding up the evidential basis for bringing forward these particular proposals and the basis on which the Home Office has come to a different conclusion from the inspectorate?
I also want to raise issues about the actual terms in the Bill. The term “protest” appears 21 times, the term “protest-related disruption” appears 31 times and the term “serious disruption” appears 118 times. However, none of those terms is defined on the face of the Bill. To ensure that the powers conferred in this Bill are used proportionately, and only when absolutely necessary—and to prevent legal uncertainty—I hope that the Minister will commit to ensuring that the Bill will include definitions of those terms.
On the proposed extension of stop and search powers, in July 2021, the Home Affairs Committee published “The Macpherson Report: Twenty-two years on”, which found that there are still deep-rooted and persistent racial disparities in policing, particularly in the use of stop and search. Our report found that statistics covering the year to 31 March 2020 showed ethnic disproportionality in stop and search is worse now than it was 22 years ago. Black people in 2020-21 were seven times more likely to be stopped and searched than white people, and that was up from five times more likely in 1998. The disproportionality in “no suspicion” searches is even more stark. In 2019-20, black people were 18 times more likely than white people to be stopped under section 60. With such clear ethnic disproportionality occurring, can the Minister explain how the Home Office will tackle those existing disparities with this plan to extend stop and search?
I note that, in the Bill’s equality impact assessment, the Government state that safeguards exist to mitigate the disproportionate use of stop and search, such as the use of body-worn cameras and extensive data collection on the use of these powers. However, in 2021, Her Majesty’s inspectorate of constabulary said:
“Too few forces regularly review body-worn video footage”,
and
“too many forces still do not analyse and monitor enough information and data on stop and search to understand”
how to apply stop and search fairly.
Furthermore, the amendment under clause 7 to the police power to stop and search under section 1 of the Police and Criminal Evidence Act 1984 will allow the police to take pre-emptive action against those suspected of being about to engage in protest-related offences. What specific safeguards will the Government put in place to ensure that such pre-emptive action will not breach a person’s rights under articles 10 and 11 of the European convention on human rights?
Finally, I want to speak briefly about buffer zones for abortion clinics. The Bill does not legislate for that, but it should. My hon. Friend the Member for Ealing Central and Acton (Dr Huq) has led efforts in this House for some time for change on that matter, and I will continue to support her, including any amendments to this Bill that she tables. In the light of recent events, the Government should also consider buffer zones outside schools and vaccine clinics. But to return to the issue of buffer zones for abortion clinics, for too long, women in England have faced real intimidation and real harassment outside clinics providing abortion care. The Court of Appeal of England and Wales has confirmed that protesters can cause
“significant emotional and psychological damage”.
One woman described her experience visiting an abortion clinic in April this year:
“They came over twice and we said, ‘No thank you.’ She was very pushy, in your face…it has left me anxious as I suffer from poor mental health. When we walked past, she said, ‘Your baby wants to live.’ We had driven for 7 1/2 hours and did not expect this at all.”
Women accessing a legal and essential form of healthcare should not be subject to harassment. Both Scotland and Northern Ireland have begun to take steps to implement buffer zones and it is time that England did. I hope that the House will have an opportunity to vote on that in due course.
Danny Kruger (Devizes) (Con)
I will be brief, because I want to make a simple point in support of the new offence of locking on. I am conscious that the debate has in a sense become a sort of proxy for an argument about how seriously we take the threat of the climate crisis, and I do not want to go down that road. I acknowledge that people on the other side are very sincere in this, including Roger Hallam, who is the principal villain of this debate. I know Roger Hallam slightly—I have met and talked to him—and I respect his views. There are people who want to tear down our society and who are essentially revolutionary in their intent, but I do not think that he or the people who work with him are those people. He does have an absolute sense, however, that our civilisation is under threat unless we take radical action to change our economy, and he is entitled to that opinion. The question is how far it is appropriate to go in support of that cause.
The question of climate change and the tactics that we are discussing may be new, but it is an old debate. As we have heard, this place has experienced enormous protests over the years and the streets outside have known crowds of tens of thousands—hundreds of thousands—of people protesting against the Government. The question is about the action that can be taken by those protesters. Historically in this country, we had a clear distinction between what was acceptable and what was not, which was a distinction between what was called moral force and physical force.
Moral force is simply a demonstration of an opinion, as when someone stands up to be counted and shows that they expect legislators to take notice. Physical force goes beyond that, as when someone uses physical power of some form to obstruct what the Government or the law are trying to do, which is the situation that we are in now. When someone locks on or attaches themselves permanently to public infrastructure or the roads, that is not using moral force—it is not simply standing there and being counted—it is inviting the physical intervention of the police. Obviously, it is not rioting or using violence against people, but it is inviting physical intervention and that is why it is unacceptable. It is a new tactic.
Stewart Hosie
Clause 2, “Offence of being equipped for locking on”, says:
“A person commits an offence if they have an object with them…with the intention that it may be used in the course of or in connection with the commission”
of the offence of locking on. Is the hon. Gentleman saying that if somebody has a heavy bicycle chain and padlock to secure their motorbike, which can be used in the commission of locking on, they should be made a criminal?
Danny Kruger
I thank the right hon. Gentleman for that intervention. The fact is that going equipped to commit an offence is a criminal offence in itself. We are creating a new offence here and it is necessary to provide that preventive measure as well. The Bill allows the police to take action in a dynamic and fast-flowing situation to search and to prevent the commission of a crime, so I support the measure.
Dr Julian Lewis
As someone who, for decades, has gone around with a heavy chain and padlock to secure my motorcycle, I have never found myself in a situation where I was carrying that device but did not have my motorcycle with me, so hon. Members should think about that. However, what my hon. Friend is explaining so lucidly has been thought of before. To return to the anti-nuclear protests, there was even a term for it—NVDA, which is non-violent direct action. It is not violent, but it is not really peaceful, because it is deliberately breaking the law. I think that is the distinction that he is correctly trying to draw between that and peaceful legitimate protest.
Danny Kruger
I thank my right hon. Friend very much for his intervention. He is absolutely right.
I end with the observation that the protesters we are dealing with, even if they have honourable intent and they are entitled to their opinion—who knows, they might be right about the climate crisis—are not allowed to use our tradition of liberty against us. It is necessary to update the law to criminalise that form of protest.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
The Home Secretary opened the debate by boasting that the Government support the police and, above all, support law and order, but the reality is that that is far from the truth. This is a Government who have shown a blatant disregard for the law and who confuse, as in this case, draconian legislation with upholding the law and defending justice. The reality is that they conceive of themselves as lawmakers who are above the law and the rest of us as being subject to their orders.
In case anyone is in doubt about that, I can offer a few examples. It is Government Ministers who were responsible for attempting to prorogue Parliament in breach of the law. It is Government Ministers who have introduced a disgraceful refugee policy that is almost certainly in breach of international law on the rights of refugees. At the same time, Ministers are embarked on a course that seems to lead to abrogating an international treaty by ripping up the Northern Ireland protocol. This is far from an exhaustive list, but it would be remiss of me not to mention the 126 fixed penalty notices that have been issued to Downing Street staff and Ministers, including the Prime Minister, for breaking their own lockdown rules. Members will be aware that photographs are circulating online today of the Prime Minister jovially drinking at one of those parties that he denied in this House had happened. The Government have no right to claim to be a Government of law and order.
The Bill is yet another draconian measure from an increasingly authoritarian Government, who presume to lecture the rest of the world on democracy and human rights, yet whose legislation is more authoritarian than many Governments who are widely and often justly castigated. I note in passing that the Bill’s provisions have already been rejected in the other place in its debate on the Police, Crime, Sentencing and Courts Act 2022. Without further time for consultation and without any concessions, the Government have immediately reintroduced the rejected provisions, so it seems that Ministers’ respect for due legislative process is as weak as their commitment to upholding the law.
The Bill contains provisions for serious disruption prevention orders for people with two convictions for public order offences, or even for those who have been convicted of no offence but are deemed to have caused “serious disruption”. That is not just an infringement of civil liberties; that type of legislation is the mark of authoritarian Governments everywhere. The truth is that no citizen should ever be subject to the arbitrary and unsubstantiated curbing of important civil rights by the state.
Many Members will remember the enormous demonstrations against the Iraq war, which were over a million strong; the huge anti-apartheid demos of the 1980s; and the marches in support of the miners. If any Members present took part in any of those demonstrations, they will have seen exceptionally large crowds acting entirely peacefully yet causing disruption by their sheer weight of numbers. When a large section of the population are exercised enough about an issue to go on a march, they will cause huge disruption and, often, a great deal of noise, but that is their right. Any Government who are foolish and short-sighted enough to try to curb demos because they are disruptive are creating an authoritarian regime that people will protest against even more strongly.
On random stop and search, I have campaigned against non-evidence-based stop and search and its predecessor legislation, the sus law, for all my time in public life. I and many others have said that there is a place for targeted, intelligence-led stop and search to prevent or detect a specific crime, but that is not what the Bill proposes. The Bill gives free rein to some of the worst and most discredited policing practices. We should be clear that the overwhelming majority of stop-and-search operations in this country are conducted by the Metropolitan police, but many other forces, some of which have a comparable or even better record of fighting crime, hardly ever use stop and search. The House should be clear that stop and search is almost invariably directed at one section of the community, and that is young black men. According to the Home Office’s own data, six white people from every 1,000 are subject to stop and search, but no fewer than 54 black people from every 1,000 are subject to stop and search, and that figures rises to 157 people if we add people who are designated as “Black Other”.
Those are wholly unacceptable and flagrantly discriminatory facts. They are known to the Ministers sponsoring this Bill, who must also know of the data showing that discrimination rises in cases where the stipulation of “reasonable grounds” is removed. Both Her Majesty’s inspectorate of policing and the College of Policing have criticised the use of random stop and search and argued that it is counterproductive, yet the Government are persisting on this course. There is a clear risk from these authoritative warnings: when sober and serious independent bodies of some standing use the term “counterproductive”, we should all take note, but apparently Ministers choose to ignore it.
Finally, I would like to touch on the Bill’s provision on the prohibition of obstruction of major transport works. The Government claim that many of their measures are aimed at Extinction Rebellion, but legislation has a habit of being adapted to suit the needs of Government, especially proposed legislation as loosely drawn and as draconian as this, so the combination of the Government’s track record and Ministers’ wild rhetoric about a rail strike should ring alarm bells for all trade unionists. This Bill would allow a further serious erosion of fundamental rights—in this case, the particular right to organise in the workplace and the right to strike.
For those and many other reasons, this Bill represents a serious threat to all of our long-held and hard-won rights. Protests—whether the chartists, the suffragettes or the anti-war protests of the 20th century—are part of the history of the political process in this country, and a Government who would seek to limit the right to protest in this way are a Government who do not take seriously this country’s political history and a Government who are seeking to take away people’s rights. This is a Bill that those of us on the Labour Benches will be opposing.
Tom Hunt (Ipswich) (Con)
I am very pleased to speak in this debate, and to speak quite early on as well. I was pleased to support the policing Bill and I am pleased to support this Bill as well. It was disappointing that some of the amendments made through that Bill were defeated in the other place. It has made this Bill very timely in strengthening and going further on much of what was good about the previous Bill.
There is a clear distinction and a difference between what I think everybody in this place would want to defend, which is peaceful protest, and what we see demonstrated by a very small minority of people who seem to have very little consideration for the welfare of others and for the general economy. I think that this Bill makes that distinction. I do not see anything in this Bill, just like I did not see anything in the policing Bill, that threatens peaceful protest. That is not on the table today.
What is on the table, though, is a Bill that seeks to strike the balance right between allowing peaceful protest and putting clear limits in place when it comes to the reckless activity that meant I had—and I always remember this—one email from a constituent whose carer could not get to them because of the consequences of the reckless behaviour that we saw in East Anglia. Try telling that person who depends upon that care that the Government should not make this issue a priority. I absolutely think that, if I spoke to that constituent today, they would be pleased that this Bill was being debated today and they would see it as a priority. So I am not going to trivialise the importance of this Bill, as some on the Opposition Benches have done.
Richard Fuller
My hon. Friend is making a very important point about the role of the Opposition in opposing this Bill in principle. Whatever concerns one might have about some details, the fundamental point that something needs to be done about the issues that Members on both sides have mentioned is the reason why this Bill is being proposed, which is why it is of such great concern that the Opposition are opposing on first principles.
Tom Hunt
I very much agree with my hon. Friend’s comments. We have heard—both today, but also outside of this debate—from senior Opposition Members that they get it, and that actually they do want to put some restrictions in place to stop excessive protests that can have very damaging consequences for people. But we have seen absolutely no evidence that, in practice, they are prepared to do that, and whenever there is an opportunity to vote in favour of what they claim they support, they have opposed it, which I do think is quite damaging.
This points to the wider problem that those in the Labour party have, which is that, on the one hand, they know that actually the majority of people do see this distinction between peaceful protest and the reckless behaviour of a minority, but on the other they want to pander to extremist elements to the left of the political spectrum, and they are caught between those two different pressures. Fortunately, on this side of this House, we feel no such pressure. On this side of the House, we are absolutely clear who we support. We support the 63% of people who, when polled very recently, said that they support the criminalising of locking on—and actually it is not populist to listen to the overwhelming majority who find it deeply frustrating.
In East Anglia, we were among the worst regions impacted, partly because of the oil terminals around Tilbury, the Thames estuary and south Essex. We were incredibly badly affected for days on end by the behaviour of some of these individuals, and on a bank holiday weekend. We obviously have the story of the care giver, but we also have the example of businesses—small businesses—desperately trying to get themselves back on their feet after an incredibly difficult period, being stifled and limited in their ability to do so, again because of the reckless behaviour of a small minority. I myself remember the day—I think it was the Monday that was particularly bad in our area—that it was only at the sixth petrol station I got to that I was able to get petrol. The amount of petrol that the average petrol station held in East Anglia went from I think 45% of capacity to lower than 20%. That is a direct consequence of the protesters’ behaviour.
I welcome the fact that we are introducing these new criminal offences for some of the most reckless behaviour, such as the individuals who go on to the M25 and block hugely strategic roads. That is dangerous to themselves, it is dangerous to drivers and it causes immense disruption, and the targeted action the Government have taken is to prevent that reckless activity. But the point here is that there have been too many occasions where the police have not been as hands-on as they should be. It has caused huge frustration to my constituents when they have seen pictures of reckless protests. Actually, let us be clear: these are not protesters; they are criminals. I am going to stop calling them protesters, because at the point at which they decided to sit down on the M25 and endanger themselves and others, they ceased to be peaceful protesters, so I will unashamedly call them criminals.
When these individuals take that decision, why are we seeing images of police forces that are just, frankly, dilly-dallying—dancing around and doing very little? Why are we seeing that? Why, when the roads to key oil terminals in south Essex are blocked, cannot the police immediately go in there, intervene and move them off, with no pause and no delay whatsoever? So, yes, this Bill is a step in the right direction, and I very much hope that it will create a powerful deterrent to prevent this sort of activity, but I also believe that a firm signal needs to be sent to the police that there have been times when perhaps they have not been as proactive as they could have been in moving some of these individuals on.
I have spoken about the Opposition and what I think of their views on this matter, but some of the comments made by organisations such as Greenpeace and Amnesty International have also been deeply regrettable. Trying to compare the measures in this Bill with measures promoted and implemented by the Putin regime and the regime in Belarus deeply demeans the whole argument, and those organisations do themselves no service whatsoever if they cannot in their own minds make the distinction between peaceful, legitimate protest by individuals in Russia campaigning for democracy, free speech and the ability to live in a world without persecution or fear and the behaviour of individuals who have every democratic channel open to them but who just want to get their own way. These people say, “I’ve used every democratic channel open to me, but I haven’t got exactly what I want, so I am going to disrupt and undermine our economy and divert police resources.” That is not good enough.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Will the hon. Gentleman give way?
Tom Hunt
I will not. This Bill provides further evidence that this Government and Conservative Members get the difference between peaceful and other protests, and that they understand the anger of my constituents and others who are sick of being in hock to an extreme fringe. We do not have the conflict that exists in the Labour party, and I welcome this Bill.
Wera Hobhouse (Bath) (LD)
We should not be fooled: the measures in this Bill are the very same as those the House of Lords overwhelmingly rejected from the Police, Crime, Sentencing and Courts Act 2022 on the basis that they form a dangerous and blatant power grab that undermines our civil and democratic liberties. The measures include the creation of serious disruption prevention orders that could subject individuals to 24/7 GPS monitoring whether they have been convicted of a crime or not. They include new stop-and-search powers for the police despite a wealth of evidence, as we have heard, that black people are disproportionately targeted. They include a broad, potentially catch-all, new offence of
“being equipped for locking on”,
meaning that someone could face an unlimited fine for as little as carrying a bike lock.
The measures have been described as “draconian”, “authoritarian” and a
“staggering escalation of the Government’s clampdown on dissent”.
They were rightly rejected from the 2022 Act and, even though the ink is not yet dry, the Government are already trying to reintroduce powers that would not be out of place in some of the world’s most repressive regimes. Is this really the kind of country that this Conservative Government want us to be?
It goes without saying that no one should be blocking ambulances from getting where they need to go, which puts lives at risk and does nothing to build public support for a cause. However, the new laws are not about stopping people blocking roads. If the Government really cared about ambulances being delayed, they would be doing far more to tackle the ambulance crisis that is leaving people waiting hours in an emergency. The new laws are about cracking down on the right to peaceful assembly and protest. The police already have the powers they need, as we see when people are arrested for going beyond what is acceptable for a peaceful protest.
The police are not asking for these new powers; they do not even support them. When consulted, senior police officers said that the orders being proposed by this Government would be a “massive civil liberty infringement”. To make matters worse, this legislation will not even be effective. To quote Liberty,
“the Government cannot legislate people into silence”.
If peaceful protest is effectively banned, the likely consequence of this Bill will simply be to push people to seek more urgent routes to protest. All it will do is undermine confidence in our public institutions and in our police at a time when public trust in the police leadership is already fragile.
Without the right to protest, countless hard-earned freedoms would never have been won. From the decriminalisation of same-sex relationships, to employment rights, to women winning the right to vote, the right to peaceful protest has been a force for change time and again. Protest is not a gift from the state to be given and taken at will. It is a fundamental right, and it is the foundation on which any democracy stands. We Liberal Democrats will always stand up for that right.
I add my support to the efforts of the hon. Member for Ealing Central and Acton (Dr Huq) to amend the Bill to introduce buffer zones around abortion clinics. It is a clear and tightly targeted measure that would address the harassment of women accessing healthcare. More than 100,000 women in England and Wales every year have abortions at clinics that are targeted by these groups. Since I last supported this measure in July 2021, three more abortion clinics have been targeted for the first time, leaving more women open to abuse and feeling afraid.
Kit Malthouse
I am honestly and genuinely perplexed by the argument about buffer zones. I agree that the harassment of women seeking those services is disgraceful and should not be allowed, but why just them? Why not hospitals in general? Why not places of worship? I understand the sensitivity in that particular situation, but why is it that we object to and are willing to restrict that particular form of protest, but not others?
Wera Hobhouse
I support a simple and targeted measure against protests outside clinics that harass women seeking abortion. We can talk about other measures, but it is important to protect women who are already in an extremely vulnerable position from such harassment.
Last week, “Newsnight” ran an alarming story on the difficulty that clinics and local residents face in getting councils to make use of the public spaces protection orders—legislation that Ministers say is the only option. These PSPOs create an unacceptable postcode lottery. Our colleagues in Northern Ireland and Scotland are prioritising finding a solution to this form of persistent and targeted harassment, and we cannot allow women in England and Wales to be left behind.
I will never support a Bill that goes against our fundamental civil rights and those who do so tonight should be ashamed.
Marco Longhi (Dudley North) (Con)
In 2019, the people of this country voted for a no-nonsense Government from the Conservative party, which is and always has been the party of law and order—whatever Opposition Members think.
As I have said many a time in this place, people in Dudley North are ordinary folk working hard to make a living, and we all know that that it is increasingly hard to make such a living in the current climate. I cannot understand how the privileged and entitled few think it is acceptable to prevent our carers and nurses from getting to work to care for our sick and elderly. They think it is acceptable to block a fire appliance getting to a serious fire, burning a local business to the ground or, more tragically, preventing people inside the burning building from being saved.
Paul Bristow (Peterborough) (Con)
My hon. Friend makes a powerful point. Does he think that ordinary people wanting tough measures against those who commit crime, protest and nuisance is one of the reasons why so many people abandoned the Labour party at the last election, voting Conservative for the first time, and why we have so many Conservative MPs now representing northern and midland communities?
Marco Longhi
My hon. Friend is absolutely right. It is regrettable that we have not been about to do much about police officers who seem to think it quite all right to commit acts of vandalism on statues, whether we like them or not, or to dance in the street with protesters who should not be congregating because they are breaking lockdown rules. The criminal minority who commit these acts disgust me. They have no concept of the real world and no concept of the misery that they bring to those less fortunate than them. A protest is not peaceful if it blocks key roads or interferes with key infrastructure. “Peaceful” means more than a lack of decibels. New, criminal, disruptive and self-defeating tactics carried out by a selfish minority in the name of protest are causing more serious disruption to the British public, with some parts of the country grinding to a halt, and police resources diverted from the local communities where we really need them. The disruption does not stop at simply preventing us from getting from A to B; it is worsening the cost of living crisis. What is more, blocking a road forces our constituents to go miles out of their way in their cars to get around the idiots disrupting them, which not only costs an awful lot more in fuel—money that most do not have to spend—but means more fossil fuels being burned and more pollution in our environment.
We cannot trust the Opposition to stick up for hard-working people—our constituents. The shadow Justice Secretary—the hon. Member for Croydon North (Steve Reed)—and the shadow Home Secretary both publicly say that they do not believe that people should be able to cause disruption to citizens going about their daily business, yet they consistently vote against any measures in the House to deal with just that.
Lee Anderson (Ashfield) (Con)
My hon. Friend is making some good points in a great speech. He will be aware of a prolific nuisance who wanders around Whitehall with a megaphone, rambling and speaking incoherently, usually on a Wednesday. Last Wednesday, I think, he actually exposed some disturbing parts of his body to the Prime Minister as he was passing on his way to work—disgusting scenes. Does my hon. Friend agree that the Bill should include measures to tackle that sort of nuisance behaviour?
Marco Longhi
I thank my hon. Friend for making those points. In exposing himself, that individual probably made more sense than at any time when I have heard him speaking.
Dr Kieran Mullan (Crewe and Nantwich) (Con)
Does my hon. Friend agree that everyone in the House knows that if we want to get things done, we have to knock on doors, deliver leaflets and persuade people to vote for us, and that short-cutting that by disrupting people’s lives is not acceptable? If those people want to get things done, they need to do what all of us do: go out and earn votes and change ideas and minds.
Marco Longhi
My hon. Friend is quite right. If he was also referring to the individual whom we just described, I challenged that very person to come and stand against me in Dudley North. Let us see if he has the courage to do so—or is he just a big loudmouth and a coward as well?
Dudley people want to be able to go about their business without others impinging on their ordinary lives. The Bill brings together a set of common-sense approaches. It is about that no-nonsense common sense that ordinary people want this Conservative Government to deliver. I very much thank both the Home Secretary and the Minister for Crime and Policing, who is doing his best to ensure that police officers in Dudley will deliver on these measures, using the new police station that I know he is working hard to secure for the people of Dudley North.
John McDonnell (Hayes and Harlington) (Lab)
It is important that we always have regard to the scope and scale of the legislation that we introduce. I am really fearful about the scope and scale of the Bill, based on my constituency experience. The hon. Member for Crewe and Nantwich (Dr Mullan) raised the issue of ensuring that we can go through the democratic process. There are times when we have gone through that democratic process and, unfortunately, the elected politicians have let us down.
John McDonnell
Let me finish this point, so that I can explain. In my constituency, we have gone through the democratic process—often not to the extent or with the result that I wanted. For example, we have been promised time and again that there would be no further expansion at Heathrow. We were told,
“no third…runway, no ifs, no buts”
by the leader of the Conservative party and Prime Minister, but that was reneged on. We have been through public inquiries that have recommended no further expansion, but they have been reneged on. People therefore feel that they should look for an alternative that complements the balloting route. In my constituency, that in many instances has resulted in direct protest.
Dr Mullan
Is that not just the nature of democracy? Ultimately, in the longer term, we win or lose arguments; we do not win every single one, and we do not lose every single one. The right hon. Gentleman might have more credibility on this issue if he did not have a track record of encouraging direct action against Tory MPs and not letting us go about our daily lives without being disrupted and harassed.
John McDonnell
Fair enough. [Interruption.] No, the hon. Gentleman makes a proper point in the debate, no matter how inaccurate or distorted it is, but never mind. Let me explain—[Interruption.] Does the Bill cover activities in the Chamber? Sorry, I cannot help myself.
In all seriousness, let me explain why the scope and scale of the Bill may mean that it criminalises a large number of my constituents, and why they resort to direct action. They are not what we would describe as typical protesters: they are of a whole range of ages, and in fact Heathrow villages consistently voted for the Conservative party. Many people whom we would classify as normal Conservative voters have engaged in direct action. Why? Because they have endured the noise, the air pollution, the respiratory conditions, the cardiac problems as well as—research now tells us—the increase in cancers in our area as a direct result of pollution from the airport.
If Heathrow expansion goes ahead, 4,000 homes will be demolished, according to the last inquiry, so 10,000 of my constituents would lose their home. That is why people feel so strongly. They are angry because we will lose our gurdwara and three schools, and our church will be isolated from the rest of the community. They have been legitimately angry, because they feel that Governments—of, I must say, all political parties that have been in government—have consistently let them down. At one time, the proposal was for the expansion to go through our cemetery, so there was the prospect of people having to disinter loved ones buried in our constituency.
We can understand why my constituents are angry. What did they do? We held public meetings and tried to hold Ministers to account. All that failed, so my constituents resorted to direct action. They blocked roads, they marched, they demonstrated and they sat down in the road. Climate Camp attached itself to the land; under the Bill, that will become an offence. And yes, there was a gluing-on campaign. Actually, one campaigner tried for six months to glue himself to Gordon Brown. It never worked, but there we are. Can Gordon Brown be defined as national infrastructure? My constituents have gone through an training exercise on locking themselves on—not to infrastructure outside their home, but to things inside their home, so as to prevent demolition. That is the strength of feeling there is. Whole families have been motivated to cause disruption by the threat to their community, livelihood, home, church, gurdwara, community centre and local environment, because, unfortunately, politicians have consistently deceived them.
It is difficult to know what is serious disruption, which is grounds for arrest. The demonstrations we have been on caused a large amount of noise; did that cause serious disruption? They have, of course, caused traffic jams. Is it a question of the length of time that people have to wait in a traffic jam? In all the demonstrations that I have been on, there has been no prevention of the passage of emergency vehicles. We need clarity in clauses 3 and 4 on what serious disruption is.
The other issue is: what is the definition of national infrastructure? In my constituency, is it just anything within the Heathrow airport boundary? Is it the roads feeding into the airport? How far downstream from the airport does “national infrastructure” go? Virtually every road in my constituency somehow leads to the airport, so any demonstration in the constituency could be designated an offence under this legislation.
John McDonnell
My constituents and I have taken the view that because expansion is such a threat to our community, we are willing to engage in direct action, and if we are prosecuted under existing law, we take it on the chin. We go to court, explain our case and accept the fine or whatever. That is the reality of it. That is the way it works. The Bill, however, takes things to another level. One way we have protested is by blocking the tunnel at Heathrow for an hour. Well, we have never really stayed there that long; we have stayed there for half an hour, done a deal with the police and then dispersed. A number of my constituents were fined for that. We went to court, which gave them the opportunity to express their views about what was going on, and to expose what was happening. In some ways, it gained us maximum publicity. Under the Bill, however, they could be serving a sentence of a year, or could have an unlimited fine.
There is an issue of balance and fairness. There is something about British democracy that we have to uphold here, because we have a long tradition of people like my constituents saying to the state, “This far and no further. You are going beyond the bounds of the mandate on which you were elected.”
Kit Malthouse
Does the right hon. Gentleman acknowledge that sentencing is not just about handing out a punishment? It is about deterring people from committing the offence again. Obstructing the highway attracts a level-3 fine of up to £1,000, but that does not seem to have any impact on the willingness of some protestors to do it time and again. Is there not some justification in using sentencing as a deterrent there?
John McDonnell
The problem is—and here I follow the advice of Her Majesty’s inspectorate of constabulary and fire and rescue services—that the measures will not be a deterrent. All they will do is incentivise many more people to come forward, because this will make them angry and it will cause undue suffering. I am just giving a concrete example of what the good people in my constituency are doing. If Members thought a road was going to be built through their local cemetery, and that their relatives would have to be dug up, I doubt any of them would not join the demonstration. A number of Conservative MPs and councillors did join us.
Wera Hobhouse
Does the right hon. Gentleman agree that these draconian measures are a sign of the weakness of a Government who are on the defensive?
John McDonnell
I will finish on the motivation in a minute or two.
On stop and search, in my constituency, we have come to terms with the orders that designate certain wards enabling access on the streets for stop and search on the basis of where there are serious drug problems or where there has been a knife attack and so on. People have come to terms with that. Not everyone is supportive of it, but they have come to terms with it. I do not think they would be able to come to terms with the designation of a whole area in my constituency just because there might be a demonstration at Heathrow. It would mean having to designate the whole of the Heathrow villages area. On the issue of suspicion of carrying materials, you would need a police squad outside every shop in the Heathrow villages, because every one of my constituents in those areas could be seen as suspicious when they go to purchase something.
John McDonnell
Can I not this time? The hon. Member will understand.
Let me just say this on the serious disruption prevention orders. The extent by which they curtail freedom is beyond anything we have ever seen before. We are talking about people who are protesting on a whole range of issues. They have not committed a serious violent offence or anything like that. As the HMICFRS has said, it is not compatible with human rights.
In conclusion, this is an incursion into basic human democratic freedoms—an incursion too far. The motivation —I will be frank—is a populist attempt to garner support for a Conservative party that is deeply unpopular at times at the moment. I also think—my hon. Friend the Member for Leeds East (Richard Burgon) raised this point—the Government are fearful that demonstrations will mount as we go through the next 12 months because of the impact of the cost of living crisis. I think it is in fear of those demonstrations that they are introducing this legislation. It will do more harm than good and make more people disillusioned with the political process. I say to Conservative Members: be careful what you wish for because this will push more people into more forms of direct action—and forms of direct action that none of us would want to see. We all treasure our democratic rights and that is why I will vote against the Bill tonight.
Jonathan Gullis (Stoke-on-Trent North) (Con)
The people of Stoke-on-Trent North, Kidsgrove and Talke warmly welcome this important legislation, because it is doing exactly what they want to see: holding those criminals accountable for their criminality. No one is standing here seriously suggesting that, when the people of Stoke-on-Trent go to Hanley town centre to stand together to protest for the rights of the Kashmiri people—I have attended in person—the police will come in heavy-handed while we stand peacefully and speak through a microphone to constituents and residents from across the area to raise concerns about the human rights abuses happening to the people of Kashmir.
No one is saying that, when certain trade unions want to stand peacefully outside my office in protest, to demonstrate against some cause, I am expecting the police to come in and round those people up. I am not. I welcome them comng outside my office. I am more than happy to hear their cause, and engage with them in conversation and debate. Even if we end up agreeing to disagree, no one in their right mind is saying that the police are going to prevent that action from happening. No one in Stoke-on-Trent North, Kidsgrove and Talke believes for a second that that would be appropriate. If that were the case with this legislation, I would stand up to oppose the Bill. But I am supporting it because it is doing something: tackling criminal behaviour.
People gluing themselves to the M25, where people are traveling at 70 miles an hour—women and children in cars that could easily crash, ending up with loss of life —are apparently willing to sacrifice their own safety and their own lives for a cause. However, they are not even able to stand up for their beliefs and values. The hypocritical nature of those campaigns is what drives people berserk in Stoke-on-Trent North, Kidsgrove and Talke.
For example, Liam Norton from Insulate Britain says he “doesn’t care” about insulating homes—his words. He does not even insulate his own home. He has no insulation in the walls and has single pane glass. People simply do not like hypocrites. He even called himself a hypocrite. We are talking about individuals who are running campaigns—some crusty eco-woke warrior wanting to make some sort of point on Twitter, so they can get lots of likes from the far left that make that particular social media platform vile and abusive. Thank God I am not on it; great for my mental health. Then we see their actions. Gail Bradbrook from Extinction Rebellion drives a diesel car and takes an 11,000-mile round trip to Costa Rica, contributing 2.6 tonnes of carbon footprint, which is a quarter of a Brit’s yearly average.
Practice what you preach. Do not stand up and virtue-signal for the sake of it or try to pontificate—as the Labour party regularly does—in order to make a point that will get a few more likes in woke London or on Twitter. Instead, stand up for people of this country who want to see an end to criminal behaviour by those jumping on top of tube trains or blocking lorries, for example, some of which are carrying cooking oil or carrying oil at a time when we have a global fuel crisis. Those are the type of mad things that people are sick of seeing.
Sir John Hayes (South Holland and The Deepings) (Con)
My hon. Friend is right that these are largely deranged members of the bourgeoise making working people’s lives difficult, but, actually, the situation is more serious still. In the case of the demonstrations and protests that he describes, the action meant holding up an ambulance on its way to an emergency and stopping a woman getting to the home of her 95-year-old mother who had had a fall. It meant that the people protesting were wholly and completely disregarding the horror and pain that they were causing. That shows the sort of people they are. This is about not hypocrisy, but carelessness and heartlessness.
Jonathan Gullis
My right hon. Friend makes a fantastic point. Let us think about the people who were not able to get to their cancer screening appointment; the children who were not able to be in school because of lockdown and who are having their education in the classroom—with their expert classroom teacher—further delayed; the emergency services trying to go about their jobs, having to deal with protesters; and the police from as far away as Scotland coming down to London, meaning that they are not on the streets of the local areas that they should be serving, allowing criminals potentially to run wild there because of some selfish individuals.
Anne McLaughlin
The hon. Gentleman keeps going on about criminals, saying “We’ve got to get rid of these criminals” and “We’ve got to do something about these criminals.” He is characterising an awful lot of people as criminals. If they are already criminals, that means that they have committed a crime and have already been charged and found guilty—or he thinks that they should have been, so why have they not been? Incidentally, the Bill creates an awful lot of civil offences. Those are not criminal either, so why and on what basis is he calling such people criminals?
Jonathan Gullis
I thank the hon. Lady for that intervention. She says that I talk about criminals. She referred earlier to the Black Lives Matter protest, and I have absolutely no issue with having that important debate about racial inequality in society and looking at what more can be done. However, when a particular individual went up on the Cenotaph and tried to set alight the Union flag, as though it was somehow making some sort of demonstration—this is a memorial to our glorious dead who made the ultimate sacrifice and gave their tomorrow for our today—that was criminal behaviour. That is why that needs to be called out and why I introduced the Desecration of War Memorials Bill, which was accepted by the Government and became part of the Police, Crime, Sentencing and Courts Act 2022. I did so despite the sniping from the Labour party, which claimed that I was more interested in protecting statues—it was not statues; it was war memorials to the glorious dead and war graves so that every village, every town and every city of our country remembers those who made those important sacrifices. I am someone who lost a friend when he was serving his nation in Afghanistan. That is why I felt so incensed by those disgusting, vile scenes that I saw up on the Cenotaph.
That is why any Opposition Member who does not understand why this Bill is important is seriously out of touch with the people of this country. It is the silent majority, time and again. The problem is that the Labour party is obsessed with Twitter being somehow the mouthpiece of Britain, or with any other woke, virtue-signalling thing such as Channel 4 that Labour seems to believe must be right on every single issue. That is the problem with the Labour party and why it was so overwhelmingly rejected by the people of Stoke-on-Trent—in Stoke-on-Trent North, Stoke-on-Trent Central and Stoke-on-Trent South, for the first time.
If Labour Members want any more proof, they should look at the May local elections in Newcastle-under-Lyme. Labour was touted to take control of that council in every single national poll and every single national newspaper. The Labour party was openly briefing that it would win that council. The Labour leader of the group at that time openly said at the count that that was their No. 1 target council, and that Labour had thrown all the extra money and resources at it. What happened? The Conservatives took that council with seven gains. They took it from no overall control to being Conservative-led for the first time in that council’s history, while Labour went backwards. If that is not a wake-up signal, I do not know what is.
Lee Anderson
It is very pleasing to see that my hon. Friend has finally come off the fence in support of this very important Bill. With the Opposition—especially the Labour party—continually voting against the measures that this Government are introducing to protect the people of this country, does he think that it may be a good idea for those Labour MPs to come to Stoke-on-Trent North, Ashfield, Dudley or Ipswich and speak to some real people in real places?
Jonathan Gullis
I could not agree more. I think we do need to organise a trip round the red wall so that Labour Members can actually understand why the Labour party lost those seats. [Interruption.] I hear the sniggering from Opposition Members when I mention Stoke-on-Trent. The only Stoke that the Labour party is aware of is Stoke Newington. They have not gone any further north than that in the last number of years, which is why, again, we have a Conservative-led Stoke-on-Trent City Council, a Conservative-run Newcastle-under-Lyme Borough Council and a Conservative-run Staffordshire County Council. Under Tony Blair, a man who actually used to win Labour elections, it used to have six of the 12 MPs for the local area. Labour ran the county council at one stage, had control of Stoke city council and ran Newcastle borough council. Those are the facts.
Marsha De Cordova (Battersea) (Lab)
I do not even want to thank the hon. Member for giving way to me, because frankly, his speech is becoming quite insulting. He is talking to Members of Parliament who were elected by the people—in my case, by the people of Battersea—to represent them. I am really grateful that, finally, the people of Wandsworth decided to vote for Labour and kick the Tories out after 44 years of rule to elect a Labour council. We know what the people of London need and we do not need to take lessons from the hon. Member.
Jonathan Gullis
Well, Croydon spoke quite loudly, if I remember correctly, by deciding to elect a Conservative Mayor and upping the amount of councillors in Croydon. We had places like Bromley holding on, and Old Bexley and Sidcup, and Harrow going towards the Conservative party. And there is now mass opposition to the mental plan of the Mayor of London, who wants to expand the ultra low emission zone across the whole Greater London area, smashing 135,000 drivers in the pocket with a daily charge and killing small businesses. If this is Labour-run London, God forbid a Labour-run United Kingdom. It would be absolutely terrifying to see what could happen to our community. [Interruption.] It is lovely to see you in the Chair now by the way, Madam Deputy Speaker.
This Bill is so important because it is about making sure that action is taken if someone wants to glue themselves to a train, risk their health and wellbeing, and delay people going to work to earn their money at a time when we are facing a global crisis with inflation, a global crisis with the cost of energy, and a global crisis of food prices, because of events happening in Ukraine, as well as the fact, obviously, that we are coming out of a global lockdown—I know that Labour Members seem to want to pretend that that did not exist. Ultimately, all those things put together mean that, when people are not able to go about their daily lives because of a mindless minority of morons who want to act in an inappropriate way by blocking the road, stopping the trains, stopping oil tankers and smashing up petrol stations, this Bill is necessary.
Finally, I appreciate that the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), is no longer in her place, but I thought that, when she stood at the Dispatch Box today, she gave a very passionate and good speech about why the actions of Insulate Britain, Extinction Rebellion and Just Stop Oil were unlawful. She made a fantastic point about why action needs to be taken, so the House can imagine why the people of Stoke-on-Trent North, Kidsgrove and Talke are simply baffled that Labour Members will not join us in the Lobby this evening and will instead vote against a Bill that they seem in principle to support. However, because of certain Back Benchers, they just do not want to face that rebellion and stare it down. It is a shame that the Labour party has a long way to go.
Clive Lewis (Norwich South) (Lab)
It is always an experience to speak after the hon. Member for Stoke-on-Trent North (Jonathan Gullis)—what kind of experience, I do not think parliamentary etiquette allows to me to express, but it is an experience none the less.
I would like to comment on some of the engagement tonight from Government Members, because it is quite instructive. It is like a one-sided equation. They want to make this issue about the disruption to individuals and the cost to business, and although that is one side of the equation, there is another side to it: the disruption that the climate crisis is bringing to people around the world already and to this country. One thing that the House may or may not know is that, between 2010 and 2019, it is estimated that 5 million people have already died from the effects of the climate crisis. I understand that Government Members want to talk about an individual in an ambulance, an individual who has been disrupted, but we should think about the global disruption and what is happening around the world. Some 800,000 of those people were in Europe. This is not just happening elsewhere—it is happening here and now.
Jonathan Gullis
I am not in denial about the importance of dealing with the climate emergency, but does the hon. Gentleman accept that those who are leading these so-called protests should be leading by example? Saying that they do not care about insulating homes, or insulating their own home, does not send a very good message from the top when they are trying to convince the nation to follow their lead.
Clive Lewis
That individual has made their comments, but I guess the question we have to ask is who are the criminals. Are the criminals those individuals who are trying to come together collectively to stand up against a Government who are failing them on the climate crisis, or against billion-pound corporations with pockets deep enough to buy influence in Parliament and across politics? Are the criminals those individuals who are trying to use the only apparatus that they have to stand up and speak up for what they feel impassioned about? I would argue that the real criminals are those who are wilfully pushing to extract more oil from our oilfields and who are pushing us off an existential cliff edge. I think that this country and the British people increasingly understand that those are the people who need to be held to account.
Members need not take my word for it; they should listen to that socialist radical, the Secretary-General of the UN. The hon. Gentleman may think that the Secretary-General is woke, but I think he is increasingly important to global politics. He wrote:
“Climate activists are sometimes depicted as dangerous radicals. But the truly dangerous radicals are the countries that are increasing the production of fossil fuels.”
Cue our own Government attempting to do just that.
Opposition Members know all too well this Government’s track record of attacks on human rights, democracy, the poor, the vulnerable, trade unions, justice and migrants. Undermining our democratic right to protest goes against the very essence of what it means to live in a democracy.
Again, hon. Members do not have to take my word for it. The Joint Committee on Human Rights described proposals set out in the Police, Crime, Sentencing and Courts Act 2022 as “oppressive and wrong”. The Equality and Human Rights Commission stated that measures in it undermine human rights legislation. Former senior police officers described it as “harmful to democracy”. Some 700 legal academics called for it to be dropped. UN special rapporteurs and top human rights officials warned that it threatens our rights. More than 600,000 members of the public signed a petition against it.
What possible motivation could the Government have to push through such an authoritarian and regressive Bill? I think that that is a legitimate question for Opposition Members to ask. The Bill is so regressive and anti-democratic that even Conservative Members are baulking at its sweeping, draconian powers.
Let us take a look at the Bill’s provisions on protests involving critical infrastructure. Like so much of this Government’s agenda, they have been lifted directly from the hard neo-con right in the US. A Bloomberg News exposé from 2019 uncovered extensive lobbying by the oil and gas industry to criminalise protest near extraction sites. We know that the Conservative party has received more than a million pounds from the oil and gas industry in the past few years, so it is legitimate to ask what the Government’s motivations are for the Bill.
Jonathan Gullis
The hon. Gentleman talks about motivations. May I ask about the Labour party’s motivations from the millions that it takes from trade unions?
Clive Lewis
Trade union money is the cleanest money in British politics. [Laughter.] The hon. Gentleman can quote me: it is the cleanest money, because we declare it and because we are representing the interests of workers, which is why our party was set up. We have no shame; we are proud of where our funding comes from.
As many Opposition Members have seen, much of the money that funds the Conservative party has come from the kleptocrats of Russia, with whom Conservative Members have more in common than with the people of this country.
Clive Lewis
No, I will make some progress.
The issue of freedom goes to the heart of the Bill. Conservative Members revel in being the so-called party of freedom, but let us interrogate that a little. Some freedoms are zero-sum, but unfortunately many are not. As Isaiah Berlin explained, freedom for the pike means death for the minnow.
Conservative Members often talk about freedom—freedom for people to go about their lives and so on—but we must ask a critical question: freedom for whom and freedom against whom? That is what they do not explain. Freedom from trade unions is freedom for corporations to exploit their workers. Freedom from regulation and red tape, as Conservative Members call it, is freedom for corporations to pollute our rivers and restrict our freedom to swim or fish. Freedom from tax, another Conservative staple, is freedom from the redistribution that is essential for fairness and social mobility.
Now freedom is being mentioned again, and this time it is freedom from protest. That means freedom against the public’s right and ability to hold big business and the Government to account for the climate destruction that they are undertaking. Opposition Members know which side Conservative Members are on. Increasingly, so do the British public. You may wrap this up in the ability of law and order to hold back the unwashed masses, but actually they are the people who are fighting for all our freedoms, for our future and for a world without a climate crisis fuelled by your friends in the big corporations and the oil sector. That is the reality.
Several hon. Members rose—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. Along with a gentle reminder about the word “you”, may I remind hon. Members that it was suggested earlier that about eight minutes per speaker would be appropriate? I also remind the House that we must keep our language temperate.
Lee Anderson (Ashfield) (Con)
Now then: I will try to keep my speech brief and, in my usual fashion, I will try not to be controversial.
We have a proud tradition in this country of being able to protest and have our voices heard. We have something else in this country, too: something called democracy, which sometimes Opposition Members forget about. At the last general election, we got an 80-seat majority to get tough on law and order. The Bill will deliver that.
I am one of the people in this Chamber who has stood on a picket line. In 1984, when the miners’ strike was on, I stood on the picket lines for a year with my dad, my uncles and my friends. I saw the good and the bad of protests. The good was that in the most dire circumstances, men could keep their spirits up and protest for something that they believed in. But I also saw the bad: the violence, the horrible scenes, the miners getting injured, the police getting injured, the police horses getting injured, the dogs getting injured. They were awful, awful times and I never want to go back to them; I did not think we would until I saw the horrible scenes on Whitehall when the BLM protests took place just a year or so ago. They were awful, awful scenes that I never want us to go back to, but protest is important in this country.
I have held my own protests over the years—I will tell the House about a couple. I was attacked viciously for both protests by the Labour party and the left in this country. I did a simple protest last year during the football. I refused to watch the England team because of their stance on taking the knee—that was my little protest. It was not a violent protest; I did not go out on the streets, I was not banging drums, I did not get my megaphone out, I did not shout at people. All I did was refuse to watch a few football matches, and what happened? I was attacked by every single Opposition Member and by the mainstream media. In fact, the Daily Mirror voted me the worst man in Britain, an accolade that is so close to my heart and that I am so proud of that I hope I get it this year as well.
Another one-man protest that I did was in Ashfield a few years back—it was when I was a Labour councillor, by the way. We had a problem at a beauty spot in Ashfield where the Travellers kept coming. They kept ruining the site: they would leave rubbish, they would be out thieving at night, and pets were going missing. There were all sorts of shenanigans: threatening people, effing and blinding, playing music, making fires and burning wire—all the typical behaviour that we would associate with a site like that. I asked the council to put some barriers up to stop the Travellers coming back. The council refused, so we tidied the site up—it cost thousands and thousands of pounds—but then the Travellers returned and did exactly the same. There was foul-smelling smoke from the fires—they were burning wire to get the copper out—neighbours were being threatened, and there was excrement everywhere. Eventually the conditions became so bad that the Travellers could not live there anymore, and they moved on again.
I thought, “My goodness, we cannot carry on like this—we have to sort this out.” Again I said to the council, “Put some barriers up”, and again they said no, so I got a JCB and two big boulders from a local demolition site, and I blocked the car park off. Guess what: the Travellers did not come back, because they could not get on to the site, but guess what the local Labour group did. Guess what the Momentum-controlled Labour group did, because of my one-man protest. They issued me with a £100 fine for fly-tipping. That was them agreeing with my protest, or rather not agreeing with it. My common-sense residents, in a red wall area, said, “We will pay that fine for you.” Luckily the fine was rescinded in the end, but that just shows what the Labour party thinks: when one person tries to organise a protest on their own, it issues fines.
What the House has to realise is that we are not voting to stop protests. We are voting to keep members of the public safe. We are voting to keep our roads open. We are voting to allow people to go about their daily business and not be hindered. We are voting to stop criminal damage. What is wrong with that? I just do not understand why anyone would vote against it. I have said this before. We have seen these eco-hooligans, or whatever they are, dancing in the street, off their heads on something, blocking motorways by gluing their ears to them. It is unbelievable, and unlike Opposition Members, the people of this great country of ours have had enough of it. They are sick of seeing it. They are sick of switching the TV on and seeing these idiots stopping our way of life. Anybody would think that we were voting to live in a communist state, but we are not. We just want people to live in a safe country and to go about their business. I wonder if that lot opposite understand how angry the British people are when they see statues being pulled down and buildings being damaged. Do they think it is bleeding clever?
An Opposition Member who is not in the Chamber at the moment spoke about the type of people who demonstrate. I will tell you about the type of people who have been on the demonstrations that we have been seeing, such as members of Insulate Britain and all these eco-warriors. There are three categories. There are the middle-aged hippies, who are probably about my age and probably have a few bob in the bank. They drive their big 4x4s, and they turn up to a protest in their hemp vests with, no doubt, a bowl of the latest eco-friendly muesli in their rucksacks, and they cause absolute mayhem, because they have nothing better to do. Then there are the Socialist Worker types. I used to meet some of them back in the earlier days, and not one of them went to work. That is the irony: they were socialists, but not one of them went to work. Not one of them had a job. They, too, had nothing better to do than go out and cause trouble. Opposition Members are looking at me with glazed expressions on their faces, but that is the socialist workers! I am not even going to start on the students, because they are young and they will grow out of it. They will know better.
We all saw the disgusting scenes in Whitehall during the Black Lives Matter riots just a year or so ago. As a party, we were quick to condemn the violence, and rightly so, but what did Labour do? Did they condemn the violence? No; they sent the troops out. They went out and stood shoulder to shoulder with the rioters, the same rioters who were attacking our police outside Downing Street. It is absolutely disgraceful.
All that we in the Conservative party want to less criminals on the street, less knives on the street and less trouble on the street, so for once, please, will those on the Opposition Benches do four things? Will they back our police, back our people, back our country, and back this Bill?
Bell Ribeiro-Addy (Streatham) (Lab)
Given all the crises that we are facing in our country, it speaks volumes that the first Bill of a new Parliament is yet another piece of authoritarian anti-protest legislation. The message from this Government is clear: their top priority is making it harder to protest against the cost of living crisis, rather than helping people through it.
The Government have already introduced some of the most serious and sweeping restrictions on the right to protest with their Police, Crime, Sentencing and Courts Act 2022, and this Bill takes the assault on our rights one step further by reviving many of the failed measures that were rightly thrown out in the other place. Restricting protest, expanding discriminatory stop and search, introducing jail sentences and unlimited fines for demonstrating close to national infrastructure, and introducing new offences of locking on will not help my constituents to pay their bills, or, indeed, address many of the issues about which they will tend to protest.
This is yet another Bill that seeks to stop people making their voices heard, and it disadvantages our poorest and most marginalised communities. Laws are not reasonable or fair if rights are protected only for those who agree with the Government, and curtailed for those who wish to challenge the Government. I agree with the hon. Member for Paisley and Renfrewshire South (Mhairi Black), who said last week that we were sleepwalking into fascism. This country’s tradition of dissent has paved the way to our rights and freedoms, and those protests are the reason why someone of my class, race and gender has the rights that I have; but this Bill contains measures that would have outlawed the protests that won votes for women and trade unions.
Given the Government’s trajectory, there is no doubt in my mind, at least, that these measures will be used against pickets in industrial disputes. According to the Bill, there will be a defence when it comes to trade disputes, but that defence will not be available to stop the new serious disruption prevention orders applying to individuals who take part in more than one protest within a five-year period, even if they have not been convicted. That obviously targets union officials who regularly attend and organise pickets. The Trade Union Act 2016, the Police, Crime, Sentencing and Courts Act and everything in between, and now this Bill, have all but eradicated what was already a severely restricted right to picket. Our unions are part of the last line of defence against this Government’s attack on working-class people, and I cannot believe that the Government would stoop so low.
It is wrong that the Bill extends stop and search powers and introduces serious disruption orders when existing stop-and-search powers are already a key component of the racially unjust criminal justice system. Marginalised communities are already disproportionately likely to face criminalisation and harassment. Just last month there was a national outcry when it emerged that a black teenager had been strip-searched by police at school, having been falsely accused of possessing cannabis. There has been a string of revelations about the racism and misogyny that still blight UK policing, clearly exemplified by the vile racism and misogyny uncovered at Charing Cross police station and the already record low confidence in policing.
Sir John Hayes
The hon. Lady speaks about stop and search. She will know that during a two-year period up to 2021, 150,000 arrests were made as a direct result of stop and search. She will also know that in 2019, 50,000 knives were found and removed. Those were arrests that prevented crimes, and those were knives that might have been used to take life or at least to injure. Surely the hon. Lady recognises that stop and search is just part of the means by which we can crack down on crime.
Bell Ribeiro-Addy
I have no issue with evidence-based stop and search. If there is a reason to stop somebody, that is absolutely fine. Unfortunately the police continue, again and again, to stop and search people from certain communities. All that that does is go further down the route of making confidence in policing extremely low, which does not do anything to solve crime.
When it comes to misogyny, I think about the horrifying treatment of those who attended the vigil in my constituency last year to commemorate Sarah Everard and other women who had lost their lives to violence. That made it clear that women opposing violence against women were not safe from male violence, even from those who were tasked with protecting us from it.
The Bill targets, in particular, the activism of groups who have already been mentioned many times: groups such as Extinction Rebellion, Just Stop Oil, Insulate Britain, Kill the Bill and the Black Lives Matter movement. All those groups have used disruption to draw attention to major injustices such as the climate crisis, attacks on our civil liberties and institutional racism. Rather than taking action to address those injustices, the Government want to stop people speaking out about them. We must remember that today’s protests are signposts for tomorrow’s progress.
How does it make sense for the Government to support protests around the world while cracking down on the right to protest here? As Amnesty International has pointed out,
“these authoritarian provisions…are similar to repressive policies in countries the UK regularly criticises—including”
—yes—
“Russia, Hong Kong, and Belarus”.
The message to the public is very clear: we must put up with it, or shut up. This continuous attempt to criminalise dissent is a threat to everyone who wants to stand up for what they believe in, and to anyone who believes in building a better society. The way in which the Government continue to push this agenda makes it clearer than ever that we must oppose this Bill today, and oppose all further attempts by them to proceed with this authoritarian way of running the country.
Paul Bristow (Peterborough) (Con)
This country has allowed and tolerated protests for centuries. I am not convinced that many protests achieve anything much beyond noise, but we are a democracy, and freedom of speech in our media should be matched by the freedom to express those views in—
Ms Abbott
The hon. Gentleman has said that he is not aware that protest had done anything worthwhile. What about the protests of the Chartists? What about the protests of the suffragettes? What about protests calling for peace? Does he really think that those historic protests achieved nothing?
Paul Bristow
The right hon. Lady is a long-standing Member of this House, and she is enormously respected by me and by many people here, but I would respectfully point out that that is not what I said. What I said was that I was not convinced that many protests achieved anything much. There are notable examples where protests have achieved a great deal, but I am not convinced that many of the protests that we see each and every day now are achieving anything at all. That was my point.
Freedom of speech in our media should be matched by the freedom to express those views. I agree with the right hon. Lady that protest is important. That was exactly the point I was trying to make. Whether it achieves anything or not is beside the point. The fact that so much of it comes from political perspectives that are opposed to mine is also beside the point. Anyone tempted down that route just needs to look around the world. The scenes of protesters in Russia with blank signs being arrested are a reminder that what we could stand to lose is nothing less than freedom itself. I will always defend legitimate protest by those with whom I disagree. However, there are also illegitimate ways of protesting that go beyond the expression of a view to impositions on the freedom of others, to violations of our laws and to acts that can even pose a risk to people’s lives. Direct action is not a legitimate form of protest. Locking on, which is defined in clause 1 of the Bill, is not a legitimate form of protest. Obstruction of major transport works, which is defined in clause 3, is not a legitimate form of protest.
Sir John Hayes
My hon. Friend seems to be distinguishing between peaceful protest, of which there is a long tradition, as he rightly says, and violent protest. These acts are violent acts. The destruction of property, the attacks on individuals and the real nuisance and life-threatening damage caused when roads are blocked are acts of violence. They are militant and extreme, and they can be distinguished from peaceful, legitimate protest.
Paul Bristow
As always, my right hon. Friend is absolutely correct. Interference with key national infrastructure, as set out in clauses 4 and 5, is not legitimate protest.
Stewart Hosie
There is an inconsistency here that is just breathtaking. The hon. Member for Ashfield (Lee Anderson) has just described how he stood on a picket line during the miners’ strike. Those picket lines were designed to stop scab workers going into somebody else’s colliery in many instances. That is not indirect action; it is direct action. Is the hon. Member for Peterborough (Paul Bristow) saying that all the people on picket lines should have been arrested? Is that really what he is saying?
Paul Bristow
If the right hon. Gentleman wants to relive the battles of the 1980s, and if he wants to say that preventing legitimate people from earning a living to provide for their families is illegitimate or wrong, I am quite happy to be on the other side of the debate from him.
Lee Anderson
I notice that the right hon. Member for Dundee East (Stewart Hosie) described people who went to work during the strike as a “scab”. I’m sure that my hon. Friend will agree that that is disgraceful language. The right hon. Gentleman should take it back. Quite frankly, he should be ashamed of himself.
Paul Bristow
I agree wholeheartedly with that point.
Let us get back to the substance of this debate. I will be proud and pleased to stand, perhaps at the next general election, on a record of getting this Bill passed. I said during the debate on the Queen’s Speech that the people of Peterborough are hugely supportive of measures taken against those who glue themselves to roads, who disrupt ambulances and who stop hard-working people going about their ordinary business. In that, they are no different from a large majority of people across the country. Extinction Rebellion, Insulate Britain, Just Stop Oil and the rest of these extreme groups—I use that word carefully, because they are extreme—are opposed to the democratic process and against the democratic majority. The only reason that we have heard howls from the Opposition Benches is because those Members disagree with the view of the majority. It is because they sympathise with serious disruption when it suits their own political causes. It is because they apply the rule of law to the Government but fail to apply it to a mob.
We have a duty to protect the public from the irresponsible, selfish and dangerous behaviour of extremists. Serious disruption prevention orders are a sensible and proportionate response. Otherwise, we will continue to see repeat offences by those who place their own opinions above the rights, health and livelihoods of others. Our courts need these powers to uphold the integrity of the law. Our society needs these measures to uphold our civil and civic values. My right hon. Friend the Home Secretary should be thanked for by every democratically elected Member of this House for introducing the Bill. In bringing back some of the measures blocked in the other place by the unelected Members of this Parliament, she is doing democracy’s work.
If I may, I want to tell the House a story about Sahanna, a constituent of mine. I have changed her name—[Interruption.] It will be interesting for Opposition Members to listen to this, because my constituent did not want her name mentioned in the House of Commons for fear of being targeted with repercussions. Sahanna is a nurse, and for a while she was living with her sister while she was working at Watford General Hospital. One morning, while she was driving to work, she encountered traffic jams tailing back miles while protesters —public nuisances—blocked the road. They were blocking the M25 at junction 23 for South Mimms. She was monstrously late for work, as were many of her colleagues. As a result, many shifts was seriously undermanned, a clinic was cancelled, and patients suffered—they did not get the NHS treatment that they deserved. What is the justification for this? Opposition Members who somehow support protests such as these need to seriously look at themselves in the mirror. At the very least, they should get on board with this legislation. It will address these irritants and nuisances—I do not want to call them protests; they are not protests—that have serious consequences for hard-working people and for access to public services.
I want to end on one really legitimate point. When I talk about illegitimate protesters, I am not talking about the passionate people in my constituency who protested about certain things that happened to the Windrush generation. I am not talking about those quite nice Extinction Rebellion protesters, local Peterborough people, to whom my office gave tea when they protested outside it. Those people were not blocking the highway or gluing themselves to public infrastructure. They were not locking in or causing serious disruption. That form of protest is what we are all here to defend. We are not here to defend the people who go beyond legitimate protest, but I will always stand up for those who organise legitimate protests even though I disagree with them.
Kate Osamor (Edmonton) (Lab/Co-op)
We face a multitude of crises on many fronts. I totally agree with my hon. Friend the Member for Streatham (Bell Ribeiro-Addy), who is no longer in her seat. She put it powerfully: the cost of living crisis and the housing crisis what this Government should be dealing with. Perhaps most important of all is the climate justice crisis, but the Conservatives are not interested in taking measures to address those important issues. No, their Government are instead trying to clamp down on people’s right to urge that serious action be taken. Clearly, our age-old democratic right to protest is just too inconvenient. That is what we get when we have a Government informed by the niche interests of right-wing culture warriors who do not understand what being woke actually means.
Kate Osamor
I totally agree with my right hon. Friend. Her comments are very worrying when we think of the young black men who are disproportionately stopped and searched, and strip searched, for no apparent reason other than the colour of their skin.
Clause 7, on powers to stop and search without suspicion, is a very worrying clause that will enable senior police officers to authorise the police to stop and search anyone within a designated zone for a period of time without any grounds for suspicion. It states that the power will enable the police to look for objects involved in so-called “protest-related offences.” According to the explanatory notes, this will include threatening objects
“such as glue or a padlock”.
Will this also include a pen, paper, a hat, water, a change of clothes, sanitiser and a face mask? As well as being part of the ridiculous fixation on locking-on offences, I believe clause 7 is designed to instil fear among many who may be mistrustful of the police, having had bad interactions with them, or knowing people who have. The measures could have the effect of dampening turnout for all kinds of protests and campaigns, which I am sure the Government would be pleased about.
It has long been known that stop-and-search powers have a disproportionate impact on racialised communities, as my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) so eloquently said. It is on our communities that the burden of more searches will fall hardest, and it is our communities where people will be put off from making their voice heard.
I remind the House that the ongoing “spy cops” inquiry is looking into the abuse of police powers by undercover police, who spied on particular anti-racist, socialist and anti-war groups. There is also the Stephen Lawrence justice campaign. This should raise alarms in this House. We know the suspicion in which the forces of the state have generally held groups that fight for radical change. It is clear that those groups will be targeted by this action, which will only erode dissenting voices.
One day, everyone will look back on this Government’s clampdown on and prosecution of climate protesters with as much disgust as we look back on past Governments who imprisoned the suffragists fighting for women’s right to vote. Anyone who wishes to be on the right side of history should stand up for democratic rights and values, oppose this authoritarian Home Secretary and vote against this Bill tonight.
Matt Vickers (Stockton South) (Con)
I am grateful for the fact that this Bill will protect the rights of everyday men and women across the country who want the freedom to get on with their daily life. Some of the dangerous and irresponsible disorder we have seen on our streets in recent times, and the havoc it has wreaked on innocent people’s lives, should not be described as protest. Some would say it verges on domestic terrorism.
We have seen attempts to stop the distribution of newspapers because hooligans did not agree with the content. We have seen areas of our capital city brought to a standstill at rush hour because lefty activists wanted to glue themselves to a road. The public are aghast that this could happen, and that our police did not have the powers they need to tackle it. The police have been left frustrated. They have been diverted from their work of tackling crime in our communities and making our streets safer, and are instead playing marshals, and are, in fact, putting their life at risk on our highways, stewarding this pandemonium.
Mr Holden
Was my hon. Friend as shocked as I was to hear the Home Secretary say that more than £175 million has been spent in just the past couple of years on certain protests? That money should be going to our local communities—either his in Stockton and Cleveland or mine in County Durham—to help us fight the real antisocial behaviour problems that our communities face.
Matt Vickers
I could not agree more. I am delighted to see 13,000 more police officers on our streets, and I want them to spend their time tackling the issues in Stockton South, rather than policing this jamboree.
Law-abiding citizens have been stunned by these scenes and want to see our police forces empowered to protect the rights of everyday people who are trying to go about their daily lives. Why should someone be able to prevent them from getting to work? Why should someone be able to prevent their children from getting to school? Why should someone be able to prevent their dying relative from getting to hospital in an ambulance?
Sixty-three per cent. of people support the creation of a criminal offence of locking on, and it is clear why. We must protect the freedom of our citizens against a minority who would seek to impede them. Moreover, I can see how genuine protesters would be frustrated. They turn up to a protest to stand up for a noble cause, and then some of these serial protesters turn up en masse like some sort of traveling circus. Full of clowns, these groups hijack protests for a superglue soiree. They bring individual campaigns into disrepute and damage the public support and sympathy that genuine protesters have worked hard to gain.
Sir John Hayes
My hon. Friend is making a compelling case for the Bill. We have heard from the Bill’s critics that the end justifies the means—that because the end is noble, in their judgment, any means, however violent or disruptive, are legitimate. Is that not the argument used by every extremist, indeed every tyrant, throughout history?
Matt Vickers
My right hon. Friend is entirely right. These actions undermine public support and sympathy for genuine causes, and they create division and misery in the name of genuine causes.
For everyday people right across the country who should have the right to go about their daily life without interference, for those who wish to undertake peaceful and legitimate protests, and for police officers frustrated by having to waste their time when they could be making our communities safer, this is the right way forward. Thanks to this Government, there are now 13,000 more police officers on our streets; I want to see them tackling crime, not distracted and diverted by these jamborees of disruption, division and criminality.
Finally, I disagree with the assumption that police forces will use the powers in this Bill disproportionately and improperly. Of course, there have been horrendous exceptions—cases of misuse of police powers—but we should differentiate these from the brave men and women who sign up as police officers and put themselves in harm’s way to protect us. They should be backed and given the powers that they need to get on with the job.
Caroline Lucas (Brighton, Pavilion) (Green)
This is a deeply dangerous Bill, and I am pleased to support the reasoned amendments. The measures in the Bill represent a fresh outright attack on our fundamental rights. Indeed, as others have said, the human rights organisation Liberty has called it a
“staggering escalation of the Government’s clampdown on dissent.”
We are in the grip of multiple crises: a cost of living scandal that is pushing millions of households into fuel and food poverty; a war in Ukraine with disastrous consequences; and the accelerating climate and nature emergencies. What we need at this critical juncture is more democracy, not less—not a ban on our constituents participating in certain protests, not subjecting them to 24-hour GPS monitoring for the crime of disagreeing with the Government, and not barring them from participation in public life.
Today I want to focus on serious disruption prevention orders. I will also touch on stop and search, and the creation of new offences. Serious disruption prevention orders are a form of banning order that might more accurately be called “sinister disproportionate political orders”. They are sinister because the idea that someone can be banned from attending a protest for up to two years simply because they have participated in at least two previous protests within a five-year period is nothing short of Orwellian.
People do not need to have been convicted of a crime to be subject to an order. They just need to have dared to exercise the right to take part in a peaceful protest: dared to have attended rallies against Brexit; dared to have marched against going to war; dared to have held our children’s hands as they went on climate strike. How will the police know whether someone falls into that category? How will they know that someone is engaged in other activities that the Bill deems unlawful, such as buying a bike lock or painting a banner? Thanks to drastically expanded surveillance powers, of course, about which I will say more shortly.
The world was rightly outraged by footage of peaceful protestors in Russia being bundled into police vans and silenced for opposing Putin’s war in Ukraine. Make no mistake, this clampdown on British citizens is cut from the same cloth. I will spell it out: an SDPO would completely remove someone’s right to attend a protest, and therefore must be resisted by any right-thinking person who values our democracy.
Proposals to impose sinister banning orders are nothing new, and have time and again been labelled disproportionate. In response to a previous iteration of such orders, Her Majesty’s inspectorate of constabulary and fire and rescue services, and even the Home Office, issued the same warning about their impact on people’s ability to take part in protest. Her Majesty’s inspectorate stated:
“It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order.”
In other words, the provisions in the Bill to restrict citizens are disproportionate to the supposed threats they seek to address.
Moreover, the Bill takes state surveillance to chilling new levels—for example, allowing electronic monitoring of someone subjected to an SDPO, with only the vaguest safeguards applying to any data collected, and the potential for associated negative impacts on individuals’ privacy and the wider community. It bears repeating that this could happen to someone who has committed no crime. As someone who has used parliamentary privilege in this place to open the lid on the immoral and arguably unlawful actions and sanctioning of police spies, this causes me considerable concern. The Home Office argues that such levels of interference are justified by the emergence of groups such as Insulate Britain and Just Stop Oil, but existing legislation—for example, the Public Order Act 1986 and the Protection from Harassment Act 1997—already grants the powers that reasonable policing of such protests demands.
The Bill is also disproportionate because the new offences could criminalise people for linking arms and having in their possession everyday items such as the bike locks that are simply “capable of causing” so-called “serious disruption”. There is no requirement for any disruption to be actually happening. The provisions just about fall short of policing people’s thoughts and intentions, but the direction of travel is clear and it should terrify us all.
The orders are sinister, disproportionate, and political—political, because the provisions allow far too much scope for police interpretation. On the new broad power for protest-specific stop and search, for example, a suspicion that someone might have knitting needles, a hoodie or even just a marker pen in their bag could be grounds for the police to act, but it does not stop there.
Caroline Lucas
As others have said, evidence-based stop and search—where there is evidence and a good reason—is not in question. What is in question here is stop and search on the basis of a whim. As others have eloquently said, there is a very real danger of antagonising some groups who are already most disadvantaged, and therefore making the situation far worse.
The Government want to give the police powers to stop and search a person or a vehicle in a protest context, even when there are no grounds for suspicion. That will be permissible simply if a police officer believes that an offence—such as wilfully obstructing a highway or intentionally causing a public nuisance—might happen in the area or thinks that some people in the area might be carrying prohibited items; and there we are, back to the marker pens and knitting needles.
Protest is, by its very nature, liable to cause a public nuisance, disruption and noise, and to have specific targets, but real democratic leadership does not seek to ban opposition voices from protesting. Only a cowardly Government, who do not trust or respect their people, would take such a step.
Kit Malthouse
I wanted to ask whether the hon. Lady, notwithstanding her objection to the banning of protest, subscribes to the enthusiasm across the House for the ban of protests near abortion centres or clinics, and supports the creation of buffer zones that ban protests in those circumstances. If that is the case, is she possibly guilty of wanting to ban only protests with which she does not agree?
Caroline Lucas
I disagree with the premise of the Minister’s intervention. I have been proudly at the forefront of moves to say that women seeking their right to healthcare should not be subject to the personal, direct and threatening individual harassment that happens all too frequently outside abortion centres. I would wager that I have been on more demonstrations than anyone on the Government Benches—I have been arrested for them and I have been alongside them, and I have to say in parentheses that the characterisation of protesters by Government Members is wildly short of the mark—but I have seen nothing that is tantamount to the kind of harassment and direct intimidation that I have seen outside abortion centres, which is why the Minister’s comparison is not a reasonable one.
While I am on the subject of who protesters are, let me say that I am fascinated by the division between the protesters we support and those we do not. It seems to me that we support the ones who are silent and probably protesting in their own front rooms, because we do not like protest to be disruptive.
Caroline Lucas
No, I will not.
Protest is, by definition, disruptive. I can promise Government Members that the protesters I have been alongside include grandmothers who have never been on a protest before, nurses, doctors, teachers, care workers and people who collect the refuse. They are our community. I do not buy into the division that the Government are trying to make between a community on the one side and protesters on the other. The protesters are from those communities; they come up from them and are part of them. I say no to the kind of divisiveness that I have been hearing and we have been subjected to over and over again for the past five hours that we have been sat here.
Even if Ministers persist with this draconian and dangerous Bill, I sincerely hope that they will at least recognise the dangerous impact of already existing suspicionless stop and search powers, including their ineffectiveness, and their contribution to racial disproportionality and erosion of trust in the criminal justice system. I hope that the Government will not seek to extend them and therefore perpetuate such outcomes. More than that, though, my hope is that the Bill, which is riven with political ideology—and, frankly, puts the police in an untenable position—can be stopped in its tracks. I cannot find one shred of sense, proportionately or necessity in the Bill, and I hope that colleagues will join me in opposing it at every opportunity.
Richard Fuller (North East Bedfordshire) (Con)
It is a pleasure to follow the hon. Member for Brighton, Pavilion (Caroline Lucas). She certainly put out the most certain bet that she has been on more protests than most other people in this House and she is honourable for doing so. She said that the contributions to the debate from the Government Benches had promoted divisiveness. I do not agree with her—people have been trying to express their point of view—but, standing alone, perhaps I shall be a sole voice in expressing some reservations about the intent behind some of the measures in the Bill.
I was grateful to hear some of the contributions by the Home Secretary, particularly her willingness to look at the Bill’s focus. I would like to take that up with the Policing Minister, who has been able to explain to me some of the more detailed provisions of previous Bills.
At some points in the debate, it has not been clear whether Members have been focusing on the Bill in the context of protest, climate change or criminal damage. The Bill is at its best when it focuses on those who would use protest as a cover to cause damage or create unreasonable disruption. It starts to lose its way when it strays away from that into an area where all democratic Governments need to be careful, which is how a Government of the day pass legislation that has an effect on protest.
My first concern of principle, then, relates to imprecision, in respect of which I shall mention a couple of clauses. Before I started to speak, I wrote down that I had concerns about why, with the Government having only recently taken a large Bill through Parliament, we had the provisions sort of re-presented today in this Bill. The right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), who spoke for the Opposition, had a point about why these measures have come back to the House so soon and whether we have had time to see the impact of the measures passed previously. Again, I can see the rationale for the Bill when it is tight to its intent; when it goes broader than that, I have significant questions.
One reason I am a Conservative is that I believe in freedom of speech—the right of people to express themselves freely. Indeed, as a Government we are emphasising that in a number of other pieces of legislation we are bringing forward. In questions to the Secretary of State for Education earlier, we highlighted the importance of free speech in schools and the need not to have ideological perspectives. We are talking about it in universities, too. As I thought in respect of the Police, Crime, Sentencing and Courts Bill, the Government are at risk of being in conflict with their freedom of speech priorities in proposing a Bill that focuses on some of the restrictions on protests.
Another point that came up in respect of the previous Bill and does with this one, too, is the risk that it puts on police officers being seen as political because of their decisions, given the very broad framework that is set out and the fact that it is hard to explain to someone who is being noisy or disruptive why they are being selected rather than others. I do not expect the Policing Minister to address that today, but it would be helpful to learn a bit more about that in my conversations with him.
I think all Members present will recognise my final concern of principle. It is surely true that our politics have become far more divisive over the past decade. Whatever the reasons for that may be—perhaps it is a matter of political decisions or of social media—when people feel very divided on politics it is important that we keep open to them as many avenues as we possibly can for them to express dissent or an opinion or to say where something is wrong. That is an important context for the Policing Minister and the Government to consider as they think about the application of the Bill.
Let me turn to some points about the Bill’s provisions. I talked earlier about it being imprecise and straying from areas in which it is strong—its focus on the use of protest as cover for criminal damage—and unfortunately clauses 1 and 2 are where that level of imprecision starts. They are worded far too openly. Everyone here seems to know what attaching on means. Is that the phrase? I cannot remember exactly what it is.
Richard Fuller
I thank my hon. Friend. I have no clue what locking on is. I do not know. Some colleagues have made the point. What does one have to attach oneself? I have no idea and there is nothing in the Bill to explain to me what locking on may be. It would be helpful for the Government to produce further provisions on that. It is disappointing that the Government are then extremely precise in clauses 3, 4 and 5 about some of the measures they wish to introduce. Precision is clearly not unavailable to them; it is a matter of choice where they have applied it.
A number of Members have spoken to clause 7, which introduces powers on stop and search. Some people have rightly made the point about the disproportionality of stop and search, which has been an important issue for me in my time in Parliament. My right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes), who is no longer in his place, made his point by saying, “But what about the number of knives and the number of offences that have been caught?” First, that does not answer the question of disproportionality, which is the fundamental reason why many of us have concerns about the use of stop and search. Secondly, that argument is completely inappropriate when stop and search is applied to people going on a protest, because it is about not the other aspects of serious crime or serious drug dealing that we talk about, but people expressing their points of view. I say to the Government, “Please, if you are going to look at the extension of stop and search, think carefully before putting that provision in this legislation.”
Stewart Hosie
The issue is not just the extension of stop and search but many of the extensions in the Bill. I was struck that, if Lord Hain—then Peter Hain—could be convicted of criminal conspiracy for leading direct action events in the 1970s, which he was as part of the anti-apartheid movement, why do we need this panoply of illiberal measures now? The law was more than capable of dealing with many of the same issues 40 or 50 years ago.
Richard Fuller
The right hon. Gentleman is entitled to his point of view about the broader panoply; my point is specifically about stop and search. I hate the fact that a black man, perhaps with his son, who walks in the streets of London or in my constituency in Bedfordshire is 14 times more likely to be stopped, and very often for no good reason. He may then have to explain to his son or daughter why that has happened. Until we as a population start to find some balance about whether stop and search is useful or not and focus on what it means to the next generation, we will be letting down our young people.
Clause 7(7) is chilling:
“A constable may, in the exercise of the powers conferred by subsection (6), stop any person or vehicle and make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person or vehicle is carrying a prohibited object.”
That is on the way to a demonstration. We can do better than that.
What is serious disruption? It has been mentioned by many Members. It is a lynchpin in the Bill for many aspects of what may happen, but it is not defined in the Bill. Does the Policing Minister intend to come forward with some more precise language about what constitutes a serious disruption, so that we do not put undue pressure on police officers to work it out for themselves in the heat of the moment when people are going on demonstrations? One Opposition Member—I cannot remember which—said that a large demonstration is very likely to cause serious disruption by dint of being a large demonstration. If there is a protest of hundreds of thousands of people going through a city, there is likely to be serious disruption. If we are not going to define “serious disruption”, we will be at risk of having some of these powers misapplied.
Mr Holden
Surely, large protests such as the ones we saw over the Iraq war or the hunting ban, would have engaged with the police at an earlier stage to facilitate a proper, lawful and peaceful protest. What the Government are trying to target are those small, sporadic numbers of people who are causing deliberate harm to specific areas of key infrastructure. Does my hon. Friend understand the difference between those two cases?
Richard Fuller
I do; that was why I said that the Bill is at its best when it focuses on those things. I am just saying to the Minister that we should have more precise definitions in the Bill.
Clause 14(4) lists the prohibitions that may be imposed on someone subject to a serious disruption prevention order. Let me tell the Minister what this reminds me of. Earlier in my time as Member of Parliament for Bedford, I had a constituent who was under a control order. Control orders were brought in for people who our intelligence services said were terrorists or were at high risk of causing a major terrorist incident. Some of the provisions in clause 14(4) remind me very much of the control order provisions that my constituent was under. I ask the Minister please to look at whether that level of intervention on the activities of an individual, who has merely gone about protesting in a way that, yes, may have caused disruption and, yes, may have been subject to the provisions of this Bill, is truly what we should be seeing in a free society.
Rebecca Long Bailey (Salford and Eccles) (Lab)
Many of the rights that we take for granted today were largely not born of the spontaneous goodwill of some trail-blazing politician. They came about because people stood together, they demanded change, they protested and they made those with power listen. For example, I would not be standing here today as an MP, and many of my constituents would not even have the right to vote, had it not been for the Peterloo protest, also known as the Peterloo massacre due to the horrific atrocities inflicted upon those protesting. That protest movement called for reforms to parliamentary representation. Ultimately, it resulted in the Great Reform Act 1832, which went some way to addressing the injustices in the political system.
We have heard today how women would not have the right to vote had it not been for the suffragettes. They are hailed as heroines now, but back in their day they were demonised and viewed as trouble-making anarchists. They were the so-called “lefties” Conservative Members have been talking about today.
Equal pay legislation was largely born of the actions of brave striking workers at Ford Dagenham and the large scale protests that followed. The establishment of the National Parks and, ultimately, the principle of the right to roam would not have happened without the Kinder Scout trespass. The list is endless, but, sadly, it is clear that such era-changing moments in our history will be a fairy tale that we simply tell our children if this House allows the Public Order Bill as drafted to become law.
Human rights organisation Big Brother Watch says this of the Bill:
“It is without doubt that it includes some of the most undemocratic, anti-protest measures seen in the UK for decades.”
Law reform and human rights organisation JUSTICE considers that the Bill
“would pose a significant threat to the UK’s adherence to its domestic and international human rights obligations.”
Further, Amnesty’s analysis is that many of the provisions that have re-emerged in this Bill after being roundly rejected by the House of Lords in February
“would seriously curtail human rights in this country and damage the UK’s international standing, potentially irreparably.”
On protest banning orders, the vast range of peaceful and innocent conduct that the police would seemingly be able to criminalise is breathtaking. The Bill says that these orders can apply to people without conviction if someone has carried out activities
“or contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption”
among a range of other scenarios, on two or more occasions. Let me explain that. If a law-abiding person attends two marches, for example, where hundreds of thousands are in attendance and some people completely unrelated to them cause a “serious disruption”, which is undefined and could mean literally anything, could that law-abiding person be subject to a protest banning order? The Bill as drafted certainly seems to suggest that they could.
The offence of locking on is also veiled in ambiguity. As JUSTICE says, it is so vague that it would appear to capture a couple walking arm in arm down a busy street where they may be being reckless as to cause “serious disruption” to another couple walking in the opposite direction. Again, “serious disruption” is undefined and could mean literally anything.
The widening of already extensive stop and search powers also appears wholly disproportionate and hugely damaging to racialised communities. Indeed, clause 7(2) is one troubling example. That allows for the police to search an individual when they have reasonable grounds for finding an object that is
“made or adapted for use in the course of or in connection”
with one of the relevant offences. “Object” is not defined; it could be anything from a mobile phone used to agree meeting points with friends to a leaflet about the event. Those are just three staggeringly pernicious examples from a frightening selection box of draconian and anti-democratic measures in this Bill.
Kit Malthouse
I just thought I would take the opportunity to deal with the “serious disruption” issue. My hon. Friend the Member for North East Bedfordshire (Richard Fuller) also mentioned it. I believe the hon. Lady is a lawyer by training, so she will know that the phrase “serious disruption to the community” has been in use in the law since 1986 and is therefore a well-defined term in the courts, which of course is where the test would be applied under the legislation.
Rebecca Long Bailey
I welcome the Minister’s contribution but, as he well knows, case law differentiates and changes from time to time without adequate explanation in the text of a piece of legislation. That is what causes significant ambiguity here; there is no doubt in my mind that what would be deemed a serious disruption would change over time and could ultimately result, given the other provisions in the Bill, in an inference that serious disruption is of a lesser nature than it currently is in present case law.
To be frank, those provisions have no place in a democratic country with a long, proud history of upholding the fundamental right to lawful and peaceful protest. There has been a lot of talk in this debate about the Bill cutting crime; if that were the case, I think we would all welcome it. However, as the Government well know, the first step to cutting crime would be to properly fund our police services, which have suffered 12 years of dramatic cuts to their funding and resources. This Bill will not cut crime. Indeed, Her Majesty’s inspectorate of constabulary and fire and rescue services said in relation to protest banning orders that they
“would neither be compatible with human rights legislation nor create an effective deterrent.”
There has also been an illusion created that new offences are being brought in to deal with some of the issues that have been referred to. I want to set the record straight on that. We talked earlier about the terrible issue of emergency vehicles being stopped. That should certainly not be happening, but there is already legislation for that; the Emergency Workers (Obstruction) Act 2006 makes it a criminal offence to obstruct an emergency vehicle. Similarly, the Criminal Damage Act 1971 imposes a fine or prison service of up to 10 years for an act of criminal damage. Highway obstruction is also a criminal offence.
To suggest that the Public Order Bill is in some way a panacea for actions that many within our communities would deem irresponsible, unlawful and incorrect is way off the mark. Therefore, I hope that colleagues across this House will recognise before it is too late the chilling effect that the Bill will have on our democracy and vote it down on Second Reading.
Andy McDonald (Middlesbrough) (Lab)
It is an absolute pleasure to follow my hon. Friend the Member for Salford and Eccles (Rebecca Long Bailey).
The Public Order Bill is the latest in a line of Bills that this Government have decided to introduce, which can only be described as some of the most reactionary and authoritarian legislation in living memory. Instead of bringing forward measures to support people, following a global pandemic that has ripped through our communities, with many now in the dreadful situation of having to choose between heating their homes and eating, and with 40% of households expected to be in fuel poverty, Ministers are using parliamentary time to criminalise our basic right as citizens to protest peacefully—or even noisily and irritatingly.
The Bill follows a raft of recent laws passed at the very end of the last Session that were designed to stifle our liberties. We had the Elections Act 2022, containing measures cynically designed to prevent people from voting. We had the Nationality and Borders Act 2022, which gives the Home Secretary powers to strip dual citizens of their British citizenship without notice, and—in contravention of the UK’s international obligations—criminalises many of those seeking asylum, who now risk being shipped off to Rwanda thanks to her cruel and inhumane scheme. We also had the Police, Crime, Sentencing and Courts Act 2022, banning noisy protests and criminalising Gypsy, Roma and Traveller communities.
Thanks to the work of those in the other place, the Government’s attempt to pass provisions that, if implemented, would leave the UK in breach of international human rights law was scuppered. It is therefore very concerning that the Government have immediately opted to introduce them again in this Session through this Public Order Bill.
The headline measure banning people from locking on—attaching themselves to other persons or objects—is a dangerous assault on non-violent protest. To begin with, as has been pointed out, the Bill does not even properly define “attach”, so it is unclear what it means. Could linking arms with other protesters count? Could using balloons that need to be tethered to the ground fall under these provisions? On top of that, the Bill does not define what would constitute “reasonable excuse”. Would exercising the fundamental right to protest count?
Would the following example count, which I wish to bring to the Home Secretary’s attention, as set out in an early-day motion from 13 years ago, one of whose main signatories was the right hon. Member for Maidenhead (Mrs May)? It begins:
“That this House commemorates the 100th anniversary on 27 April 2009 of the day that Margery Humes, Theresa Garnet, Sylvia Russell and Bertha Quinn, suffragettes from the Women's Social and Political Union, chained themselves to statues in St. Stephen's Hall to protest for the right of women to vote”,
and
“pays tribute to those and all other heroic women who fought for the rights of women during a time when society, and Parliament, thought them undeserving of equal rights”.
How can the Home Secretary countenance enacting legislation that would undoubtedly make protests such as that, which took place just a stone’s throw away from this Chamber, carry a maximum penalty of six months in prison, an unlimited fine, or both? What is more, the Bill would make it an offence merely to be in possession of equipment to lock on. A person would not have to lock on to commit a crime; just being equipped to lock on would be an offence punishable with an unlimited fine.
The right to protest was fought for by generations. When Parliament is not acting in the interests of the people, whom it purports to represent, the right to protest is paramount to keep this place in check. Were it not for those suffragettes, the securing of women’s rights would have been much delayed, which might have delayed the progress that enabled the Home Secretary or the former Prime Minister to be in this place. I cannot help but see the terrible irony in the Home Secretary’s introducing legislation that would criminalise the very means by which courageous suffragettes won women the right to take part in the political sphere. If it was right for the suffragettes to take that action, as the former Prime Minister advocated, why is it not right for other protesters holding this place to account?
Mr Holden
Legislation passed in 2007 turned trespass in this place into criminal trespass, so what the hon. Gentleman is talking about could not take place because of legislation passed under the last Labour Government. It is already a criminal offence, so the suggestion that the Bill does something different and criminalises something that was not already illegal does not hold water, does it?
Andy McDonald
The hon. Gentleman understates the significance of that process, which fundamentally changed our constitution and which was deemed to be illegal at the time.
What is so different between, on the one hand, the suffragettes, and on the other, protesters such as the esteemed international climate lawyer Farhana Yamin sticking her hands to the pavement outside the London headquarters of Shell to highlight the fact that the Paris agreement, which she helped to negotiate in 2015, was not delivering; or the Palestine solidarity activists locking on to one another outside the London headquarters of Elbit Systems, Israel’s largest arms manufacturer, whose subsidiary IMI Systems may well be responsible for supplying the bullet used to murder Shireen Abu Akleh? Just like the Government in 1909 withholding the right to vote from women, this Government’s failure to tackle the climate change crisis with enough urgency is an outrage that demands outcry. Much has been said of Insulate Britain and the objections to certain of its tactics. Government Members should contemplate why it is necessary for people to take such measures when we see our planet dying. If they want to shut up Insulate Britain, there is something very simple that they could do, and that is to insulate Britain and get on with it. In a healthy democracy, these uproars of objection would not be criminalised, but taken on board by a Government serving in the interests of the people.
The attempt to pass the Bill is a very dark day for democracy, and it is incumbent on us all to oppose it in its entirety. I encourage everyone who can do so to attend the TUC rally in this city, which is titled so aptly: “We demand better”.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Here we go again: illiberal legislation on public order and regulating protest boomeranging back in here after the other place flung it out last time. I do not deny that there can be value in appropriate sentences and tighter enforcement in the face of serious disorder—for example, pitch invasions are increasingly common and unwelcome nowadays—but we have to be proportionate about these things.
In 2019, it did seem a bit bizarre when we saw Extinction Rebellion on top of tube trains, when that is one of the most green forms of transport. It probably did not make any new fans there, and ditto when the A40 in Acton was blocked. We all prize living in a liberal democracy, but if curbs are disproportionate and the exercise is about curtailing everyday freedoms primarily to win favour with the red tops and to play to their party base and the gallery, then we do have a problem.
These things are always a balance, but we have to tread carefully when it comes to limiting protest. Not that long ago, the Government were going softly, softly on stop and search. We even saw the police dancing with protesters, but the Bill goes for the eye-catching and draconian, such as creating the offence of locking on, where someone is potentially subject to 51 weeks in prison and an unlimited fine for intentionally attaching themselves, someone else or an object to another person, to an object or to land in a manner capable of causing “serious disruption”. It is so vague that it could apply to people linking arms. That is not to mention, as has already been said, that the most famous lockers-on in history were the suffragettes. It is just outside here where Viscount Falkland’s foot spur is missing, because in 1909 people locked on to it. That is part of our history and it is never to be replaced.
We have to beware of being heavy-handed and being led by moral panic with these things. The European Court of Human Rights has held that the freedom to take part in peaceful assembly is of such importance that it cannot be restricted in any way, as long as the person concerned does not commit any reprehensible acts. Concerningly, there is such widespread discretion in the Bill that the police have carte blanche. These laws are not dissimilar to what they have in Russia and Belarus.
If we think about the memorable protests of recent years, yes there has been Extinction Rebellion, but there have also been the school strikes. I do not condone bunking off school, but Greta Thunberg and her lot and the UK equivalent did put the lie to the youth being apolitical and apathetic. We have had Black Lives Matter and what happened to Colston, but I would argue that the sea change should have been the heavy-handed policing of the vigil for Sarah Everard. It was a shocking incident, and the policing was disgusting. In the immediate aftermath, we had a little bit of hand-wringing and concern, but the content of the Bill is a huge disappointment.
Unlike with the average road, where there is a minimal risk of disruption or it being blocked when we get in our car, women going about their lawful business every day in this country find that their route is blocked. What I am talking about specifically is women seeking an entirely legal abortion. It could be for any manner of reasons, and it is probably one of the most stressful and distressing moments in someone’s life. There is a one in four chance—this is from the Home Office’s own figures—that the clinic they attend will be subject to protests or vigils from anti-abortion protesters.
I have raised this issue with a number of different Home Office Ministers. I presented a ten-minute rule Bill in 2020 with massive cross-party support—from Members of seven different parties—so I know the will of the House is there. Even the Home Secretary, in answer to my oral question in February, was positively glowing, and I know she sees a lot of merit in it—but here is a Bill to curb protests and there is absolutely nothing on protests outside clinics. At least four more clinics have been affected since my 2020 Bill and, if we add it up, the issue affects 100,000 women a year, yet the Government say that there is not enough impact to warrant intervention. We know that psychological distress and damage is being done to those women and that precious police time is eaten up—Members should ask the police in Ealing.
In Ealing, we are lucky to have a pioneering council that put through a public spaces protection order to end more than 20 years of harassment at the Marie Stopes clinic. The street is now transformed, with no more gruesome foetus dolls or women being told that they are going to hell for a completely legal medical procedure. We are lucky in Ealing, but it should not be about luck. It was an act of last resort by our council, and only two other local authorities have followed—Richmond and Manchester. It is a fundamental part of the rule of law that people get equal protection under the law wherever they are, so why are people covered only in those three places?
BBC Newsnight had a feature on the subject last week. There is a huge file of evidence at the clinic in Bournemouth, but the council does not want to act, or shows no sign of acting. It is enormously onerous for councils that do want to push through the legislation, because of the burden of proof and officer time, so with everything else on their plates, it is not a priority for most of them. We are in a bizarre situation where, pending the outcome of a Supreme Court challenge, women seeking abortion in Northern Ireland could soon have greater universal protections from harassment than those in England and Wales.
At the same time, the Bill criminalises a huge range of peaceful non-disruptive behaviour and goes far and beyond what most people would ever deem necessary by supplementing powers that are already there. I give the Minister advance warning that I will be seeking to amend the Bill to protect women from this most distressing and unpleasant form of protest. Canada, Australia and several states of the US already have such legislation; it is not a crazy idea. We need a national approach. People will still be able to protest if they do not like abortion laws in this country, but the appropriate place to do that would be here, rather than around defenceless women in their hour of need. Every woman should have the same protection as people in Ealing.
Dr Huq
No, because other people still want to speak. The so-called hon. Gentleman has eaten up everyone’s time and my hon. Friends will not get in because of him.
Give or take a bit of tinkering with wordings and clauses, this Bill is essentially a regurgitation of the failed Police, Crime, Sentencing and Courts Act 2022. It replicates all the underlying principles and measures that their lordships previously debated and comprehensively rejected. There is no imagination in it to deal with real problems, so for that reason, I and all Opposition Members will vote against the Bill tonight.
Alex Cunningham (Stockton North) (Lab)
This is the first Bill of the Queen’s Speech and it is stark proof that the Government are out of steam and out of ideas. It is a sad day for democracy, as was best illustrated by some of the contributions that we heard from the Government Benches. Instead of the ambitious reforms that our country needs and deserves at a time when the cost of living is spiralling out of control for many of our constituents, the Government have served up these reheated proposals that contribute little, if anything, to the law. We on Teesside do not have a problem with protests, but we do have a huge problem with the massive increase in violent crime and antisocial behaviour. We also have a big problem with health inequalities and the fact that unemployment in our area remains over 30% higher than the national average. Dissatisfied by her attacks on our historical right to peacefully protest in the Police, Crime, Sentencing and Courts Act 2022, which has yet to come into force, the Home Secretary is trying to have a second bite of the cherry. However, if she thinks it is so important to restrict protests, why has she not introduced any of the statutory instruments to implement the measures in the Act before bringing forward yet another Bill this year? The hon. Member for North East Bedfordshire (Richard Fuller) also questioned that. It is just more evidence that she is more interested in headlines than real practical policies.
We on these Benches believe that the vital infrastructure and services on which we all rely must be protected from serious disruption and that protests must not put others at risk, but the police and courts already have powers to deal with such dangerous and disruptive protests, including the use of injunctions and existing criminal offences such as the obstruction of a highway and criminal damage, among others. It is worth noting that these existing powers have already been used to arrest people and to prosecute cases of obstructing infrastructure and locking on during the Insulate Britain blockade of the M25 and the Just Stop Oil blockade of Kingsbury refinery.
This Bill’s assortment of new offences will do nothing to actually safeguard vital national infrastructure and ensure that it is protected from serious disruption, and we know that the most effective measures for preventing such disruption already exist, and that is with injunctions. We do, however, recognise that there can be a real problem with delays in seeking injunctions, and a lack of preparation, planning and co-ordination between different private and public authorities. So why is the Home Secretary not focusing on this issue, and including provisions for co-operation between the police and public and private authorities to improve resilience and prevent serious disruption? That is what we would do.
We have already heard the Home Secretary blow and bluster at the Dispatch Box after the Police, Crime, Sentencing and Courts Act was passed, deploying all manner of dodgy statements about the Opposition’s approach to law and order. She could have had our full co-operation with that Bill—there were some very good proposals in it—but she chose to play silly political games by introducing other measures that served to shackle our people and diminish their rights. She knew all too well the game she was playing, but so did the public, who recognise that the Tory Government, rather than getting on with fixing crime, prefer to muck about with the rights to protest.
This new Bill introduces powers that are far too widely drawn and that could criminalise protesters and even passers-by. All of us who work here will have seen many enthusiastic protests outside in Parliament Square. It is what we expect while working in this the seat of democracy. Many of us, more likely those on this side, have enjoyed many a protest. My favourite goes back 50 years to when students were demanding a better deal from Ted Heath’s Government. It was very noisy, but very successful. The morning chant was simple: “Heath out, Heath out!” No one was more surprised than me when the chant changed later to “Heath’s out, Heath’s out!” because that was the day he called the general election.
If Parliament Square were designated as an area for suspicionless stop and search, which the Bill introduces, could Members of Parliament and our staff coming to work on the estate be stopped and searched by police? It seems far-fetched, but that may be a logical conclusion of the measures in the Bill. I would be grateful if the Minister shared his thoughts on his staff potentially being caught by these measures as they head into the office. As Justice has said, this Bill will
“criminalise a breathtakingly wide range of peaceful behaviour”.
As well as rapid injunctions to protect infrastructure against serious disruption, we would create a fast-track buffer zone outside schools and vaccine clinics to protect children and those accessing medical care from dangerous anti-vaxxers. What we have opposed and will continue to oppose is the criminalisation of peaceful protesters and passers-by. The Home Secretary has said this Bill is necessary to prevent “mob rule”, but would she call those protesting against the Russian invasion of Ukraine a mob? Is that the term she would use to describe the thousands of women who have gathered together for vigils to demand action on violence against women and girls? It is gatherings such as those on which her Bill will impact, not just potentially dangerous and disruptive ones. Why introduce a new offence of locking on when it is effectively covered by existing offences such as criminal damage, public nuisance and obstructing a road? Why introduce SDPOs when the Home Office’s own response was initially to reject them on the grounds that they would stop individuals exercising their right to protest?
It is time for the Home Secretary to stop playing petty political games, and time for the Government to stop wasting legislative time on the Home Secretary’s hunt for headlines and to bring forward legislation that will actually address the many issues facing our constituents.
Marsha De Cordova (Battersea) (Lab)
It is a pleasure to follow my hon. Friend the Member for Stockton North (Alex Cunningham) and to speak in this Second Reading debate. The provisions in this Bill pose a significant risk to the UK’s adherence to its domestic and international human rights obligations, and the Bill is unlikely to be compliant with the European convention on human rights, particularly article 10 on freedom of expression and article 11 on freedom of assembly and association.
Equivalent measures to the protest-banning orders were previously roundly rejected by the police and Her Majesty’s inspectorate of constabulary and fire and rescue services on the basis that such measures would neither be compatible with human rights legislation nor create an effective deterrent. Many organisations, including Justice, have said that the Bill would give the police carte blanche to target protestors. Similar laws can be found in Russia and Belarus. Is this the country we have become?
That is why I support the amendment in the name of my right hon. and learned Friend the Leader of the Opposition. It is disturbing that the Government have put forward this Bill as their first piece of legislation in the Queen’s Speech, and when the ink is not even dry on their Police, Crime, Sentencing and Courts Act 2022. We have not even been able to assess that Act’s impact on people and communities. It beggars belief that the Government have brought forward this Bill during a cost of living emergency, when they should be focusing on tackling the crisis facing so many of our constituents. Moreover, the Bill’s provisions are more egregious than those in the Government’s amendments to the Police, Crime, Sentencing and Courts Act 2022 that were flatly and rightly rejected in the other place.
My speech will focus on the Bill’s equality impacts, especially in relation to protest. Before entering this House, I spent most of my life as an advocate and campaigner, and I know from first-hand experience the power that protest can have. My freedoms today are directly linked to the organising and protests that happened on our streets, from the suffragettes who chained themselves to Parliament to secure votes for women, to disabled people who locked their wheelchairs to traffic lights to fight the discriminatory cuts to social security, and the Black Lives Matter protests.
Protesting is one of the most effective ways for people from underserved and under-represented groups to organise and deliver change for our communities. Such people often do not have access to the seats of powers. They face significant barriers to democratic and civic participation. Clamping down on protest will not only have an impact on the types of issues that our communities will be able to voice their concerns about but shut down key avenues of mobilising the public to support and preserve our rights.
I urge Government Members, and the Policing Minister in particular, to watch “Then Barbara Met Alan”, which highlights the fight for civil rights for disabled people and the role that protests played in securing the imperfect Disability Discrimination Act 2005. But for those protests and disabled people protesting and making sacrifices, many of the rights that we fight to maintain today would not have been secured.
This Bill will criminalise protest tactics and drag people into the criminal justice system, and we know that people from our communities will suffer the most. Our communities are already over-policed and targeted by the authorities. I am especially worried about the provision on protest-specific stop-and-search powers. Those powers are a form of structural oppression that will continue to hurt and harm our black, Asian and ethnic minority communities. Their expansion will only entrench racial disproportionality in the criminal justice system and further erode trust in public institutions.
Last week, the Home Secretary announced that she was lifting restrictions placed on police stop-and-search powers in areas where police anticipate violent crimes by easing conditions on the use of section 60 orders under the Criminal Justice and Public Order Act 1994. The Bill will amend section 1 of the Police and Criminal Evidence Act 1984 to expand the types of offences that allow a police officer to stop and search a person or a vehicle. It will also extend suspicionless stop-and-search powers to the protest context; police officers will be able to stop and search a person or a vehicle without suspicion if they reasonably believe that certain protest-related offences will be committed in that area.
Despite ongoing revelations regarding the misuse and racist application of stop-and-search powers, the Government decided to roll them out further. I therefore hope that when the Minister sums up, he will address disproportionality. I am sorry, but the equality impact assessment is flawed. It does not address the Bill’s disproportionate impact on our black and ethnic minority communities, and on black men in particular. Overwhelming evidence, including the Home Office’s own data, provided to human rights and civil liberty organisations, details the inherent disproportionality in the use of police stop and search. We know from the Independent Office for Police Conduct’s report that, in the year to March 2021, black people were seven times more likely to be stopped and searched than white people; Asian people were 2.5 times more likely to be stopped and searched.
We know that stop and search powers are ineffective. According to the Home Affairs Committee, between March and May 2020, more than 80% of the 21,950 stop and searches resulted in no further action. That is counterproductive. The decision to ease section 60 and the new powers in the Bill do not consider the trauma that structural oppression causes to our black and ethnic minority communities, and in particular to our black boys.
The Bill will also create the offence of intentional obstruction of a suspicionless, protest-specific stop and search. It might be used to target legal observers, or community-led protest marshals, who play a vital role in protecting the rights of groups by keeping them safe and explaining many complicated and technical laws. They are there in an observer or advisory capacity. The lack of that crucial function will impact many groups, and disabled people and people from ethnic minority backgrounds in particular.
We do not need the Bill. It will not solve the problems that it seeks to address. All it will do is increase the criminalisation of people from our under-represented and under-served communities. The Government are not interested in protecting people or serving those who need them most; they want only to protect themselves, to hold on to power by playing with people’s lives, and to manipulate the public to deflect from their failures. They are doing that at people’s expense. If they cared, they would have brought forward the victims’ Bill and ensured justice for the 1.3 million victims who gave up on the justice system last year. I will stand up for the people and, along with Opposition colleagues, I will vote against the Bill.
Beth Winter (Cynon Valley) (Lab)
The Bill is a draconian piece of legislation that undermines our democracy. It is the sort of Bill I would expect from an extreme and authoritarian Administration anticipating opposition, and perhaps even fearing for their continued existence. As Members across the House have said, the provisions are not necessary. Existing laws are sufficient. The provisions would leave the UK in breach of international human rights law, would clearly restrict fundamental human rights, and severely compromise the UK’s ability to promote open societies and respect for human rights internationally. They have rightly been condemned by Members from across the House today.
Beth Winter
No, I will not give way because of time. Causing obstruction at a site of key national infrastructure was something the Prime Minister proposed doing at Heathrow a few years ago, when he threatened to lie down in front of bulldozers. That was, of course, before he became Prime Minister. I wonder what his actions would be now. The offence of locking on, or being equipped for locking on, is far too broadly drafted and far too wide-ranging—purposefully so, I would argue, in order to restrict individuals’ willingness to protest. Those measures must be thrown out.
The “stop and search without suspicion” measures are an over-extension of police powers. Given our knowledge of the racial bias in the application of stop and search, the measures are a green light from the Government to create further racial tensions in policing. Those measures must also be thrown out.
The serious disruption prevention orders risk depriving people of the fundamental human rights of assembly and movement. As commentators and colleagues in the House have said, they are like the protest powers in Russia or Belarus, but even more extreme. They, too, must be thrown out.
I take issue with some of the comments and approaches of Conservative Members. The Conservative Benches are empty now, unfortunately, which I think says a lot about the Conservatives’ position. Their comments have been very selective and subjective, and a lot of the language used has been extremely offensive. The measures in the Bill are extremely broad and far reaching. For example, the protest banning orders are extremely broad in scope and allow the police to put restrictions on processions and assemblies beyond those mentioned in recent debates. They can include religious festivals and activities, community gatherings, football matches, vigils, remembrance ceremonies, and trade union disputes and pickets. These are absolutely terrifying proposals.
The powers in the Bill will be extended to Wales, but have the Welsh Government been consulted? I doubt it, given past experience. This is how the Government normally act towards our devolved, democratically elected Governments. They change the laws affecting Wales, but do not ask Wales its views. The Welsh Government were clearly opposed to the measures on protest in the Police, Crime, Sentencing and Courts Bill. I believe that they will make clear their opposition to this Bill. Furthermore, there is concrete evidence that the Welsh police are not supportive or likely to make use of such powers, given what was said by four constables at a recent session of the Welsh Affairs Committee.
Beth Winter
No, I will not. I believe that Welsh MPs will reject the Bill tonight. I will wrap up with one final point. This Conservative legislation has been presented as a necessary measure to deal with climate protesters. We are facing a climate catastrophe, and the Government should be addressing its root causes now. The overwhelming majority of climate protesters are using democratic rights that we have fought over for many, many years. Among those protesters, I include myself, my parents and my children, as we have been on many a protest in our lives, locking arms, so we would probably be criminalised and called eco-hooligans, which is how the hon. Member for Ashfield (Lee Anderson) shamefully described protesters earlier.
Beth Winter
No, I will not. As I said at the outset, there are sufficient laws in existence to deal with protests.
I believe that there is another reason for the Bill: the current cost of living crisis will drive such poverty and polarisation that the Government are concerned that their economic policies mean that public protest is increasingly likely. Rip-off energy bills—like the poll tax—pushing people into poverty and debt will lead to more protests on our streets. Is the Prime Minister readying himself for his Thatcher moment, confronting those on a low income in Trafalgar Square? How proportional will that be? I hope that we do not see such violence from this Government, but I fear that that is what the Bill is about.
Hundreds of civil organisations, legal academics, cross-party parliamentarians and UN special rapporteurs condemned the Police, Crime, Sentencing and Courts Act 2022 and they will do the same with this Bill. I urge Members to listen to them and to us and to do the right thing today: vote against this absolutely rotten Bill on Second Reading. Throw it out.
Zarah Sultana (Coventry South) (Lab)
When this Tory Government were elected in December 2019, pundits asked about their agenda. They wondered what their central driving force would be. Of course, the Government had their line: they spoke about being a “people’s Government” and about “levelling up”. Today, that shallow façade has been totally discredited, with the Government overseeing the biggest fall in living standards since records began, hitting the poorest hardest through policies such as the scrapping of the universal credit uplift and a real-terms cut to pensions and social security. This Bill demonstrates yet again what the Government are really about, because there has been a clear thread running through their legislation. It is not about “levelling up” or “building back better”, or whatever empty slogan they are using today; it is a growing and unmistakable authoritarianism. That is clearly seen in the Bill that we are debating.
Government Members might complain but look at what they are doing, from the Overseas Operations (Service Personnel and Veterans) Act 2021 and its attempt to effectively decriminalise torture; to the spy cops Act—the Covert Human Intelligence Sources (Criminal Conduct) Act 2021—giving state agents the licence to torture and commit sexual violence; and the Elections Act 2022, with its attack on the independence of the Electoral Commission and the attempt to rig elections, with millions of disproportionately poor and marginalised people at risk of losing their vote.
There is also the Judicial Review and Courts Act 2022, which human rights lawyers described as an “alarming” attack on our basic rights and which abolishes vital safeguards for our freedoms, and the Nationality and Borders Act 2022, which breaks Britain’s 71-year commitment to the refugee convention, deporting victims of war and torture to Rwanda.
Zarah Sultana
No. Many people have told you that, so please just stay sitting down.
The Northern Ireland Troubles (Legacy and Reconciliation) Bill, which is set for its Second Reading in the House tomorrow, has been described by one human rights organisation as an “exercise in denying justice.” [Interruption.] Stop heckling me and just listen—how about that? Thank you very much.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. It is important that hon. Members do not address one another directly in that way, but I do think that the hon. Lady has said that she is not going to take an intervention at this stage.
Zarah Sultana
Thank you, Madam Deputy Speaker.
We also see this in the Police, Crime, Sentencing and Courts Act 2022 and today’s Bill. The first bans “noisy” protest and risks criminalising Gypsy, Roma and Traveller communities out of existence; and the Government are trying to push the second through before that Act is even put into effect, repackaging measures that have already been rejected by Members in the other place.
The Bill will introduce so-called serious disruption prevention orders, which can be used to ban individuals protesting and can even apply to those who have never, ever committed a crime. As the human rights group Liberty states, it amounts to
“a staggering escalation of the Government’s clampdown on dissent.”
It will massively extend police powers to undertake stop and search at protests, including—as many hon. Members have mentioned—without suspicion of any wrongdoing. Police officers themselves seem quite alarmed about that. As one officer says,
“a little inconvenience is more acceptable than a police state”.
As we know, black people are already 14 times more likely to be stopped and searched without reasonable grounds. We can be sure that this new power will be disproportionately used against black and other ethnic minority citizens, including with the predictable effect of deterring people from raising their voice against injustice.
It does not stop there. The Bill’s vague and ambiguous language means that anyone walking around with a bike lock, a roll of tape or any number of everyday objects could be found guilty of the new offence of an intention to lock on, and could face an unlimited fine. These are just some of the measures in the Bill that are clearly aimed at climate campaigners. No one will be happier than the fossil fuel industry and the companies that fund the Conservative party. The Government are attacking our freedoms in order to criminalise those who stand up for a liveable planet for us all.
Conservative Members like to talk about freedom and liberty and make out that they are the champions of democracy and human rights, but a Government committed to freedom do not try to let their soldiers commit torture. They do not let state agents commit sexual violence. They do not deliberately make it harder for citizens to vote. They do not deport refugees to detention camps 4,000 miles away. They do not try to privatise a broadcaster just because of its rigorous coverage. A Government committed to freedom certainly do not crack down on protest and dissent, but that is exactly what this Government are trying to do. We have a name for a Government who do those kinds of things: an authoritarian Government. That is what this Tory Government are, and we all have a duty to oppose them.
Mick Whitley (Birkenhead) (Lab)
It says everything we need to know about this Government’s priorities that their first Bill since the Queen’s Speech does not seek to address an out-of-control cost of living crisis, ensure that justice is done for the 1.3 million victims of crime who were forced out of the criminal justice system last year, or indeed deliver any of the people’s priorities. Instead, Conservative Members, who have so often styled themselves as the champions of individual liberty, have lined up today to defend this latest assault on our basic rights of peaceful protest and public assembly.
The Home Secretary has resurrected and repackaged some of the most draconian provisions of the Police, Crime, Sentencing and Courts Bill, which were rightly thrown out by colleagues in the other place earlier this year, and has returned them to this House, but the issues remain the same. The Bill is unworkable, disproportionate and deeply illiberal. The Home Secretary wants to silence the voices of protesters outside this House, but we must ensure that they are heard loud and clear today. We must kill this Bill.
It is not just about a single piece of legislation, but about the direction of this Government as a whole, and the creeping authoritarianism that increasingly characterises their every step. After years of being told that we had to free ourselves from the supposed despotism of the European Union, we now find ourselves subject to the whims of an Administration far more oppressive and contemptuous of dissent than any ever found in Brussels. From the Police, Crime, Sentencing and Courts Act and the Nationality and Borders Act to the Bill before us today, Ministers have come to this House month after month armed with legislation that seems more suited to Viktor Orbán’s Hungary than to a robust liberal democracy.
The right to protest, the right to boycott and even the right to strike seem set for the Tory chopping block. We are forced to contemplate with horror a future in which the rights and freedoms for which earlier generations fought and died have been trampled underfoot. We must not allow that to happen. I plead with colleagues on the Government Benches—there are not many of them here, by the way—and especially with those hon. Members who bemoaned mask madness as a symptom of Government tyranny, but who remain conveniently silent on this issue of actual importance, to join me in the No Lobby today.
Finally, I want to speak out about those environmental campaigners whose actions have repeatedly been invoked as justification for these draconian measures. I have no intention of justifying their tactics or some of their campaigns, which have caused significant disruption and even misery to working-class communities, but I find it interesting that a handful of activists blockading an oil refinery can set the wheels of Government spinning so quickly, while the imminent prospect of breaching the 1.5° global warming threshold musters, at best, empty rhetoric and unrealisable targets from those on the Government Benches.
As the northern hemisphere approaches a summer that is likely to be characterised by record-breaking heatwaves and power outages, I wonder how history will judge a Government who prioritise criminalising climate protesters over tackling the unfolding climate catastrophe.
Madam Deputy Speaker (Dame Rosie Winterton)
I call the shadow Minister, Sarah Jones.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to follow all the contributions that have been made today.
As you know, Madam Deputy Speaker, and as many of my hon. Friends have said, we were disappointed with this Queen’s Speech. It was a missed opportunity to tackle the cost of living crisis, to tackle climate change and to attack the very real problems of crime. The long-awaited victims Bill has yet to make its way to the Chamber but, if the Government were serious about governing in the interests of the people, that Bill might have been at the top of their agenda. There was nothing in the Queen’s Speech to turn around the collapse in prosecutions or the rise in crime, nothing to tackle violence against women and girls, and nothing to prevent neighbourhood crime.
This is a Government with no guiding principle, searching for anything to show a sense of purpose where there is none. What are this Government for? What good have the last 12 years brought us? That is a question for another time, but the hotch-potch of Bills in this Queen’s Speech tells its own story.
The Public Order Bill largely rehashes what we saw in the Police, Crime, Sentencing and Courts Act 2022, which—as my hon. Friend the Member for Coventry South (Zarah Sultana) and others have pointed out—was rejected by the other place. Moreover, it arrives before the protest clauses in that Act have come into effect, which in itself seems slightly peculiar. Perhaps introducing the statutory instruments to put those clauses into law would have made more sense, but I am not sure that sense is a guiding principle of this Government.
The problem that the Bill seeks to solve is the need to ensure that vital public infrastructure is not seriously disrupted to the detriment of the community and our national life, while also ensuring that the rights of free speech and public protest are protected. The Opposition believe that it manages to deliver neither of those things. A starting point must be to ask: what are the basics that the police need to equip them with the tools that they need to manage protests in the minority of cases that lead to lawlessness or violence? Let me tell the House about the basic pillars.
Sarah Jones
I hear heckling. I will keep going for a minute. Perhaps the hon. Gentleman will listen to my pillars, and then see if he still wants to intervene.
First, we need the police numbers to be able to deal with protests. The policy of the Conservative party, which was to cut more than 20,000 officers, thousands more police community support officers and thousands of police staff, did precisely the opposite. Specifically, there are not enough protester removal teams across the country, as the inspectorate pointed out in its report on policing protests. Why not do something about that? Secondly—this too was highlighted in the report—the police across the board need effective training in the law and in policing protests so that they can use existing legislative processes. The inspectorate said:
“Non-specialist officers receive limited training in protest policing.”
According to the Police Foundation, over the seven years up to 2017-18, 33 forces reduced their budgeted spending on training in real terms by a greater percentage than their overall reduction in spending. Forty per cent. of police officers say that they did not receive the necessary training to do their job. Why not do something about that?
Thirdly, we need to give the specialist teams the tools that they need to be effective at prevention and de-escalation. I recently visited the brilliant mounted police branch team in the Met. The mounted police are an important part of the policing of protests and other events such as football matches, but they too have been cut across the country, not just in the Met. Why not do something about that?
Finally, when the police do press charges, they want to be sure that those charges will be followed through. There is no deterrent in a system that never sees cases go to court, but we are told by the police and by the inspectorate that the Crown Prosecution Service often has to drop cases because of huge court delays. Why not do something about that?
The Government have taken away the tools that the police need to manage protest. How can they claim to take this issue seriously?
Paul Bristow
I have been listening carefully to the hon. Member, and she is making an interesting speech, but would she agree with some of her own Back Benchers on this? For example, the hon. Member for Coventry South (Zarah Sultana) said that the Police, Crime, Sentencing and Courts Bill would marginalise Roma and Traveller communities out of existence, and the hon. Member for Cynon Valley (Beth Winter) said that this Public Order Bill was a threat to religious gatherings. Does the hon. Member agree with those two points?
Sarah Jones
The hon. Gentleman is talking about the Police, Crime, Sentencing and Courts Act 2022, which we on this side of the House opposed, in part because of its punitive measures against the Traveller community—so absolutely, yes.
We think that this Bill does not strike the right balance on protests and that it is not the most effective way to stop significant disruption of our national infrastructure. The right to protest is a fundamental right and a hard-won democratic freedom that we are deeply proud of. We will always defend the right to speak, to protest and to gather, but there is a careful balance to be struck between those rights of protest and the rights of others to go about their daily lives. Much of the debate today has been about that balance.
We heard from the hon. Member for Cities of London and Westminster (Nickie Aiken) about the disruption caused in her constituency. We heard from the hon. Member for Ashfield (Lee Anderson) about attending the miners’ strike. We heard from my right hon. Friend the Member for Hayes and Harlington (John McDonnell) about the expansion of Heathrow and the desperate plight of people in his constituency. We heard from the hon. Member for North East Bedfordshire (Richard Fuller) about how we can ensure that protest is not used as a cover for criminal activity. We heard from my hon. Friend the Member for Battersea (Marsha De Cordova) about the importance of protests in the context of rights for people with disabilities. This is a genuine debate, and it is the right one to have. We know that the Prime Minister values the right to protest, as he said that he would lie down in front of the bulldozers to stop a third runway at Heathrow airport.
But some protests tip the balance in the wrong direction. Protest is not an unqualified right. Campaigners who block people from reaching relatives in hospital, marches that close down entire towns and oil protests that prevent people from crucial travel raise a valid concern, which is why we have tabled a reasoned amendment to the Bill. Our approach, rather than seeking to restrict people’s rights beyond the point of reasonableness, is to establish a swifter process for seeking an injunction to prevent disruption to vital national infrastructure. That would be a more effective prevention tool and, as my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) said earlier, it would have the advantage of giving judicial oversight, which would safeguard rights.
If protesters are causing a huge amount of disruption to the supply of essential goods and services such as oil or medical supplies, an injunction is more likely to prevent further disruption than more offences to criminalise the conduct after the event. Injunctions are more straightforward for the police. They have more safeguards, as they are court-granted, and they are future-proofed for when protesters change tactics. We would include emergency health services in vital national infrastructure, and we would also ensure proper training, guidance and monitoring on the response to disruptive protests, in line with the inspectorate’s recommendations, so that we could use the existing legislation effectively.
Lee Anderson
The hon. Lady is making a powerful speech and some good points. She talks passionately about protesters, and sometimes there is a case and sometimes there is not. Will she cast her mind back to the Black Lives Matter riots on Whitehall over a year ago, during lockdown when those gatherings were illegal? At least two of her own MPs were there, encouraging those yobbos who were burning flags and attacking the police. Does she agree that that behaviour by her own MPs was wrong?
Sarah Jones
I am not sure that today is the right day to be talking about people who have broken lockdown rules. Perhaps the hon. Member has not seen some of the pictures that the rest of us have been looking at this afternoon.
We believe that some of the provisions in this Bill effectively replicate laws already in place that the police can and already do use. There is already an offence of wilfully obstructing the highway. There is already an offence of criminal damage or conspiracy to cause criminal damage. There is already an offence of aggravated trespass. There is already an offence of public nuisance. More than 20 people were arrested for criminal damage and aggravated trespass at Just Stop Oil protests in Surrey. Injunctions were granted at Kingsbury oil terminal following more than 100 arrests, and there were arrests for breaching those injunctions, which are punishable by up to two years in prison—nine people were charged. When Extinction Rebellion dumped tonnes of fertiliser outside newspaper offices, five people were arrested. Earlier this year, six Extinction Rebellion activists were charged with criminal damage in Cambridge. In February this year, five Insulate Britain campaigners were jailed for breaching their injunctions. In November, we saw nine Insulate Britain activists jailed for breaching injunctions to prevent road blockades.
Removing people who are locking on can take a long time and require specialist teams, but a new offence of locking on will not make the process of removing protesters any faster. The Government should look at the HMICFRS report and focus on improving training and guidance, and they should look to injunctions.
I cannot but attack the issue of stop and search and SDPOs. This Bill gives the police wide-ranging powers to stop and search anyone in the vicinity of a protest, such as shoppers passing a protest against a library closure. The Home Secretary said the inspectorate supports these new powers, but the inspectorate’s comments were very qualified and talked of, for example, the powers’ potential “chilling effect”.
Many of my hon. and right hon. Friends talked of the serious problem of disproportionality, as did the hon. Member for North East Bedfordshire, and talked of how these powers were initially rejected by the Home Office because of their impact. Members who have spent many years campaigning on these issues, like my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), pointed to the risk of these deeply concerning provisions increasing disproportionality, bringing peaceful protesters unnecessarily into the criminal justice system and undermining public trust in the police who are trying to do their job.
Our national infrastructure needs protecting. We hear the anger, irritation and upset when critical appointments are missed, when children cannot get to school and when laws are broken. As our reasoned amendment makes clear, we would support some amended aspects of the Bill, but we cannot accept the Bill as it currently stands. The proposals on suspicion-less stop and search, and applying similar orders to protesters as we do to terrorists and violent criminals, are unhelpful and will not work. The police already have an array of powers to deal with such protests, and injunctions would be a better tool to use. We will not and cannot stand by as the Government try to ram through yet another unthought-through Bill in search of a purpose.
I urge all reasonable Members to support Labour’s reasoned amendment, and I urge the Government to focus instead on their woeful record on crime.
Madam Deputy Speaker (Dame Rosie Winterton)
Before I call the Minister, I remind colleagues that it is extremely discourteous to both Front Benchers not to get back in good time for the wind-ups. It is also extremely discourteous to spend long periods of a debate out of the Chamber. It is important to hear what other people have to say; those who give speeches and then disappear for hours ought to listen to others. That would be the courteous thing to do.
The Minister for Crime and Policing (Kit Malthouse)
I have listened to others with pleasure, Madam Deputy Speaker. We have had a debate with a vigorous exchange of views, although I am afraid it was largely bifurcated. There was a group of speeches on the end of democracy: “Here we go, fascism is on its way,” or “We are about to become North Korea”—although I am sure the right hon. Member for Hayes and Harlington (John McDonnell) would not think that an entirely backward step. The speeches made by the right hon. Member for Hackney North and Stoke Newington (Ms Abbott) and the hon. Members for Bath (Wera Hobhouse), for Norwich South (Clive Lewis), for Streatham (Bell Ribeiro-Addy), for Middlesbrough (Andy McDonald), for Edmonton (Kate Osamor), for Brighton, Pavilion (Caroline Lucas), for Salford and Eccles (Rebecca Long Bailey), for Stockton North (Alex Cunningham) and for Battersea (Marsha De Cordova) were all of a kind, predicting the end of democracy as we know it. Among the froth of outrage and alarm, there were some nuggets of questions that need to be answered, particularly on why we chose to bring back the Bill after it was roundly rejected by the House of Lords. Well, their key criticism was that the Bill had not had enough scrutiny in this House, so we brought it back as soon as we could for the scrutiny of hon. Members.
A number of hon. Members claimed that there is no public support for the Bill whereas, in fact, recent polling shows that a majority of the British public support it. There was a lot of focus on and concern about stop and search powers in the Bill. We should all take stop and search powers seriously, and look at them with care, but there seems to be a misapprehension among a number of Members about how the provision will operate, particularly regarding disproportionality and demographics. The notion is that the police will authorise an area for the equivalent of section 60 stop and search that will be where they believe the protest is likely to take place or where people will approach the protest. Therefore, the demographics of those searched are likely to reflect those attending the protest, rather than generally across the board as with other stop and search powers.
Getting ahead of those who are likely to lock on or take other equipment with them to protest will give the police an important head start in stopping some of the prolonged and difficult protests with which they have to deal and which often put them in danger. A number of Members asked why key infrastructure, such as hospitals and NHS sites, are not covered in the Bill. There are already offences that cover those areas in other legislation, so we do not need to cover them here.
I thought that two speeches in particular illustrated some of the issues. The hon. Member for Glasgow North East (Anne McLaughlin) was alarmist in her portrayal of the direction in which the Government are going on protest, but nevertheless was not seen throwing herself between Police Scotland and the oil protesters at Clydebank, when they were carted off and arrested. Then there was the conundrum faced by the hon. Member for Ealing Central and Acton (Dr Huq): she has happily accepted restrictions on protest outside abortion clinics and, in previous legislation, outside schools and vaccination centres—privileging them, quite rightly, as areas where protesters may come into conflict with those who are going to school or undergoing sensitive medical procedures, or indeed those denying vaccination—but I still cannot see the logic of then not applying some controls on protest outside other facilities or other people’s houses. [Interruption.]
There were some thoughtful speeches that added to the debate, including that of my hon. Friend the Member for North East Bedfordshire (Richard Fuller), who posed some interesting questions that we will address in Committee. I am more than happy to engage with him as he ponders the Bill. The Chair of the Home Affairs Committee, the right hon. Member for Kingston upon Hull North (Dame Diana Johnson), also asked some probing questions to which we will give some thought as the Bill passes through the House.
We heard two interesting speeches about the two sides of protest. The right hon. Member for Hayes and Harlington spoke about a community who have been using protest to further what they regard as their interest against, as he put it, the changing winds of political decision about Heathrow. My hon. Friend the Member for Cities of London and Westminster (Nickie Aiken) put the other side of the argument—about living with protest. Having lived in very central London for many years, I know the burden that protest can bring to residents and businesses in that part of town. The relentlessness of it—week in, week out, seemingly every weekend—can really prey upon people’s standard of living.
Then we come to the frankly hilarious contortions of the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), and the shadow Policing Minister, the hon. Member for Croydon Central (Sarah Jones), where we see in full the contradictions writ large in the body politic of the Labour party. First, the Front Benchers want a nationwide ban via injunctions, but not criminal sanctions. The right hon. Member for Normanton, Pontefract and Castleford condemns Just Stop Oil and XR but is unwilling to do anything about them, and she believes that injunctions, which sometimes take six weeks to bring people to justice, will be faster than a criminal offence.
The truth is that the right hon. Lady’s objective this evening is not to fashion legislation that will deal with new tactics in public order. It is to get her party through the same Lobby in once piece, and at the same time to keep her head down, because we know that she has form; back in 2005, she was the Minister in a Government who voted to ban protest entirely within half a mile of this place. Famously, the first arrest was of a woman reading the names of the Iraq war dead at the Cenotaph. The right hon. Lady has form and Labour Members all know it—she is just trying to get them through the Lobby in one piece.
My hon. Friend the Member for Devizes (Danny Kruger), who is my constituency neighbour, made a thoughtful speech in which he nailed fundamentally the issue with which we are wrestling. As I said in the debate that we had on protest in respect of the PCSC Bill, the job of a democratic Government is to balance competing rights in any scenario, but most importantly in respect of protest. How do we balance that most fundamental right to make our voices known, to protest about those things that are important to us and to try to bring about change? As my hon. Friend quite rightly said, this is about balancing moral force against physical force. The use of moral force is legitimate in a democratic society, but the use of physical force to bring about what one wants to see is less so.
Yvette Cooper
The Minister talks about the extension of the powers of stop and search in the Bill; will he confirm that the Bill will make it possible for the police to stop and search people to try to find something that makes noise—such as a boombox, because that could contribute to a protest offence—and will also allow the stopping and searching of peaceful passers-by who walk through Parliament Square?
Kit Malthouse
It would depend on which part of the Bill they used for their powers. In essence, they would be stopping and searching people to look for equipment that could be used in the commission of an offence. I know the right hon. Lady will not want to confuse colleagues, but she possibly confuses the conditions that can be placed on a protest with the criminal offences that may ensue from a protest. The police will use their stop-and-search powers to deal with those criminal offences.
Let me return to my thread. As my hon. Friend the Member for Devizes said, we cannot allow our tradition of liberty to be used against us. Sadly, over the past few years we have seen, time and again, so-called protesters abuse our fundamental rights to make our views known to bring about their opinionated aggression, thereby impacting on people’s lives in a way that we feel is unwarranted. When I was a young politics student at university, I was taught by a member of the Labour party and great liberal thinker called Professor Hugh Berrington, who once said to me in a lecture I have never forgotten: “Being a liberal democracy doesn’t mean lying back and allowing yourself to be kicked in the stomach.” Sadly, too many of these so-called protesters—they masquerade as protesters but they are really criminals—bring about opinionated aggression that we believe is unacceptable.
We know that we have the support of the majority of the British public. Opposition Members have lightly lain aside the rights of the British public, but they have been championed in this debate by my hon. Friends the Members for Ipswich (Tom Hunt), for Dudley North (Marco Longhi), for Runnymede and Weybridge (Dr Spencer), for Stockton South (Matt Vickers), for Peterborough (Paul Bristow) and for Ashfield (Lee Anderson). In particular, my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis) yet again gave a bravura performance in defence of not only the ancient right of protest but the ancient British quality of proportion and moderation in everything.
Paul Bristow
Does my right hon. Friend remember recently visiting my Peterborough constituency? He saw it for himself when he met police officers, members of the public and many fine people in my constituency. Does he agree that the majority of the people in my constituency support this Bill and the powers in it?
Kit Malthouse
I do agree with my hon. Friend, but you do not have to take it from me, Madam Deputy Speaker. You can take it from any polling that has been done recently that shows that the majority of the British people support the measures that we are taking.
My hon. Friend brings me to my final point, which was neatly illustrated when I visited Peterborough and looked at its work on knife crime. What the British people actually want is for their police officers—men and women—to spend their time fighting crime, not detaching protesters from fuel gantries, not unsticking them from the M25, and not having to surround fuel dumps in Essex so that the petrol can get out to the people who need it to go about their daily business. The British people want the police to be catching rapists and putting them behind bars, detecting paedophiles and making sure that they pay for their crimes, and stopping young people of all types being murdered on a regular basis. That is what we want our police officers to do. This Bill will release them to do that job, and I hope that the House will support it.
Question put, That the amendment be made.
Thangam Debbonaire (Bristol West) (Lab)
On a point of order, Madam Deputy Speaker. Over the weekend and this morning, Government Ministers have said that the meeting between the Prime Minister and civil servant Sue Gray ahead of the publication of her much-anticipated report was instigated by Sue Gray herself. However, this afternoon, No. 10 has conceded that the idea of the meeting came originally from Downing Street. Given the confusion and concern about whether political pressure has been exerted on Sue Gray ahead of her report being made public, could you advise me whether you or Mr Speaker have received any request for a ministerial statement to clarify exactly how the meeting was arranged and what was discussed?
Madam Deputy Speaker (Dame Rosie Winterton)
I am grateful to the hon. Lady for her point of order. As she said, she is referring to statements made outside the House—nothing has been said in the House on this subject—and correcting the record on what may have been said elsewhere is not a matter for the Chair. However, I can confirm that the Speaker has not had a request from the Government tonight to make a statement.
Public Order Bill (First sitting)
Thursday 9th June 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 9 June - (9 Jun 2022)
The Chair
I have a few preliminary announcements. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings. Date Time Witness Thursday 9 June Until no later than 12.15 pm The National Police Chiefs’ Council Thursday 9 June Until no later than 1.00 pm High Speed 2 (HS2) Limited; National Highways Thursday 9 June Until no later than 2.45 pm United Kingdom Petroleum Industry Association; Thursday 9 June Until no later than 3.05 pm Adam Wagner, Doughty Street Chambers Thursday 9 June Until no later than 3.25 pm News UK Thursday 9 June Until no later than 4.10 pm Sir Peter Martin Fahy QPM, retired police officer; Matt Parr CB, HM Inspector of Constabulary and HM Inspector of Fire and Rescue Services; Chief Superintendent Phil Dolby, West Midlands Police Thursday 9 June Until no later than 4.55 pm Amnesty International; Justice; Liberty
We will consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, and a motion to allow us to deliberate in private about questions between the oral evidence sessions. In view of the time available, I hope that we can take these matters formally, without debate. I call the Minister to move the programme motion standing in his name, which was discussed on Tuesday 7 June by the Programming Sub-Committee for this Bill.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 11.30 am on Thursday 9 June) meet—
(a) at 2.00 pm on Thursday 9 June;
(b) at 9.25 am and 2.00 pm on Tuesday 14 June;
(c) at 11.30 am and 2.00 pm on Thursday 16 June;
(d) at 9.25 am and 2.00 pm on Tuesday 21 June;
(2) the Committee shall hear oral evidence in accordance with the following Table:
3. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 21 June.—(Kit Malthouse.)
The Chair
The Committee will proceed to line-by-line consideration of the Bill on Tuesday 14 June at 9.25 am.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Kit Malthouse.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee room and will be circulated to Members by email.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Kit Malthouse.)
The Chair
We are now sitting in public again and the proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make declarations of interest in connection with the Bill? No, I take it. We will now hear oral evidence from Chief Constable Chris Noble, lead for protest on the National Police Chiefs’ Council, who is joining us via Zoom. I remind Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings in the programme motion. The Committee has agreed that, for this session, we have until 12.15 pm. Can the witness please introduce themselves for the record?
Chris Noble: Good morning, Chair. My name is Chris Noble. I am the chief constable of Staffordshire Police.
The Chair
Thank you, Mr Noble. If, at any time, you have any difficulty in hearing the questions, please indicate and we will make the necessary technical adjustments.
The Minister for Crime and Policing (Kit Malthouse)
Q
Chris Noble: Thank you, Minister. There is a lot, in terms of looking back. There have been a number of trends. We have seen global causes land on our shores very quickly and having significant impacts. Black Lives Matter is a good example. We have seen causes overlapping, both in terms of membership and tactics. There have been some very novel—without giving them any credit—and highly disruptive tactics; that is reflected on the contents page of the Bill. If we look across the breadth of protest organisations and groups, we see that they are very aware of some of the legal gaps, inadequacies and shortcomings; that is very clear from their engagement with police, as well as their tactics. There is a focus, albeit not exclusively, around what we would call non-violent direct action, which is slightly different from previous protest phases, where violence was maybe more commonplace. That said, it is not completely exclusively non-violent.
Most protests are still relatively non-contentious. However, in terms of complexity, intensity and tactics, there has been a step up, and the assessment going forward is very clear that we will still see those challenges around complexity and the co-ordination and the adapting of protests, and we have significant gaps around our information and intelligence. Even though we will have our own, home-grown causes that people will wish to protest against, I anticipate that a lot of protest will potentially be generated from outside these shores. That is a little bit of the picture on what has been, and what may well be to come.
On impacts, there are safety challenges across the board, including safety risks to some of the protestors, challenges to members of the community on our roads or, indeed, in their communities, and challenges for police officers and private contractors in dealing safely with tactics that we will perhaps talk about. Also, there may be increasing cost as we try to deal with more complex issues—costs either to communities, the businesses impacted, or indeed the police, be it financial or opportunity cost, in terms of officers not being able to work in neighbourhoods, or in serious and organised crime, or in the other roles on which they clearly want to be focused. Those are real challenges, but still, the backdrop is that the vast majority of protest activity is relatively non-contentious. However, there is a hard core, a small element, that I do not see going away any time soon.
Kit Malthouse
Q
Chris Noble: In Staffordshire, we have a very experienced protest removal team, and on occasion they have dealt with individuals glued to the top of fuel tankers by cutting them loose, using cutting equipment. There are obvious risks in that. Equally, if you go on to a busy motorway and glue yourself to it, there is a raft of risks from traffic, and risk to police officers. Understandably, we have seen members of the public, through sheer frustration, look to take matters into their own hands. You can translate that to power stations and other vulnerable sites. Although this may be attention-grabbing and headline-grabbing, the risks to the protestors, the police and members of the public are becoming ever more significant.
Kit Malthouse
Q
Chris Noble: There is quite a disciplined training regime. The training is licensed through the College of Policing. You have command training at what we call gold, silver and bronze levels. The strategists—those who develop a plan—are at the silver level; those who carry it out on the ground are at the bronze level. There is not only initial very intense and comprehensive training for those individuals, but annual continual professional development, which is annotated and logged. There is also re-accreditation to ensure that people are still fit for operation. There are also annual inputs on what has changed—training on new legislation, new powers, learning from court cases, different protest tactics and emerging risks—so there is a continual learning cycle, as well as a very detailed pass-or-fail approach to training.
This week, we had an early morning dial-in with the vast majority of gold commanders across the country to break out some peer learning around Just Stop Oil. It was about what we could do differently, and how we could learn. There are specialist teams in policing that share information and liaise with the Health and Safety Executive and other bodies on how we do our very best to minimise danger to protesters, the wider public and police officers.
The challenge for policing is that training is at one point in time, and tactics and intentions are constantly moving. There is a constant challenge in making police training fit for purpose. The one thing that stays consistent—you alluded to this—is the police commitment to striking the balance between our positive and negative obligations to protest, and our ongoing responsibility to those impacted by protest.
Kit Malthouse
Q
Chris Noble: In short, yes, we would. You have already partly qualified that. For us, the more intrusive our tactics, the more they need to be focused on the harm being caused. In our approach, there has to be a constant test of what is proportionate, and that is subject to significant internal and external scrutiny.
We can see greater risk of harm to communities and protesters if things are left to run. An example was the G7 operation. I was speaking to one of the senior commanders recently, and they described a lack of powers around stop and search for people with items that could only have be used for generating a lock-on device. They had to intervene later in the day, with more significant powers, on a wider group of protesters, therefore interfering with more people’s rights. As long as early intervention and prevention are subject to proportionality tests, and are applied precisely, they are preferable to some of the risks that protesters place themselves under, and some of the significant disruption that they cause to other individuals.
Sarah Jones (Croydon Central) (Lab)
Q
Chris Noble: Sadly, I am no longer a practising operational commander, so I will talk vicariously. You also have Phil Dolby coming to speak to you. He will be able to give you a flavour of the west midlands region. There is a range of powers, but the policing operation begins with communication and engagement. As soon as we are aware of a protest, the first thing we will do is link in with the organisers and understand how we can do our very best to minimise any intrusion on their rights and safeguard the right to protest. Our most powerful tactic is engagement and communication.
Very, very rarely will we ever ban a protest. We hear the lazy soundbite at times that police are looking to ban protests. It has not happened in many years. Even when we apply conditions under sections 12 and 14 of the Public Order Act 1986, which were the subject of the Police, Crime, Sentencing and Courts Act 2022, their usage is limited. We will record those. They are tested, and they are very often subject to court testing as well.
Then we have a range of other powers, depending on the level of criminality or risk that we identify in the protest. We are able to seize items and search properties, but that would be under a plethora of legislation and would be very specific to what we know in advance. In current protests, we often know little until something presents, or until very close to the event time. We have a range of powers, but they are not particularly coherent in the light of what is often a very poor line of sight around protest activity.
Sarah Jones
Q
Chris Noble: Yes. I will take the example of obstructing the highway; those powers have recently been adjusted. With Insulate Britain and some of the obstruction of the M25 motorway, we were dealing with legislation that was drafted without those tactics or activities in mind. The powers are relatively low level, in terms of consequences; individuals who were arrested could be back on the scene the next day. The capability of some of those powers to deal with repeat protest or reckless protest is very limited, and I think a significant number of the protesters were very aware of that.
On criminal damage, there are opportunities, through those powers, for us to intervene where people are carrying specified items and going equipped to commit criminal damage. Aggravated trespass, which you alluded to, is particularly relevant. In the private space, there is no right to protest in anything like the way that there is in the public space. That is just a flavour of a number of the offences that most commonly come into play in protest. There are others that are perhaps a little more rare, including conspiracy to commit various offences.
Sarah Jones
Q
Chris Noble: We have tried to make an assessment about the impact of injunctions, especially around Insulate Britain and Just Stop Oil. The feedback we have had is that when they are appropriately framed and developed at an appropriate pace, they can be very useful in terms of what we are trying to control and how we are trying to shape people’s behaviour. I think, in general though, while they are a key tool, they are not the only one we need.
We have worked hard with private industry to give them information and knowledge about injunctions. I have worked closely with an industry on my own patch that is very up for taking on the responsibility along-side the police service for trying to target harder and prevent protest. On occasions, they will then look to obtain injunctions in terms of trying to prevent harm from being caused to their business, property and employees. Injunctions have been used increasingly frequently, but the challenge is framing them appropriately and securing them within a reasonable timescale so they can have maximum impact.
Sarah Jones
Q
Chris Noble: Yes.
Sarah Jones
Q
Chris Noble: Again, this is slightly outside my corporate memory, but there have been very lengthy conversations as far back as 2019 with policing, in terms of the public order and public safety portfolios, about the adequacy of some of the powers. That refined itself down into some further conversations around some bespoke powers, many of which appear in the Act you have just referred to.
There is an ongoing conversation around policy in terms of public order and public safety. For example, in some of the Just Stop Oil protests we have seen a cross-departmental approach. The police were clear in identifying where they see some inadequacies and in the effects that they want to achieve. In many ways, there is a rolling conversation around public policy, some of which will translate into legislation at one point or another.
Sarah Jones
Q
You also had some concerns about things in the Bill that he talks about—for example, the potential chilling effect on freedom of assembly that the stop-and-search powers, in particular, could have. Could you give us your view on the non-legislative suggestions that he had and how important they are? What is your view on his concerns about some of the things we are talking about, in particular the suspicionless stop and search and the scope of police power that that provides to you?
Chris Noble: For clarity, when you talk about non-legislative suggestions, what are thinking about?
Sarah Jones
Not changes in the law; most of the recommendations in his report are not about changing the law. They are about
“equipping police commanders with up to date, accessible guidance…ensuring that they consider the levels of disruption or disorder above which enforcement action will be considered; improving the way that police assess the impact of protests…improving the quality of police intelligence on protests…addressing a wide variation in the number of specialist officers available for protest policing throughout England and Wales”.
It goes on. They are all non-legislative recommendations. They are about how you train and support, gather intelligence and have the right people in the right place.
Chris Noble: Absolutely. Thank you. For me, having the right powers is clearly going to be very important. I think the policing ask about the powers is very current, in terms of being up to date with the challenges we face and clear about where the policing remit sits, and the powers being coherent and capable of being implemented. While the approach around legislation is important, there are some qualifiers on it.
Equally, you are right because, in some ways, irrespective of the legislation we are debating today, the overwhelming police commitment, around policing in a human rights-compliant way—policing by consent—fundamentally cuts across all the relevant legislation. That would probably be my key point.
I absolutely agree in terms of training, leadership and learning as we go what we do and do not do well. Having scrutiny around public order operations, whether they be protests or other things, is fundamental in terms of public confidence. This is also about making sure there is no unhelpful orthodoxy of approach within policing; constantly checking and evaluating our training; sharing information within policing; and listening to, and perhaps on occasion challenging, critical voices to make sure we pick up the wide perspective of views around how the police protest policing.
It is also about ensuring that we are accountable. I have a local police, fire and crime commissioner who has a real interest around protest policing and how it is delivered and relevant scrutiny panels, which will look at other matters, such as use of force or disproportionality. One part of the jigsaw is undoubtedly the powers we have. They are important, but as important, and in many ways more important, is how this is done and how policing maintains and secures public confidence.
On that note, I can talk about stop and search as the second element. Again, we recognise this is contentious. Whether this is within protest policing or tackling violent crime, the checks and balances are exactly the same, but there is a gap for us at the minute in terms of, as we alluded to earlier, being able to intervene earlier to try and prevent the more significant harm and disruption that takes place.
This is not about stopping someone protesting. I have no doubt there will be circumstances where we will stop and search and maybe even seize an item from someone, but they will still be facilitated in taking part in a protest. It is very much about recognising that particular articles and equipment are now being used to maximise disruption. Whether it is a suspicion-led or suspicionless power, we see real value in being able to intervene and ensure that the rights of everyone impacted by protest, as well as the rights of those expressing their views through protest, are protected.
Under the Police and Criminal Evidence Act 1984, code A will very much apply in terms of how it is done and how records are kept. If we move to a section 60 type power, which is similar to the one in the Criminal Justice and Public Order Act 1994, again, it would be a senior officer check and balance, and there will be appropriate scrutiny of how it is done. Of course, that can step into the realms of the inspection bodies reviewing it, and indeed of it ultimately being tested in court. We see it as a necessary power. There is a gap, but these things absolutely have to be done proportionately and transparently.
Sarah Jones
Q
Chris Noble: If we are talking about the serious disruption prevention orders, although the critical decisions will be made by members of the judiciary, obviously the police have a role to play in terms of potentially initiating these. Again, we would anticipate a high threshold. They will be for the most persistent and most reckless offenders, but we have seen a number of individuals who on occasions are making a mockery of not just the law, and less importantly the police service, but communities of interest in terms of their behaviours. I would not anticipate their being used on a common basis, but having the capability around some of the most persistent and reckless offenders would be helpful. There are significant checks and balances built in around capability and assurance in terms of who would grant those.
You are right that the powers exist in other parts of the criminal justice environment, with the supposed mantra being about controlling behaviour and not criminalising it, but we have heard quite a bit of noise from various parties about these things, so I think the rules and the protocols that exist, and the judicial test that would be applied, would be very important to ensure that orders are focused on the most potentially harmful individuals.
Lee Anderson (Ashfield) (Con)
Q
Chris Noble: It probably comes back a little bit to the challenge we talked about earlier about thresholds. Quite appropriately, whenever we look at protests, it is baked into part of a democratic society. In terms of articles 9, 10 and 11, from a police point of view, we of course respect those and want to give them appropriate regard. Social media, on the one hand, can be a help to us, in terms of getting a flavour of public sentiment, what is going to happen and where, and where the issues are. It can maybe give us a line of inquiry to follow, in terms of who we might want to engage with and maybe try to support and, where appropriate, in terms of shaping some of the protest’s behaviour and activities.
On other occasions, there may well be offences committed on social media, which clearly we would need to look at, consider and progress with. Very often, most of the conversations taking place around protest are behind closed doors in social media, in various protected groups. Again, the thresholds that we currently work to would not allow us, as a general rule, to penetrate those and find out more information. So social media can be of use, but in terms of the most useful information about understanding the impact on the life of a community, some of that most significant information is not taking place in any sort of public forum at all.
Lee Anderson
Q
Chris Noble: We are open to using new technologies, whether digital technologies or the more traditional capabilities and assets that we have. I think that the challenge that we face, in terms of policing protests is that, again, whenever we look at the various elements of the Bill under discussion, around lock-ons and some other behaviours, there is a real complexity to the devices that, from a policing point of view, will take significant time to deal with, and, indeed, from a private company point of view, can take significant time and effort to deal with too.
Of course, the challenge is that a wide range of people are, on occasions, involved in protest—it might well be their first time within protest; it may well not—so in terms of offending behaviours and previous criminal records, some of the elements there, which may well be appropriate in bringing someone to account, may well not be there. We are open to using any and all tactics within protest, but as I say, probably the common theme around protest is around non-violent direct action; people who are very legally aware; flash protests, which emerge with limited notice; and some quite complex lock-ons, which individuals know we need to be very thoughtful in how we deconstruct, with regard to rights and safety.
There is no magic bullet to dealing with modern protest. It is a combination, as we have just heard, around legislation, engagement and appropriate tactics, and then constantly trying to be innovative in trying to strike the balance between competing rights.
Lee Anderson
Q
Chris Noble: This is very close to home. We have a live operation in Staffordshire, which has been running now for some time, involving a number of protesters. It is incredibly complex, clearly. We have a limited idea of what is going on under the ground, in terms of what risks might be there. Are they near utilities? What risk could there be in terms of collapse of tunnels? It is clearly not a safe environment unless it is done by professional tunnellers. There is an inherent risk there, as well as the impact on the legitimate business going on in that area.
At this point—this probably goes to the core of one of the key issues that police are keen to discuss within the Committee—the vast majority of that work is done by the landowners and private companies that are skilled and experienced within this work. While I have some dedicated resources allocated to that at present, if that responsibility was to significantly shift to policing, it would cost me probably in the region of £80,000 a day to resource that. It would need significant officer resources, which clearly would need to come from elsewhere, so it is not only inherently dangerous; it is costing significant money and it is undoubtably impacting on the genuine, legitimate business interests of various companies.
The key, for me, is not so much even, necessarily, an offence around tunnelling, because we may well have powers that, broadly speaking, exist to deal with it—we are keen to develop that conversation. The challenge is in preventing it in the first place, and then in how we can work with industry and landowners on how we could potentially remove individuals more quickly. However, we are concerned that we have seen tunnelling come back on the radar again, and people will be held to account for what they do.
Wendy Chamberlain (North East Fife) (LD)
Q
Chris Noble: From a gold point of view, we probably have two or three officers who are trained or just about to do a credit, but we are also able to draw on neighbouring forces for that strategic support and command role, and top that up as necessary. Silver-wise, it is probably more in the region of maybe a dozen officers, again either accredited or being trained. For bronze, it is probably more in the region of a couple of dozen officers.
Now, this is not their day job. They do not wake up every morning and become a bronze commander and that is all they do—they are neighbourhood officers, they work in the criminal investigation department, they work in public protection teams—so while we have significant numbers of command officers, they are constantly being drawn for other matters. Whenever we have environmental protests or protests around High Speed 2 or other areas, there is a drain of that leadership role from elsewhere. We maintain hundreds of other officers within Staffordshire with a range of public order skills and capabilities but, again, none are completely dedicated to it. We would have about two dozen officers trained, as a minimum, in some other specialist skills as well. It is a significant commitment to maintain that training, but Staffordshire has definitely attracted some significant protest activity, so it is a necessary investment.
Wendy Chamberlain
Q
Chris Noble: Training for the more specialist roles could be at least two or three weeks a year, in terms of the various skills that they need to maintain. For general public order trained officers, you are talking about two to three days per year to maintain that. From a command point of view, depending on refreshers, it could be a week a year. The bigger challenge is when they are deployed. If we take, for example, Just Stop Oil—we supported colleagues in a neighbouring force. Our protest removal team was essentially out of force for two weeks, consistently maintained within those deployments. There are abstractions around training, but we are finding because of the dynamics of the protest environment at the minute, either in force or supporting other parts of the country, those abstractions are increasing.
Wendy Chamberlain
Q
Chris Noble: I see your line of questioning. I suppose we would be hopeful that by being able to intervene earlier, we could maybe limit the impact of protest. I think the proof of that will come out in terms of whatever moves from the Bill into formal legislation.
The biggest challenge that policing has at the minute—one we are keen to discuss as the Bill progresses—is any shift from public realm protest policing. If we moved more into a private space than currently, we would see that as potentially being incredibly significant for money and opportunity lost in terms of policing communities. Those abstractions would probably quite fundamentally change my local model of policing, in terms of being able to maintain that. That does not mean that we are any less committed to working with businesses and organisations to try to minimise the extreme disruption that can be caused to them on occasions.
Wendy Chamberlain
Q
Chris Noble: Not within Staffordshire. That said, when you look at the challenge that is applied to policing of protest from those who protest, from those who are not happy with protest and those in the media looking on, I am not quite sure why some people would want to, but they do—they step up. They are excellent. They come back from training. They seek out the roles. They are open to feedback and learning and training. I have a huge amount of regard for them.
I have not found people being reticent to step up because, fundamentally, it is a core part of our democracy. Having local officers dealing with local protest, who are then policing those communities the next day, is incredibly important for me. I have not seen a reticence, but it is an incredibly challenging job. Very often, there is a perception that we do not get it right, when actually the inspection report was very clear that in the vast majority of occasions we did and a minor recalibration was required around the balance we needed to strike.
Wendy Chamberlain
Q
Chris Noble: There is a rolling assessment with a part of policing called NPoCC, which is the police co-ordination body. As it becomes clearer what legislation will take place, those conversations will step up in terms of what it might mean for other jurisdictions, whether the legislation applies and whether the learning transfers across. We are constantly in contact with the devolved Administrations, and with European colleagues more widely, about legislation, tactics and police capability. Rest assured that those conversations will continue.
The Chair
Andrew Bridgen and then Anne McLaughlin, but we will need quick questions and quick answers if everybody who wants to participate can get a chance.
Andrew Bridgen (North West Leicestershire) (Con)
Q
Chris Noble: No, not as yet, but we are very aware that as legislation is cast, people will look to see where it begins and ends, so I think it will be a constant piece of scrutiny from us.
Andrew Bridgen
Q
Chris Noble: I think it has that potential. Clearly, as to how it actually works on the ground, each circumstance will need its own assessment and its own operation. That will play through, but there is no doubt that a number of the elements in the Bill are clearly responding to current challenges for policing. But ultimately, this will still be down to individual choices, decisions made on the day and the attempt to try to balance the rights that are at play. This is not a science for police officers in day-to-day public order policing: it is an art, it is discretion and it is matters of judgment. As elected Members, I know that you appreciate that. As we said earlier, this is a key element around trying to have current and up-to-date legislation, but there are elements of the Bill where defining a bit more what they mean and do not mean would be very helpful for day-to-day policing, however we achieve that precision of language and detail.
The Chair
Anne McLaughlin and, if there is time, Rupa Huq, but we have to finish at 12.15 pm.
Anne McLaughlin (Glasgow North East) (SNP)
Q
Chris Noble: I do not want to broadcast too easily what people might want to use, but it is a good challenge. There will be very obvious elements, such as bamboo poles or scaffolding, which would probably give us a bit of a hint. But you are right: there are other, more innocuous items, such as bicycle locks—clearly, there are many cyclists around—glue and so forth. It will have to be very context-specific. It may well be relevant to other behaviours at the time—what else is going on, and have we picked up something on social media? It will be down to individual discretion. Again, this is not about criminalising people. The outcome we are looking for is minimising disruption, so the policing focus will be around how we do that, as opposed to how we criminalise someone for having an item that can be very difficult to prove exactly what it is for.
Anne McLaughlin
Q
“We agree with the police and Home Office that such orders would neither be compatible with human rights legislation nor create an effective deterrent.”
Do you agree with that? If not, could you say why, and how issuing one of these to someone without any criminal conviction is compatible with human rights legislation?
Chris Noble: The language is slightly different, albeit the concept is broadly similar—HMICFRS was looking at and discussing protest banning orders. From a policing point of view, unless we knew the exact circumstances of the individual it would be hard to say how exactly the orders could be justified. As I alluded to earlier, we would see them as potentially being relevant to more persistent and reckless offenders when other methods of intervening were not seen as successful or were not capable. The standard tests on proportionality would be applied, and ultimately it would be a matter for the relevant judge to make a decision as to how they could be justified or not. I would not rule out them ever being used—I see it very much as a top-end tactic or power—but I would not want to preclude the creativity and ingenuity of protesters meaning the orders might well be the only thing left open to us.
The Chair
Mr Noble, I wanted to allow you to finish that answer, but that brings us to the end of our allotted time. Thank you.
Examination of Witnesses
John Groves and Nicola Bell gave evidence.
The Chair
We will now hear oral evidence from John Groves, Chief Security and Resilience Officer at High Speed 2 Ltd, and Nicola Bell, Regional Director South East at National Highways. For this panel, we have until 1 pm. Will the witnesses please introduce themselves for the record?
Nicola Bell: Hello. My name is Nicola Bell and I am the regional director for National Highways in the south-east. On a day-to-day basis I am responsible for the day-to-day running of the motorway and A road network in the south-east of England.
John Groves: Good afternoon. I am John Groves and I am the chief security and resilience officer for HS2 Ltd. My role principally involves protecting and safeguarding HS2 and, in this context, dealing with the protestor risk.
Sarah Jones
Q
John Groves: As you say, we are under constant attack from illegal protest. We work closely with the police and seek their support in dealing with that, but in the past we have had to use three High Court injunctions on different parts of the route because we felt we were not getting where we needed to through using the police.
We have applied for a route-wide injunction, there has been a hearing and we are waiting for the outcome. Rather than going back every time to each parcel of land, we have asked the court to give us a full route-wide injunction, which we hope will have some effect on the behaviour of the illegal protestors. The decision by HS2 to seek that High Court injunction was taken in between the failure of the previous legislation and the introduction of this legislation. We hope the High Court injunction will have a positive effect, but it is still limited and we still look to the police to support us.
Sarah Jones
Q
John Groves: It can vary. We can secure a High Court injunction pretty quickly, depending on the circumstance, but it can take a long time—two to three months. Our application for the current injunction went in in March and there was a hearing at the end of May. We are still waiting for the outcome of that decision, and as soon as we hear, we will want to get moving on it.
Sarah Jones
Q
John Groves: As you said at the beginning, they are very expensive, and they do not always have the effect that we are seeking. Fundamentally, what we are seeking to do is deter illegal protester behaviour and stop it happening. What we have seen, as the chief constable alluded to, is that HS2 is running an operation right now in Staffordshire with people who have been subject to court action in the past, and just continue to come back and repeat the same behaviour against us. It is useful, but it is not having the full effect that we need.
Sarah Jones
Q
Nicola Bell: Absolutely. Just to put it in context, we look after something like 4,500 miles of motorway and A roads, and the difference we saw this time around was that they are not just related to a site, like HS2 for example. We had protesters literally popping up everywhere; you did not know where they were going next. The police were arresting them using their existing powers—obstruction of the highway, maybe—but they were telling us that that was not a deterrent to them coming back out literally the next day, which was why we then sought to get injunctions ourselves.
We ended up applying for four injunctions in total. We were granted all of them, and if those people then went back out again, ultimately we had to follow that through with committal proceedings, which take a lot of time and effort. That alone—those people breaching that injunction order—was the thing that meant they would be sent to prison or ordered to pay costs. In total, we ended up with 34 defendants. Some were sent immediately to prison, which I think ranged from 24 days to six months, and then you had 18 people who ended up with two-year suspended sentences, but it was for National Highways to pursue that, not the police, because the injunctions that we were granted did not come with a power of arrest. If you are a local authority, for example, you can get a power of arrest with an injunction. We are a private limited company, so we cannot, and therefore it is up to us to keep on going with the injunction process.
It is important to point out that you then have two processes running in parallel. The civil proceedings have now happened, and the police are only now starting the criminal proceedings, which will probably run until December this year. Remember, that is for protests that happened on our network at the tail end of last year. The first protest by Insulate Britain was on 13 September, and the last one was on 2 November, so we had over 30 protests in 15 locations in less than two months.
Sarah Jones
Q
John Groves: We have recorded 1,600 incidents against HS2 since the end of 2017. All of that is unlawful activity—trespass, violence against staff, criminal damage. Not all of those offences will lead to an arrest or any legal action. So, for us, this legislation is about the deterrent effect—absolutely. The extent to which it will cause a behavioural change in those who are participating is, I guess, the open question, but I would certainly see that tougher sentences and more police action would help—absolutely.
Kit Malthouse
Q
John Groves: Absolutely. It is probably everything and anything. We have seen violence against both staff and against those who are building the railway—so it is not just security staff who engage with them. These are protests that are taking place not just on the ground, but in tunnels. I am sure that you will all remember what happened at Euston; there was a 25-tunnel network under Euston. When we went in there to remove the protesters, the protesters were using lock-on devices sub-surface. There was violence against staff in there.
We have seen large-scale trespass. In Buckinghamshire, we did an operation to remove protesters from a site. We secured the venue, but they came back with about 100 people. They shone lasers in the eyes of staff members, they threw human waste around—I mean, it is the full panoply. What is different between what you see against HS2 as compared with other locations is that it is probably quite invisible to most of the public. Again, we have got an operation live at the moment. I have four protesters in a tunnel at the moment and they have been there since 10 May, and that is costing the taxpayer a huge amount of money. The safety risk to them, not just to the people who are working on the surface to support them, is significant. As you say, up until the end of March, £126 million of taxpayers’ money has had to go into protester removal or the cost to HS2 of the delay that these illegal protesters are causing us.
Kit Malthouse
Q
John Groves: Indeed, yes.
Kit Malthouse
Q
John Groves: Yes. I mean, if you consider the definition of “protest”, you have people protesting in Swynnerton, Staffordshire—they are not particularly visible to the public. Other than probably at Euston, that is what we have seen consistently right across the piece. I would say that nearly every day there is something—there is an incident, an unlawful act against HS2.
Kit Malthouse
Q
John Groves: I hope so. I mean, it is about the deterrent. The overwhelming issue for us is tunnelling, because it is the thing that causes us the most significant cost and delay. We can, with the support of specialist contractors, move people off our land, but when there are tunnels involved, or high structures, which we also see quite regularly—they will build structures on the surface, at height, and underground. However, the tunnels are the most significant, for us, in terms of removal and, again, the safety risk is significant.
Kit Malthouse
Q
Nicola Bell: Yes, absolutely. The thing is that I think a lot of people at the time thought that an injunction was the thing to go and do, but you must see it through; you must follow up with the committal proceedings, and it is that that then takes the time. We had to apply for a very urgent injunction, sometimes overnight, with things being prepared at pretty breakneck speed in order to try and protect what we were seeing. I am sure you are all aware of what we saw on the M25, with people either gluing themselves or sitting on the road. It is about the resource intensity that is needed to follow that up and follow that through. If I take the example of a day that they were protesting, on 8 October, by the time that got to court, that was at the end of November and by then Insulate Britain had called off its protests.
Kit Malthouse
Q
Nicola Bell: Yes, two years.
Kit Malthouse
Q
Nicola Bell: No. I think you heard from the chief constable earlier that the arrests being made on the day were being made for low-level criminal offence—I think they were the words the chief constable used—for obstruction of the highway. It was literally going to the police station, getting processed and, the very next day, often the same person going out to another part of the M25 to do the very same thing again.
Kit Malthouse
Q
Nicola Bell: Yes. I am a civil engineer not a lawyer, but—sorry.
Kit Malthouse
Q
So in your view, would it be a sensible move to combine the best of both? Effectively having a power of arrest for an offence that attracts a not dissimilar level of sentencing, which might act as a deterrent, that you would get under an injunction.
Nicola Bell: I think the level of offence is a matter for the police. For me, it is the same as John has mentioned. It is about the deterrent and, for me, it is really about safety. Walking on to a 70-mph road is not wise. If you look on Insulate Britain’s website, you will see evidence of the day they blocked the M25 at junction 25, where four protestors came out and sat on the road. They did exactly the same on the opposite side of the carriageway and that footage clearly shows the police in danger, my traffic officers in danger and the protestors in danger as people are trying to swerve, brake and avoid them. What is included in the Bill, I hope, offers that deterrent. That is what I would like to see given that my job is about trying to keep the motorway network flowing as freely and as safely as possible. If something deters them in terms of the locking on or interfering with infrastructure—of course, we have talked a little bit about the serious disruption prevention orders that might be available—maybe that might mean that you do not have to apply for an injunction because, actually, those repeat offenders could be tackled through that means.
Kit Malthouse
Q
Nicola Bell: I do not have the exact figure, but I will just give you a couple of examples. There is a day when they protested at Littlebrook interchange, just off junction 1A of the M25—maybe some of you will know it. Four protestors sat across our traffic signal control junction. You might have thought that was not going to cause too much impact because it is just a little bit off the M25. The impact was 4 km of slow-moving and queuing traffic over the Dartford crossing, and it took until lunchtime for the effects of that to disappear. The day they protested down at the port of Dover, they sat on the road, but two protestors climbed up the side of an oil tanker and glued themselves to the top of the oil tanker while we got rid of the people on the road. By mid-morning, the effects of that around the roads in Dover were felt until about half-past 5 in the evening. The economic impact of that alone, given the importance of road freight to the UK and goods coming in and out of Dover, probably speaks for itself.
Anne McLaughlin
Q
John Groves: I come back to the tunnel point I made earlier. I assume that those that participate in going on to land and trespassing on land and digging tunnels know that they are breaking the law. but they do not see the current law as a significant deterrent to stop them from doing that. The police will always seek the balance between lawful protest and the rights of the landowner or whoever. Invariably, that often means issues with access to sites.
Access to some of our sites has been delayed for about eight hours. We cannot do any work. We cannot move vehicles in or out of our sites, because protesters are sat down outside at the access point, sometimes locked on, sometimes not. The police are there but they will not take action because they are allowing the right to protest. Because the protestors are not on HS2 land, we cannot do anything about that. We cannot move them on—on the public highway, only the police can move them on.
My sense is that this Bill, if enacted, will provide a deterrent effect for the protestors. I come back to the safety point—I am sorry to keep going on about tunnelling. Four people in a tunnel is such a serious thing; I am concerned that we will have a fatality at some point in the future. We have been really lucky. We have had four or five tunnel incidents and we have yet to have any serious injury, but I suspect it will come one day, if it continues in the way it is going. If we look at our data, we are seeing protestors turning to tunnelling more readily. In the operation we have just run, there were four shafts on one piece of land; they moved on to another piece of land very quickly and they started to dig a tunnel. We were able to get in quickly and move them on. That is my principal concern.
Anne McLaughlin
Do you want to respond, Nicola? You do not have to.
Nicola Bell: No, it is the same as what I was talking about before. It is about the fact that the police recognised that there was nothing that would stop somebody just keeping on doing this. They could arrest them, but it was a low-level criminal offence and ultimately that was not going to deter what we were seeing, which was pretty unprecedented, really—that level of protest in the south-east of England over the tail end of last year.
Mrs Natalie Elphicke (Dover) (Con)
Q
I was hoping you could expand on your earlier answer to give the Committee more of a feel for the impact of this kind of traffic disruption on the Kent and Dover economy and its importance to the strategic network for the nation, and for some of the safety and other challenges in dealing with these incidents that are different from the ordinary traffic disruption that your team deal with on a more regular basis.
Nicola Bell: The bounds of my responsibility would be, for example, the traffic officers that you see as they patrol the network. On the day of a protest, our role would be to try and create a safe space for the police to then get in and do their job. For example, on the day that they protested down in Dover, that was about protecting the area to allow the police to get specialist people in to get protestors off the top of the tanker and to therefore get the port open again and get things running.
On your point about the economy, as I mentioned earlier, 80% of domestic freight still uses road, so that is a pretty big impact on the economy. We know that most of our goods come in and out of the port of Dover, so therefore the roads they take—the M20, the A20 and the A2—are very significant indeed. Ultimately, the cost also relates to people not getting to where they need to be on time—whether that is missed appointments or freight not getting to where it needs to get to on time. I do not have an exact figure for the impact on the economy. I know that some of that has been worked on, and we can perhaps provide that to the Committee in writing afterwards.
Tom Hunt (Ipswich) (Con)
Q
Nicola Bell: What we saw was that, first, they got themselves on to the road and sat down, then they waited until the police arrived, and then they started to lock on so that they were causing maximum delay. I would say that, on average, if you had 10 of them sat down, at least three quarters of them were glued.
Tom Hunt
Q
Nicola Bell: You can see in some of the footage, which is freely available on Insulate Britain’s website, that the police are trying to stop them putting their hands down on the road surface. As soon as they put their hand on the road surface, specialist teams need to come in to de-bond them, as it were. That adds to the safety risk but it also adds to the delay.
Tom Hunt
Q
John Groves: In the most recent experience I can talk about, the police were frustrated that they were not able to step in and deal with it. They were not on the ground immediately. Certainly, there is frustration from my team on the ground that the police are not more direct with some of the protesters; that is certainly true. Invariably, what happens on HS2 sites is that protests get there some weeks ahead of when we plan to take possession of land, so they are always looking forward and looking at what we are about to do. We publish all this information online about where the route is and when we will be taking possession, and they are always ahead of that.
Lee Anderson
Q
John Groves: It has a significant impact on morale. Invariably, my security team and my security contractors, who are somewhat used to dealing with difficult people—if I can put it like that—are subjected to verbal abuse pretty much all the time they are confronted with legal protestors.
Obviously, there is a broader range of people who are supporting and delivering for HS2 who did not sign up to being verbally abused or being chased around a field when they are trying to undertake an ecology assessment, for instance. We have also seen throughout our joint ventures that the tier 1 contractors that are doing the work of building the railway are having to invest in a lot more physical security and a lot more support for staff across a broad range, so it does have a significant impact.
Lee Anderson
Q
John Groves: Absolutely, that is an issue for the economy—job retention and retaining the skills we need to build the new railway. As you can see from my evidence, we are putting a lot of money into physical security, and we are working through the joint ventures, which have some responsibility for their own staff. Fundamentally, as I said earlier, if this legislation is enacted and it provides that prevention, those risks will reduce, our costs will reduce and, you would hope, the staff who have been impacted will feel far more comfortable and at ease in coming to work every day.
Sarah Jones
Q
I have a couple of follow-up questions. In the Police, Crime, Sentencing and Courts Act 2022, which has not yet come into force, there are lots of changes to protesting. They are not yet law, but they will become law as soon as the Government get around to doing that. One change is that obstruction of a highway will carry a prison sentence of up to six months. The Minister was talking about it being a fine—it will now be a prison sentence of up to six months. There is also a raft of stuff about imposing conditions on static protests, so, if you are organisers of static protests, there are conditions on those, and, again, you can be imprisoned for that.
What is your assessment of the impact that that legislation will have when it comes into force? There is a question as to whether we should implement that legislation to see whether it has an impact before we move on to other things. What is your assessment? Will it have an impact?
John Groves: From HS2’s perspective, it will be limited. Protest on the public highway is limited in terms of the impact it has on us.
Sarah Jones
Q
John Groves: It may have some positive effect, but—I am sorry to repeat myself—tunnelling is the biggest issue for us, and I do not believe the Bill deals with that. Lock-on, as well, has a serious impact on us.
Nicola Bell: From my perspective, it is about seeing what impact that has and what the outcome will be. Obviously, it will be for the police to decide whether or not they are going to then use that new power to do exactly as you said. It is really about the impact that it has and whether it will be enough to act as a deterrent against people coming back. If it does, that is positive as far as running the strategic road network on a daily basis is concerned.
Sarah Jones
Q
Nicola Bell: Yes.
Mrs Elphicke
Q
John Groves: Absolutely. The protestors state that in their social media posts and in the things they say directly to us when we are talking to them. They are intent on stopping the project. They want to stop the railway. They believe it is the wrong thing to do.
We have had to shift how we approach the removal operation by taking land earlier, to build in sufficient time for removal, so that it does not have a direct impact on the programme. We have learned as we have gone along and, as the protestor strategy has changed, our reaction to that has changed. Again, it is expensive work, having to have a High Court enforcement team, paramedics and mine rescue there 24/7, since 10 May, until they come out. Then we hand that over to the police and also probably the ambulance service.
Wendy Chamberlain
Q
John Groves: I would expect that, if the legislation is enacted and the police pursue charges against individuals who are breaking these laws, it will have a direct effect. At the moment, when you compare the number of incidents we are seeing against the number of prosecutions and convictions, there is a disparity. I would hope this legislation would initially have a significant effect, and hopefully the deterrent effect will tail off after that and we would see a reduction in it. That is how I see it.
Nicola Bell: Similar to what I said earlier, for me it is about that repeat offence, where people keep going back out. That is one of the biggest impacts for us—what could be used under the serious disruption prevention order. I guess it is about them having more powers. All I can say is that, with the system as it is working at the moment, the police are telling us they do not have anything to deter and so they continue this repeated behaviour—hence why the injunctions were sought.
Wendy Chamberlain
Q
John Groves: I do not know. In terms of the numbers of people we see protesting against HS2, we think there is roughly about 150 that are the core. Within that, there is a focused 20 people. It is not a big number, but we also see that they move between different causes and different protests. I suspect that we will see some of the people Nicola has been talking and vice versa. They will move. If there were a new Heathrow runway being built or a new nuclear build, they would probably move in those directions as well.
It is a relatively, I think, small community, albeit they draw in quite a large number every now and then. They will move on to other things, which is probably why the order would be helpful in that respect. At the moment, we are focused on HS2 actions in terms of our security and injunction work, but if the order has a broader effect across protester activity in general, that would be positive.
Andrew Bridgen
Q
John Groves: It is not just standard security for a site, which you would expect to see anywhere. The direct costs of protester activity to the taxpayer up to the end of March were £126 million. We estimate that by the end of next year, that could in a worst-case scenario reach £200 million.
Anne McLaughlin
Q
John Groves: Certainly, looking at the Bill when it was published, the things we have seen and discussed today are important. The introduction of the tunnelling amendment is very positive from our perspective. I have not got any comment on the timing of it.
Anne McLaughlin
I suppose that is a question for the Minister, but I am not allowed to ask the Minister.
The Chair
We are questioning the witnesses at this stage. In due course, I am sure you will have the opportunity to question the Minister.
Kerry McCarthy (Bristol East) (Lab)
Q
John Groves: All I can say is that it is about the penalty that could follow an arrest. As I said earlier, if you contrast the number of incidents we have seen on HS2 sites against the number of arrests, there is a disparity. If there are more arrests as a result of what they are doing today, and there are more penalties, that should have a deterrent effect. In terms of fines, it is interesting that we have seen some offences being prosecuted and resulting in a fine. What sometimes happens, and we have seen this in other places, is that they will crowdfund and those penalties will be paid by others.
Kerry McCarthy
Q
John Groves: We want the legislation to work so that it provides that deterrent. I do not think I can say any more than that.
Kit Malthouse
Q
John Groves: Absolutely.
Kit Malthouse
Q
Nicola Bell: To your first point, once people saw that injunctions were being followed through, committal proceedings were happening and people were going to prison, that did have a deterrent effect, because we have not seen a protest on the strategic road network since 2 November. Three of the injunctions, particularly covering the south-east—the M25, M25 feeder roads, and the roads down to Dover—still exist and are still in place. Certainly, the public mood was something that was different as the protest happened. By the time we saw things through in court the protests were finished. Nobody was seeing them every day, whereas the first time we went it was fresher in people’s memories. People were mostly peaceful but then realised the impact that it could have on their lives—that was clear.
The Chair
If there are no further questions from Members, I thank the witnesses for their evidence.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Public Order Bill (Second sitting)
Thursday 9th June 2022
(2 years, 5 months ago)
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The Chair
We are now sitting in public and the proceedings are being broadcast. We will hear oral evidence from Elizabeth de Jong, chair of the United Kingdom Petroleum Industry Association, and Steve Griffiths, managing director of London Stansted airport, part of MAG, the Manchester Airports Group. Welcome to our witnesses. This session will run until 2.45 pm. Please will the witnesses introduce themselves for the record?
Elizabeth de Jong: Hello. I am Elizabeth de Jong, the chief executive of UKPIA, the Petroleum Industry Association. We represent companies involved with oil refining, fuel production, terminal operations and petrol stations, some of which have been targeted by Just Stop Oil.
Steve Griffiths: Good afternoon. I am Steve Griffiths, the managing director of London Stansted airport, the fourth largest airport in the UK. I have been invited today as an airport operator to discuss the scale and impact of any disruptions to airport operations.
Sarah Jones (Croydon Central) (Lab)
Q
Elizabeth de Jong: Our experience of protests until April this year was that they were mainly peaceful and occasional. However, their nature changed considerably in April; they have become more widespread, longer and more confrontational. Our main concerns include the safety of staff and protestors. There are significant safety risks, an impact on fuel supply, and increased costs.
In April 2020, 11 terminals were targeted for a number of days, and two forecourts suffered damage and were blocked. A significant number of arrests were made during that period. We followed the tweeting of Essex police, and halfway through April, they were talking about almost 500 arrests; some 12% of those arrested were arrested multiple times.
On the types of activities and the safety risks, there has been locking on, which is dealt with in the Bill. We have seen people lock themselves on, or attach themselves, to the top of stationary tankers, even when they are full, and when asked, they have not moved to empty ones, which would be safer. We have also seen locking on at height, which is when people attach themselves to machinery, pipes or vehicles high up, which means a risk of falls. People have even made their own stretchers to attach themselves to, which can be difficult to deconstruct safely. We have seen smoking on terminal storage tanks, with the safety risks that go with that. Cables have been cut on road tankers, which affects braking, and roads have been undermined—networks of tunnels have been dug under roads, affecting main and emergency access roads.
That causes great concern about safety. Refineries and terminals, as I am sure you can imagine, store potentially dangerous substances such as oil, other flammable substances, and substances that can cause chemical burns and can generate extreme heat. There can be a real danger of explosion and of falls from buildings. The activities on such sites are strictly regulated under COMAH—the Control of Major Accident Hazards Regulations 2015—and of course protestors are not following those regulations; they are putting themselves and staff in danger. There have also been impacts on fuel deliveries and costs to companies.
On what the police can do and what the response has been, the industry has increased security staffing at some sites. There is already fencing and closed circuit television, and there are inspections by operational staff. Some sites have increased security around the clock. However, security staff have limited powers; they can only ask people to leave. Companies have also taken out civil injunctions, which is an option open to them; a number of our members have done so. That is of limited effect, because they do not come with powers of arrest and they take time to put in place, which allows people to come back and target the locations while the injunctions are being put in place. We have encouraged local authorities to take out injunctions, which are a more powerful tool, but, again, they take time to put in place and are costly. During the protests in April, two were put in place, in Essex and Warwickshire.
Steve Griffiths: From my experience as an operator of Stansted airport, which is clearly very much a live operational environment where there are complex, high-risk operations, any protests pose a serious risk to human life—the lives of our staff, our customers, the travelling public, and the protesters—and cause major disruption to the operation.
Our last major significant event was back in 2017, and it related to a deportation flight to Africa. The protesters cut through the security fence around the airport, which ensures its safety and security, using bolt cutters, and breached the airfield. Fourteen protesters then locked themselves around a Boeing 767 jet, which was due to fly the deportation flight to Africa. The impact of that was that the runway was closed for approximately one hour. This was at night time, so there was no daytime visibility, and incoming and departing flights were grounded during that period. Approximately 25 flights registered delays during that hour, and 11 were cancelled, including the flight in question, which was due to fly to Nigeria. We estimated that about 1,700 to 1,800 passengers were impacted by that disruption.
The protesters were arrested by the police, but were ultimately acquitted. We understand from media reporting of the case that they were charged with intentional disruption of services at an aerodrome under the Aviation and Maritime Security Act 1990, but the court acquitted them because the offence requires some element of terrorist activity, which was not deemed to be present in this event. We understand that the Crown Prosecution Service charged the protesters with that offence because other offences that the perpetrators may have been charged with did not carry sentences that adequately reflected the seriousness of the circumstances that we experienced on that night—of forcibly gaining access to a security restricted live airport operation. That is the direct impact of the last major event.
Clearly, we support the right to protest at the airport, and we have designated areas, but this is about cases that infringe on parts of the airport outside those designated areas. I can talk only on behalf of London Stansted, but events have happened across UK airports.
Sarah Jones
Q
Elizabeth de Jong: Yes. I can see a direct reference to locking on. There are a number of elements in the Bill that will be helpful. These are new challenges for us, and the Bill makes a number of enhancements to mechanisms that will be available to the police. The police will, of course, give their view about whether they will help or not.
From what I have read, the Bill will give the police a power to arrest in a timelier and more straightforward way. The current way of giving powers through injunctions could lead to a patchwork of different injunctions in different places, and be confusing, which would mean that police felt less confident in making decisions. The Bill specifically refers to two things: locking on—that looks as though it will be potentially useful—and the definition of key national infrastructure; again, that would enhance the powers and make their use more practicable.
Sarah Jones
Q
I guess my question is whether an offence of locking on—I think that it has its own problems because of the very broad way it is drafted—will be any more helpful than those 500 arrests that the police made; you are talking about people who just come back afterwards.
Elizabeth de Jong: My understanding is that the legislation will reduce the time and cost spent getting the injunctions that allow the arrests. It clearly says, “This is an offence. We don’t need to go through the injunction process.” The issue is the time it takes to get the injunctions; that allows people to reoffend. There might be an opportunity for faster processing as well, but clearly local authority injunctions will allow court appearances to take place sooner.
Steve Griffiths: There is nothing I could add to that. I am really here to talk about the impact of disruption, and I am probably not qualified to comment intensely on the Bill; I leave that to the police.
Tom Hunt (Ipswich) (Con)
Q
Elizabeth de Jong: The particular areas are Kingsbury and Esso Purfleet; it has been around Essex and Warwickshire. It has also been nationwide, but those are the current ones that have been focused on.
Tom Hunt
Q
Elizabeth de Jong: Currently, but the difference that we are seeing in these protests is that they are more widespread, both in number and geography. I think it will be, potentially, that other aspects of supply chains are focused on in the future.
Tom Hunt
Q
Elizabeth de Jong: I do not have an opinion on the police response. We have been working together with them, but I am really focusing on what would make their role easy.
Tom Hunt
Q
Elizabeth de Jong: It has had an impact on fuel deliveries. It has been hard to estimate that, but, for example, I can give you evidence that for the week ending 3 April, there was a 9% drop, week on week, in fuel deliveries. We have calculated that.
Tom Hunt
Q
Elizabeth de Jong: I cannot equate that to an impact on cost; I can say just that there was an impact on deliveries. However, the costs of obtaining injunctions across our members and across the different sites, for example, have run into the hundreds of thousands of pounds—we estimate tipping over the £1 million mark. Our estimate for the cost of obtaining injunctions for local authorities is that they will also be spending that. The cost of security staff has also been at the hundreds of thousands of pounds mark, tipping into the millions. There is an increase in the cost base, and a need to repair for industry, but I am not here to comment on prices at all; that is not something that we address.
Mrs Natalie Elphicke (Dover) (Con)
Q
I want to explore the Stansted situation a bit more. You have your highly secure zone—that goes without saying for national infrastructure—and people break in through a security fence and close a runway. I think you said that 25 flights were grounded as a result.
Steve Griffiths: Yes.
Mrs Elphicke
Q
Steve Griffiths: Yes, indeed. Obviously, the security of the airport is critical to its safe operation, as you said. We have practices and procedures, CCTV and patrols, as well as what we call a “critical” part of the airport for maintaining security. We know about the security that we experience just as travelling passengers; that is equally important around the whole perimeter of the airport.
It is very serious, and any situation like that requires our staff to respond to it as well as ensuring the continued safety of the operation of incoming aircraft and aircraft that could be departing at that time.
Mrs Elphicke
Q
Steve Griffiths: No. Obviously, we work with the local police, so we very much have a partnership between the airport police and Essex Police, and they look at intelligence and so on. All the intelligence suggested that it was a protest rather than terrorism.
Mrs Elphicke
Q
“We recognise that the various summary-only offences with which the appellants were originally charged…might…not reflect the gravity of their actions.”
I think that underlines the importance of the matters before us. At the Court of Appeal, Lord Burnett referred specifically to disruption “likely to endanger” the safe operation of the airport or the safety of people there. We have heard from your evidence that the actions that were taken were grave and had real impacts on the airport’s operations and security.
Steve Griffiths: Yes, they did indeed.
Andrew Bridgen (North West Leicestershire) (Con)
Q
Elizabeth de Jong: We follow guidance produced by the Centre for the Protection of National Infrastructure. New guidance on the security of sites was issued in April by the Department for Business, Energy and Industrial Strategy, with the support of national counter-terrorism police and the National Police Coordination Centre. Lots of site security plans are already put in place using guidance and experience, and there are updates; that is continually being reviewed using the best available guidance. It is a tiered system, as people gain access and then further access into the site, but one of the points I wanted to make is that the sites are very large indeed. CCTV and fencing are already there, but it is very hard to stop a large number of people—
Andrew Bridgen
Q
Elizabeth de Jong: Large perimeters, and a large number of people who are determined to get in and willing to put their own safety at risk. Should security guards or other people want to remove them, they have almost no powers to do so, apart from asking them and pointing out that it is not safe. We have been relying on the police, and in my opinion, we need to make sure that the police have the powers of arrest in order to remove those people, for their safety as much as anybody else’s.
Andrew Bridgen
Q
Elizabeth de Jong: It would be a proper emergency catastrophe—explosions, fire, life-ending.
Andrew Bridgen
Q
Elizabeth de Jong: I do not have that figure off the top of my head, I am afraid, but all the sites that have been targeted, all the areas of the supply chain—the petrol stations as well—are places that have the potential for explosions. Safe working is needed in those areas, and that is what we are very concerned about. In fact, petrol stations are one of the areas that are specifically not included in the new Bill. One of our asks is for that to be considered, and for the scoping of the Bill to be as wide as possible in order to include all aspects of the supply chain, because petrol stations could endanger the public—in fact, arguably more so than oil terminals. That would put staff as well as protesters at risk.
Andrew Bridgen
Q
Steve Griffiths: Obviously, the Home Office determines those deportation-type flights and works with all of the UK airports. There is no doubt that that will become more public and more prevalent, and it does heighten the potential risk to us as an airport as well.
Mr Gagan Mohindra (South West Hertfordshire) (Con)
Q
Steve Griffiths: Certainly from my perspective, I do not feel qualified to answer that question, unfortunately.
Mr Mohindra
Elizabeth, do you want to give it a go?
Elizabeth de Jong: I have not researched that myself, but the companies we represent are international companies. If it would be of interest to the Committee, I could ask how that operates for them as well. Let me know if that is something you would like me to follow up on.
Mr Mohindra
Q
Elizabeth de Jong: That is exactly what we would be seeking as well. Just in the same way as we have seen an evolution in the last year of the types of protest down and around the supply chain, we would like the drafting to reflect the continued evolution of protests and to cover as much of the supply chain as possible, and what the next target might be. In terms of “key national infrastructure”, the “downstream oil” sector is very useful to have. I think it will give the police confidence that this is an area where they can intervene and make arrests. But we would like the definition of key national infrastructure to be more specific and to include roads as well as buildings, to include vessels—tankers, for example—and infrastructure under construction. All these things are important to the supply chain, but also very important for the safety of the protesters, staff and the public. Specifically, as I have mentioned, petrol stations have been excluded; we think that they are important for safety as well.
Mr Mohindra
Thank you. Steve, is there anything from you?
Steve Griffiths: No, nothing to add from me, thank you.
Anne McLaughlin (Glasgow North East) (SNP)
Q
Elizabeth de Jong: Steve, you have said, and I would agree, that we absolutely support the right to peaceful protest. We absolutely support the right to free speech. That is really important to us as a trade association. Free speech—debate—is very important for you as well. However, what we are looking at here is the impact on people’s safety. That is also very important.
Anne McLaughlin
I understand that, but I am asking about—
Elizabeth de Jong: Yes, I promise I will try to answer that. Our industry is vital to achieving net zero, and there is lots the oil industry is already doing, and is wanting to invest in, to be part of the solution. We are producing more low-carbon biofuels. We are delivering and manufacturing sustainable aviation fuels. We are running some of the biggest hydrogen and carbon capture projects in the country. We are delivering the electric vehicle charging network; we are producing lubricants for electric vehicles as well. Personally, we think dialogue is very important. That is the essence of our democracy. But we also support peaceful protests and free speech in all ways. But if we are focused on dealing with protests and spending money on protests, that money arguably could instead help continue the work that we are doing to achieve net zero.
Steve Griffiths: I would echo everything that Elizabeth has said. It is obviously important, from the perspective of the aviation industry, that the Government have set out a plan to achieve net zero carbon by 2050. That is a plan that all of the industry has signed up to. As the largest airport group in the UK, MAG has a plan to achieve that by 2038, which is 12 years ahead of the Government target. Again, contributions to further advancing that would only help our industry, and that is what we will be looking for. As we have said, we have no objections about the right to protest, but it should be done peacefully.
Anne McLaughlin
Q
The Chair
I think we are straying into the debate around net zero rather than the issue in hand.
Anne McLaughlin
What I am really trying to say is that they disagree with the answers that you have given me; if they have a different view, they must have the right to protest. How can they do that and make an impact, while dealing with the safety and disruption concerns we have talked about?
Steve Griffiths: I can only comment in a limited way on this. Advancing this subject is really about innovation, technology and research and development. Obviously, we have to be realistic about the step changes that we can make, which is why in the industry that I work in the Government have set out a very clear plan. I know that all parts of the industry are looking at ways to achieve that a lot earlier. At the heart will be design, research, innovation and technology—that will drive it. Those elements have to be at the top of the industry’s and the Government’s agenda if we are to achieve that.
Elizabeth de Jong: And creating the right investment environment for the investments and the innovation as well. It is that type of dialogue that can speed this along. Some 96% of energy used in the transport sector currently comes from oil, so to just stop oil would have quite catastrophic impacts on society and the economy, but there are plenty of ways to debate this and to look at the policies that are needed.
Matt Vickers (Stockton South) (Con)
Q
Elizabeth de Jong: I am afraid I am going to have to leave that for the police and those who work in that area who have studied what the best incentives are for people. We are definitely focused on how to make things safe in our industry and how our society can work more efficiently and effectively.
Steve Griffiths: I cannot really comment on that. It is really for the police to determine, but we obviously support their having the right tools because, at the heart of this, as Elizabeth has said, is the safety of the protesters, the general public and customers, as well as our colleagues. That is really important.
Matt Vickers
Q
Steve Griffiths: I am here to talk about the disruptions; I cannot really talk about the policy itself.
Elizabeth de Jong: The areas we have focused on are the definitions of key national infrastructure. Locking on is important, and it is important that petrol stations are included. We do not have views on the other areas of the Bill, around stop and search for example. That is for people who have studied and are expert in what deters people or does not deter people.
The Minister for Crime and Policing (Kit Malthouse)
Q
Steve Griffiths: That is clearly one obvious option, yes.
Kit Malthouse
Q
Steve Griffiths: Yes, certainly. We work with the police on intelligence and they do a lot of scanning to try to look at risks that are presented at the airport, but certainly, having those facilities to stop people directly and search them would be helpful.
Kit Malthouse
Q
Steve Griffiths: Yes, we have a very well-defined plan that is a joint plan between the airport, the airport police and Essex police. That is really around the seriousness with which we take breaches on the airport. We have to have a very clear escalation plan and very clear, constant monitoring in place, because the seriousness of the disruption it causes, and also the threat to safety, is significant to us as an operating airport.
Kit Malthouse
Q
Elizabeth de Jong: Yes. Site security and risk assessment per se, given that we work in such a tightly regulated and potentially dangerous environment, are very much at the core of all operations throughout the downstream oil sector.
Kit Malthouse
Q
Elizabeth de Jong: Indeed.
Sarah Jones
Q
Also, there seem to be slightly different issues. The issue with the flight was a slight one-off, in that people were objecting to that particular flight going away. There is a particular problem, it seems, with people trying to block entire infrastructure programmes across the country. They are two quite different things and I think they need a slightly different response.
I want to confirm with you, Mr Griffiths, that the police arrested the people but that the issue was that the charge was not right. It was not that they were not arrested and taken away; it was just that the charge did not stick because the right charge was not there, if you see what I mean.
Steve Griffiths: Yes, you have the fact that the incident occurred in the first place and then, as you say, the perpetrators were arrested, but then the subsequent charge fell apart because of, presumably, a gap in legislation, in that the route taken for prosecution did not stand up. On your first question, I do not have that answer with me today.
Elizabeth de Jong: I have some information on the first one. We received police intelligence about the attacks and that intelligence was broadly correct.
Sarah Jones
Q
Elizabeth de Jong: It was very helpful indeed.
The Chair
If there are no further questions from Members, I thank our witnesses for the evidence. We will move on to the next panel.
Examination of Witness
Adam Wagner gave evidence.
The Chair
We will now hear oral evidence from Adam Wagner, a barrister at Doughty Street Chambers. We have until 3.5 pm for this session. Will Mr Wagner introduce himself for the record?
Adam Wagner: Good afternoon. My name is Adam Wagner and I am a barrister at Doughty Street Chambers. I practice in human rights law and public inquiries, and I do a lot of work on protest law.
Sarah Jones
Q
Adam Wagner: Okay. I will start with the general question about what I think of the legislation. It is important to frame this debate properly. In this country, our tradition is that protest is something that is permitted. It is not seen as a social evil; it is seen as a social good. A certain level of disruption is inevitable in any successful protest. That is how you get people’s attention: you disrupt, and you put yourself in front of them. That is not a new thing; it is very old. It goes back to the suffragettes, who I am sure many people giving evidence will mention.
Every social movement in history that has a protest element has always used an element of disruption, and there will of course be times when disruption steps over the line into violence and such serious disruption that society will not tolerate it. At that point, the criminal law will intervene, and there is always an uneasy balance between where you put the line, because you accept that conscientious protest about important issues is something that democracy needs for the public to communicate directly to the rest of society and to you—the people who are in charge. That is always the context.
All the court authorities on these kinds of issues recognise that protest is disruptive, unruly and something that annoys people, particularly if they do not agree with the views. If somebody does not agree with a view, that is a very good reason to not allow them to be in charge of whether the person can be express it. That is why it is very dangerous to start tinkering with a law because of views you do not approve of, because the next lot will come along and do the same for the views you do approve of. So we keep a level of tolerance towards protest—that is the way I would frame it.
For the most part, the mechanisms that the Bill puts in place essentially criminalise peaceful protest. That is what the Bill does: it criminalises peaceful protest in a way that has not been done before. It treats peaceful protest like knife crime, drug dealing or terrorism. I do not mean that metaphorically; I mean it directly. Serious crime disruption orders and terrorism disruption orders stop people doing something in future—those are the kinds of methods we have used to disrupt terrorism, knife crime, drug dealing and gang violence. I have been involved in lots of cases involving those kinds of orders. If the Bill is used by police—they will be under pressure to use it in particular instances—the end result will be lots more protesters in the criminal courts, in very long and complicated trials that involve looking at the proportionality of the protest in question, as we saw with the Colston statue case. But it will be 100 times more, because all these offences have a reasonable excuse—I can come to that. I think that is one thing you will see.
The other thing you will see is a lot more protesters in prison—and a lot more peaceful protesters in prison. I do not have any issue with, and I do not think human rights law has any issue with, violent protesters being treated as criminals—the European convention on human rights entirely accepts that violent protest does not fall under the protection of the right to protest—but all these provisions are about peaceful protest, and it will end up with hundreds and hundreds of protesters in the prison system. I see that from my own work. An increasing amount of protesters are going to end up in prison because of the injunctions. That is my general view, but I can talk about specifics.
Sarah Jones
Q
Also, we heard from previous witnesses about cases in which people have glued themselves to motorways in a dangerous way, and about people locking themselves on and tunnelling under things—doing things that are criminal and dangerous. That is the problem that the Bill is seeking to tackle: the small number of people who are repeatedly doing things that are dangerous for themselves and others. It would be helpful for you to explain how that marries with your view that the Bill will affect loads of peaceful protesters.
Adam Wagner: Hard cases make bad law, is the aphorism. I think that is true. I listened to a previous witness say that locking on is a new phenomenon; the suffragettes were locking on and Gandhi was locking on—these are very old protest methods. Anybody that breaks into an airport or an oil refinery, or blocks a motorway, can be arrested and charged under existing criminal law. That is absolutely uncomplicated.
One of the misapprehensions about the Insulate Britain protests—I read it in the newspapers—was that the police could not arrest people until there was an injunction in place. That is completely the wrong way round. Injunctions do not give powers of arrest to the police; court enforcement officers gain powers of arrest from injunctions, but the police can arrest people for obstruction of the highway in the same way that they have been able to for a long time. There are all sorts of other criminal offences that can be used—aggravated trespass is the other catch-all one. When someone is on the road they can still be trespassing if they are not using it for a permitted purpose. Aggravated trespass applies to any private land, including airports, oil refineries and petrol stations.
In terms of dealing with the issue at the time and on the ground, the Bill is not going to make any difference at all. The police can go in and arrest people—there is nothing stopping them. They can use reasonable force to unlock people who are locked on. The police will have exactly the same powers to do that under all these new offences. The difference—to use a term that has come up—is the downstream. Instead of those people potentially going to prison for a bit, or not going to prison at all, they will end up going to prison for a long time. The clauses of the Bill create a culminative effect—it is like being a petty criminal: once you start and are in the criminal justice system, you get longer and longer sentences and everything stacks up, one after the other. The courts have more and more draconian powers that they can use against you. The Bill creates that culminative effect for peaceful protesters.
Sarah Jones
Q
Adam Wagner: A serious disruption prevention order follows the model of lots of other such orders in our laws, such as serious crime prevention orders, gang orders and drug dealing prevention orders. It is the same exact model. As drafted, a serious disruption prevention order allows a court a power if someone is convicted of any offence under the new offences.
For example, having superglue in their pocket would be an offence under the regulations, because it could be used for a lock-on. Arguably, too, a bicycle lock on their bicycle could be used for a lock-on. Once that is triggered and they get convicted of an offence, the court can then look at their background and, if they have been involved in a protest that even potentially might cause serious disruption, that is all that is needed—
“capable of causing serious disruption to two or more”—
and could trigger the power for the judge to impose an order of up to two years that prevents them from doing all sorts of things. They might not be allowed into a town centre for two years, or to associate with particular people, or they could be given electronic tagging requirements. Once that is in place, they could be dragged back in if they breach a requirement and be given a prison sentence as a result. It is a protest banning order, effectively.
In fact, there are two different kinds of order: clause 13, which is the serious disruption prevention order, and then another one, whereby a police officer—even if the person has not been convicted of an offence, but just so long as they have participated in a protest and the judge thinks they might participate in another or maybe take some superglue along with them—can prevent them from going into a town centre or associating with particular people. The orders can even be applied to organisations, so it is not just individuals; it could be a charity or a campaigning organisation. It is a really huge expansion of court powers against protesters.
Let me talk a bit about the psychology of some of the people I represent, who are some of the more hardcore protesters who are at the centre of a lot of these movements. They will not be deterred by this legislation. If we look at Insulate Britain, which I guess is on the extreme end of disruption versus expressing the right to protest—it is not directed; the people they were disrupting were not the people they were protesting against, which makes the courts the least sympathetic to those actions—a lot of them said, “Well, I will go to prison for the cause.” A lot of environmental and Black Lives Matter protesters—whichever cause you think of—will say, “It’s going to be a badge of honour to go to prison.”
The prison system will start to be full of those people. It will not deter them; the people it will deter are the people who are not willing to go to prison, but who will also not be doing anything illegal at protests. They will just not want to go along, “Because I don’t want to be caught with a bicycle lock. I have a bicycle outside; I don’t want to be caught with a bicycle lock. What happens if I get arrested because I have a bicycle lock? I didn’t know one of these orders allowed police to do suspicionless search.” It will deter those people; it won’t deter the people you are worried about or the previous witnesses were worried about. It will deter lots of other people who you are not worried about, but you should be worried about.
Kit Malthouse
Q
I want to ask you a couple of questions. First, you seem to be quite happy for those who profess to be protesters to go to prison in certain circumstances. So, if someone glues themselves on to a fuel gantry, bringing themselves and others into danger, you are quite happy for those people to go to prison—the only question in your mind is for how long. I presume you accept that part of the role of sentencing is not just to punish, but to deter. In circumstances where somebody is persistently committing those offences, whether or not they are subject to the order that you talked about, would you not expect them to get increasing sentences as they reoffended?
Adam Wagner: The first thing I would say is that I have come here voluntarily. I did not come here to have someone be personally rude to me, and I really do not appreciate it. I do not understand the benefit of that to anyone.
The second point is that I am not happy for any protester to go to prison. That is the criminal law as it is. The question this Committee is asking is: does the criminal law need to change to deal with the problems that the Bill is supposedly dealing with? I just do not think it does. If the aim of the Bill is to send a lot of peaceful protesters to prison, it will do that. By peaceful, I mean non-violent. Locking on to something is not a violent protest. It is disruptive and annoying for the people who are trying to do whatever they are going to do in the location the protester has locked on to, but it is a classic form of protest. It is something that has always been used. It is something that society generally tolerates.
If we want lots more people like that to go to prison, this is the Bill to do it. However, if you want to stop people blocking roads, oil refineries or fracking sites—whatever the cause at the moment is—this is not the Bill to do that. I can tell you that, because I know these people; they will continue doing what they are doing. The difference is that they will end up in prisons all around the country, and I am not sure that is a good look for the country.
Kit Malthouse
I understand. I apologise if I was rude before.
Adam Wagner: Thank you.
Kit Malthouse
Q
Adam Wagner: First, it depends on whether the police are charging under that. I have not really talked about the relationship between the police and the public. The police will have to think really carefully about whether they want any of the aggravation of having to recommend for charging people who are not violent criminals, but are, in fact, peaceful protesters expressing their views.
Secondly, you cannot guarantee at all that the judges will send people to prison. There has been a step change through Insulate Britain. I have acted in a lot of these contempt cases—where people breach injunctions. The big difference with Insulate Britain is that these people are being sent to prison, and the courts’ reasoning, as I said, is that the protest is not directed at the social evil that the protesters are protesting. They are blocking the highway, and not blocking anybody who is insulating or not insulating anything. That is why they are sending people to prison.
However, what the judges have not done is send to prison people who, like my clients, were protesting at the entrance of a fracking site in Blackburn at Preston New Road, or people protesting on the HS2 line. The courts have said very directly: “We tend not to send people to prison for that.” It is quite possible that the courts will not oblige. Who knows? The powers will be there.
Kit Malthouse
Q
The Chair
A short answer, Mr Wagner, because we are in the final minute.
Adam Wagner: It is a mixed bag. You might end up with a judge who is not very used to the criminal law, because a lot of them are in civil courts, but you also might end up with a whopping cost order at the end of it. For some of the cases I have been involved in, it has been tens of thousands of pounds. It is a mix, but civil injunctions have their own problems more widely.
The Chair
That brings us to the end of the time allotted for the Committee to ask questions of you, Mr Wagner. I thank you, on behalf of the Committee, for your evidence.
Examination of Witness
David Dinsmore gave evidence.
The Chair
Q
David Dinsmore: I am David Dinsmore, chief operating officer at News UK. For the purposes of this, News UK is the owner of Newsprinters Ltd, which prints a lot of the newspapers in this country.
Sarah Jones
Q
David Dinsmore: This started on the evening of 4 September 2020 and continued to midday on the 5th. We have three print sites across the UK: one at Broxbourne to the north of London, one in Knowsley in Merseyside, and one at Eurocentral, between Glasgow and Edinburgh. At the Eurocentral site, there was a small, peaceful protest that broke up very quickly and did not get in the way of any of our business. However, at both Broxbourne and Knowsley, starting at about 9.45 pm, a collection of vans, boats on trailers and a bamboo superstructure were put in place at the exits to the plants. In the Broxbourne case, 50-plus people got on to those structures, many of them locking themselves on. At Knowsley, I think the number was about 30. Certainly, there were 51 arrests at Broxbourne, and 30 arrests and 28 charges at Knowsley.
The police were called immediately and were on the scene within half an hour, but they did not start removing people properly until 4 am at Broxbourne and 11 am at Knowsley. Both sites were finally cleared at midday on the 5th. This was a Friday, into Saturday. Saturday is the biggest newspaper sale of the week. Between The Sun and The Times, we would normally expect to sell about 2 million papers that day. We also print for The Daily Telegraph. We print some of the Daily Mail and some of the Financial Times, and we also deliver a direct-to-consumer service, although we do not print them, for The Guardian out of the Broxbourne site, so you will see that we are at the heart of the news industry in the country, whatever your flavour may be.
All the exits were blocked, which meant that all our trucks and drivers were blocked inside. Although we printed the run of about 2.5 million papers, they all had to be pulped. We had to use other print sites around the country to print those newspapers, and we delivered from them. The net result was that we lost a significant sale, as we did not get to many newsagents until past midday. The cost to us as a company was about £1.2 million. I would say we had 155 staff who were trapped on site until midday the following day, and we still have senior staff attending court hearings. They have had to block out of their diaries about 150 man/woman days—they are not having to attend court, but there is definitely serious disruption.
The final point I would make is that those 51 people at Broxbourne were all charged under obstructing highways, and those at Knowsley were charged under the aggravated trespass legislation. Some of the people at Knowsley have been found not guilty because it was not clear whose land they were trespassing on, and at Broxbourne, most people who have been found guilty have been given conditional discharges—costs of £150. One of them even glued himself on to the court table and still got a conditional discharge.
It feels to us to be a major, serious and co-ordinated attack. It caused considerable material disruption and continues to do so. The legislation is not in place to provide a deterrent to this. There is not even a catch-all law that people can be charged under, even if they do commit the crime. It felt like we were powerless to do anything other than work around this huge disruption, which had a massive impact. There is another impact worth mentioning. We go to wholesalers, who were hugely disrupted, and then we go to 44,000 retailers, who were similarly disrupted. That ends up with 2 million or 3 million customers who cannot get their paper when they turn up to buy it in the morning. The disruption to freedom of speech and our democracy in this instance was huge.
Sarah Jones
Q
David Dinsmore: My understanding is that you need specialist teams to remove protesters who are locked on at a height.
Sarah Jones
Q
David Dinsmore: It was chains. At Broxbourne, they brought a purpose-made bamboo super structure, which they were able to erect at speed and put themselves on to.
Sarah Jones
Q
David Dinsmore: We call it the nightly miracle that we get from literally a blank sheet of paper at 9 o’clock at night to 44,000 retailers at 6 o’clock the following morning around the country. While I like the aspiration, the idea that we could get specialist teams there and remove blockages and get all that cleared without having significant disruption to the network and that delivery is, I think, pretty ambitious.
Sarah Jones
Q
David Dinsmore: Indeed.
Anne McLaughlin
Q
The Chair
We cannot go into the detail. The concept of how a protest can be taken forward is, however, a legitimate question.
Anne McLaughlin
Q
David Dinsmore: News brands are a very good channel for campaigning. We would see ourselves as giving a voice to the voiceless. One of the ironies of this particular protest was that on page 10 of The Sun that day, there was a piece from David Attenborough about exactly what Extinction Rebellion were campaigning on. They were going after one of the vessels that would probably be a good way of disseminating protest and counter-voices. Newspapers have campaigned legally and peacefully for centuries on many issues successfully and got law changes. If we want to go into the details of the great Sunday Times investigation campaign on thalidomide, I think there are many routes through which you can get outcomes that do not require the law to be broken.
Anne McLaughlin
Q
David Dinsmore: On the Black Lives Matter issue, we have, as an organisation, carried a huge amount of coverage. We have done things explicitly and internally on diversity. It is something that we do take very seriously. The Sun has recently run a series on Black History Month, et cetera, et cetera. I will not go into the detail, but I can give you much more on what we do as an organisation on those kinds of issues.
There are many, many routes to protest in this country. I am just giving you the specifics around our particular route. There are petitions and social media. There are many ways in which you can get a story, a campaign or a point of view across without disruption and breaking the law.
Andrew Bridgen
Q
David Dinsmore: I think the best example we have got is the pandemic we have just lived through and the requirement for quality, trustworthy information. That showed how vital and valuable that is. We, as professional journalists, provide that information on what used to be a daily basis and is now a minute-by-minute basis, and the public need that more than ever.
Andrew Bridgen
Q
David Dinsmore: But it could be just as easily threatened by this kind of protest.
Mrs Elphicke
Q
David Dinsmore: I do think that the way the law is structured protects the rights of the few against the rights of the many. That feels to me to be anti-democratic. So, without going into the specifics of it, yes, I do think that. On that point of “you can get it online”, there is still a significant cohort in the community—principally older readers—who cannot or do not get it online, and do get their news in print.
Kit Malthouse
Q
David Dinsmore: I do not know if we know for a fact that that is the case. However, certainly, in a lot of protests that we see—and believe you me, we see a lot of protests—an anti-Murdoch element always comes out. We are big, grown-up girls and boys, and we deal with most of that in our daily work, but on that occasion, the level of disruption caused was well beyond what would be acceptable.
Kit Malthouse
Q
David Dinsmore: Apart from the fact that it was Extinction Rebellion, I would need to go back. I think there was a lot of assumption about what it was against—I think they did some tweeting at the time, but I will need to come back to you with the specifics around what was actually said and claimed at the time.
The Chair
Do any Members wish to ask further questions? On that basis, Mr Dinsmore, I thank you for your evidence.
Examination of Witnesses
Sir Peter Martin Fahy QPM, Matt Parr CB and Chief Superintendent Phil Dolby gave evidence.
The Chair
Q
Sir Peter Martin Fahy: I am Peter Fahy. I was the chief constable of Greater Manchester police and, before that, the chief constable of Cheshire constabulary. I was a police officer for 34 years and a chief constable for 13 years.
Matt Parr: I am Matt Parr. I am one of four of Her Majesty’s inspectorates of constabulary. My focus is primarily on the Met and non-Home Office forces. In specialism terms, I look at such things as counter-terrorism policing and, in this case, public order.
Phil Dolby: Good afternoon. My name is Phil Dolby. I am a chief superintendent for West Midlands police and I am a trained and accredited tactical public order/public safety commander and have been for some time, and I have been through quite a few adventures.
Wendy Chamberlain
Q
Sir Peter Martin Fahy: The first thing I would say is that there is a threat to public confidence in policing from the police not being seen to be effective when they are dealing with issues like those we have heard about—issues like the Insulate Britain protest—but there is a danger that this Bill is trying to produce the wrong solution. The problem we have, as you heard from the gentleman from News UK, is that we do not have a standing army of police officers in this country. We are not like France, Spain and Italy, which have paramilitary police forces. If this had happened in France, they would have turned out the CRS very rapidly. They are very highly specialist and trained: they would use water cannon, they would probably use rubber bullets, and essentially the French population would accept that level of force. Thankfully, we do not live in a country like that, and the trouble is that when these events happen—I had a similar thing in Cheshire, with milk protests outside Morrisons and Tesco—in the middle of the night, it is extremely difficult to get together enough officers to safely disperse that protest. If anything, that has got far worse, because in those days we did not have everything filmed and on social media and all those things.
Essentially, it seems to me that we have three problems. The first is the inability to get officers quickly together, with the right equipment—I would like to be able to move lorries, vans and stuff like that quickly—because that is not how British policing is set up. The second issue is that you then have to clear and arrest people, and the trouble is that the rules on bail are very narrow. In most cases, the police have to release that person on bail, which makes them free to go back and rejoin the protest. Even if you are able to get them to court immediately, the court will probably bail them out, because they plead not guilty and are back out on the street again. That is essentially the problem: they are able to keep on going back and repeat their behaviour.
Wendy Chamberlain
Q
Sir Peter Martin Fahy: No, it will not deal with any of these three practical issues unless you address the issues of a lot more police officers being available; the public appetite for those officers to be able to use force, confident that the public, the media, and even people like the Independent Office for Police Conduct will support that use of force; and court procedures being able to deal with that and, if necessary, keep people in custody if they are persistent in going back. Just having more powers does not really solve any of those practical issues. Some people will be deterred by harsher sentences, but we know that a lot will not be.
On the other hand, part of that is absolutely that there is a danger to public confidence. That is really critical. I just visited Westminster Abbey and saw the statue of Sir Robert Peel, who laid down some remarkable principles of policing way back in the 1820s. It was very much about the police being impartial, acting under the rule of law, and not seeming to follow any particular initiative. There is absolutely a risk in this. Most protests are short-lived and move on very quickly. We have talked largely today about national protests, such as those on the M25, where there is not really a local community, but most protests and the most difficult protests are often very local protests about things like fracking and road developments, where there are very strong local public emotions. Yes, there may be some outsiders who join it, but most of it is very local people. If the police are involved in gathering intelligence around those people and criminalising them in a way that those local people do not think is fair, and it destroys their confidence in what their local police force is there to do, there is absolutely a risk in that.
Very quickly, I found the Sarah Everard vigil that Matt did a review of interesting in a way, because most of the police service were really clear that that gathering was illegal under the coronavirus regulations. The inspectorate did an inspection and said, “No, it was a very good policing operation done very well.” It didn’t matter. Media, most politicians and public opinion said, “No, that was wrong”, on the basis of two images that ended up on the front of the Sunday newspapers. That is the difficult environment that police officers are operating in, some of them very junior and without the chance to have a great deal of training, and dealing with very complex issues, such as more legislation, more powers and more definitions of what is serious disruption, whether something is national infrastructure or not and whether something is the highway or private ground. Those are difficult issues for individual police officers, even inspectors, to make sense of in the heat of the moment, with strong emotions and the potential need to use force on people.
Wendy Chamberlain
Q
Sir Peter Martin Fahy: Yes. We cannot be naive: the training level for police officers is still very poor. There is no formal qualification for superintendents. They do their best, but we put them into very difficult situations with complex consequences if they get it wrong.
Wendy Chamberlain
Q
Phil Dolby: Certainly from a West Midlands police perspective it is extremely difficult when we have a protracted protest, because all of those cops come from the normal, business as usual police, often at the front end of demand, as opposed to detectives or safeguarding officers. They are the first response and are often the ones trained to be ready to police such events. The opportunity cost, as well as the financial costs, can be significant.
The British model of policing of protests in the last 10 years has matured and advanced. There is more to do, but work has been done on balancing the rights of all; trying to make sure that it is seen as a community issue and not just a policing issue, so the officers do not come into an area and then leave, and how that affects the community; and protest liaison officers who are specialists in how to engage and try to negotiate before we use force.
Wendy Chamberlain
Q
Matt Parr: I suspect I am here because I wrote not just the report on the Sarah Everard vigil but the report you mention, at the Home Secretary’s request, on what was then a series of proposals, some of which have made their way into the Bill and some of which have not. That report covered much more than legislation: it made the point that getting the legislation right is not a panacea. A dozen or so recommendations were made in the report, and they covered issues such as greater expertise, increased training, better intelligence and more debriefing afterwards. The problem is not solved by legislation. It is solved by a mixture of legislation, greater training, awareness and preparation for decision-makers and police.
Wendy Chamberlain
Q
Obviously, your report from 2021 considered protest banning orders, which was something suggested by the Met. Your report stated that
“such orders would neither be compatible with human rights legislation nor create an effective deterrent.”
What are your views on the serious disruption orders in the Bill, given what you have said previously?
Matt Parr: I can only comment on what we said in the report. We looked at them and at what the Home Office said about a protest ban at the time. It opposed a ban, saying that it
“essentially takes away a person’s right to protest and…would very likely to lead to a legal challenge…Consequently, we believe it unlikely the measure would work as hoped.”
The report agreed. We said:
“We remain unconvinced that such orders would either be compatible with human rights legislation or create an effective deterrent.”
We supported many of the other measures, some of which have not made it into the Bill.
Wendy Chamberlain
We shall find out from the Minister why he has changed his mind.
Sarah Jones
Q
Sir Peter Martin Fahy: You mention the level of resources. Certainly, when you look at the number of officers per head of population in the UK roughly compared with France, Italy and Spain, you see that we have about half the number that they have. Why is that? Because they have national police forces and paramilitary police forces that essentially are part of the military, live in barracks and are able to respond in that militaristic way. That is not our history whatsoever and I would absolutely not want it to be, but it possibly gives you some indication of the level of resource.
Even if the chief superintendent had double the number of officers, I am not sure that he would necessarily want to put them into this form of policing, because he is absolutely right that when officers had to be on motorway bridges at the time of Insulate Britain to try to be available to clear the protests, they were officers who would have been investigating rapes, burglaries or whatever. There is a practical issue here: could we ever have the level of resources to be able to effectively—? The fact is that the protesters will always be fleeter of foot than the police, because they have the element of surprise.
In terms of what can be done to help people like Newsquest, Morrisons and other people I have dealt with who were absolutely very concerned about the future of their businesses, for me it is about being prepared to look at issues like bail. In the more immediate sphere, it is for the courts to be able to keep people in custody, rather than having to wait for a court case a few months down the line, or for one of these particular orders.
I would still doubt whether the appetite would be there—the judicial appetite. Police officers are very wary, and you heard the exact reason for that from Newsquest: when cases get to court, the judiciary or the magistrates often give out very minor sentences—whatever might be allowed in the legislation. They find, as happened with the Sarah Everard case, that higher courts then disagree and bring in human rights legislation, or bring in a different interpretation that is in the legislation, which then completely takes the legs of the police from underneath them.
That can only really be covered partly by legislation but essentially by judicial practice, because you can bring in all the laws you like—it will not actually solve those practical issues that the police face. There is also a real difficulty with definitions. This Bill talks about “protests”. Previous legislation, such as the Public Order Act 1986, talks about “gatherings”. We seem to have brought in this word “protests”, and I am not sure there is a legal definition of what is a protest.
The 1986 Act uses the phrase,
“serious disruption to the life of the community”.
I dealt with a really difficult protest in the centre of Manchester, which essentially put the Jewish community and the Muslim community at odds. I actually contacted the Home Office and said, “Please can you tell me the definition of serious disruption to community life?” They said, “The legislation’s never been used. We can’t tell you.” I was left wondering whether I should go around the shops of Manchester and try to work out whether their takings were up or down as a result of the protest.
With words such as “serious disruption”, on the face of it, yes, they are common sense and everybody knows what it looks like. In reality, however, when it gets into the courts that is exactly where the lawyers make their money from, but it absolutely undermines the police action and seriously means that police forces may be sued for unlawful arrest, and officers may be more liable to receive complaints because the conviction was not secured. It is a really complex issue, as Matt has said, and it needs a range of things, but just having more legislation without dealing with those other issues—you would certainly need an absolutely huge investment in training.
That would be my concern about this legislation. It is quite complex legislation. How, for instance, are West Midlands police supposed to train that, with all the day-to-day of policing? There is no time in policing for training. Again, those officers who are going to be on training courses have to be taken away from other duties. In my time, in my early stage there was very little change to the law. It is now changing almost month by month, and trying to keep police officers—who, with due respect to them, do not have the sort of professional background on how to interpret legislation—up to date with that is really difficult, because we are putting them into a totally different scenario, in terms of their level of accountability and the level of transparency that has now come from mobile phones and social media.
Sarah Jones
Q
The third question is just about any thoughts you might have on things in the Bill that you have not looked at. You might not have had thoughts because the Government have not asked you to do a report on it—I think I am right that they have not asked you. Do you have any thoughts on things that you have not looked at before?
Matt Parr: I will deal with the easiest one of those questions first. The policing response to our report has been possibly the most professional and thorough response that I have seen in any report I have done in six years as one of Her Majesty’s Inspectors. The then National Police Chiefs’ Council lead picked it up, gathered a group together, and it has been a model of how policing as a whole should respond to a report. That has been really good. We have not been back to inspect, but I am pretty confident that progress has been made against every recommendation we made. I think they have almost all been ticked off. That is very encouraging. That is not standard fare with reports from us, sadly.
On your point about what bits of the legislation we looked at, we were asked to look at five changes. The history of this is that in 2019 the Home Secretary wrote to the commissioner of the Met, and the commissioner then wrote back with a series of 19 potential changes to the law. There was a big roundtable involving the Home Office and lots of people in policing in mid-2020. After that it was decided that they would take forward five. We supported all five of those—with a little bit of teeth-sucking about a couple. Generally, we thought that they all had the potential to improve the efficiency and effectiveness of the policing of protests, and would help achieve the “modest reset” I referred to in the report.
The Bill contains one of those changes, and that is the one about extending stop and search to look for lock-ons. It contains other changes that were not in there: obstructing major transport works; interference with key national infrastructure; serious disruption prevention orders, which we have already mentioned; and, lastly, lowering the rank in the Met for authorisations.
On extending stop and search, we said that because of its preventive nature it has the clear potential to enhance police effectiveness. It would also act as a deterrent. We recognised it was controversial, and we registered concerns about modelling it on current section 60 legislation—we thought that was potentially problematic. It is trying to achieve two very different things. We were nervous about a potential effect on minorities, and therefore we would like to see strong safeguards around that.
Finally, we said there must be appropriate thresholds and correct authority levels. I think the Bill says inspector, which is probably as low a rank as I would want to go. However, in general we remain supportive. There was broad support for the stop and search proposal from across the National Police Chiefs’ Council, and policing generally. Some people raised some difficulties, but we concluded:
“our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency”.
I have mentioned that we were not supportive of SDPOs. We did not really look at the others. I will touch on changing the minimum rank of assistant commissioner to commander in the Met. That strikes me as entirely pragmatic. If you look at the Met, the real expertise in public order tends to be at commander rank, rather than above, where people get a bit more generalist. The deep professional experts in London, in my experience, are the commanders. That strikes me as perfectly sensible. The other two changes we simply have not looked at. I would say that they strike me as consistent with the aim I was in support of. Currently, the balance is not being got right on a regular basis; the level of disruption between those who have a right to protest, and those who are bystanders and affected by protest, is not in the right place. Those changes strike me as consistent with resetting that balance.
Everybody I talked to in the course of this inspection or since—every police officer and everybody involved in this—absolutely recognises the right to protest. There is no question about that. Frankly, I think some of the criticism of the Bill, and some of the interpretation of it, goes too far. It is not a police state.
Sarah Jones
Q
Matt Parr: Both. Any changing of where the pendulum sits does not automatically mean the introduction of a police state. To me, they look like sensible measures to redress the balance. I note that the Government’s note accompanying the Bill links to a YouGov survey that shows where the public are on this issue, and those findings were entirely consistent with the survey we did as part of the Bill. To be honest, I was quite surprised at the time, but the YouGov poll is in exactly the same place.
Sarah Jones
Q
Phil Dolby: No one protest is the same as any other, even if it might be about the same cause. Some of the most challenging ones we have had have not necessarily been Extinction Rebellion or High Speed 2. The issues in Gaza led to some go-slow protests that were going to churn up the city, which I had to deal with.
Another protest was in the paper a few years ago. A school was hoping to do a teaching element about same-sex relationships, and some of the local Muslim community were upset about that. We have also had Sikh tensions at the Indian consulate general, the Kisan protests and so forth. Sometimes you can start your tour of duty and something appears on Al Jazeera—suddenly, you can feel the tension rising during that same tour of duty.
The first thing is very much: what relationships do we have with communities before there is a protest? What kind of neighbourhood local policing service do we have? What is our community engagement across the spectrum of age, ethnicity, communities and so on? That is the most important. One of the most important briefings I give to everyone—including protesters—at the beginning of any operation, be it pre-planned or spontaneous, is always about the style and tone of what we are about to do. That is about being a fair service that is not afraid to make decisions when it needs to.
I will give you a couple of quick examples, starting with when we had the go-slow. Like most cities, Birmingham has a ring road, and it does not take much for that artery to suddenly be blocked, which means that nobody is going anywhere. We had a protest about Gaza whereby they were going to do a go-slow with their vehicles and do a circuit around the city. Because it kept moving, we tolerated that. We did some traffic management around it, kept the city moving and made sure that really important things, such as hospitals and so forth, were not affected. They then went for a second lap, and that was where I had a threshold with a gold commander who had given me a strategy that said, “That’s enough now, because everyone else in the city has the right to peaceful enjoyment of the transport system and to get around.”
We currently have a power under section 12 of the Public Order Act 1986—this goes to Sir Peter’s point—that already has the term “serious” within it. There is a test called 3DI—serious damage, disorder, disruption or injury —but the definition of “serious” is still quite open to interpretation. You also need to have an organiser. During the pandemic, people did not want to show that they were organisers, because they would then be potentially prosecuted under the coronavirus regulations. That has kind of stayed. Before then, people were quite happy to say, “I was the organiser,” but that is less so now.
The go-slow had no clear organiser, but through the CCTV around the city, I was able to see who the organiser was. There were probably about 200 vehicles involved in it, and I just gave a warning about the police’s power to who I was evidentially satisfied was the organiser. I negotiated and said, “Look, I’ve got this power. It’s ready, and here it is. Do you want to carry on, or can I encourage you to stop? You have had your opportunity, and you need to move on.” There was a negotiated approach that I thought tried to keep the balance for everyone.
Similarly, Extinction Rebellion recently blocked a fairly minor road. We were a little confused about the road they chose. If we had been doing it, we would have chosen a different one. They had a tactic whereby instead of staying in the middle of the road all the time, they would use the pelican crossing but let the traffic stop by the traffic furniture. They would then occupy the road for about five minutes and when the traffic built up, they would move away. That was an interesting application of the law but, again, what we did was start negotiations with them.
We have our protest liaison teams, and there is a five-step appeal that officers go through, which we document and fill, giving every opportunity for the protesters to reach the decision themselves. Eventually, I said, “Okay. There is a power here to stop you. This is an unlawful assembly because it is now causing serious disruption. There’s a children’s hospital that is starting to be affected, so now that’s enough.”
I brought forward the van that is a mobile prison cell—kind of a show of strength, really—and said, “That is what I am prepared to use”. They said, “Okay”, and that was enough. Again, both the powers were available to us. They were being prepared to be used. We were not just tolerating it; there was a negotiated approach, and both of those are examples of where that has been successful. On the serious disruption element in the Bill, I would encourage as much precision for that definition as possible.
Mrs Elphicke
Q
Matt Parr: We made that point in the report. There are certain things that probably would have a deterrent effect—the £37 million is something that we referred to. I think it is relevant. It is difficult to say that you cannot put a price on articles 10 and 11 and, of course, you are right. However, just for context, the two operations we looked at in London cost £37 million. That is twice the annual budget of the violent crime taskforce, so it does have a significant effect.
The other general observation I would make is that protest has been increasing and the complexity and demand on policing has increased. It does not seem likely to us that it will go in a different direction in the years to come, so something has to be done to prevent it becoming too much of a drain. Yes, I think that some of these act as a deterrent, of course. It rather depends on how they end up progressing through the courts—if, indeed, they are brought to court—and if it turns out that they are not meaningfully prosecuted and there are not meaningful convictions, any deterrent effect will pretty soon dissipate after that, I would have thought.
Sir Peter Martin Fahy: I would make the same point. Anything that could be put in the legislation to clarify the issue about “serious”, which absolutely could be some financial calculation, would be extremely useful. You have to remember that it was quite clear that the vast majority of people thought the Insulate Britain protests were extremely disruptive and pointless.
There are certainly some protests where you have two sides. Therefore, you will get pressure from one side to use this legislation, and we should not be naive about the pressure that police leaders come under from local politicians to do that. I will be honest: they were some of the most uncomfortable times in my police career when that happened. Therefore, having clarity about the legislation is really important, as is anything that can be put in to help that.
I do not know whether there is actually any evidence that people are deterred. Common sense says that some people will be deterred by harsher sentences and the threat of a conviction in court, but clearly some people are so determined, and have a certain lifestyle where it does not really have any consequence for them, that—if anything—it makes them martyrs. Certainly, as Matt said, if they are not convicted or get found not guilty, if anything that gives them a greater status as a martyr and leads to further criticism of the police.
Phil Dolby: I want to make a point on the precision of the legislation. When looking to consider stop and search without suspicion, I think no matter how hard you try, there will be a complete, solid line in the public discourse between that and section 60, which is the existing power to have targeted stop and search around violence principally. That is a tool that is being used increasingly with the challenges we are all facing around youth violence and knife crime. It is also something around which communities have not always necessarily experienced fair treatment.
With all that we are trying to do now, it is still a key point of discussion and, sometimes, contention. We have the community coming in and scrutinising how we have used it. They watch our body-worn video of what we tried to do. We have even got youth versions of that for young people. I do not know how you would do the same kind of thing with protest. I think there is something that needs to be done there. There is best practice advice on how to conduct stop and search, and I think there is potentially some real thinking if those go ahead to start with that position as opposed to learning those lessons as we go along.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Q
Sir Peter Martin Fahy: On your point about the Sarah Everard vigil, there is a question about what the difference is between a vigil and a protest, which is really critical for policing. Again, I would come back to that point: it did not really matter how legal or professional the police operation was. Because of that wider context, the public view of it is really clear.
Going back to what the chief superintendent said, you have to take into account absolutely the feelings of your local community. I would say that on things like this extension of stop and search, for me there would need to be a well-documented community impact assessment, where the police worked with other agencies and community groups to assess what the impact is going to be. I am not sure about the psychological impact. It is about the fact that this is how policing is judged now, and that is the risk.
I would bring in the issue of disruption orders. Anything that is about gathering intelligence is extremely problematic. Even if you go way back to the 1970s and the big scandal about undercover policing, that came from a desire to try to gather intelligence about protesters, and look where it got the police service. This is about what could be a group of people here organising a protest against a local road development and the police using the local council CCTV to try to show that, for instance, three people had met and a gentleman had put something on Facebook to bring about the protest. That is the form of intelligence gathering that I would suggest some of your constituents, if they were involved in something that was local and very emotional, would find extremely disturbing.
I think the police service has to be very careful about going down that route. Again, I think most people would say that we want the police to use intelligence gathering against serious criminals. It would need to be a very serious degree of public protest and disruption for the police to be using some of those tactics, in terms of the degree of trying to hold on to public confidence in law and police powers and tactics.
Matt Parr: As the person who conducted the study into that vigil, I was genuinely shocked. I had a team significantly composed of female senior police offers—mostly detectives or people with firearms backgrounds. Therefore, they had done relatively little public order in their careers. I found astonishing the look on their face at some of the evidence they saw from that night and the abuse that the police took. There was a very, very clear difference between an entirely well conducted and peaceful vigil that lasted until a certain time of the night, and the disorder that—
Dr Huq
That was what it looked like. It was like—
Matt Parr: Exactly. The vigil and the disorder that came after were two entirely different things. That is a significant point as well, of course, because we talked at the start about getting the resources and it is increasingly difficult, in many forces, to persuade people to volunteer to do public duty, for reasons of the social media aspect and also, frankly, because to do so means you will be on the receiving end of some real nastiness from certain—not all, by any means—members of the public.
When it comes to your wider point about how you take into account the seriousness and the psychological aspects and the presentational aspects, I think they are all absolutely relevant factors to take account of. One of our recommendations in the report was that police decision makers should be given better tools to be able to assess what serious disruption looks like. It cannot be as simple as financial cost; it has to be far more complex than that. At the moment, we have seen a number of cases where senior decision makers had clearly been left floundering by not understanding the nature of the disruption that was likely to be a consequence of a particular protest and therefore they shrank from making sensible decisions. Better tools for understanding when the thresholds for the nature of disruption have been crossed strike me as an essential part of this.
Phil Dolby: There is a sense in which we are always doomed to look like we are failing in some of these incidents—even though the right thing may have been done—because we are the ones in uniform, with personal protective equipment that makes us look quite tough. You have a passive protester, for example, or somebody at a vigil. Say it is an older person. To safely take that person away requires five officers—to take a corner each and the head. The newspaper photograph of that looks like a lovely old person being taken away by five militaristic-looking police officers. They are actually doing that because that is the duty of care they have—to safely remove that person who will not move. The reporting is usually of a very solid moment.
Something that could be interesting relates to the body-worn devices that we currently have, which we are using to invite the public to come after the fact and see how we have done and give us learning points and their views, particularly from communities that we have not necessarily always got the correct engagement with. The next generation of these will be live, and there might be some instances where we would invite affected members of the community in to watch what we are doing and give us live-time feedback. That will not necessarily always change decision making, but it is another part of the decision-making model to say, “Well, actually, that community impact we are describing”—
Tom Hunt
Q
Also, I just want a point of clarification—I think this discussion was again with Sir Peter—in terms of how we can improve things and how we can get to a point where perhaps there is a more dedicated team of people who are very trained and specialist. If we believe that these protests are becoming more frequent and more of an issue, although we do not want to go down the route of France, there have been occasions when I think that has been a temptation—when we have seen some of these out-of-control protests. I want to know what this new team that could help us get to a better place looks like.
Sir Peter Martin Fahy: Point No. 1 is that absolutely the police must never be swayed by a popularity contest. It is exactly what the chief superintendent says. Sometimes you have to stand above all that, and you are never going to win. Also, you might lose the battle, but you win the war. But the fact and the reality of policing is that you have to judge that. You have to talk to community leaders. You have to try to balance that. You have to make a decision. You have to try to involve people. One of the frustrations I had with that particular protest in Manchester is that I could not persuade anybody like the local council, the university or anybody to take this issue away from the street. It was an issue about what was going on in Palestine, and Israeli action. “Take this away”—but they would not do it. Sometimes, you need a mediation mechanism that takes that away from the street and that sort of public protest. It will not work on every occasion.
It is also about who makes that decision. Interestingly, the chief superintendent talked about using community panels to help you in your decision making. That was used with COP26 in Glasgow. Clearly, in Northern Ireland, they have the Parades Commission to make decisions on contentious protests and where they should and should not go. I find it interesting that we never mention police and crime commissioners, who are locally elected and, in some ways, should be representing local people. PCCs could possibly have a role in this, or it could be that more goes to the judiciary, so it is not so dependent on the police, with all the consequences for public confidence.
If you are looking at capability, there is a much wider debate, which the policing Minister will be aware of, about the structure of policing in 51 police forces and whether that is appropriate for the current situation. It is very difficult in our policing system, where we do not have paramilitary operation, policing is by consent and, rightly, the public have a particular attitude towards the use of force, to come up with something that would have the capability to deal with the sort of situations we are talking about. There would need to be a huge shift in the public mood and I think British policing is not really set up and does not have the mentality to use the degree of force that you see in other countries.
People do not realise that we are pretty unique. When you hear about the sophistication and negotiation the chief superintendent talked about, that is the British style. In all the protests it is escalation, which looks in the early stages like the police are being weak, but in the background they are talking to people and they are escalating. They are saying, “If you keep on coming back, we will use this power and that power. Have you heard about that?” That is the British style of policing. You do not start with the heaviest. You work up to it, and that then maintains the confidence in your legality and proportionality.
Matt Vickers
Q
Sir Peter Martin Fahy: It can get very low. Unfortunately, that is not part of the public discourse. I think the public think that there are lots of police officers sitting around in police stations doing nothing, whereas the reality is—somehow the police service needs to find a better way of articulating this—that no, even the Metropolitan police does not have loads of spare officers. So absolutely, that is part of the huge frustration for policing and where it sometimes feels it does not get the support of local politicians and the media—and, crucially, the courts—to deal with this.
Matt Parr: One of the things we criticise a lot, not just in London but across the country, is abstraction and the disruptive effect it has on building up long-term relationships. It is not necessarily detectives being taken off their work and therefore serious investigations not getting followed through. It is more likely to be neighbourhood policing that gets depleted, or response that gets depleted, and therefore you get longer response times or neighbourhood cops just not doing their job. It is rather difficult to quantify what the long-term effects of that are, but we definitely see in the inspectorate the negative effects of abstraction for a whole range of things, and this is one of the more serious ones.
Phil Dolby: At the same time that there are more protests—and more complexity around them—the service is also facing increased demand. There is a national shortage of the word “unprecedented” now because we have used it so much, but the demand that we are currently seeing as a service across the country is unprecedented. It is not only the amount of calls we are receiving—so volume—but, because hopefully we are doing better with our partners around vulnerability, more people are telling us about things that are really quite complex. The theft of a Mars bar is one call and “Twenty years ago, myself and my entire scout group were unfortunately the victims of something” is one call, but the complexity and the resource the latter needs is massive, and those are both going up at the same time.
There is not a standing army waiting to deal with protest. They come out of normal policing when they are required to do so, and the amount of neighbourhood policing that is affected by just keeping up with that demand is already quite acute. I just wonder whether, when we define organisations in the Bill, there is something about the organisations having some kind of responsibility to do what they can do to prevent— through their design, their target hardening and whatever staff they might put on—and to contribute to this as well and reduce it. Actually, we are talking about the cost of policing and the financial cost, but communities—with the reduction in policing that they are receiving—are the ultimate people bearing the cost. Perhaps we could do something with this, as we have with the Protect duty coming in under the terrorism Bill, putting responsibilities on local authorities and other people to do those kind of things.
We have had a very expensive protest recently around Amazon warehouses. Those drew in different forces and specialist policing. Some of the protesters were so long there in the cold that it became a medical emergency, and officers had to do some life-saving stuff around the protesters. With all those normal cops who have come away from other work, Amazon could have done more.
The Chair
I have to draw you to a close, Chief Superintendent. That is the end of the time allotted for the Committee to ask questions of this panel. On behalf of the Committee, I thank the witnesses for their evidence.
Examination of Witnesses
Olly Sprague, Stephanie Needleman and Martha Spurrier gave evidence.
The Chair
We will now hear from Olly Sprague, military security and police programme director, Amnesty International; Stephanie Needleman, legal director, Justice, via Zoom; and Martha Spurrier, director of Liberty. I should say to Ms Needleman, please alert us if any technical issues arise during the course of your evidence. We have until 4.55 pm for this session. I invite the witnesses to introduce themselves for the record.
Stephanie Needleman: I am Stephanie Needleman, the legal director of Justice. Justice is an all-party law reform and human rights organisation working to strengthen the UK justice system.
Martha Spurrier: I am Martha Spurrier, the director of Liberty, the human rights and civil liberties campaigning organisation.
Olly Sprague: I am Olly Sprague, programme head at Amnesty International UK for our work on military policing and security matters. This is my first physical Committee for two and a half years—it is good to be physically in the room.
Anne McLaughlin
Q
Martha Spurrier: There can be little doubt that a Government should spend time looking at the root causes of a protest, whether that is the climate crisis rather than climate protesters, or racism rather than Black Lives Matter protesters. Of course, it is not news to say that protest is a foundational right, and that it is an article of faith in any democratic country that if there is something you disagree with, you can take to the streets to make your voice heard. It is of great concern to Liberty and those of us who work in this area—I am a lawyer, and I have been working in this area for the best part of 15 years—to see provisions in a Bill that not only have been rejected by Parliament once, but significantly expand police powers, often doing so in a very over-broad and imprecise way, such that it is difficult to see how they will be effectively implemented.
We would expect a disproportionate impact on marginalised communities from the exercise of those powers. We would also expect that they will fundamentally undermine the right to protest, and will not do what they are purported to do—deal with a hard core of some supposedly extremely disruptive protesters—but will in fact have a dragnet effect of chilling people’s right to protest and free expression, and deter ordinary people from exercising their fundamental rights. There is a whole range of examples in the Bill that we could talk about where it is very difficult to see why those measures are proportionate and justified ways of dealing with the perceived problem, let alone whether there is a problem as articulated.
Olly Sprague: I echo what Martha said. For an organisation such as Amnesty, it is not a case of either/or: we do not want to balance the harm that might be caused by climate change versus the positive duty that all states have to uphold the right to freedom of assembly and association and the right to protest. You have to manage all things.
One of the things that we bring here is that we are an international human rights monitoring organisation: we look at human rights internationally, and we look at where the UK is on the standards, obligations and legal frameworks that exist. It is worrying to say that for most of the provisions in the Bill, we see a clear gap between what the international standards require of the UK and what the UK proposes here, and it is the wrong gap. The UK is on the wrong side of where it should be. I am sure we will have the opportunity to go into why we think that and the areas where we think that is the case, but that is a very worrying direction of travel, especially when in terms of its foreign, defence and security policy aspirations, the UK sees itself very much as a champion of civil society space. It sees and acknowledges the fact that the world is becoming increasingly authoritarian, and wants to do things to stop that.
As a quick example, in April this year, Lord Ahmad—a Government Minister from the Foreign, Commonwealth and Development Office—was giving his closing remarks to the 49th session of the Human Rights Council. In that, he made specific reference to a very important resolution about the need to promote and respect the rights of human rights defenders around the world. It was a resolution that was welcomed and strongly supported by the UK Government; it was a very important resolution. That resolution essentially requires that all states refrain from measures that excessively criminalise human rights defenders and their rights to freedom of expression, so you have a bit of a disconnect here between the statements that the UK puts out internationally and the role we see ourselves playing in the world community, and the kinds of measures we are putting in place on our own domestic legislative front. They are out of step with each other, and it is not joined up.
Stephanie Needleman: I completely agree with what Martha and Olly have said. Picking up on something that Olly said about the disconnect between what the UK is doing internationally and what we are doing domestically, there is also an internal disconnect in what we are doing domestically in the UK. The right to protest is an element of the right to freedom of expression and assembly. On the one hand, that is being championed under the Bill of Rights consultation and the Higher Education (Freedom of Speech) Bill, but on the other hand, it is being severely restricted in this Bill, so there is an internal inconsistency there as well.
Kerry McCarthy
Q
“Disruption” is such a vague term. What would a person have to have done for the police to be able to go down this route? I should probably ask the Minister, because I think the answer at the moment is that we do not really know, but how do you see this panning out?
Stephanie Needleman: I cannot see if Martha and Ollie are indicating that they will answer, but I can kick off, if that is helpful.
I think you have hit the nail on the head in raising the vagueness of when these serious disruption prevention orders can be imposed. They can be imposed not necessarily on conviction, as you said. The orders can cover an incredibly broad range of circumstances. Under clause 13(2)(a)(v), all you need to prove is that on two separate occasions somebody
“caused or contributed to the carrying out by any other person”—
they do not even have to have done the act even themselves; it could be done by someone else—
“activities related to a protest that resulted in, or were likely to result in, serious disruption”.
You do not need to have carried out the
“activities related to a protest”;
you just have to have “caused or contributed” to them. Those are incredibly vague and broad terms; they could cover almost anything done to assist someone doing anything related to a protest. For example, it could be driving somebody to a protest, or to shops selling paint or glue, if the person the glue is sold to subsequently glues themselves to something.
Linked to that, there does not seem to be any requirement for the person to have had knowledge that the protest activities were going to cause serious disruption when they “caused or contributed” to the carrying out of those activities. That could capture a vast range of behaviour.
Kerry McCarthy
Q
Stephanie Needleman: It has to be proved, but it only has to be found, on the balance of probabilities—the civil standard of proof—that one of the conditions has been met. As I said, the conditions are so broad and vague that it should not be that problematic for the police to approve. So yes, involvement would have to be proved, but given the vagueness and the broadness of the conditions, it is likely that it can be easily proved.
Martha Spurrier: It is right that, for example, legal aid would not be available to someone defending themselves against having one of those orders imposed on them, and of course they can be renewed; there is a suggestion in the Bill that they could be renewed indefinitely. Once the order was in place, you would not get legal aid for a lawyer’s assistance in dislodging it.
It is worth stepping back a little and looking at the serious disruption prevention orders. These have been proposed by the Met police before, under the name of protest banning orders. The Home Office was against bringing them in, on the grounds that they were neither compatible with human rights nor an effective deterrent that would solve the problem that they purported to. That relates to a slippage in principle and language that we see across the Bill. It is important to pay attention to it, because this is law; cases will be decided on these words. Article 10 of the European convention on human rights is of course not an absolute right. It can be interfered with. There is a balance to be struck between the interests of a protester and the interests of the wider community, for example.
There are many grounds on which you can interfere with the right to protest; one of them is crime and disorder, and another is the rights of other people. You already have a human rights framework for limiting protest in certain constrained situations, but what we see in this Bill is not the language of crime, disorder, or abuse of others’ rights, but the language of disruption, inconvenience and nuisance. That is a significant, conceptual, legal change in the language. As Stephanie says, it takes you into the territory of criminalising what we have hitherto understood to be non-criminal conduct—of criminalising protest tactics that have a long history and previously would not have been considered criminal acts. People who may have participated in a couple of protests over five years may suddenly find themselves within the purview of the criminal law, although hitherto both criminal and human rights law would simply never have brought them into that space. When thinking about all these definitions and new offences, it is important to recognise that significant paradigm shift in the concept of how you go about policing protest.
Add to that the fact that these new concepts, including the idea of serious disruption, will be defined in secondary legislation. This significant interference with the fundamental right of protest may result in terms being defined by a politician who gives the definition very little parliamentary scrutiny. The measures would then be implemented by a police service that interprets them as it sees fit; we do not need to go into the times when they get it right and the times when they get it wrong. There are lots of layers to this before you even get to the detail of what happens if someone is subject to one of these orders, how they would shift it, and whether being subject to an order would mean that they could no longer protest.
Olly Sprague: My colleagues have covered everything that I wanted to say on the domestic aspect. It is worth coming back to the question: where do the international standards sit? The United Nations Human Rights Committee’s general comment from 2020 is most useful here. It allows the criminalisation of individuals taking part in a demonstration only in very specific circumstances, and it sets the threshold at incitement to violence. It sets the time limit as “as short as possible”; it talks in terms of a few hours. The international standard allows individuals to be prevented from accessing a process, but the bar is very high. The Bill sets an extraordinarily low bar. There are two levels by which these orders can be put in place. One is based on a person having two previous convictions on the civil standard burden of proof; the other is not based on conviction at all, which is even worse. The UK is so far out of step with where it should be under international standards; it is quite alarming.
Kerry McCarthy
I could understand it to a point if somebody’s presence at a future protest could lead to a dangerous situation, which is what you say the international comparison would be; but under the Bill, basically your right to protest could be removed for five years because you had not behaved impeccably on previous protests.
Olly Sprague: The Bill would also potentially hold you responsible for the conduct of other people at a protest that you were organising. One of the great unfortunate misconceptions of protest, especially around violence and disruptive protest, is that a protest somehow gets characterised as being inherently violent because actions of violence occurred within it. It is perfectly legitimate for law enforcement officers to deal with and prevent those violent actions and make arrests. However, you cannot characterise a whole protest as violent just because some aspect of it was violent.
With the way the serious disruption prevention orders are drafted, you could, in theory, be held responsible for an altogether peaceful protest where a violent action that was completely beyond your control took place. You cannot really be held responsible for something that you were not responsible for, if that makes sense.
Kerry McCarthy
Q
Olly Sprague: We have to be careful when making international comparisons. We do not really not compare and rank countries in some kind of league table. We look at each country individually and see where it marks up. It is interesting, though, that there are not that many examples around the world of measures akin to a protest banning order.
Kerry McCarthy
Q
Olly Sprague: We have not looked at 600 different laws for the purpose of this sitting. However, where we have looked, we found corresponding powers of a similar nature in places such as Turkey, the Philippines, Belarus, Russia and Egypt, I think. In all the cases where they have a measure that is similar to a protest banning order, it has been on the organisation of protests, not the participation.
Kerry McCarthy
Q
Olly Sprague: Yes.
The Chair
Q
Stephanie Needleman: Yes, please. I want to add that when we talk about what these protest banning orders do, we should note that they do not necessarily just ban people from attending or organising protests. They have significantly wider, far-reaching applications into everyday aspects of people’s lives. As long as they are imposed for one of the purposes listed, the conditions that can be imposed when someone has been given one of these orders can be anything. Look at the conditions listed in the Bill: they can prevent people using the internet, associating with particular persons or participating in particular activities. It is not necessarily limited to protest. We are talking about activities that are far, far broader than just being prevented from attending protests.
Kit Malthouse
Q
Martha Spurrier: Well, there is a potential difference in how it would be applied, but the serious disruption prevention orders have the capacity to be absolute bans in the same way as the protest banning orders.
Kit Malthouse
Under judicial supervision.
Martha Spurrier: Yes, under judicial supervision—but, as we have said, to a low standard of proof, based on no criminal conduct.
Kit Malthouse
Q
Martha Spurrier: I don’t think so, because I do not think you could attach the same invasive conditions. I do not think you could have electronic monitoring, for example, if you had an injunction. That is my understanding.
Kit Malthouse
Q
Martha Spurrier: I would not describe them as unlimited powers, but judges absolutely can impose injunctions. It goes to the broader point of whether these additional powers are needed, and I know that there have been people giving evidence that—
Kit Malthouse
Q
Martha Spurrier: I do not understand the question. A civil injunction and an SDPO are both civil procedures with criminal sanctions attached.
Kit Malthouse
Q
Martha Spurrier: If you are going to face imprisonment, you will always have access to counsel—to legal aid. You may face those sanctions either directly from a breach of the criminal law or, if you are under a civil order that has criminal sanctions attached to it, from breaching that civil order. I cannot see an argument that any person is better off having an SDPO, as opposed to an injunction or any other offence. The fact of the matter is that an SDPO is a novel legal provision that, for all the reasons we have gone over, captures non-criminal conduct as well as criminal.
Kit Malthouse
Q
Martha Spurrier: Well, the impact of an SDPO is much, much wider, because you could end up having a civil order attached to you that has invasive conditions, such as electronic monitoring, that could be renewed indefinitely, and if you breach them you could face almost a year in prison and an unlimited fine. I do not think they are comparable at all. We do not have anything like that currently, whereby, for non-criminal acts, you could face that kind of civil or criminal sanction.
Kit Malthouse
Q
Martha Spurrier: You can. What I am saying is that you would not currently have an injunction based on non-criminal conduct—the kind of non-criminal conduct we are talking about with this Bill—that then has attached to it invasive conditions such as electronic monitoring. There is no comparison with what this Bill is doing.
Kit Malthouse
Q
Olly Sprague: I do not want to give a non-answer here. Obviously, policing is a devolved matter, so our offices in Scotland have an equivalent of me. They are involved in a number of policing and scrutiny panels, and they are actively involved in the human rights framework around public order policing. They were involved in a scrutiny panel for the COP protests, for example. These are discussions that our colleagues have with the Scottish Government all the time. I am not fully abreast of the details of those, but I can tell you that we have them. Where we are critical, we make that known.
Kit Malthouse
Q
Martha Spurrier: Liberty’s position on buffer zones is to support as limited a buffer zone as is possible to protect access to reproductive rights for the people who need to use the services of the clinic, while also protecting the right to protest. One of the amendments proposes a 150-metre buffer zone, and we think that that limit is acceptable, although it should be dependent on circumstances—if a narrower one is possible, that should be used. There are some aspects of the amendment that we agree with, and some that we think are too broad and could infringe the right to protest. I have to say that of all our concerns about this Bill, buffer zones around abortion clinics are not high on the list. There are much more egregious interferences with the right to protest in this Bill than those proposed in that amendment.
Kit Malthouse
Q
The Chair
Ms Needleman, would you like to comment?
Stephanie Needleman: Sorry; I could not hear very well. Were you asking me whether I wanted to comment?
The Chair
Order. I am going to come to you, Dr Huq, but I will decide who speaks and when. The Minister is currently speaking, and we are asking Ms Needleman, who is joining us by Zoom, whether she wishes to give a response.
Stephanie Needleman: I do not think I have that much to add—Justice, as an organisation, does not have a formal position on this—but I agree in terms of protecting the rights of women to access abortion services, obviously, and that should be done in a way that does not infringe the right to protest. The right to protest is not an unlimited right, so there is scope to do something, but it needs to be limited so that it is within the bounds of articles 10 and 11.
Olly Sprague: We agree totally with that. In general, we would take a very dim view of the idea of protest buffer zones, unless there are exceptionally good reasons. We would be looking at things like drawing on existing regulations around incitement to hatred and privacy rights—those sorts of things. A way of protecting rights on both sides would be seen as important. As Martha said, what mitigation could be allowed to make sure that one right does not overshadow the other, if that makes sense? But, obviously, this is an incredibly sensitive and difficult area.
Kit Malthouse
Q
Martha Spurrier: Liberty has a long history of working on the right to protest, both in terms of protestors and members of other communities. For example, we have a rich history of tackling the difficult issue of far right protest and incitement to hatred, where Liberty has very much supported the idea of communities needing to be protected when they are faced with far right, extremist protests. One of the other things that article 10 does, and that policing has had to grapple with since the advent of the Human Rights Act, is to protect counter-protests and protests. You very often have two protests going on at the same time where there is a clash. Again, Liberty has done lots of work to make sure that both protest groups, acting within the law, are protected with their article 10 rights upheld, in so far as that can be done, compatibly with each other.
I absolutely refute the idea that this is subject-specific. The abortion buffer zones case is a really good example. As with many other cases, it is a fact that we have public order laws in this country and we accept that things such as preventing violence and preventing incitement to violence, for example, are an important infringement on protest. Many of those considerations are in play when you think about abortion buffer zones. It is when you are dealing with rights that butt up against other rights that you have to make difficult calls, for sure, but we are saying that the Bill fundamentally gets the balance wrong.
I do not know whether we will have time to get on to the stop-and-search proposals or the offence of locking on. However, thinking about locking on as an example, just very briefly, those who are policing a protest are confronted with a dynamic situation. They are trying to work out at what point that crosses the line and might need to be shut down. If someone locks themselves to an animal testing centre—let us take it out of modern, current examples—the police have to work out at what point that person’s right to lock themselves to the testing centre becomes an infringement of other rights. It might be that the police think, “Actually, that guy can be there for two days and it doesn’t really matter. It’s a perfectly lawful and acceptable exercise of his protest rights. But, at a certain point, it is going to become a problem and we are going to consider removing him.”
If you create an offence of locking on—if you criminalise such specific protest tactics—the minute a man puts his padlock around that testing centre, he has committed a crime. There is no ability for the police to act in a dynamic way, to assess, and to do the balancing act of comparing competing rights. That is it: the tactic is criminalised and that man can be removed immediately, regardless of whether there is any impact on other people.
Of course, any of us who work in this area are really adept at trying to manage competing rights, and that is what the police have to do all the time. But the proposals in the Bill are blunt instruments that will criminalise hitherto lawful activity. They will have a chilling effect on the ability to protest, and they will not deter normal people who want to make their voices heard from trying to do so—instead, the Bill will just criminalise them. It will not deter the hard core, who have breaking the law as one of their tactics, because the provision just falls into what they already do.
Kit Malthouse
Q
Martha Spurrier: What should we do about protests?
Kit Malthouse
No, what should we do about the hard core that you are talking about?
Martha Spurrier: What about the hard core we already have? The police already have a whole range of measures to deal with hard-core protesters. We have criminal offences and we have specially trained police officers dealing with those people. Someone earlier talked about not living in perfect harmony. A measure of disruption and nuisance is going to be a factor of any protest about any hot political issue at any one time, whether you are talking about the civil rights movement in America, the movement for votes for women with the suffragettes in this country, or the climate justice movement now. You cannot take the sting out of it entirely, because then there would not be protest, and then we would not live in a democracy any more.
The Chair
Ms Needleman, do you wish to say anything?
Stephanie Needleman: On the measures that already exist, there is obviously the Police, Crime, Sentencing and Courts Act 2022, which has literally just been passed, which includes measures—the expanded circumstances —under which the police can impose conditions on protests. That just adds to the existing measures. I do not think these new measures have even come into force yet, so we do not know what effect they will have. There is no evidence base that further measures are needed.
Dr Huq
Q
The distance need not be 150 metres. We just took that from Ealing, because that is where the main road is, so then it is not in the eyeline. But it again comes back to this question of what is a vigil—those people would say they are doing a prayer vigil—what is a protest and what is harassment. In the eyes of the woman who is going in for a traumatic procedure, it feels like that, and it can be psychologically distressing. The French legislation allows for psychological distress to be considered.
Is there a right to privacy as well? I ask that because the London Borough of Ealing has acted under local authority powers, and only three local authorities in the whole country have done so since 2018, because the process is too onerous. Every time a case has gone to the High Court, the Court of Appeal or the Supreme Court, the privacy of the person having their procedure has trumped freedom of thought, expression, conscience, belief—all that stuff. I just wondered where the three of you stand on that. Again, I am disappointed, because with Sarah Everard, we said so many times, “This should never happen again; she was only walking down the street,” but, in my eyes, these people are just trying to access the pavement to have a perfectly legal procedure. As the Minister pointed out to me in the House the other day, this has been lumped in with the vax protests. I think it is about women—a marginalised community who should be protected, as you said at the start—being able to use the pavement. They should be able to do so unimpeded. What do you three of you think?
Martha Spurrier: Absolutely there is a right to privacy. One of the conditions in your amendment is to prohibit the filming and photographing of people using the services. We would say that no one has a right to capture someone else’s identifying information and record it. I do not have the amendment in front of me, but the points about harassment, being physically approached or being physically manhandled—anything of that nature—would be a breach of women’s rights and would fall down in favour of women and the buffer zone, not in favour of the protestors.
However, there are also conditions in the amendment on things such as seeking to influence and showing distressing imagery. Our view is that that falls on the other side of the line. People are entitled, as part of their right to protest, to seek to influence people, as long as they do not do so in a way that is harassing. Similarly, if you walk past certain embassies in London—the Chinese embassy, for example—there will often be very distressing images on show as part of protest against states’ policies. The same applies outside abortion clinics, where distressing images may be shown, but may be part of a legitimate right to protest. There is a balancing act.
Dr Huq
Q
Olly Sprague: The only thing I would add is that your location point is quite interesting. The mitigation measure or countermeasure that you might put in place to balance those two rights in a proportionate way might differ depending on the location. In the case you mentioned, it may well be the location of the pavement—I do not know where the clinic is—but for another clinic, there might be a more concealed side entrance or something else that could be used. You would have a different approach to maintaining the dignity and security of women having a perfectly lawful procedure, and managing a counter-protest. You could apply a different model depending on geography.
Dr Huq
Q
I want to ask about suspicionless stop and search—no one has said anything about it—which corrodes trust for BME communities, and about how body cameras could be a way out of completely suspicionless stop and search.
Martha Spurrier: Again, just to set the context, the proposal to extend suspicionless stop and search into this area is extraordinary. At the moment, suspicionless stop and search is available in the context of serious violence. It was available in the context of terrorism. It was struck down and Theresa May had to abandon it. That is in the context of crimes that will potentially kill many, many people.
We know that stop-and-search powers are implemented in a racist way. Under suspicion-led stop-and-search powers, a black person—a person of colour—is seven times more likely to be stopped than a white person. Suspicionless stop and search is twice as racist, at 14 times more likely. The idea that you would take a corrosive, racist and deeply controversial policing tool and apply it in the context of protest is extraordinary to us. We cannot see how it will do anything other than cause huge damage for particularly marginalised communities and have a chilling effect on seeking to exercise protest rights, particularly for them. There is a wealth of evidence on the detrimental impact of stop and search, and if there is a threat that people may be stopped and searched at a protest, there is every chance that they simply will not go and make their voice heard.
Olly Sprague: I agree 100% on suspicionless stop and search. It is enormously problematic and, on this one, Amnesty would say that the proposal fails the test of lawfulness—we talk about proportionate necessity, but there is also one of lawfulness. For example, the confiscation powers that go behind the stop-and-search powers around the locking-on offence capture an enormously broad range of items that an officer could argue might be capable of causing an offence. You have so many caveats that you will get into a situation where an ordinary person could have no idea why they were stopped, or why somebody might be taking an item off them that was completely lawful—everything from string to a bit of glue. It fails on that basic principle of lawfulness, which I think is incredibly problematic.
The Chair
Order. You will have to draw it to a close, Mr Sprague, because we are at the end.
Olly Sprague: Oh, I am sorry, Chair.
The Chair
It is not your fault; the Committee had determined certain timescales for the panels, and we have reached the end of the timescale for this panel. My apologies to those I was not able to call during this section.
My thanks to our witnesses—those in the room, and Ms Needleman, who has joined us by Zoom. We are grateful to all the witnesses for their contributions.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Public Order Bill (Third sitting)
Tuesday 14th June 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 June 2022 - (14 Jun 2022)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Chair
A few preliminary reminders for the Committee: please turn off electronic devices, or switch them to silent. No food or drink is permitted during sittings except for the water provided. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk, or passed their written notes to Hansard colleagues.
We now begin line-by-line consideration of the Bill. The selection and grouping list is available in the room; it shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or similar issues. Decisions on amendments are taken not in the order in which they are debated, but in the order on which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on an amendment are taken when we come to the clause to which the amendment relates. Decisions on new clauses will be taken once we have completed consideration of the clauses of the Bill. Members wishing to press a grouped amendment or new clause to a Division should indicate that when speaking to it.
Clause 1
Offence of locking on
Wendy Chamberlain (North East Fife) (LD)
I beg to move amendment 29, in clause 1, page 1, line 10, leave out
“or is capable of causing”.
This would limit the offence to an act that causes serious disruption.
The Chair
With this it will be convenient to discuss the following:
Amendment 46, in clause 1, page 1, line 10, leave out from “disruption” to the end of line 12.
Amendment 30, in clause 1, page 1, line 15, leave out
“or are reckless as to whether it will have such a consequence”.
This would limit the new offence to ensure that there must be intent to cause serious disruption.
Wendy Chamberlain
As the Minister and others may be aware, I am a former police officer; I served with the Lothian and Borders police between 1999 and 2011. I am working with my colleague Lord Paddick, who is in the other place; he is also a former police officer, and considered the provisions of the Bill that were put in the Police, Crime, Sentencing and Courts Bill in the other place, so we have some experience of police debates.
The Chair
Order. I am sorry; none of the mics is working, so we will have to suspend the sitting for a few minutes.
Wendy Chamberlain
As this is my first Bill Committee, I was worried that I had already made a mistake. I am glad to hear that the issue causing us difficulty was beyond my purview.
As I say, I have policed events and protests; Lord Paddick has been the commander at them. I highlight the evidence that we heard last week from police officers, particularly Chief Superintendent Phil Dolby, who leads on the management of such events. What really came through for me in the evidence was the need for ongoing dialogue and agreement with those exercising their democratic right to protest. I have concerns that the legislation will hinder that dialogue. As former Chief Constable Peter Fahy said, we do not live in France or any other country with a paramilitary aspect to their policing. We do not want any legislation to risk our approach. I have concerns about that balance, about unnecessarily criminalising protesters, and about bringing into the scope of the legislation people who have nothing to do with a protest.
Chief Constable Chris Noble observed in his opening remarks last week that the vast majority of protest activity is non-contentious. I urge us all to remember that in our deliberations. The provisions in the Bill were introduced into the Police, Crime, Sentencing Courts Act 2022 when it was in the Lords last Session, and they were resoundingly opposed in the other place, so I am surprised that the Government are pretty much reintroducing the same measures and are not taking the experience in the Lords into account. I thank Lord Paddick, who spoke strongly against the provisions; the Chair may find that some of my remarks bear a resemblance to his.
Clause 1 will criminalise people who lock on even if there is no disruption caused, as long as there is potential for disruption. Amendment 29 would remove the words
“or is capable of causing”
which are incredibly broad and uncertain. If the Government are determined to create these additional offences—it appears that they are, given that we are back considering this Bill—the law that introduces them must be legal. These provisions are vague, undefined and open to subjective interpretation, as we will see in the law courts if the Bill as drafted passes into law.
The National Police Chiefs’ Council said in evidence that it is concerned about the phrasing, as it will be open to interpretation, and the onus will be on officers to decide the meaning. As I said in our evidence session last week, the first officer to attend a protest, whether they be a police constable, sergeant or inspector, is in charge and takes control and command—they lead. No one officer has the overall picture necessary to make such decisions, and I argue that this measure places the onus on individual officers to decide its meaning. Not only are the police unable to enforce such restrictions, but, as we have heard from organisations such as Amnesty International, the lack of certainty and broad scope makes the conduct in question illegal from the outset. That is not what we should intend to do in legislation. The provision severely curtails the fundamental human right to protest peacefully and will further damage our global reputation.
The clause potentially criminalises all sorts of protests. What about a counter-demonstration to stop holocaust deniers marching past a synagogue? If protesters linked arms to protect the synagogue, they could be caught by this clause. There is no definition of “capable of causing”. We do not criminalise behaviour that might cause crime. We prosecute people who have caused crimes.
The Minister for Crime and Policing (Kit Malthouse)
Amendments 29, 46 and 30 target clause 1, which introduces a new offence of locking on. Locking on is an extremely disruptive and often dangerous tactic that can place both protesters and police at extreme risk. It is unacceptable that protesters can use bike locks, glue and an imaginative range of other equipment to inflict disruption on businesses and the public, and the testimony we heard in the oral evidence sessions highlights the need for the Government to act.
Amendment 29 would raise the threshold of the offence by requiring a person’s lock-on to have caused, rather than be capable of causing, serious disruption before they were liable for the offence. That would not account for situations where, for example, a person locks on with intent to cause serious disruption but is quickly removed by the police before serious disruption can be inflicted. If there is to be a deterrent effect, it is important that those who commit acts that could cause serious disruption face appropriate penalties. I do not see the value of accepting the amendment.
Amendment 46 would inadvertently lower the threshold for serious disruption; it would remove the statement that serious disruption is caused by a lock-on only if the disruption applies to two or more individuals or the activities of an organisation. It is entirely reasonable to assume that if someone commits a lock-on that causes serious disruption to one or more person, they may be arrested and charged with the offence. I am not sure the hon. Member had the intention of lowering the threshold of application of this clause.
Alex Cunningham (Stockton North) (Lab)
I am looking at subsection (2) which says:
“It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection.”
Will the Minister please explain what is meant by that, and who might be caught by the Act? Who would actually have a reasonable excuse? Can he give us an example?
Kit Malthouse
The notion of reasonable excuse is well defined in our common law and is adjudged by courts daily, particularly in protest situations. We have seen that over the last few months. Although I assume that the hon. Gentleman seeks some precision in definition, “reasonable excuse” is for the courts to define, and they do so regularly.
Amendment 30 would raise the threshold for the offence of locking on by requiring individuals to have intended their lock-on to cause disruption, rather than having been reckless about that. Recklessness is, however, also a very well understood term in criminal law, and it applies to numerous criminal offences. I do not see the value in removing it from this clause, not least because, as I am sure the hon. Member for North East Fife knows, it is a well-known term in Scottish law and is often used in Scottish courts to adjudge an offence. For the reasons I have set out, I ask hon. Members not to press the amendments.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to serve under your chairmanship, Mr Dowd. I thank the hon. Member for North East Fife for tabling her amendments, which we are happy to support. She spoke clearly and eloquently about them, and I echo some of her arguments. We agree with the narrowing of scope proposed in amendment 29, which would mean that locking on must cause disruption, rather than just being capable of doing so. The Minister has already spoken, but I think there is an issue with the wording, and with defining an act as being capable of causing disruption. The definition is so broad and imprecise that it could include almost anything.
Kit Malthouse
On Cromwell Road in west London, a lorry pulled up and scaffolding was quickly brought out and semi-erected, but as Territorial Support Group 5 happened to be on the scene, the scaffolding was quickly removed. That offence was capable of causing significant disruption, but because of swift police action, it did not. Does the hon. Lady believe that an offence was committed in that case, and that the sentence should deter those people from trying again?
Sarah Jones
It was jolly good that the police were there and able to deal with that case. We do not need new legislation to enable them to do their job, which they did swiftly and well.
We will come on in more detail to the fundamental flaws in the Bill, but our underlying argument is that it will not deal with the small number of repeat offenders who come back time and again. It may, however, criminalise people who protest peacefully. Whatever the Government intended, that is not necessarily how the provision will be interpreted. That is why laws need to be drafted very clearly. As the former Prime Minister has said on several occasions, she might have thought that she would interpret her powers very sensibly when she was Home Secretary, but who knows who will come next? If we do not have sensible people making decisions, we do not necessarily want them to be able to interpret these very broad powers, so the law needs to be precise.
The hon. Member for North East Fife referenced Lord Paddick, who made the point that if the locking on
“were on a different road or at a different time, it would be capable of causing serious disruption. But if it is 3 am on a Sunday, is that still capable of causing serious disruption?”—[Official Report, House of Lords, insert date in form 1 January 2057; Vol. 816, c. 980.]
That is a good and interesting point. We are happy to support the amendments put forward by the hon. Member for North East Fife.
Amendment 46 addresses another of our concerns. All those who gave evidence last week discussed the scale of the disruption caused by protest. We were all horrified by the astronomical costs involved, such as the £126 million that High Speed 2 spent on protester removal, which might rise to £200 million next year. However, under clause 1, the offence is triggered where a lock-on causes disruption to just two people. There is clearly a huge difference between the enormous scale of disruption caused to HS2, or by lock-ons on the motorway, and disruption caused to two people. They are simply not the same thing, and it is problematic that the clause appears to conflate them.
Wendy Chamberlain
The hon. Lady has referred to the astronomical costs. The Minister said that it is for the courts to make some of the decisions around the wideness of the scope. The reality is that if we arrest more people for these offences and they go through the criminal justice system, those costs will increase. By having such a wide scope, we are making the situation more expensive in the longer term.
Sarah Jones
Sadly, the Government are good at wasting taxpayer money. We have seen lots of cases of the profligate use of funds; let us hope this will not be a similar case.
Kit Malthouse
To be clear, all the people who currently lock on are arrested and charged with other offences, including in Scotland. It is not necessarily the case that more people would be arrested. In fact, given the specificity of the offence, and as we hope that the sentence that we attach to it will prove a deterrent, in time fewer people will commit this offence and cause serious disruption; there will therefore be fewer arrests. Is that not the point of the laws we pass in this place?
Sarah Jones
The point is that the offence would not be a deterrent, given that there are plenty of other things that people are charged with, and imprisoned and fined for. It would not be a deterrent to those difficult people who come back time and again, as they can already be arrested, charged and sent to prison for a multitude of existing offences.
Alex Cunningham
My hon. Friend is correct. I was surprised to hear the Minister say, “It’s okay: we can already charge these people. There are plenty of offences that they can be charged with and fined for.” Why the new legislation, then? I do not quite understand the Minister.
Sarah Jones
I absolutely agree. In addition—this is most peculiar—a whole raft of legislation on protest has been passed by this House but not yet implemented. We are layering legislation on top of a whole raft of legislation that has passed but not yet implemented, before we even know whether the previous legislation has worked.
Amendment 46 aims to amend clause 1 so that it actually deals with the scale of the disruption that our witnesses were concerned with. In doing so, it will also address the concerns of the public. I do not think that the public are much interested in protests that cause disruption to just two people. That is not so egregious, and certainly not egregious enough to risk seriously harming the right to protest. The National Police Chiefs’ Council agrees; it states in its written evidence that:
“we believe using the definition of ‘serious disruption to the community’ may be preferable to ‘two or more people, or an organisation’, as the former is more widely understood and will allow more effective application consistent with human rights legislation.”
Amendment 30, tabled by the hon. Member for North East Fife, would
“limit the new offence to ensure that there must be intent to cause serious disruption.”
As I have mentioned, one of our key concerns with this clause is how widely drawn it is. With such broad wording, it is fair to ask the police to determine whether there is genuine intent to cause serious disruption. As has been pointed out by Liberty and other organisations, the Bill already carries the danger of criminalising peaceful protest, and has the potential to sweep up many peaceful protesters. Recklessness is not a good measure in the law. How should the police try to prove that an individual has been particularly reckless? Recklessness is not a good measure in the law. Can the Minister say what “recklessness” is? Is it defined by a lack or an abundance of action? What would his definition be?
Wendy Chamberlain
It is obvious that on this side of the Committee we are keen to ensure that there is definition to what the Government are proposing so that people do not fall inadvertently within the scope of this. I agree with the shadow Minister, and we heard this in evidence last week, that those who see locking on or committing such offences as a badge of honour will not be deterred by what the Government propose. Although I do not intend to press either amendment 29 or 30 to a vote, it has been important for us to understand what the Government propose and the fact that they are continuing to press ahead with a wide scope for the clause. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Jones
I know it is early in the morning to test the will of the Committee, but I wish to move the amendment formally, in part because the NPCC has concerns about the wording, as do many other organisations.
Amendment proposed: 46, in clause 1, page 1, line 10, leave out from “disruption” to the end of line 12.—(Sarah Jones.)
Question put, That the amendment be made.
Wendy Chamberlain
I beg to move amendment 31, clause 1, page 1, line 21, after “fine” insert
“not exceeding level 2 on the standard scale”.
A person convicted of an offence of “locking on” may be subjected to a fine. Under this clause there is no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
The Bill allows for unlimited fines but the amendment would limit the fine for the offence to level 2, £500. The amendment belongs with my amendments 34 and 37, because as currently drafted the offences of locking on, being equipped to lock on or obstructing major transport works can carry an unlimited fine.
To divert slightly, reference was twice made during last week’s evidence sessions—and this morning— to Scots law, although I appreciate that the Bill relates to England and Wales. Last week, the Minister referred to the crime of malicious mischief in Scotland, which carries an unlimited fine or prison sentence. That took me right back to my basic training days at the Scottish Police College—is it vandalism or malicious mischief? It is a crime at common law, and that is why it carries unlimited fines or imprisonment. The Scots Advocate, Andrew Crosbie, a member of the Faculty of Advocates in Scotland, describes common law offences on his crime.scot blog as follows:
“I tend to summarise common law cases…they’re crimes because they just are.”
You know us Scots, we are blunt and to the point. But common law crimes such as assault, theft, murder, fraud and breach of the peace were not created by Parliament, and as such are not defined in legislation. In fact, David Hume, whose statue stands outside the High Court of Justiciary in Edinburgh, pooled all the High Court decisions to produce the authoritative account of the state of Scots criminal law in the 1840s. All of those offences could result in unlimited fines or prison time, and I have lost count of the number of times that I charged someone with the breach of the peace, because it is a catch-all piece of legislation. The reality is that those offences do not carry those sanctions because sentencing decisions are usually made within a scale and scope, dependent on the seriousness of the offence and previous case law. I would argue therefore that, contrary to the Minister’s argument last week, it is not as straightforward as it first looks that Scots law is more draconian; it is about the scope of previous stated cases and decisions.
Malicious mischief consists of the wilful, wanton and malicious destruction of, or damage to, the property of other persons. There must be malice, either actual or inferred, on the part of the perpetrator, as destruction or damage caused by accident or under a reasonable belief of right, is not criminal. One main difference between that offence and vandalism is that the latter must result in damage to actual property, whereas under malicious mischief financial damage brought about by a criminal act would suffice. I hope Members will note why malicious mischief might be an appropriate offence in Scotland for some of matters that we are considering in the Bill.
From a police officer’s perspective, if property is damaged and the value of the damage is high, it may be more relevant to label the act as a common law crime other than vandalism. That is certainly how I recall it from my police college days—if it was high value, or involved cruelty to animals, it was malicious mischief, otherwise we preferred statutory vandalism.
I wanted to touch on that because in a democracy punishments are made to be proportionate to the crimes. Is it proportionate to fine someone potentially tens of thousands of pounds for a single act of protest? My simple proposal is that the fine should be limited to level 2 on the standard scale at £500. I am happy to hear from the Government should they have other proposals for a limit, but I argue that it cannot and should not be limitless.
Sarah Jones
The intent behind the amendment—to prove whether an unlimited fine is proportionate or not—is sensible. It is difficult to find examples of offences that have resulted in huge fines, and I wonder whether the Minister could provide some examples of the scale of fines for the offence set down in clause 1. I know that the coalition Government introduced an unlimited fine in 2015 under the terms of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The explanatory notes to those regulations state:
“For the most serious offences tried by magistrates that maximum is generally £5,000 although for certain offences where the financial gain from offending is substantial—for example in some environmental offences—the maximum fine can be as high as £50,000.”
How will the offences we are considering compare? I understand that when a similar amendment was considered during the passage of the Police, Crime, Sentencing and Courts Bill, the Minister in the other place said,
“We think that an unlimited fine is appropriate in the case of these new offences; a level 1 or level 2 fine…would not…in our view…reflect the seriousness of the conduct in question. An unlimited maximum fine allows courts to determine the level of any fine on a case-by-case basis, having regard to the gravity of the offence and the ability of the offender to pay.”—[Official Report, House of Lords, 24 November 2021; Vol. 816, c. 994.]
It would be helpful if the Minister could shed some light on an estimated fine that he believes could reflect the seriousness of the conduct in question, which, as we have just debated, is so broad in scope.
Kit Malthouse
I have already spoken about the harm that locking on can cause and we feel strongly that those who commit locking on should face a sentence proportionate to the harm they cause. The maximum fine of £500, which the amendment provides, is simply not proportionate to some of the offences we have seen and the courts should have the discretion to impose an unlimited fine on a case-by-case basis. Judges do this on a regular basis within the framework set for them, dependent on the individual’s circumstances, their relative wealth and the likely deterrent effect the fine will have.
Although I understand and hear what the hon. Member for North East Fife says about what happens north of the border with malicious mischief, it is the case that in theory that offence carries an unlimited fine and, indeed, an unlimited prison sentence, notwithstanding the guidance judges operate under. I am conscious that the fuel protestors recently arrested outside Glasgow have all been charged, as I understand it, with malicious mischief. We will wait to see what the result may be, but I have no doubt that Scottish judges will look to the circumstances of those individuals and the damage and disruption they caused while they decide what the fines should be. Although she might say that that is not more draconian, we are simply seeking to mirror what would be experienced north of the border, and I urge the hon. Lady to withdraw the amendment.
Wendy Chamberlain
We ask the Minister to accept that because malicious mischief is a crime of common law there are unlimited fines and imprisonment attached to it. We have no legislation that does not have a fine scale within it, which is why I think we should ensure that we have something on this. My amendment is very much intended to probe what the Government would consider reasonable, so I have no intention of pressing it to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Jones
Clause 1, as we know, establishes a new criminal offence targeting people who engage in the act of locking on. It criminalises those who attach themselves to another person, an object or land, those who attach a person to another person, object or land and those who attach an object to another object in the same scenario, as long as such activities cause or are capable of causing serious disruption to two or more people or to an organisation in a public place. Those involved must intend the act to cause and be capable of causing serious disruption to two or more individuals or an organisation or be reckless as to whether it will have that consequence. A reasonable excuse is the defence, and breach of this offence means a maximum of 51 weeks imprisonment, a fine or both. That is how the clause is laid out in the Bill.
I should make one thing clear at the start. During the evidence sessions last week we heard examples of really egregious breaches of law—smoking on oil tankers, gluing oneself to motorways and tunnelling under High Speed 2. There should be no doubt that those are examples of criminal behaviour. They are also highly dangerous to the protestors, to the police and to the public. Many of the examples of what is called protest, as several witnesses explained last week, involve people who have gone way across the line and are committing criminal acts. We do not think that those are examples of legitimate protest; they are criminal acts.
We heard about the deportation flight in 2017, scheduled to take off from Stansted. Protestors cut through the safety fencing around the airport perimeter and locked themselves on to a Boeing 767 jet. Flights were disrupted, delayed and cancelled and the runway was closed for an hour. For oil refineries or oil tankers, as Elizabeth de Jong mentioned, people lock themselves on or attach themselves to the top of stationary tankers, often full tankers. They have locked on at height, often with machinery. Once again, that is illegal behaviour. We also heard evidence of protestors blocking motorways. Insulate Britain blocked junction 25 of the M25, which is the Enfield junction to the north-east of London. Four protesters sat on the road, on both sides of the carriageway. There can be no doubt that that is dangerous to road users and the police as well as the protesters.
Mrs Natalie Elphicke (Dover) (Con)
Will the hon. Lady comment on there being an offence for every crime she has described? We heard in evidence, and I commented on it, that the Court of Appeal said of the Stansted incident that there was not an offence that reflected the gravity of the situation there. Does she agree that it is important to ensure that that gap is filled?
Sarah Jones
I thank the hon. Member for her remarks. I hope she will forgive me, as I do not have the evidence in front of me, but as I recall it, clearly the charge made there did not lead to the outcome that those people had intended. Perhaps there were other offences, of aggravated trespass, for example, which is imprisonable and could have led to a charge.
Trespass laws can apply even on public roads, when someone is not using them for a permitted purpose. Other legislation is also available. In the evidence session, the Minister suggested that some existing legislation does not allow prison sentences, but it does. Wilful obstruction of the highway comes with a fine but in the Police, Crime, Sentencing and Courts Act 2022—
Sarah Jones
Well, it does not, because it has not been implemented. When it is, there will be six-month sentences attached to that. Criminal damage can lead to up to 10 years in prison, depending on the value of the damage. Aggravated trespass can lead up to three months in prison, a fine, or both. Breaching an injunction, as we have heard, can lead to two years, a fine, or both. Public nuisance can lead to 12 months on summary conviction, or 10 years on conviction on indictment.
Failure to comply with a condition can lead to a fine, but one year in prison if someone incites someone else to breach a condition. Organising a prohibited trespassory assembly can lead to three months in prison, a fine, or both. Participating in a trespassory assembly can lead to a fine. It is clear there is a broad list of offences of which criminal protesters can be found guilty. On fines, as we discussed, the law changed in 2015, to allow magistrates courts to issue unlimited fines for serious offences. Prior to that, there was only an unlimited fine in the Crown court.
Conditions on protests only need to be applied to public land. That was again an issue that the Minister raised in the evidence session. The de facto position on private land is that permission for protest is not granted, unless an invitation has been extended by the landowner. If people protest on private land, they could be found guilty of either aggravated trespass or trespassory assembly. Even if the threshold for those offences is not met, they would still be committing an offence, merely by their incursion on to private property and, whether they were aware of doing so or not, of the more basic offence of trespass, which is a civil wrong, not a criminal one.
Two things are required to commit aggravated trespass: trespassing and intentionally disrupting, obstructing or intimidating others from carrying out lawful activities. Further, a senior police officer has the power to order any person believed to be involved in aggravated trespass to leave the land. If they refuse to do so, that is an additional offence. The maximum penalty is three months’ imprisonment or a fine of £2,500, or both. First-time offenders would likely get a fine of between £200 and £300. I could go on, but I will not.
There are several examples in recent history of the police responding to lock-on protests. In September 2020, 80 Extinction Rebellion protesters were arrested and charged with obstruction of the highway after blocking printer works at Broxbourne and Knowsley. In October 2021, Kent police arrested 32 people for obstructing a highway and conspiring to commit public nuisance on the A40 and M25. In early 2021, the police used trespass offences to clear anti-High Speed 2 protestors from Euston Square. The police are entirely able to use reasonable force—indeed, they should be encouraged to do so—to, where necessary, unlock people who are locked on.
In the case of Insulate Britain, people have been jailed for defying a court order preventing them from protesting on the M25. Five Insulate Britain campaigners who had held a demonstration on the motorway in September were jailed and all charged with contempt of court. Ben Taylor, Ellie Litten, Theresa Norton, Stephen Pritchard and Diana Warner were given jail terms, each lasting between 24 and 42 days. Eleven others from that group received suspended prison sentences. A number of High Court injunctions were put in place after Insulate Britain’s road blockades last year. Nine other Insulate Britain campaigners were given jail time or suspended sentences. Two protestors were handed prison sentences of two months and 30 days, while seven others received two-month suspended jail terms for breaching injunctions.
As Liberty has pointed out, people have not gone to prison in some cases, but have in others. The courts look at the location and the manner of the protest. They are very unsympathetic to protesters who block the M25, because they have a damaging effect on people who have nothing to do with their cause, but more sympathetic to those who demonstrate against the actual object of their protest, because they do not affect the public in general.
Sometimes the police do not use the powers at their disposal. There is a number of reasons for that, including lack of training. We heard from John Groves from HS2, who said:
“Certainly, there is frustration from my team on the ground that the police are not more direct with some of the protesters”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 23, Q43.]
Part of that is about resources. We do not have the French system, nor do we want it, but in some cases we do not have enough people. As Peter Fahy said:
“There is not a standing army waiting to deal with protest. They come out of normal policing when they are required to do so, and the amount of neighbourhood policing that is affected by just keeping up with that demand is…quite acute.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 63, Q123.]
The other reason why the police do not always act on a raft of existing legislation—as HS2 found, to its frustration—is lack of training. We have debated several times the report by Her Majesty’s inspectorate of constabulary and fire and rescue services. Written by Matt Parr, it looked at protest, the nature of protest and what should be done. Most of its recommendations had nothing to do with changing the law, focusing instead on training for officers. Its findings included that,
“protester removal teams…are trained to remove protesters from lock-on devices. But we found that forces do not have a consistent way of determining the number of trained officers they need. As a result, the number of specialists available varies widely throughout England and Wales.”
Matt Parr also highlighted that
“the police should develop a stronger rationale for determining the number of commanders, specialist officers and staff needed to police protests.”
He looked at whether chief constables were making good use of their legal services teams, and at a raft of different systems for gathering intelligence on protests and for dealing with them when they happen. In the evidence that Matt Parr gave us, he was really clear and enthusiastic that his changes are beginning to be implemented in the way in which he wants them to be. Before seeking to change things again, we need to wait for the implementation of all of those recommendations—which he has said will significantly improve the police response to protests—and of the Bill that has recently been passed.
The police seem to be in possession of some very useful powers to help deal with lock-on protests when they go beyond the scope of a legitimate protest. Even if we look further back into history, we find really good examples of peaceful lock-on protests and of the police making good use of the powers available to them when they need to.
For example, people look back on the Greenham Common women’s peace camp as a protest by a group of women who made good points and achieved some success. It involved a series of protest camps against nuclear weapons at RAF Greenham Common in Berkshire. Women began arriving in 1981 after cruise missiles were stored there, and they employed lock-on tactics by chaining themselves to the base fence. The camps became well known in 1983—I was 11 at the time—when, at the height of the protests, about 70,000 people formed a 14-mile human chain around the base. It is interesting that we are talking about the methods used by Insulate Britain and Just Stop Oil as if they are a new phenomenon. I do not remember it, as I was too young, but it must have been quite something to have 70,000 people form a 14-mile human chain—a lock-on—around the base.
Another encircling of the base occurred in December of that year, with 50,000 women attending. Sections of the fence were cut, but the police acted and arrested hundreds. Protest activity continued to occur at Greenham, and the last missiles left the base in 1991, following the intermediate-range nuclear forces treaty. The Greenham women clearly left their mark on history. They used peaceful lock-on tactics, and when they entered the RAF site, they were arrested by the police. As today, the women were apparently subjected to abuse and hatred. Vigilante groups attacked them with slogans such as “Peace Women: You Disgust Us”.
Lee Anderson (Ashfield) (Con)
The hon. Lady says she was 11 years old at the time. I was about 16 or 17, and I remember the Greenham Common women coming up to Ashfield during the miners’ strike. I can remember the scenes at Greenham Common—they were disgusting scenes—although they made it a legitimate protest. Does the hon. Lady recall the time when they were hanging certain feminine products around the perimeter fence? That was disgusting.
Sarah Jones
Gosh. I do not know what feminine products the hon. Gentleman means, but perhaps I will not ask further. [Interruption.]
Sarah Jones
My point is that where the police needed to intervene at Greenham Common, they intervened. Where they needed to arrest and charge people, they arrested and charged people.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
My hon. Friend is making an excellent speech, and I am not quite sure what the previous intervention had to do with it. Is it not the point that, after the passage of time, people who were criminalised for what they did are now seen as valiant? Not far from here, there is a statute of Viscount Falkland in St Stephen’s Hall. The statue’s foot spur was broken off by suffragettes in, I think, 1912. At the time, that was a locking-on offence, because they attached themselves to the statue and the police took them away. The foot spur has never been replaced because it is part of our history, and we now see the suffragettes, the women at Greenham and the anti-apartheid protesters as valiant people who were on the right side of history. This clumsy offence gets it all wrong by getting heavy-handed at an early stage.
Sarah Jones
My hon. Friend is absolutely right. Not all lockons are a criminal offence and nor should they be, but where people are locking on in a way that is dangerous and disruptive, that should be an offence.
Kit Malthouse
Does the hon. Lady accept that, in the Bill as drafted, the reasonable excuse defence and the serious disruption requirement mean that not all lock-ons will necessarily be a criminal offence? If something similar to the St Stephen’s Hall example given by the hon. Member for Ealing Central and Acton were to occur, that would not necessarily cause serious disruption to the life of the community, and would therefore not necessarily constitute an offence under the Bill.
Sarah Jones
Well, my hon. Friend the Member for Ealing Central and Acton could get a 10-year prison sentence for damaging a statue. Clause 2, which we have not got to, is even more vague, but a person does not have to cause serious disruption; they can intend to have a consequence that will cause serious disruption. I know several very respectable elderly ladies in my constituency—I am sure the Minister has the same—who attend environmental protests. Given that the Bill is so vague, I am absolutely sure that they will be scared of being arrested just for turning up to or taking part in protests. That is the point that we are trying to make.
Wendy Chamberlain
The hon. Lady has given a very good example. We on the Opposition Benches accept that there are forms of protest that are illegal, which we heard evidence about last week from witnesses. However, we also heard that there is a hard core of illegal protesters who will not be deterred by this Bill. The people who will be deterred are those who wish to engage in peaceful and legal protest, as is their democratic right, but will be prevented from doing so.
Sarah Jones
The hon. Lady is absolutely right, and it is also the case that we have seen protests of this scale and nature for many years. The problems we see now are not unique, and they are able to be dealt with through existing legislation.
Our fundamental argument is not that people who are gluing themselves to motorways are not committing an offence or causing a major problem. It is not that the people who were digging tunnels at HS2 sites were doing nothing wrong, and nor is it that the representatives of HS2 and the others who gave evidence to us are wrong to ask that something be done. Our argument is that, first, the Bill will not act as a deterrent to the small number of people we are talking about—those who repeatedly offend and, indeed, want to get arrested. Secondly, it will not speed up the practical business of removing those who lock on. As we heard about the protest at the newspaper, it took several hours for specialist police to arrive. That was the cause of the delay, but once those police arrived and removed those who were locking on, the problem was dealt with. The delay was the problem, and the Bill will not do anything about that.
Thirdly, there are plenty of existing powers that can be, and are, used by the police. Fourthly, lots can be done, and is being done, to improve the way in which the police manage protests, as a result of Matt Parr’s report and other things. Finally, the Bill is drawn so widely that it risks criminalising non-criminal contact, which will have a huge, chilling impact on people who want to peacefully protest. In short, it seems that the Minister wants us to move towards the French, Spanish and Italian systems that we heard about from Peter Fahy. I will read a paragraph from his evidence, because I thought it was incredibly powerful:
“People do not realise that we are pretty unique. When you hear about the sophistication and negotiation the chief superintendent talked about”—
that was the West Midlands chief super—
“that is the British style. In all the protests it is escalation, which looks in the early stages like the police are being weak, but in the background they are talking to people and they are escalating. They are saying, ‘If you keep on coming back, we will use this power and that power. Have you heard about that?’ That is the British style of policing. You do not start with the heaviest. You work up to it, and that then maintains the confidence in your legality and proportionality.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 62, Q122.]
Peter Fahy also said:
“We are not like France, Spain and Italy, which have paramilitary police forces. If this had happened in France, they would have turned out the CRS very rapidly...they would use water cannon, they would probably use rubber bullets, and essentially the French population would accept that level of force. Thankfully, we do not live in a country like that”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 50, Q110.]
The reason why we are here in this House is to make the best law we can, but as it stands I do not think that the breadth and scope of clause 1 is proportionate to what we are trying to deal with. The right to protest is not an unconditional one; nobody says that it is. It will always be about mediation and compromise, and action where there needs to be action. I and other Opposition Members are horrified by some of the disruption that we heard about in the evidence sessions.
Tom Hunt (Ipswich) (Con)
On that topic, I am interested to know whether the hon. Lady would condemn the protest that took place at the weekend in Peckham, where immigration officers and police officers were actually prevented from carrying out their role in upholding the law of the land. I understand that a Labour councillor may have been involved in the organisation of that; and many Labour Members of this House have actually applauded those protesters in the media.
Sarah Jones
I did not see that protest. I am sure the police did the job that they needed to do, but—
Sarah Jones
I have not read about that.
As I said, Opposition Members have been horrified by the disruption that we heard about in the evidence sessions. However, everybody who gave evidence was clear that it is a very small proportion of protests that cause disruption; the vast majority pass by with no problems at all.
The final issue that I want to cover is the chilling effect that Matt Parr writes about in his report. If we look closely at the drafting of clause 1—the hon. Member for North East Fife has referenced this—we see that it is so broadly drawn that it criminalises an innumerable list of activities and not just what we typically consider to be lock-on protests, which would be dangerous and require intervention. The term “attach” is very broad and goes undefined in the Bill. Does it perhaps include the linking of arms? Yes, technically it does. Liberty, in its recent briefing, notes that the wording might interfere with articles 10 and 11 of the ECHR, as laid out in the Human Rights Act 1998. We have already debated what is a reasonable excuse and how that is defined. We note that someone does not even need to actually cause any disruption in order to commit an offence. They have only to be “capable” of causing serious disruption. That provides a practical difficulty and perhaps a headache for the police when determining the crucial context of a protest that might well cause serious disruption if it were to take place at a different time, but actually happens on empty roads in the middle of the night.
I will sum up by saying that clause 1 is unnecessary for the proper policing of protests. Most of the extremely irritating and disruptive events that were described by our witnesses were criminal acts, and they were already covered by a raft of existing legislation that allows the police to deal with protests. The police have the power; they need more support and more training, but this broad and ill-defined clause does not provide that support. Instead, it tips a crucial balance and risks criminalising, at a very low threshold, legitimate and peaceful protest, one of our core human rights.
Kerry McCarthy (Bristol East) (Lab)
I echo what my colleague on the Front Bench, my hon. Friend the Member for Croydon Central, was saying about how we approach the policing of protests in this country. Obviously, Bristol has had quite a reputation for protests, particularly around the time of the events involving the Colston statue. We know that the people involved in that protest were eventually acquitted of criminal damage.
I have been out with the police to see how they approach things. There were a number of weekends in a row when there were protests against the Bill that has become the Police, Crime, Sentencing and Courts Act 2022. People were, quite rightly, very unhappy about what the Government were trying to do. I went out with the police and also went to the operations centre to see their approach; what they wanted to do was to facilitate protest. They wanted to facilitate peaceful protest and were very good at trying to ensure that it did not turn into something that put people at risk. For the most part, they were successful. Can the Minister say where the parameters of the clause come in?
There are historical examples. My hon. Friend the Member for Croydon Central mentioned Greenham Common, but if we look back at the suffragettes, part of their tactics was to tie themselves with belts or chains to Buckingham Palace or Parliament. In January 1908, Edith New and Olivia Smith chained themselves to the railings at No. 10, which would not happen now, while one of their colleagues, Flora Drummond, went inside to disrupt the Cabinet meeting. I dread to think what the response would be now; they would not get anywhere near it. They chained themselves because that they wanted to make their voices heard. If they were immediately arrested, they would not have the chance to make their speeches, so it was a tactic to stay in place and at least get a few sentences out before they were removed.
Kit Malthouse
We might as well address that point straight away. As I said to the hon. Member for Croydon Central earlier, there are two tests that the police or, indeed, the courts will have to apply. The first is that serious disruption is caused. I am not sure necessarily that somebody chaining themselves to the railings outside this place would cause serious disruption. Secondly, there would be a defence of reasonable excuse. In the case of the suffragette who chained herself in St Stephen’s Hall, we would imagine that there may well be other offences but I doubt that this provision would apply. Indeed, if someone were able to chain themselves to the railings serious disruption would not necessarily be caused. We are trying to address some of the events we have seen over the last couple of summers, not least the fuel protests, which have been dangerous and caused massive and serious disruption to the community.
Kerry McCarthy
The Minister has rather pre-empted what I was going to say. The suffragettes knew that they would be arrested but took the decision because they felt their cause warranted it and they knew, roughly speaking, what the response would be and the sort of punishment available. If people are going to engage in this sort of activity and knowingly do things that would break the law, when we have an offence that treats something so seriously, my concern is at what point people can make that calculation on whether they are going to be arrested and taken to court under lesser legislation or whether the clause will be invoked. Its vagueness means that it is not clear where those parameters are.
This silly example is more for the Committee’s amusement: we had the case of an Extinction Rebellion protestor in Bristol who tried to glue himself to the doors of City Hall. However, they were automatic sliding doors, so the moment someone approached them, they opened. I think it was caught on camera, but every time he tried to glue his arms to the door, they opened. He could not manage to do it. I do not suppose the protestor would be dealt with under an offence of this kind and he probably deserves a prize for entertaining everybody.
That was an aside, but to give an idea of the sort of calculations people make, in my constituency I have a good activist on disability issues who has disabilities himself. He has a personal assistant who went on a protest with him, and he insisted that his personal assistant chain handcuff him to the pole by the door of a London bus. There was a big protest of disability activists blocking the streets—I think it was around Piccadilly Circus—to protest about accessibility and public transport. When the police came along, they did arrested not the guy who was chained up but the personal assistant for locking him to the pole. It was the personal assistant’s birthday and he spent the night in the cells, while somebody else managed to get my friend, the activist, home.
There is a clause in the Bill about locking somebody else to something and that raises interesting issues about the situation for a personal assistant. They are there to act at the will of the person they are assisting and to do anything they ask. If somebody were asking a personal assistant to commit a criminal offence, such as assaulting someone or something that is generally regarded as beyond the pale, the assistant would not do that. If disability activists want to exercise their right to protest, are they allowed to exercise their right to break the law as well? Personal assistants are not meant to have their own opinions on such matters; they are meant to do as they are asked.
Andrew Bridgen (North West Leicestershire) (Con)
Will the hon. Lady give way?
Kerry McCarthy
If I may just finish this point. They are entitled to make the decision to break the law and suffer the consequences. That is something that we accept in this country. People can choose to do that, provided they are willing to accept the consequences. To make that decision and exercise their democratic rights in that way, they need some certainty about how they will be treated by the law. It is a basic concept of operating in society that we ought to know how the criminal justice system will treat us.
What is likely to happen if the provision on excuses is invoked? If the clause is invoked when people do not feel it should be, the courts will acquit because it is unfair. I do not get a sense of clarity and I am looking for one from the Minister. We know that the clause will apply to the most serious cases, of people chaining themselves to planes. We know that it will not apply to a guy trying to superglue a hand to a sliding door at Bristol City Hall.
Kerry McCarthy
The Parliamentary Private Secretary asks why not. That is quite worrying. Would that cause serious disruption, if he had one hand attached to the door and was wiggling backwards and forwards as everyone went in and out? That is exactly my point. If that is deemed to cause serious disruption, that is very worrying. I cannot think of many locking-on offences that would not be deemed serious disruption. It proves my point if the PPS thinks that the provision would cover a case as ludicrous and minor as that. That proves my point, so I will sit down and ask the Minister to explain where the middle ground and that clarity is.
Kit Malthouse
Clause 1 is a key part of the Government’s plans to protect the public from the dangerous and disruptive tactic of locking on. Recent protests have seen a minority of selfish individuals seek to cause maximum disruption by locking themselves to roads, buildings, objects and other people. That has seen traffic disrupted, public transport impacted and the transport of fuel from terminals ground to a halt, to name just a few examples.
Such tactics cause misery to the public, with people unable to access their place of work or schools, or to attend vital hospital appointments. It is impacting people’s ability to go about their daily lives and is causing considerable anger. The Committee will remember the frustration and anger expressed by members of the working public at Canning Town station in 2019, when protesters from Extinction Rebellion glued themselves to a Docklands Light Railway train during the morning rush hour, risking their own safety and that of the travelling public.
I welcome the condemnation of some of those protests by the hon. Member for Croydon Central, and her possibly belated support for the increase in sentencing in the Police, Crime, Sentencing and Courts Act 2022, which has just received Royal Assent. As she said, there is now a suite of offences that may or may not be committed. To address the point made by the hon. Member for Bristol East, we want people thinking about using this tactic to make a calculation about whether and how they break the law. It is not a human right to break the law. If people calculate that they want to do that, they must, as she said, face the consequences. In employing dangerous tactics and causing disruption, those who call themselves protesters, but are in many cases trying to effect a mass blackmail on the British public, should make a calculation about whether they are causing an offence, and there should be an air of jeopardy to what they do.
Andrew Bridgen
The hon. Member for Bristol East said that many of these people’s protests might be spontaneous and not pre-planned. Does the Minister agree with me that it would be very unlikely that people would have the equipment to lock on if it was not a pre-planned protest?
Kit Malthouse
My hon. Friend makes a very strong point. Certainly a lot of the most disruptive protests that we have seen will have taken meticulous planning and preparation and the acquisition of materials, not least the adhesive chemicals required, scaffolding poles and vehicles. We have seen all sorts of tactics employed, which, as he rightly says, take serious preparation to put into effect.
Kerry McCarthy
To clarify, when I was talking about protests in general and people breaking the law during a protest, I was not talking about locking on.
Sarah Jones
To be clear, the clause makes it an offence to attach oneself in any way to any person, which means that any form of linking arms is a criminal offence. Does the Minister genuinely believe that a group of women standing outside Parliament locking arms would be committing a criminal offence as soon as they do that?
Kit Malthouse
That is just nonsense. The hon. Lady will not address the issue of disruption or reasonable excuse. I am sure the police are able to determine and the courts will interpret what is designed in this legislation. She has said rightly that the people we are talking about should go to prison. She said they are committing crimes. The only dispute between the two sides of the Committee is what offence they should be charged with, which is what we seek to provide.
Opposition Members have sought clarity and precision. We have seen that those who are arrested and charged in these circumstances are charged with a range of offences—obstruction of the highway, aggravated trespass, which the hon. Lady referred to, and criminal damage and public nuisance, depending on where the offence occurred and the circumstances. Unfortunately, we have seen situations where, on technicalities, a lack of precision in our ability to deal with the offence has meant that people have got off. For example—
Kit Malthouse
As the hon. Gentleman will know, there were protesters who locked on to a printing press in Knowsley in Liverpool. They were charged with aggravated trespass, but avoided conviction because the prosecution was unable to prove where the boundary was between the private and the public land. We are trying to provide precision in that offence area, and that is what this part of the legislation does. Aside from the disruption and anger that they cause, lock ons also waste considerable amounts of police resource and time, with specialist teams often required to attend protest sites to safely remove those who have locked on.
The hon. Member for Croydon Central seems to imply that we should have at-height removal teams on stand-by in all parts of the country 24 hours a day, but it is not realistic for British policing to do that. Some lock ons, particularly those that occur at height, place both the police and protesters at serious risk of injury and even death. For example, protesters at HS2 sites have deployed bamboo structures, necessitating the deployment of specialist teams who are trained to remove them at height at considerable risk to themselves and the protesters they are removing. That is why the Metropolitan Police have asked us to provide them with more powers to tackle that kind of reckless behaviour, and the Government have now responded.
Sarah Jones
I just want to clarify what the Minister says because he misrepresented my point, which was not that we should have thousands of officers ready in a kind of French-style tool. My point related to the points that Matt Parr made about how forces do not have a consistent way of determining the number of trained officers they need. There are not enough specialist roles in the right places at the right time. That was his recommendation, and there is a programme of work to fix that. I am arguing that we should wait for that fix so that the police can do the best job that they can.
Kit Malthouse
As the hon. Lady rightly says, Mr Parr said, I think, that the responses had been exemplary. Work is ongoing. She referred to the printing press incident in Hertfordshire, and she put the problems experienced down to the delay in the police getting there—in the middle of the night, in some numbers—to remove protesters who had managed to erect scaffolding very quickly and glue themselves effectively to the top of it. It is just not realistic for the police to be there in seconds to deal with such an incident. I believe that the hon. Lady said that the main problem was the delay.
Kit Malthouse
No, but the point is that the clause will make such protesters think twice about their actions, because the offence that they are committing when charged is not necessarily vague.
Kit Malthouse
Just a minute.
The clause creates a new offence of locking on that will be committed when an individual causes serious disruption by attaching either themselves or someone else to another individual, an object or to land, or attaching an object to another object or land. Their act must cause or be capable of causing serious disruption to an organisation or two or more individuals, and the person intends or is reckless as to that consequence. The offence carries a maximum penalty of six months’ imprisonment and an unlimited fine.
Referring only to the act of locking on rather than to the equipment used recognises that protesters deploy a wide range of equipment to lock on, from chains and bike locks to bespoke devices, and ensures that the offence will keep pace with evolving lock-on tactics. The offence can be committed on either public or private land, and that ensures that those who use that tactic in, say, an oil refinery do not evade arrest and prosecution for the offence. Furthermore, new stop and search powers that we will consider shortly will allow the police to take proactive action to prevent locking on in the first place, by seizing items that they believe will be used by protesters to lock on.
Alex Cunningham
The Minister has just referred to oil refineries and private space. Chris Noble said in his evidence
“If we moved more into a private space than currently, we would see that as potentially being incredibly significant for money and opportunity lost in terms of policing communities. Those abstractions would probably quite fundamentally change my local model of policing, in terms of being able to maintain that.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 13, Q17.]
Does the Minister accept that he is putting greater pressure on the police, and certainly on their resources?
Kit Malthouse
As I said earlier, I do not accept that because if we get the cocktail of deterrent correct, and get those protesters—
Kit Malthouse
He has to see all the clauses in the round. If we get those protesters to think twice about their actions, we hope that they will desist—
Kit Malthouse
Or at least they will be incarcerated, such that they will not be able to continue with their protests.
The Chair
Order. Minister, just a moment. We are actually dealing with the Public Order Bill, and I would like a little bit of order in here as well. Can we stop shouting across the room and keep some order?
Kit Malthouse
We are trying to provide some precision in the offences that the police are able to charge offenders with in certain protest situations that have evolved in the past couple of years. Lock ons have caused significant distress, alarm and disruption to the community. The police, particularly the Metropolitan police, have asked us to introduce the offence and we are pleased to be able to help them. We heard in evidence to the Committee from the operational police chief that he thought that the legislation would help with the situation. We also heard from Her Majesty’s inspectorate of constabulary and fire and rescue services, notwithstanding the fact that he thought there was an exemplary response to his original report, that what we were doing seemed sensible. The clause will ensure that those who resort to inflicting misery on the public by locking on will face the maximum sentences, proportionate to the serious harm that their actions cause.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Offence of being equipped for locking on
Sarah Jones
I beg to move amendment 47, in clause 2, page 2, line 13, leave out “may” and insert “will”.
The Chair
With this it will be convenient to discuss the following:
Amendment 32, in clause 2, page 2, line 14, leave out “or in connection with”.
This is to probe what actions may also be criminalised "in connection with" an offence.
Amendment 48, in clause 2, page 2, line 14, leave out—
“in connection with the commission by any person of”.
Amendment 33, in clause 2, page 2, line 14, leave out “any person” and insert “them”.
Currently the offence of “being equipped for locking on” does not require the object to be used by the person with the item specifically, but by “any person”. This amendment is intended to limit the offending behaviour to a person who commits the offence of locking on.
Sarah Jones
Amendments 47 and 48 are in my name, and I will speak to amendments 32 and 33 in the name of the hon. Member for North East Fife.
Amendments 47 and 48 are similar and intended to deal with a similar problem. Amendment 47 narrows the clause and puts the onus on the police to be sure that a particular object was absolutely intended to be used in a lock-on, not just that it “may” have been. We should be clear—again, we will talk about this when debating clause stand part—that, if the police are to criminalise someone for being equipped to lock on, which we disagree with, then they must be entirely clear that the object in question is absolutely there for a lock-on.
Liberty, for example, expressed concerns about a vast range of possibilities of things that “may” be used in the course of locking-on. I hope that the Minister will help us with his ideas of what “may” means. Speaking to amendment 48 as well as this amendment, would bottled water or food for other people who are locked on come under that definition? They may be used in a lock-on, although also most likely would not be.
Amendment 48 also contains important wording changes to protect those good people who attend protests with entirely the best intentions, but who risk being criminalised by drafting that is too broad. The amendment removes the possibility that an individual could be criminalised due to the possibility that an object in their possession may—“may” is the important word here—be used by someone else in the course of a lock-on. Let us imagine that my son is on his way to a protest. He cycles there, much as my staffer cycles to work. He is already at risk of criminalisation by having a lock in his bag. As it turns out, however, he is doubly at risk, as that lock could be used by any person for a lock-on and he would be liable for it. It should be noted that the clause also does not contain any reasonable excuse defence.
Such issues, because bad and careless drafting gives clauses such breadth and scope, cut to the core of what we are grappling with in the Bill. As I said earlier, the Opposition do not stand with those who cause serious disruption and break the law, but we absolutely stand with those who protest peacefully, not causing disruption, and who wish to be loud, annoying and proud in a peaceful manner about the issues that they deeply care about.
Wendy Chamberlain
My party and I are happy to support Labour’s amendments 47 and 48. The scope of my amendments 32 and 33 is similar.
The intention of our amendment 32 is to probe what might be criminalised in connection with an offence. The theme this morning has been the broadness of the legislation as drafted, and the Opposition are looking to get some definition of what that might look like. Amendment 33 intends to ensure that the person who is prosecuted for the offence of being equipped also did the locking on themselves.
My concerns are linked to those set out by the shadow Minister, the hon. Member for Croydon Central. As she asked, will the provision of food and drink to someone engaged in protest activity be included? What about medical supplies, if a protester is injured in the course of the protests? What about a parent, simply worried about the safety of a young adult, who makes sure before they go to a protest that they are wearing sturdy clothing? What about the community group that lends its loudspeakers to an event?
The scope is so broad that such people, arguably, could get caught. This morning, we have discussed how the law will be interpreted. Those interpretations, given the Bill’s existing scope, are valid. What about people who happen to be caught passing a protest while carrying material used for locking on? For example, lots of MPs cycle in to Westminster, and demonstrations happen in Westminster all the time. Are MPs to be caught by this legislation simply because they are carrying their bike locks as they make their way into the estate? Under the Bill, that could theoretically happen.
While the police may not prosecute MPs, we know from the evidence we heard last week and from other evidence that sections of the population are overly policed. We will discuss the stop-and-search powers later—I am sure that Members will have much to say then—but if the evidence currently says that black people are eight times more likely to be stopped and searched, it follows that black people will also be disproportionately criminalised for carrying innocent items in the wrong place at the wrong time. As such, I am keen to hear from the Minister what this clause includes, and for amendments to be tabled that will limit its scope appropriately.
Amendment 33 addresses some of those problems. As drafted, the Bill allows for someone to be prosecuted for carrying an item that someone else uses to lock on. This has the potential to criminalise people who are peacefully protesting, or indeed those who are not protesting at all. We need to be clear: it is not a crime to attend a protest, nor is it a crime to carry the sorts of household items that are used for locking on—if that were the case, how would anyone purchase those items? Doing so without then breaking the law, simply put, cannot be a crime.
Kit Malthouse
I will speak to the amendments now, and then speak more substantively on stand part.
The amendments seek to raise the threshold for the offence of going equipped to lock on. Amendment 47 would raise the threshold for that offence, requiring that individuals “will” intend that the equipment be used in the course of locking on, rather than “may” intend. It is important that the police can protect the public from the possibility of someone locking on. Raising the threshold of the offence to “will” rather than “may” would restrict its effectiveness and the ability of the police to take proactive action against lock-ons, which we heard from the operational police chief during our evidence session was critical to minimising disruption.
Amendments 32 and 48 would remove from the scope of the offence of being equipped to lock on, someone who carries equipment intended to be used in connection with the locking-on offence, rather than in the course of that offence. Amendment 33 would also narrow that offence by applying it only to the individual who commits a lock-on. These amendments would mean that during disruptive protests, those who deliberately brought lock-on equipment to hand over to fellow protesters for them to use would not be criminalised for doing so, effectively allowing protesters to continue to legally provide lock-on equipment to others and removing a key deterrent aspect of the offence. Doing so would severely limit the effectiveness of the offence in stopping the use of lock-ons from spreading during a fast-moving protest situation, and I am afraid that we cannot support it. We ask that the amendment be withdrawn.
Sarah Jones
Given the vote that we have had on a similar measure, I see little point in pressing amendment 47 to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Wendy Chamberlain
I beg to move amendment 34, in clause 2, page 2, line 17, after “fine” insert
“not exceeding level 1 on the standard scale”.
A person convicted of an offence of “being equipped for locking on” may be subjected to a fine. In the Bill there is currently no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
The amendment is very similar to the amendment to clause 1 that I tabled previously. It ensures that any fines levied for the offence of being equipped for locking on are quantified, rather than left as an unlimited fine. I have very little to add beyond the remarks that I made regarding my previous amendment.
Kit Malthouse
As I made clear when speaking to the hon. Lady’s previous amendment, we disagree with lowering the maximum fine available for this offence. We feel strongly that those who commit lock-ons and carry lock-on equipment should face a proportionate sense of the harm they cause. The maximum fine that the hon. Lady proposes, £200, is simply not proportionate; we believe that the courts should have discretion to apply an unlimited fine. As such, I encourage the hon. Lady to withdraw her amendment.
Wendy Chamberlain
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Jones
The clause creates a new criminal offence targeting people who have an object with them in a public place with the intention that it will be used in the course of or in connection with the commission of the new offence of locking on, as we have been debating. The punishment for the offence is an unlimited fine.
Our concerns about the clause should be read and understood in conjunction with our concerns about clause 1. This very short clause is too vague and ambiguous to be useful. Line 12 talks of an “object”, but that object need not be related to protesting at all. All that is required to be criminalised under this offence is that a person might have intended to use the object—potentially, any object—in a certain way. Perhaps more pressingly—I will come back to this later—the object does not have to be used by the person who has it in their possession. It needs to be used only
“in the course of or in connection with”
a lock-on.
It is so important that we consider the limits of the legislation that we create in this place. None of us who works here in Parliament is a stranger to protests. We see them outside our offices almost every day. The example of the bike lock is real and I do not think it has been meaningfully disputed by the Minister. Perhaps it is in someone’s bag or attached to the bike, but that makes no difference.
Someone could wheel their bike through Parliament Square—multiple protests might be going on at once, which is not uncommon—and be in potential breach of this legislation. No proof that the bike lock is to be used in a lock-on is needed, only that it “may” be. Hard-working, law-abiding people simply trying to get in to their place of work are at risk of being found to have committed this offence. The original drafting of the clause is deeply ambiguous.
It was notable that so many of our witnesses last week spoke of the deterrent effect that they hoped the Bill would provide—a desire for something to be done to act as a deterrent. John Groves from High Speed 2 Ltd hoped that
“this legislation is about the deterrent effect”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 18, Q28.]
Nicola Bell noted:
“what is included in the Bill, I hope, offers that deterrent.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 20, Q37.]
We have real doubts, however, as to whether the Bill will provide anything close to a deterrent to hardcore repeat offenders. Instead of providing a deterrent to the hardcore of the protest movement, who are intent on causing disruption, such people might be delighted that their lock-on protests would be criminalised. We were told last week that those protesters
“will not be deterred by this legislation.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 44, Q91.]
For them, going to prison for the cause is a badge of honour.
Sir Peter Fahy said:
“I do not know whether there is actually any evidence that people are deterred...but clearly some people are so determined, and have a certain lifestyle where it does not really have any consequence for them, that—if anything—it makes them martyrs.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 58, Q120.]
However, we must absolutely not ignore the people who will be deterred, those who are not willing to go to prison, but who might not do anything illegal at a protest—those who just want to express their democratic right.
The title of Matt Parr’s report was “Getting the balance right?”, and it seems abundantly clear that the Government have not got the balance right with this legislation. I note that, with regard to lock-on, he was
“impressed by forces for the work they have done to make sure that PRTs”—
protester removal teams—
“are able to deal safely with lock-ons.”
He noted:
“It is vital that PRTs remain up to date with the rapidly evolving problems presented by lock-on devices.”
I agree, and much of the evidence from last week suggests that improved sharing of best practice, more resources and better training would help the police to deal with nuisance protests much better—without the need for this specific legislation.
Lord Rosser noted in the other place:
“The reality is that powers already exist for dealing with lock-ons. What we should be looking at is proper guidance, training and…improving our use of existing resources and specialist officers.”—[Official Report, House of Lords, 17 January 2022; Vol. 817, c. 1433.]
Matt Parr’s report also notes that most interviewees, who were junior police officers, did not wish to criminalise protest actions through the creation of a specific offence concerning locking on. With regard to his fifth proposal, Matt Parr noted explicitly that the purpose was not to create an offence of lock on during a protest. He did not call for that in his report.
The Government have brought back these overreaching clauses without any real evidence that they will work. Our witnesses were unable, quite rightly, to comment on the new clauses with any specificity. Elizabeth de Jong was unable to be specific about how the clauses would help. She noted:
“I can see a direct reference to locking on.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 33, Q59.]
Steve Griffiths stated:
“I am really here to talk about the impact of disruption, and I am probably not qualified to comment intensely on the Bill.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 34, Q60.]
He later noted:
“I cannot really talk about the policy itself”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 39, Q81.]
Those witnesses were right: they were present to define the problem as they saw it, and not to tell us that the legislation will work: that is our job. In the Opposition’s view it will not work. It is fair and understandable that the witnesses instinctively feel hopeful about something being done, but they did not claim that they had the expertise to know that.
The clauses, which make provision for the offences of locking on and going equipped to do so, are ill thought through and represent a knee-jerk reaction to events that have caused real disruption and annoyance—no one disputes that. There were criminal acts that were infinitely more disruptive to people and the police acted. There is no evidence that the clauses will act as a deterrent and it seems likely that they will be welcomed by the hard core of protestors who are willing to go to prison for their cause. The clauses will, however, deter those who come to protest peacefully, and that is our concern.
Kit Malthouse
Clause 2 supports the new offence of locking on created by clause 1, and specifically it creates a new criminal offence of going equipped to lock on and cause, or risk causing, serious disruption. During fast-moving protest situations, the police need the power to proactively prevent individuals from locking on to roads, buildings and objects, as we heard powerfully from the operational police commander during our evidence sessions. Therefore, along with the associated stop-and-search powers, which the Committee will scrutinise later, the new offence will allow the police to prevent lock ons before they occur, taking punitive action against those who attempt to lock on and deterring others from considering doing so.
Much has been made of criminalising people who happen to be carrying everyday items such as bike locks—the hon. Member for Croydon Central raised that—near a protest. To be clear, that will not be the case; the offence will be committed only when someone is carrying an object with the intention that it may be used by themselves or someone else in the course of, or in connection with, committing a lock-on offence as defined in clause 1. The police will need reasonable grounds for suspicion to arrest someone for that offence. There is a clear difference between a person pushing a bicycle past a protest and a person walking purposefully towards a gate with a lock in hand.
As the hon. Member for North East Fife knows from her policing experience, the offence of going equipped is well used by the police in England and Wales, and indeed in Scotland, in the prevention of burglary. I have had individuals arrested in my constituency who were going equipped to commit a burglary, and I am not aware of a plethora of plumbers, carpenters or builders with vans full of tools being arrested in my constituency on the basis of their going equipped, or having the capability to break into my home. The police are well able to adduce intention—and often that is tested in court—in charging someone with going equipped.
As we heard most powerfully from the operational police commander in our evidence session, the ability to stop and search, which we will consider later, and the ability to charge with going equipped would allow the police to operate in a situation where there would be less infringement on people’s right to protest, rather than more. He was strongly supportive.
Dr Huq
I remind the Minister that it is not just the Opposition who think that the locking on offence and the offence of preparing to lock on is a crazy idea. The last time the matter was subject to a vote in the Lords it was defeated massively, in a vote of 163 to 216. Has he got any new arguments for them, because the offence of being equipped to lock will never make it to a vote? Is there not a definition of insanity that is repeating the same action and expecting a different result? That saying is attributed to Einstein. I just wonder what new arguments the Minister will pull out of the bag for the Lords.
Kit Malthouse
As I understand it, one of the main arguments used in the House of Lords to vote against the measures in the Police, Crime, Sentencing and Courts Bill was that they did not feel that the matters had been properly scrutinised by the House of Commons. Those measures were introduced as amendments in the Lords, and therefore would not have gone through Committee here. So here we are, listening to their advice and subjecting the measures to democratic scrutiny by a forensic Committee of which she is a part, in the hope that the House can now the support them. We can then signal to the Lords that the intention of the democratic House is to strengthen the police’s ability to deal with this difficult and dangerous tactic.
Anyone found guilty of the offences will face a maximum penalty of an unlimited fine. I commend the clause to the Committee.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Ordered, That further consideration of the Bill be now adjourned.—(Scott Mann.)
Public Order Bill (Fourth sitting)
Tuesday 14th June 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 June 2022 - (14 Jun 2022)
Sarah Jones (Croydon Central) (Lab)
I beg to move amendment 35, in clause 3, page 2, line 26, leave out sub-paragraph (iii).
This amendment seeks to limit the range of acts potentially criminalised by this provision.
The Chair
With this it will be convenient to discuss amendment 36, in clause 3, page 2, line 29, leave out paragraph (b).
This amendment seeks to limit the range of acts potentially criminalised by this provision.
Sarah Jones
I am speaking to the amendments, which we have some sympathy with, on behalf of the hon. Member for North East Fife, who is not in her place at the moment. We are moving on from the lock-on offences we debated this morning to a new offence of obstruction of major transport works. Amendments 35 and 36 would remove some of the language that perhaps makes the scope of the clause too broad. We have already covered the principle behind the objections to the present clauses, which are similar to those on locking on and being equipped to lock on. These clauses are broad, and indeed potentially infinite, but as was said this morning, restrictions on people’s fundamental rights must be limited to what is absolutely necessary.
I repeat that no one is denying that people who commit criminal acts should be arrested and charged—in many cases, we know that that is why protesters do what they do—but there are already laws to deal with these behaviours. The Public Order Act 1986 contains offences of organising or taking part in a prohibited trespassory assembly. Where a chief of police reasonably believes there will be a trespassory assembly that may result in serious disruption to the life of the community, they can place a pre-emptive ban on it, and breaching that ban is a crime.
The key point we seek to make in thew amendment is that there must be a balance. The Government should not go too far down the road of criminalising protest; that is not what happens in our democracy, and that is why the hon. Member for North East Fife tabled amendments 35 and 36.
Amendment 35 would limit the offence of obstruction to blocking the core activities of major transport works, removing clause 3(1)(a)(iii), which appears to be a catch-all for any protest near or relating to major works. Would that provision also catch construction workers who are on strike at their own places of work or a protest at the entrance to the land where works are being done?
Amendment 36 would remove reference to interfering with or moving apparatus, because the provision in the clause is broad and goes too far. The disruption from apparatus being moved is not such that the Government should seek to introduce legislation to stop peaceful protest.
The Minister for Crime and Policing (Kit Malthouse)
Amendments 35 and 36 take issue with the scope of the offence of obstructing major transport works. I understand that the hon. Lady is concerned about the wide scope of the offence, but it is clear from the evidence that the Government need to protect vital transport construction sites across the country. I think the whole Committee was shocked to hear evidence from HS2 that the cost of protest to the scheme was £122 million and likely to rise to £200 million.
Amendments 35 and 36 attempt to limit the potential acts that fall within the offence by removing references to any acts that obstruct steps “in connection with”, or “reasonably necessary” to facilitate, construction or maintenance of a particular project. They would also remove references to acts that interfere with, move or remove any apparatus that relates to the construction or maintenance of major transport projects.
As I said, I understand that there are concerns about the wide scope of this offence, but a balance needs to be struck. Protest against transport sites comes in many different forms and is constantly evolving, as a small minority seeks new ways to inflict further disruption. It is entirely proportionate for this offence to capture behaviour that obstructs any stage of these projects. Furthermore, it is right that this offence should protect from interference key machinery, materials and other necessary apparatus, without which construction or maintenance of projects cannot occur.
It is worth remembering that we are talking about projects that have been decided through a democratic process. In many ways, individuals seeking to impede such projects are latter-day King Canutes. seeking to stop something that has been decided by the House of Commons or other democratic process and should therefore be allowed to take its course.
Mrs Natalie Elphicke (Dover) (Con)
Does the Minister agree that the health and safety measures that are so vital to protect everyone, as well as equipment, on construction project sites are simply not respected by those seeking to disrupt, and that that puts everyone at risk?
Kit Malthouse
My hon. Friend makes a powerful point, which we have seen throughout some of the protest tactics that we aim to deal by means of the Bill. They include a complete disregard for the safety not just of the protesters but of the workers on the sites affected and indeed the police, who have to go and remove the individuals.
Sarah Jones
What is the Minister’s view on the Prime Minister’s intention to lie in front of bulldozers at the start of the construction of the third runway at Heathrow?
Kit Malthouse
The Prime Minister was then Mayor of London and made his views known in a light-hearted way to indicate his opposition. If he had lain down in front of the bulldozers on a project democratically decided by the House, he would have committed an offence. Having said that, it is fair to say that the leaders of all major parties at the time went and planted trees at Sipson in the hope that a forest would flourish there. We will see whether those trees last. In any event, for the reasons I have outlined, I urge the hon. Lady to withdraw the amendment, with which the Government cannot agree.
Sarah Jones
Given that the amendment is not mine and I have only supported it in principle, I will not press it to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Jones
I beg to move amendment 37, in clause 3, page 3, line 3, after “fine” insert
“not exceeding level 2 on the standard scale”.
A person convicted of an offence of obstructing major transport works may be subjected to a fine. Under this clause there is currently no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
I think that if the hon. Member for North East Fife were here, she would say that this amendment makes the same point that she has made in previous amendments and that she has nothing to add.
Kit Malthouse
We oppose this amendment for the same reason I have given in consideration of previous amendments in a similar vein. Lowering the maximum fine for the offence to £500 is simply not proportionate. The penalties available under the Bill must be proportionate, otherwise they will not be a sufficient deterrent. I urge the hon. Lady to withdraw the amendment.
Sarah Jones
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Jones
Clause 3 introduces a new offence of obstructing the construction or maintenance of any major transport works. That would include if a person obstructs a construction worker
“in setting out the lines of any major transport works”,
or
“taking any steps that are reasonably necessary for…facilitating, or in connection with, the construction or maintenance of any major transport works”.
It will also be an offence to interfere with, move or remove
“any apparatus which…relates to the construction…of any major transport works”.
There is a reasonable excuse defence, and the maximum penalty is 51 weeks imprisonment, or a fine, or both.
There is an interesting two-part definition of what constitutes major transport works for this offence. First it is transport infrastructure covered by Acts of Parliament which provide legislative authority, HS2 being the obvious example. The second is nationally significant infrastructure projects that have been granted development consent orders under section 114 of the Planning Act 2008. For example, that could be new airports or airport extensions, major road projects, or railway works.
Like other clauses, the clause is drawn far too broadly and risks having a chilling effect on protest. This clause seems particularly targeted at climate protesters. Megan Randles, Greenpeace UK’s political campaigner, said:
“Time and again, it’s activism that has dragged a reluctant UK government into confronting vital issues, whether it’s the climate crisis or women’s rights. Ministers who…talk about freedoms at every turn should rethink this attack on one of the most fundamental freedoms we have.”
Furthermore, this Bill arrives before the protest clauses in the Police, Crime, Sentencing and Courts Act 2022 have come into effect, and that seems illogical. Would it not make more sense to introduce into law the statutory instruments for those clauses before bringing in a new raft of proposals?
People across the country want to be able to protest against major transport projects or changes in their local area, such as a library closure, or changing woodland into a car park. That fundamental right must be protected, but so must our vital infrastructure and major transport works. There is a balance to be struck. When the measure was debated in the House of Lords, many Members of that House said that the offence of obstructing transport works in clause 3 was “overreaching” and “unnecessary”. Liberty has pointed out that such a low threshold risks disproportionately interfering with people’s rights under articles 10 and 11 of the European convention on human rights and the Human Rights Act.
The Joint Committee on Human Rights felt that there could be issues with the proportionality and necessity of the measures, and that their potential to stifle peaceful and legitimate protest could mean that they were in breach of articles 10 and 11. The Home Office says that the clause is proportionate because the court would take into account the specific facts, but Liberty points out that the Home Office’s human rights analysis says nothing about whether the offence is necessary or how, and the extent to which, it adequately weighs individuals’ fundamental rights to freedom of expression and assembly in the balance of rights.
In evidence, Sir Peter Fahy, who was the chief constable of Greater Manchester police, and before that the chief constable of Cheshire constabulary, said:
“I would still doubt whether the appetite would be there—the judicial appetite. Police officers are very wary…when cases get to court, the judiciary or the magistrates often give out very minor sentences—whatever might be allowed in the legislation. They find, as happened with the Sarah Everard case, that higher courts then disagree and bring in human rights legislation, or bring in a different interpretation that is in the legislation, which then completely takes the legs of the police from underneath them.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 53-54, Q116.]
Will the Minister respond to the idea that if the courts take into account human rights legislation, they may not see as proportionate the punishments introduced by these new provisions? Surely, he does not want to give the police the difficult job of interpreting and applying to peaceful protesters such complex and broadly drawn powers, only to have the courts disagree with them.
During the Lords Report stage of the Police, Crime, Sentencing and Courts Bill, when these offences were first proposed, the JCHR raised a concern about their excessive breadth. For example, the proposed new offence of obstructing major transport works would potentially cover a wide range of minor acts, including moving any apparatus that relates to the construction or maintenance of major transport works, and even moving any apparatus that belongs to a person acting under the authority of the person in charge of the works. The Bill contains no requirement that these acts are committed with any disruption or disruptive intention. Will the Minister explain how he understands the term “apparatus”? I think it would be helpful to the Committee to understand how far this goes. The terms “interfere”, “move” and “remove” are also very broad. Perhaps he can shed some light on the kinds of actions that would be covered by those terms.
Amnesty says:
“This provision fails the three-part test of legality, necessity and proportionality. The language is again vague and so broad that even coincidental obstruction of construction work by a big march that just happens to pass through a street where such works are ongoing could be covered in its scope.”
The problem, as articulated by those who gave evidence, is that our vital public infrastructure, such as HS2, should not be seriously disrupted to the detriment of the community and our national life, but we must also protect the rights to free speech and public protest. We believe that the Bill does not manage to deliver either of those objectives. During the evidence sessions, Steve Griffiths, managing director of London Stansted airport, said a couple of times that he was not the expert on legislation. He said:
“I am probably not qualified to comment intensely on the Bill”.–– [Official Report, Public Order Public Bill Committee, 9 June 2022; c. 34, Q60.]
Another thing we do not understand about the legislation—we covered this briefly this morning—is that using the term “serious disruption to two or more people” is not a sensible way to draft legislation. We need a better definition of serious disruption to start with and to make sure that any legislation we pass is targeted only on the kinds of cases we heard about in the evidence session.
Alex Cunningham (Stockton North) (Lab)
It is a pleasure to serve under your chairmanship, Mr Dowd. I am extremely concerned about the unintended consequences that will result from the introduction not just of this clause but of the other provisions as more and more people are criminalised, as my hon. Friend the Member for Croydon Central said. We have already heard from police chief Chris Noble about the additional stresses the Bill’s contents will have on the police service and the difficulty the police may well have in interpreting which action they can take in which circumstances.
As the Government strive to build up the number of officers, and to replace at least some of those whom consecutive Governments have got rid of, we can expect more arrests, more charges, and perhaps even more convictions, and there will be a knock-on effect on our prisons. I have another interest, alongside that of improving public protection: my nephew Lewis Cunningham, who lives in Beverley, starts his police training in September. I am sure that colleagues across the House will join me in wishing him well. [Hon. Members: “Hear, hear!”] I thank them for that.
My hon. Friend the Member for Croydon Central has outlined in great detail the flaws in the clause and in the rest of the Bill. There will be another major knock-on effect of the Government’s measures, which will potentially criminalise thousands of people: the measures will affect our courts, which still have dire backlogs. The most recent statistics from Her Majesty’s inspectorate of constabulary and fire and rescue services reveal that the Crown court backlog remains great, and despite various measures having been put in place—they range from extra sitting days to Nightingale courts—it will take years to get the backlog down to a reasonable and manageable level. In the autumn Budget statement, the Treasury claimed that the backlog was caused by the coronavirus pandemic. That is completely false.
The Chair
Order. I appreciate that this is an important matter, but I must ask the Member to stick to the clause, which is on the obstruction of major transport works.
Alex Cunningham
I accept the reprimand, Mr Dowd, but I wanted to emphasise that the Bill has unintended consequences. It will have a knock-on effect on the number of arrests made, the number of police available, the number of court days required, and the number of officers called to court. Those are all consequences of this legislation, which I submit is totally unnecessary, and will criminalise many people. The crisis in the justice system could have been avoided, but this legislation may add to the problem. I am skipping over some of the stuff in my notes that relates directly to courts.
The Chancellor talked about providing more police officers; the same 20,000 were promised years ago, many of whom remain to be recruited. If that promise is fulfilled and more people are brought to justice—I keep saying this—it will mean more officers in court, more arrests, and more stress on the system. The Government need to account for that. We have seen some changes. There have been supportive comments from some people in the justice system, but the bottom line is that the impact on the courts will be tremendous. A National Audit Office report says,
“The Ministry has removed the limit on the number of Crown Court sitting days, but their use relies on courts having enough physical and judicial capacity.”
That capacity does not exist.
The Chair
Order. I appreciate the wider ramifications of the issue, but I must exhort the Member to focus his attention on the clause.
Alex Cunningham
I recognise that, Mr Dowd, but the whole system is in crisis, and the point that I am trying to get across is that the Government have not properly addressed the Bill’s impact on the entire justice system. We cannot look at these measures in isolation; we have to look at their effect across the whole system. The measures could needlessly criminalise hundreds, if not thousands, of people, so we have to consider their knock-on effects.
The crisis in the system means that justice can often be denied, even to those impacted by protesters or those locking on. Those affected deserve justice; unfortunately, it will have to come in the longer term, given the breakdown in the system.
I was going to quote former Member Anna Soubry on the problems that she had in court, but I will not. The Government must look at these measures in the round, rather than in isolation. Resources will need to be available across the piece, and there is no provision in this clause, or any other clause, to ensure that the entire system operates effectively. The time for action is well past. I submit to the Minister that instead of messing around with clauses as simple as this one, the Government should start tackling the crisis in policing, the rise in violent crime, the epidemic in antisocial behaviour and the massive courts backlog.
Alex Cunningham
With that third reprimand, Chair, I shall wind up my remarks.
Kit Malthouse
I think we can take from that that the hon. Gentleman is voting against the clause. As the hon. Member for Croydon Central says, the clause creates a new offence of obstructing major transport works. We heard in strong evidence from the police, High Speed 2 and others why the offence is needed, and why the offence should ensure that all stages of construction and maintenance are protected from disruptive action, including necessary steps prior to construction, such as ecological surveys, and why the offence should also cover the removal of, or interference with, apparatus needed for construction.
I reassure the hon. Lady that “apparatus” is a usual term in legal circles; any strict definition in the Bill might result in the Bill not being future-proof, or in its being too definitive in a way that protesters could find a way around. I am sure that it will not be beyond the wit of courts to interpret what “apparatus” means. When they do, anyone found guilty of the offence will face a maximum penalty of six months’ imprisonment, an unlimited fine or both.
As with other offences in the Bill, we have provided a reasonable excuse defence. In reference to something the hon. Lady said earlier, there is a defence for trade disputes, so those on strike will have a defence against this kind of offence. As she pointed out, “major transport works” are defined as works that have either been authorised by an Act of Parliament, such as HS2, or by a development consent order under section 114 of the Planning Act 2008, such as the Silvertown tunnel. The definition ensures that transport works of strategic importance in England and Wales are protected.
The hon. Lady raised the issue of human rights. That is a common issue that courts have to address when looking at offences committed by all sorts of people in all sorts of circumstances, and it is something we are used to. I confess that I am confused by the hon. Lady’s position. She is encouraging and supportive of national injunctions, which carry unlimited fines and prison terms that depend on the views of the judge at the time. They also provide less protection for the accused, as judges generally require a lower burden of proof in deciding whether the case is proven. Of course, we heard strong evidence last week that injunctions are cumbersome, long-winded, expensive for people to put in place and unpredictable in their efficacy.
Sarah Jones
We will talk properly about injunctions under the new clauses, because we have a new clause on that. To clarify, we are not calling for big thing called a national injunction; we are calling for a national approach to dealing with all the complications that arise when there is a large infrastructure issue, and when we might need local authorities and the private sector, working with Government, to do what is needed as quickly as possible. We did not suggest a national injunction that is one chunk of a thing.
Kit Malthouse
Maybe I misheard the Leader of the Opposition on the television when he called for exactly that: a national injunction. The hon. Lady has neatly pointed out the complexity—for example, in HS2, there are different landowners, geographies, areas and phases of development—of obtaining an injunction that covers the whole of the works. The point still stands that, as far as I can see, she is content for people to be punished and to go to prison under an injunction, but strangely not under a criminal charge. I do not understand that asymmetry. As far as I can see, a criminal court has greater protections for our fellow citizens who are accused of such crimes—not least a higher burden of proof—than the civil courts, where injunctions are heard.
Sarah Jones
The Minister made that point to several of the people who gave evidence to us, but they did not accept it. Our point is that the Bill automatically criminalises things that are not criminal offences. An injunction is time-limited, specific, and pertains to an area where serious disruption is being caused; that is not the same as a lock-on offence, which might just be some women locking arms and therefore automatically committing a criminal offence. Those are very different things.
Kit Malthouse
Part of the hon. Lady’s repeated case is that there are already plenty of criminal offences with which we could charge all these people. There is no one yet who she thinks should not have been charged with an offence. Some of them, I am afraid, seem to get off on technicalities and through loopholes; I outlined a couple of examples. High Speed 2 in particular expressed frustration at the police’s inability to get some charges to stick. We are trying to satisfy the hon. Lady’s requirement for more specificity in charging decisions, as well as creating a sentencing regime that we hope will act as a deterrent. It is unacceptable that a handful of individuals repeatedly delay and add costs to important works that have been through the democratic process. They are vital to the levelling-up agenda, and the measures in the clause will support them.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Interference with use or operation of key national infrastructure
Sarah Jones
I beg to move amendment 49, in clause 4, page 4, line 30, leave out “interferes with” and insert “prevents”.
The Chair
With this it will be convenient to discuss the following:
Amendment 50, in clause 4, page 4, line 32, leave out “interfere with” and insert “prevent”.
Amendment 51, in clause 4, page 5, line 3, leave out subsection (4).
Kit Malthouse
I have a speech. The amendments are concerned with the scope of the new offence of interfering with the use of key national infrastructure. Amendments 49 and 50 replace the words “interferes with” with “prevents”. We assume that the intention is to raise the threshold of this offence to actions that completely stop a piece of key national infrastructure from being used for its intended purposes, although in fact subsection (4) already defines “interferes with” as preventing use or operation. Amendment 51 supports the change by removing that definition.
I understand what I presume are the hon. Lady’s concerns about the scope of the offence, but I do not see a need for the amendments. Subsection (4) already defines interference with key infrastructure as an act that
“prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Removing that subsection and replacing “interferes with” with “prevents” would leave the threshold of the offence undefined, leading to ambiguity over what sort of acts it would apply to.
Furthermore, I reiterate that it is vital that this offence applies to a range of disruptive actions against infra-structure, rather than ones that halt operations completely. As we have seen during protests by groups such as Insulate Britain and Just Stop Oil, even acts that delay the use of infrastructure—for example, acts that stop roads being used by the public—can cause severe disruption. Ambulances cannot get through, key deliveries are delayed, contracts cannot be fulfilled—the list goes on.
Fundamentally, the Government consider acts by a small number of determined, disruptive protesters who significantly delay the use of key infrastructure to be just as damaging as those that prevent its use entirely. I therefore encourage the hon. Member for Croydon Central to withdraw the amendment.
Sarah Jones
I think I might have handed my speaking notes to Hansard in my previous handover of information. We have tabled three simple amendments to clause 4, which is on interference with use or operation of key national infrastructure. It is similar in some ways to the previous clause, which looked at major transport works.
A person commits an offence if
“they do an act which interferes with the use or operation of any key national infrastructure in England and Wales”
and
“they intend that act to interfere with the use or operation of such infrastructure or are reckless as to whether it will do so.”
In amendments 49 and 50, we seek to replace “interferes with” with “prevents”. We believe that it is a stronger word and has the clarity that the law requires. The term “interferes with” is broad and difficult to interpret; “prevents” is much stronger.
In amendment 51, we seek to remove a passage that says:
“For the purposes of subsection (1)”,
which is the offence itself,
“a person’s act interferes with the use or operation of key national infrastructure if it prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Andrew Bridgen (North West Leicestershire) (Con)
Will the hon. Lady concede that if the wording is changed from “interferes with” to “prevents”, it will leave a loophole for the protesters? They will say that they did not prevent; they merely delayed.
Sarah Jones
I think that the psyche of the protesters we are talking about, as we have said many times, means that they will not be deterred by legislation generally. The argument we keep making is that we do not want to over-criminalise people who are going about their business, making a protest that nobody would have a problem with. Our amendments are designed to tighten the clause and improve its scope.
Lee Anderson (Ashfield) (Con)
Is there a timescale on preventing something? It strikes me that “prevents” could be more destructive than “interferes with”.
Sarah Jones
We are talking about key national infrastructure and whether the use or operation of any key national infrastructure is interfered with or prevented. If an oil refinery is being blocked—we would argue that there is already plenty of legislation in place to deal with those protesters—that would clearly prevent the operation of key national infrastructure. That is the point of our three amendments. On this occasion, I will not test the will of the Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Jones
I beg to move amendment 52, in clause 4, page 5, line 18, after “newspaper printing infrastructure.” insert—
“(j) emergency services.”
The amendment adds emergency services to the list of key national infrastructure in clause 4(6), on page 5. This is really a probing amendment. As we have already discussed, we have issues with the entire clause. However, there is something interesting in how one defines national infrastructure.
Labour is the traditional party of work and workers, and over the last several years, we have spent much time clapping, thanking and cheering key workers in the emergency services, particularly through the covid pandemic. As shadow Minister for police and the fire service, I spend much time in and around the blue-light services, as I am sure the Minister does in his role. We see at first hand the incredibly important work that they do, night or day, come rain or shine. I therefore find it strange that the Government have not added emergency services to the list of key infrastructure. I actually think that the fire service, the ambulance service and police forces are just as important, in terms of infrastructure, to the continued smooth running of our country as all the other things on the list. They keep people safe and secure and save lives in a multitude of ways.
Let me explain our amendment a little further. We do not think that protests should be able to stop the emergency services from doing their jobs. An ambulance should not be stopped when rushing a patient to hospital. A fire engine should not be halted when people are trapped in burning buildings, and the police must be able to reach the scene of a crime as quickly as possible. We know that time is often of the essence in those things. However, I should also make it clear that we do believe that there is scope for protest, in some instances, around such sites, for instance with protests against the closure of a GP surgery, a police station—the Minister may well remember several of those from his time at City Hall—or an accident and emergency facility.
In April of this year, for instance, protesters staged a protest in Shropshire, in a little town called St Martin’s, at the closure of a GP surgery. The surgery in St Martin’s, Shropshire, has been closed since March 2020 and made an application to the health board to close permanently. Hundreds of people have signed a petition calling for the practice to remain in the village. In recent years, there have also been protests in Lincolnshire at the closure of A&E services in Grantham.
Those are very legitimate protests; they are examples of local people taking a stand at closures that will really affect their local area and the health of their families and neighbours. The key point is that they were done in proportionate ways. It is important that we make that distinction; they did not and do not stop the emergency services. Our amendment to this clause provides protection for emergency services but does allow for legitimate protests around sites that may come under the aegis of the emergency services, such as a police station or an A&E site.
I think that we can all agree that the emergency services do an exceptionally important job, and the Minister might therefore like to comment on their inclusion on this list of key national infrastructure. Would he not agree that blocking a police car as it races towards a crime, such as domestic violence, ought to be considered interfering with key national infrastructure?
I hope that I have given Members on both sides some food for thought about what should come under the definition in the clause. Emergency services are an essential service, and if an oil refinery is going to have such offences applied to it, the logic stands that emergency services infrastructure should too.
Kit Malthouse
I must say that I have some sympathy with what the hon. Lady is trying to achieve. However, her Government, she will be please to know, got there before us by creating the Emergency Workers (Obstruction) Act 2006, which has already created an offence of intentionally obstructing an emergency worker from exercising their functions, punishable on summary conviction by an unlimited fine.
Sarah Jones
There are lots of other bits of legislation that can stop protests and stop people from interfering in all kinds of different ways. The key point that we were trying to make is that if we define national infrastructure, it is peculiar not to include emergency services in that definition.
Kit Malthouse
I understand the hon. Lady’s point, although it was only a breath ago that she was telling me that the clause was broad, and, now, she is attempting to broaden it. As I said, we already have significant legislation that will assist us. We should not forget that some of the offences that we have already considered will assist. The police use the roads and therefore our ability to deal with people glued on to the roads will be critical. The police need fuel and ambulances need fuel, so locking on to fuel depots will similarly be covered.
Sarah Jones
I am glad the Minister accepts that this is an issue that deserves to be thought about. As this was a probing amendment, we will leave it at that. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Jones
Clause 4, as we have been talking about in the debate on the amendments, introduces a new offence of interference with the use or operation of key national infrastructure. Subsection (1) makes it an offence for a person to
“do an act which interferes with the use or operation of any key national infrastructure”
where the person intends the act to have that effect or is
“reckless as to whether it will do so.”
Subsection (2) provides a defence of “reasonable excuse” and a defence applying to industrial action, which the Minister referred to. The clause sets out the maximum penalty for the offence—namely,
“on summary conviction, to imprisonment for term not exceeding the general limit in a magistrates’ court”,
rising to 12 months, or an unlimited fine, or both—imprisonment, a fine or both.
Subsections (4) and (5) define interference as an act that “prevents” or “significantly delays” the infrastructure from being used or operated to any extent of its intended purpose. The clause then lists the key national infrastructure, which we have been debating, and that includes, apart from emergency workers, transport sectors including air transport and harbours; oil, gas and electricity infrastructure; and newspaper printing infrastructure, which we will talk about later.
We think clause 4 defines interference incredibly broadly, as any act that
“prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Liberty has pointed out that the low threshold appears to contradict the Supreme Court’s finding that deliberately obstructive protest can come under the protection of articles 10 and 11, and risks criminalising an extremely wide range of activities, including where the use or operation of infrastructure is “significantly delayed”. That term is not defined in the offence.
We have tried to remove clause 4. We hear the concerns that some protests can tip the balance of rights in the wrong direction. I repeat that protest is not an unqualified right—campaigners who block people from reaching relatives in hospital and oil protests that prevent people from crucial travel are breaking the law—but there are a raft of measures already in place. This is a fundamental point that the Minister has not acknowledged: a panoply of existing powers on public order is available to the police.
In the debates we have had over the past year on the Police, Crime, Sentencing and Courts Act, the way some Members have talked about the policing of protest has sometimes implied that the police are not doing anything and that there are currently no powers they can use. We are not starting from a position of nothing; we are starting from multiple pieces of legislation. There is wilfully obstructing the highway, the offence of criminal damage or conspiracy to cause criminal damage, the offence of aggravated trespass, the offence of public nuisance and the offence of breach of the peace, which we have not yet talked about much.
More than 20 people were arrested for criminal damage and aggravated trespass at Just Stop Oil protests in Surrey. Injunctions were granted at Kingsbury oil terminal following more than 100 arrests, and there were further arrests for breaching those injunctions, which are punishable by up to two years in prison: nine people were charged. When Extinction Rebellion dumped tons of fertiliser outside newspaper offices, five people were arrested. Earlier this year, six Extinction Rebellion activists were charged with criminal damage in Cambridge. In February this year, five Insulate Britain campaigners were jailed for breaching their injunctions, and in November, nine Insulate Britain activists were jailed for breaching injunctions to prevent road blockades. It is important to point out that for the kinds of protesters we are talking about, breaking the law and being arrested is often the aim.
During our evidence sessions, we heard from police officers about how well the police can use the existing laws. Chief Superintendent Phil Dolby from West Midlands police spoke to us about a large, disruptive protest in Birmingham, where he negotiated conditions using the Public Order Act 1986:
“I just gave a warning about the police’s power to who I was evidentially satisfied was the organiser. I negotiated and said, ‘Look, I’ve got this power. It’s ready, and here it is. Do you want to carry on, or can I encourage you to stop? You have had your opportunity, and you need to move on.’ There was a negotiated approach that I thought tried to keep the balance for everyone.
Similarly, Extinction Rebellion recently blocked a fairly minor road…They had a tactic whereby instead of staying in the middle of the road all the time, they would use the pelican crossing but let the traffic stop by the traffic furniture. They would then occupy the road for about five minutes and when the traffic built up, they would move away…
We have our protest liaison teams, and there is a five-step appeal that officers go through, which we document and fill, giving every opportunity for the protesters to reach the decision themselves. Eventually, I said, ‘Okay. There is a power here to stop you. This is an unlawful assembly because it is now causing serious disruption. There’s a children’s hospital that is starting to be affected, so now that’s enough.’
I brought forward the van that is a mobile prison cell—kind of a show of strength, really—and said, ‘That is what I am prepared to use’. They said, ‘Okay’, and that was enough. Again, both the powers were available to us. They were being prepared to be used. We were not just tolerating it; there was a negotiated approach, and both of those are examples of where that has been successful. On the serious disruption element in the Bill, I would encourage as much precision for that definition as possible.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 57-58, Q119.]
As Peter Fahy aptly said,
“In all the protests it is escalation, which looks in the early stages like the police are being weak, but in the background they are talking to people and they are escalating…You work up to it”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 62, Q122.]
The concern about the definition of serious disruption is shared by many people across policing. In the written evidence submitted by the National Police Chiefs’ Council, Chief Constable BJ Harrington—the national lead for public order—wrote that,
“the term ‘serious disruption’ has been subject to much discussion and debate. Within any new legislation we would welcome clarity or guidance about the threshold and interpretation of this to allow operational commanders to best apply their operational responses.”
I urge the Minister to bear in mind the consequences of these provisions for the police officers trying to put them into practice.
Wendy Chamberlain (North East Fife) (LD)
For me, that is the issue: one of the impacts of this legislation will be that we give the police nowhere to go, other than straight to arrest. In my policing experience and that of Lord Paddick, once the police start arresting people, they very quickly run out of cops before they run out of protesters. Does the hon. Lady agree?
Sarah Jones
I absolutely agree; the struggle within policing to have enough people to do the day job is already bad enough. I have been to Berwick, and very often in the summer months, when there are vast numbers of holidaymakers at the caravan parks, the police will only have one or two officers on. If there is a fight and they choose to arrest somebody, they then have to take that person into custody, which means there is no one left, so they have to make very difficult decisions. In the case of a protest, the police can have a negotiation and allow people to make their point, which is what protesters want to do and what we all want to facilitate. Then, the police can get to the stage where they say, “You are now causing serious disruption, so now we need to begin to use some of our powers.” That is a much preferable way of policing.
The police did not ask for most of these powers, and there has not been a proper consultation process with them on this piece of legislation. The big piece of work that was done by Matt Parr took place before the then Police, Crime, Sentencing and Courts Bill and, as we heard in evidence, some aspects of this Bill were considered by him, but some were not, including the infrastructure and transport sections. There has been no proper consultation with the police on these clauses.
The police should not have to make decisions about definitions of vague terms in legislation. They will look like political decisions and put even more pressure on the police. During progress of the Police, Crime, Sentencing and Courts Bill, many Members from different sides of the Chamber made that point in the House.
The National Police Chiefs’ Council wrote:
“It is essential that any powers or legislation are straightforward and capable of use by officers and staff at all levels. Experience has shown that unless legislation is clear and simple for use in complex and fast-moving public order situations that it can fail to have the positive impact intended and sometimes create an expectation that cannot be met or lead to unintended issues.”
I also note the points in the NPCC’s excellent evidence about police responsibilities on private land. It wrote:
“We want to ensure that any new legislation does not inadvertently transfer or encourage reliance on policing for security or reduce the ability or necessity of organisations to obtain injunctions. This would not only be a fundamental change in the role of policing but would create a significant capacity issue that would detract from force’s wider duties to prevent and detect crime.”
The NPCC argues that,
“police powers that are practical for use on the front line…Police responsibilities on private land—The funding and resourcing of Home Office police forces is applied primarily to ensure effective policing of public spaces.”
There is an interesting section on this issue that I will not read out, but I am sure the Minister has seen it and will be thinking it through.
The NPCC goes on to say,
“we believe that the question of the responsibility for policing of private land is key. There is a question about the definition of ‘key national infrastructure’, and we would have concern about an explicit duty being placed on policing to deal with activity on private land.
We would be concerned about the impact to our operational response were the responsibility, risks, and costs for securing these sites to be moved from private sector organisations to the police. The impact on police resources, especially for the forces where much of this key infrastructure resides, could be substantial. We believe there is potential for other agencies and organisations to have the powers which would go some way to prevent this.
We believe that there needs to be a strong rationale behind what is considered key national infrastructure, taking into consideration the potential impact of any disruption taking place, so that there is no risk to confidence in policing in being seen to protect private business interests or placing an unreasonable burden on policing that will detract from our core mission.”
We argue that it is not fair to keep piling on new offences. In his evidence, Sir Peter Fahy talked very well about expecting the police to make sense of the new offences, then interpret them and then do all the work.
The Government could do more to work with the police, those who run public and private infrastructure and local authorities to support the right to peaceful protest, to work together to safeguard essential infrastructure, to review the measures that they have just introduced before coming back for more, to work on training, guidance and the resources that public order teams need, and to work on streamlined plans for injunctions that could protect the smooth running of essential infrastructure, if needed.
I again make it clear that we do not support those hardline protesters who keep returning to make people’s lives a misery. We do not believe that clause 4 will fix the problems that our evidence sessions highlighted. It will not speed up the removal of protesters who are causing serious disruption or be a deterrent for those who want to break the law. It risks creating more flashpoints for the police.
Our national infrastructure needs protecting. We hear the anger, irritation and upset when critical appointments are missed, when children cannot get to school and when laws are broken. Of course, the police must act but, unamended, the legislation is too broad to be workable.
Kit Malthouse
As the hon. Lady said, clause 4 introduces a new criminal offence of interfering with the operation of “key national infrastructure”. As we heard in our evidence, recent actions by protestors, including activity blocking or obstructing our printing presses, roads and fuel supply, have inflicted misery on the hard-working public.
As my right hon. Friend the Home Secretary said on Second Reading, the Government cannot stand idly by and let small groups of disruptive individuals prevent people from getting to their places of work by blocking trains and roads, or stop vital supplies of fuel reaching the public by preventing oil tankers from leaving terminals across the country. Such actions cause enormous damage and have a serious economic cost. For example, policing Insulate Britain’s sit-down protests on our major highways cost £4 million, while the policing cost alone of responding to Just Stop Oil’s campaign against terminals and fuel stations is over £6 million in total so far. It is clear that we have to act.
Individuals commit this offence if they intentionally or recklessly engage in an act that prevents the use or operation of key national infrastructure to any extent, including through acts that significantly delay the operation or use of such infrastructure. The range of infrastructure covered by this offence will ensure that our major transport networks, and our energy and fuel supplies, are protected. I will say more on this issue when the Committee scrutinises clause 5.
Sarah Jones
We have seen some new tactics, but the tactics are mainly old. I understand that Swampy, who we will remember from decades ago, is in a tunnel somewhere under HS2¸ so these things do come around again.
As for the Minister’s point about the police, it is important to note that there has not been a proper consultation on the clauses on infrastructure and transport. I have spoken to lots of police officers about the Bill, and there is not as much knowledge about it as there might be, because there has not been a proper consultation process, whereas there was with the previous piece of legislation. The police quite rightly do not take a political position, but there are plenty of people who have concerns about the breadth of this legislation, not necessarily because they do not want new powers—some of them are saying, “We need new powers”—but because they worry that interpretation of the Bill, which is so broad, will put them in a very difficult position.
Kit Malthouse
I am glad that the hon. Lady accepts that the police are asking for more powers; indeed they are.
Kit Malthouse
And they have specifically requested a number of the powers in the Bill. The person who, as I hope she will agree, was the most credible witness was the National Police Chiefs’ Council’s lead for public order and protest, who said positive things about the legislation.
The hon. Lady is perhaps struggling with the notion that while we can define offences and human behaviour in this place, there is an entire industry of lawyers out there who then go on to interpret what we say. There are common terms that might appear that have particular meaning in colloquial English that have developed meaning over time in the courts. “Serious disruption” is the one that the hon. Lady is speaking to, and I will give some thought as to whether we need to think more about that, but “serious disruption” to the life of the community has been an established part of public order policing and indeed general policing for some time—at least, I think, since 1986 and the Public Order Act of that year. That Act has been interpreted through the courts in a number of ways, which means that it is well understood by police, lawyers and indeed protesters.
Jackie Doyle-Price (Thurrock) (Con)
As the Minister will be aware, in my constituency, we have significant amounts of fuel infrastructure. Indeed, in the recent Just Stop Oil protests, more than half of the arrests made nationally were made in my constituency. The proposals in this legislation absolutely reflect the conversations that I have had with the local police and with local authorities. I pay tribute, through the Minister, to the great efforts of the local police and local authorities to ensure that the disruption caused did not spill out into the wider community, because the role of Thurrock in the dispersal of fuel across the country is significant, so things could have been much worse. These proposals will make it much easier for the police to act and will make them more fleet of foot.
Kit Malthouse
I am grateful to my hon. Friend; she makes a very strong point and she is quite right; that is my experience of talking to the police officers dealing with those protests. She points to the importance of particular locations in our fuel supply network. A number of key, large, strategic fuel depots take the bulk of the load, and even a small interference with their ability to get fuel out could have a significant ripple effect that would be felt by the public.
The hon. Member for Croydon Central seems to be under the impression, or possibly trying to create the impression, that the police will change their practice and thousands of protesters will be locked up. I am confused; she seems to imply that those who are disrupting High Speed 2, for example, deserve to be arrested. She said that the cost was “horrifying”—I think that is the word she used. She accepts that HS2 has been approved by a democratically elected Parliament, and was voted for unanimously across the House. It was supported by all parties, and those protesters are seeking to frustrate that democratic decision.
All we are talking about is what offence those individuals should be charged with. We are seeking to give the police more of the options that they have asked for, and more tools to use. That reflects the fact that a number of individuals have avoided charges on technicalities, because of the complexity of the operations and the landownerships involved.
Sarah Jones
At the risk of more repetition, the point is if there is a new offence of locking on, the police might see people linking arms at a protest and think, understandably, “That is an offence! I need to arrest them.” I did not make the point earlier, but there is also an issue around resources. I wanted to ensure that I mentioned to the Minister the issue around resources for protests. For example, the number of police horses has been cut significantly in recent years. They are a very useful tool in managing protests. I am sure that the Minister understands that, and has seen how successfully police horses can manage a crowd. In this cost of living crisis, the cost of horses has gone up by £2,000 or £3,000, so the police are finding it difficult to replace horses. That is slightly niche, but it is a very important part of our ability to protest. I ask the Minister to support our police horses as much as he can.
Kit Malthouse
I am always keen to support all forms of non-human participants in crime fighting, from dogs to horses. I am not sure what relevance that has to the legislation. The hon. Member is right that in certain crowd-control situations, police horses can prove enormously calming to a crowd, which is important. However, that is a crowd situation. Horses are often used in the control of football crowds, as she will know. In a protest situation, particularly a violent protest situation, they are often used more as a dispersal tool. That is where I have seen them used. We have to be careful about straying into police tactics, rather than the legislation, which is our responsibility.
The hon. Lady seems conflicted: she is happy for protesters to be arrested and charged under current offences, or for them to go to prison under an injunction that may have been obtained by HS2, News International or any other site owner, but she seems strangely reluctant to achieve the same effect through the criminal charge that we are putting in place through this legislation. I find that asymmetry difficult to explain.
I explained earlier how seriously the Government take the offence in clause 4, and the maximum penalties available reflect that. Individuals can face a maximum penalty of 12 months’ imprisonment, an unlimited fine, or both. It is completely unacceptable that small numbers of protestors can attack the vital infrastructure that keeps this country running. This Government stand on the side of the public, who want to go about their lives free from the disruption and misery that these protesters can cause.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Key national infrastructure
Question proposed, That the clause stand part of the Bill.
Sarah Jones
The clause defines the different types of key national infrastructure for the purposes of clause 4. I was critical of the breadth of clause 4 earlier. It defines “interference” incredibly broadly as any act that
“prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Given that low threshold, we should be wary of the risk to the protections afforded to protest under articles 10 and 11 of the Human Rights Act 1998.
As we heard from legal experts in the evidence sessions last week, the courts have a tendency to look more kindly on disruptive protests when they are directed towards the perceived social, environmental, political or ethical ill identified by the protesters and take place at the site of that perceived ill. It is worth exploring that in a little more detail, as it is important to keep that in mind when looking at the raft of infrastructure that the Government have deemed worthy of the title “key national”.
Let us start with the Greenham Common protests, which were motivated by a desire for nuclear disarmament and carried out in opposition to the Government’s placing of missiles on its Berkshire base, RAF Greenham Common. Crucially, the protests were carried out on that site. Hands were held, arms interlocked and songs sung around the base. There were shows of solidarity, kindness and compassion at Greenham Common, as well as criminal behaviour, which was dealt with. Whatever our views, those protests hold a special place in our national history and consciousness.
Kit Malthouse
Greenham is on the edge of my constituency, as I am sure the hon. Lady knows. I hope that she will accept that defence installations are not defined as key national infrastructure in this legislation.
Sarah Jones
Why not, when nuclear energy is? My point is broader: it is not about the definition but the way that courts define whether a protest is significant. The kind of punishment they give often depends on whether the protest is near the thing being protested about. I will explain what I mean. If we look at more recent protests, such as the Insulate Britain protests on motorways, there is no clear relation between the issue being protested about and the site of the protest. In other words, there is no direct link between insulation and the M25. The M25 has nothing to do with poorly insulated homes. It is not the Government Department responsible for insulating homes. I can see why Insulate Britain might choose to protest outside a Government Department.
I am sure that Insulate Britain would argue that there is a link between the M25 and insulation, but when the courts passed their judgment on Insulate Britain, they came down much more harshly because there was no connection between the place and the people whom the protesters were interfering with and the issue that they were arguing about. Members of Insulate Britain have gone to prison for the M25 protests because the courts take such a dim view of that lack of connection.
The point about clause 5 is that often these key national infrastructure sites are key to the point of the protest. As Liberty notes,
“one of the key ways that people seek to make their protests effective is to draw attention to sites of power”.
The manner and location of protests are key to their power. Had the suffragettes not protested in Downing Street or Parliament, but outside a building a few hundred metres away, their protest would not have had the same impact. Had the Greenham Common women not been allowed to protest around the site of the missiles, and had they instead protested in Basingstoke, they would not have had the same impact.
Kit Malthouse
I understand the parallel that the hon. Lady is trying to draw with the Greenham Common women. I do not think that they were necessarily responsible for winning the cold war, although I do believe a woman—the then leader of our country—was. Does the hon. Lady understand that although the Greenham Common protest has passed into lore, it did not actually interfere with the operation of the base? Missiles came and went, the Americans flew in and out, and the base was supplied; there was no interference. Strictly in terms of the offence that we are talking about, the protesters did not commit an offence.
Sarah Jones
I think there was interference, in that they broke through the perimeter on several occasions.
Sarah Jones
Subsection (2) concerns road transport infrastructure. As I have mentioned, we already have laws to protect roads. Wilful obstruction of a highway comes with a fine, and the Government’s recent Police, Crime, Sentencing and Courts Act 2022 increased the maximum penalty for that offence from £1,000 to an unlimited fine and/or six months’ imprisonment. Earlier, the Minister made a remark about the Labour party’s position. To clarify, we tried to limit the scope of that piece of legislation so that it applied only to motorways and A roads, and not to very small roads, and we would have supported the provisions had the Government accepted our amendment. Given the changes made by the 2022 Act, we do not understand why clause 5 on transport infrastructure is necessary. As the Labour party has said all along, there are already laws to protect roads.
I turn to rail. Let us imagine that there is a Starbucks on a train station platform, and a group of children have chosen that platform on which to protest about the lack of corporation tax that Starbucks pays in the UK. It could be platform 4 in Taunton, which I imagine would be delightful today. It could be at London Marylebone—perhaps after the protest—or at platform 1 at Coventry; there are Starbucks franchises on all those platforms. Such protests would be legitimate, I believe. This speaks to the importance of the place and manner of protests.
It is busy at Taunton, and the protestors delay the driver in getting to his train by half an hour. Does that count as infrastructure being significantly delayed? They do not mean to block the driver; that was not their intention. Under the Bill, would the Minister consider those children, or the adult who is with them, to have committed a criminal offence? Such broad-brush legislation opens up all kinds of possibilities.
Kit Malthouse
I am sure that the hon. Lady will accept that protesting on a crowded railway platform, particularly if fast trains pass through it—she mentioned Tiverton Parkway—is quite dangerous, for other passengers and for the protesters. Does she not agree that there should be some way for us to control that kind of behaviour? Byelaws on the railway need to be obeyed.
Sarah Jones
There are byelaws, and there are others laws that could be used in that situation. My point is that two children protesting outside Starbucks might be considered to have committed an offence under clause 5.
On airports, we know from evidence that all the people who cut through the fencing surrounding Stansted airport and made their way to the Boeing jet were arrested. The police had the powers to deal with them and did. Once again, the right to protest is not absolute, but the Bill will prevent potentially peaceful protests.
There was an interesting debate about newspapers in one of the evidence sessions. The hon. Member for North West Leicestershire challenged David Dinsmore on whether his newspapers counted as national infra-structure. David Dinsmore argued that they did because of the importance of providing facts to a wide audience, especially during the pandemic. When challenged about the importance of social media—I get much of my news online, as I am sure many people do—David Dinsmore pointed to the elderly section of the population, who are less likely to get their news online or via Twitter. Their daily newspapers—whether tabloid or broadsheet, printed on pink or white paper, and ranging from the Daily Mail to The Guardian—are still important. That might well be the case, but let me quote from the clause:
“‘Newspaper printing infrastructure’ means infrastructure the primary purpose of which is the printing of one or more national or local newspapers.”
The definition of a “local newspaper”, however, is relatively broad: it must be
“published at least fortnightly and…in circulation in a part of England and Wales”.
A newspaper may include “a periodical or magazine”.
Let us explore that a little more. My purpose, again, is to test the limit cases of legislation. It is important to tease out the consequences and show up the broader inferences. To take the newspaper with the widest circulation in the country, just under 1 million people read the Daily Mail, and it is sold across the country. It is a national newspaper—of that there is no doubt. David Dinsmore said:
“Between The Sun and The Times, we would normally expect to sell about 2 million papers”
on a Saturday. He went on:
“We also print for The Daily Telegraph. We print some of the Daily Mail and some of the Financial Times, and we also deliver a direct-to-consumer service, although we do not print them, for The Guardian out of the Broxbourne site”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 46, Q96.]
He makes a fair argument for that printing press providing a national service of sorts.
What other publications are included, however? There are all manner of small newspapers, including the Leicester Mercury, the Bristol Post, the Oldham Advertiser and The Rochdale Observer. Does the Minister think that those fall under the definition of “key national infrastructure”?
What about slightly more esoteric publications? I have a staffer who reads the London Review of Books, which is published every two weeks; its printing is therefore protected under the clause. I do not believe that even my staffer would argue that its printing was of key national importance, however much they enjoy it. Does the printing of the Angling Times—circulation 25,878—come under the legislation, or the Horse & Hound or Cycling Weekly? The Minister is keen on shooting. Is he among the 21,303 subscribers to the Shooting Times, and would he defend its printing as being of key national importance? I produce those examples only to highlight what we see as the flaws in the clause.
The clause is an extension of clause 4, in that it provides the definitions of key infrastructure. As I said, we have issues with clause 4, and have already debated it. We believe that infrastructure needs protecting, and we hear the anger, irritation and upset when critical appointments are missed and delays felt, but we have problems with the scope of the clause, especially given that, as we have debated, it does not include other definitions, such as one for emergency workers. Much of the infrastructure listed in the clause is already protected in law under existing police powers, and there are loopholes and inconsistencies.
Kit Malthouse
The clause supports the new offence of interfering with the operation of key national infrastructure created by clause 4 by defining the categories of infrastructure in scope of the offence.
The offence will cover major roads, railways, airports, harbours, and downstream oil and gas infrastructure in England and Wales. It will also cover newspaper printing presses, onshore oil and gas exploration and production, and larger-scale onshore electricity infrastructure. Minor infrastructure such as undesignated roads and small-scale power stations will be out of scope, as will offshore infrastructure, because much of it lies outside our territorial waters.
We recognise, however, that protest tactics evolve, and that it is entirely possible that infrastructure currently out of scope will be targeted. We have therefore included a delegated power to allow the Home Secretary to amend the list of infrastructure in scope of the offence. That will ensure that the clause keeps pace with evolving protest tactics.
I do not know about you, Mr Dowd, but I am extremely pleased to know that, once the clause passes into law, the production and distribution of the Andover Advertiser in my constituency will be protected, because it is a weekly local newspaper. The hon. Member for Croydon Central is right that local newspapers have a valuable role to play. As she knows, that industry has evolved, such that lots of newspapers are printed in the same place—rare now is the newspaper that has its own presses—and protection of the promulgation of the views in printed matter is critical.
The Ottomans banned the printing press, because they felt that it would impact on their ability to rule their empire. Those who seek to smash the presses, or to delay them, or stop the views coming out of them, should be dealt with most severely. That is what we are attempting to ensure through clause 4, as added to by clause 5, which I commend to the Committee.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Public Order Bill (Fifth sitting)
Thursday 16th June 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 June 2022 - (16 Jun 2022)
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Chair
Order. Before we begin I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during the sittings of this Committee, except for the water provided. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk or, alternatively, pass on their written speaking notes to the Hansard colleague in the room.
Clause 6
Powers to stop and search on suspicion
The Minister for Crime and Policing (Kit Malthouse)
I beg to move amendment 25, clause 6, page 8, line 23, at end insert—
“(ha) an offence under section (Offence of causing serious disruption by tunnelling) of that Act (offence of causing serious disruption by tunnelling);
(hb) an offence under section (Offence of causing serious disruption by being present in a tunnel) of that Act (offence of causing serious disruption by being present in a tunnel)”.
This amendment applies the stop and search powers in section 1 of the Police and Criminal Evidence Act 1984 to an offence relating to tunnelling under the new clause inserted by NC5 or NC6
The Chair
With this it will be convenient to discuss the following:
Government amendment 26.
Government new clause 5— Offence of causing serious disruption by tunnelling.
Government new clause 6— Offence of causing serious disruption by being present in a tunnel.
Kit Malthouse
It is a great pleasure to serve under your wise guidance, Mr Mundell, for our contemplation of this legislation today. The amendments make it clear that the protest tactic of building tunnels in order to disrupt legitimate activity while endangering the protesters themselves and the police and emergency services who respond will not be tolerated. The Committee heard last week how HS2 had been targeted on multiple occasions by people building tunnels that have caused enormous cost to the project, with three removal operations alone costing in excess of £10 million.
Even more recently, we have seen protesters from Just Stop Oil engaging in this dangerous and reckless activity at sites in Essex and Warwickshire. Aside from the costs, however, it is the risk of a fatality at one of the sites that concerns us most. Whatever hon. Members think about the merits of a particular cause and the right to protest, we can all agree that such an utterly reckless practice must not be allowed to continue.
Although the individuals may be willing to put themselves at risk, it is not acceptable that they endanger those who are called upon to remove them and repair the damage inflicted. The tunnels are often structurally unsound and poorly ventilated. In addition, the protesters resist removal, increasing the risks for those we ask to enforce the law. While removing protesters from the Euston Square tunnel, for example, HS2 reported that a protester removed part of the shoring, causing a tunnel to collapse on a contractor.
New clause 5 therefore creates a new offence of creating a tunnel, which will be committed when an individual causes serious disruption by creating a tunnel. Their action must cause, or be capable of causing, serious disruption to an organisation or two or more individuals—as we have seen in earlier clauses in the Bill—and the person must intend the tunnel to have a consequence or be reckless as to the consequence. To deter a committed cohort of protest tunnellers, the clause enables a maximum sentence of three years’ imprisonment and/or a fine. The clause also includes a reasonable excuse exemption, as have previous clauses.
New clause 6 is designed to cover those who occupy a tunnel as well as those who constructed it in the first place. They will be liable to a similar penalty of up to three years’ imprisonment and/or a fine. The threshold of serious disruption for this offence will be the same as in new clause 5. For both clauses, the tunnel has been defined as any excavation, whether it leads to a destination or is enough to permit the passage of an individual. We have also included in scope any extension or enlargement of existing natural or artificial excavations. The breadth of the definition will ensure that all stages of this dangerous tactic will be captured.
Government amendments 25 and 26 extend the Bill’s suspicion-based and suspicion-less stop and search powers to include equipment that may be used for creating or being present in a tunnel. It is clear that the police need powers to tackle tunnels proactively before they occur. Those two amendments, alongside new clause 7, which we will debate later, will allow the police to take the necessary preventive action against those they believe may be intending to tunnel, protecting the public from serious disruption.
Finally, the level of sentences for these new offences reflects the level of harm that tunnelling can cause. Not only do they cause significant disruption and cost millions of pounds to clean up, as we heard, but they place protesters and, critically, emergency workers at extraordinary risk of serious injury or death. We therefore think it is completely proportionate that the maximum sentences for these offences are as high as I have set out, for the reasons that I have set out.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to serve under your chairmanship again today, Mr Mundell.
We move on this morning to powers on stop and search. In this group, the Government are making changes, including to clause 6, through two amendments and two new clauses that deal with tunnelling, which follows the evidence we heard from HS2 about problems that were seen at its sites. It is interesting to note in the news today that an absolutely stunning Anglo-Saxon burial site has just been discovered on the HS2 route—140 people were buried with an amazing array of items. That is tangential, but interesting.
Sarah Jones
No, we cannot, as the Minister says. Government amendments 25 and 26 apply the stop-and-search powers of clauses 6 and 7 to the new offences related to tunnelling that are included in Government new clauses 5 and 6. These amendments will make it a criminal offence to cause serious disruption by creating and occupying tunnels; going equipped to create tunnels will also be criminalised. The changes include the proposed new maximum sentence, as the Minister said, of three years’ imprisonment and an unlimited fine.
I think we can all agree again today that the digging of these tunnels is incredibly disruptive and dangerous, and obviously hugely costly. As the Government’s note says, they are filled with lethal levels of carbon monoxide and carbon dioxide and the tunnels can become death traps, not just for those inside them and members of the public but for those who are required to undertake rescue operations.
HS2’s written evidence gives a clear picture of the danger and disruption, including:
“delay costs, policing, local authority costs, or the additional security costs to maintain a safe and secure compound once protestors have been removed. For a typical tunnel removal operation, HS2 Ltd employs specialists in soil composition, mine rescue, drone operation, health and safety, and paramedics. Protestors are either unaware of the danger of the situation they put themselves in, or have absolute faith in HS2 Ltd’s ability to extract them safely. The risk of a fatality occurring during a tunnelling protest is significant.
Protestors rely on HS2 Ltd’s contractors to monitor air quality, supply air and to remove human waste from the tunnels…During the Euston eviction operation, a protestor removed shoring that caused a tunnel to collapse on a rescue contractor. Whilst the latter incident caused only minor injury, the ongoing threat to the lives of HS2’s staff and protestors is clearly in evidence.
Air quality is often poor inside make-shift tunnels and sometimes…deadly. Deadly levels of carbon monoxide and dioxide were found in tunnels at Small Dean, for example, and the removal team had to provide an air supply to avoid the occupants being overcome and experiencing breathing difficulties. The provision of a constant air supply is not always possible as some ground conditions mean that there is a risk of further instability and risk of collapse being created if the soil is dried out by the provision of air. Tunnels can be extremely deep and are often inadequately shored creating a very real risk of collapse”.
Nobody has the right to put other people’s lives in danger with this kind of dangerous act. As we heard, the removal operation following tunnelling by protesters at Small Dean in Buckinghamshire in 2021 added more than £4 million to the cost of HS2.
The act of digging a tunnel by a group such as Just Stop Oil or those at HS2 in Euston is already a criminal act—we have had this conversation already. Like most of the offences introduced in this Bill, tunnelling is already covered by existing offences. Aggravated trespass with a prison sentence of three months and criminal damage with a prison sentence of up to 10 years could both apply here.
Kit Malthouse
The hon. Lady has raised the issue of the aggravated trespass offence on a number of occasions as a charge that can be used, so I asked my team to look at why aggravated trespass is not necessarily ideal. What we have found is that in a number of situations, not least with HS2, defendants against aggravated trespass in court claim that they are disrupting unlawful activity. That shifts the burden of proof on to, in this case, HS2 to prove that what it was doing was lawful. For example, at the Euston Square Gardens tunnel aggravated trespass was used, and HS2 was required to present to the court what work was being carried out on the land at the time the protesters were in the tunnel and show it was lawful. The case was dismissed by the judge on the grounds that no construction was being carried out on the land at the time. This failed to recognise that HS2 could not start substantive work on the land because protesters were in the tunnel. This specific offence will cover that.
I am sure the hon. Lady also recognises that a tunnel may cross between different ownerships of land and between public and private land. That legal complexity causes a problem. While I understand that she is cleaving to aggravated trespass in many of her oppositions to these clauses, actually, this issue of the protesters being able to reverse the burden of proof is hugely problematic. That is what we are seeking to address.
Sarah Jones
I thank the Minister for that substantial intervention. I would answer with the words of the police themselves on that very point. The National Police Chiefs’ Council lead in this area said of the Government’s plans to make it an offence to cause serious disruption by tunnelling—or be present in a tunnel or equipped for tunnelling—that:
“Whilst forces have experienced tunnelling in recent operations, we do not believe that a specific offence around tunnelling will add anything above and beyond our current available powers.”
I think that is really significant. The police have not asked for this offence, and they do not believe it is necessary at all. They believe the existing powers they have are enough to deal with these protests. This is a point we keep coming back to. We have talked through this. I will not read it out again, but I was looking for my list of all the other offences people can be charged with in different circumstances. The police have a raft of powers and say themselves that in this case they do not need these powers. They have broad catch-all ones such as breach of the peace and very specific ones with options for long custodial sentences to deal with and manage protests that are disruptive. Two key issues come up time and again with these new offences. They are either going to be difficult for the police to put in practice or they will make no different to the time it takes to deal with the disruption.
Kit Malthouse
Sorry, I should have been clear in what I said earlier. I heard the evidence by the National Police Chiefs’ Council lead. The problem is not necessarily the police’s ability to remove and charge those individuals. The problems, as I outlined in the example I used, come in the courts. The current suite of offences that are being incurred gives wriggle room for protesters to make this claim and reverse the burden of proof. I am sure the hon. Lady will agree that what happened at Euston Square was very dangerous, and I hope she agrees that an offence was committed, but at Euston Square they were able to avoid punishment for what they did by using this technicality.
Sarah Jones
I will say two things. First, there is a raft of powers, not least injunctions. HS2 has used injunctions successfully and is currently applying for this whole-route injunction. We will see what comes of that. The second point is an interesting one that we can debate further another time. It is that the courts take different views according to what people are protesting and where. They are more sympathetic to people who are protesting the thing they are against than they are when people are disrupting the public more widely. That is why they have sent people to prison for blocking motorways and have taken a different view on things like the Colston statue.
There is an interesting point about how the courts interpret these things, but I think all these issues come into play when looking at this. We do not believe it is going to make any difference to the time it takes to deal with the disruption, which is important, because that is a core part of the problem itself. Sadly, we do not think it will make the protest removal teams safer when trying to get protesters out. We do not think it will be a deterrent to those repeat offenders we have talked a lot about or that it will speed up the complex and time-consuming removal process.
Lee Anderson (Ashfield) (Con)
I speak with some experience on the matter because I was a tunneller; I worked underground in coalmines in Nottinghamshire and Derbyshire for many years. It is a dangerous, dirty and horrible life-risking job, so I would welcome any measure that acts as a deterrent—it is a drastic measure. Does the hon. Member not agree that we should be doing everything in our power to stop these people doing this?
Sarah Jones
I agree with the hon. Gentleman’s frustration, but I listen to the police when we look at what they need. They are saying that this will not help them. I would listen to them, and I would look at the existing powers. I want to read some more of the written evidence from the National Police Chiefs’ Council lead on public order and public safety, who states:
“A specific offence would likely not change how these are operationally handled as whatever the offence the practical safety considerations of dealing with people in tunnels would remain. There is current legislation, such as that contained in the Criminal Damage Act 1971, that creates offences of damaging property and having articles to damage property. With the associated powers of search these allow the Police to find articles or equipment intended to cause damage. An additional significant concern is that any specific offence relating to tunnelling would apply to private land. This again could place a significant responsibility on policing. We ask that if considered that this offence is restricted to public places.”
That was the NPCC highlighting a few concerns it has with the plans.
Clause 6 and new clause 5 seem to apply to tunnelling everywhere except
“to the extent that it is in or under a dwelling”,
so any offence to do with tunnelling applies to private land, even if it is under a dwelling—essentially, a place where people live. Take the example of protests taking place against a particular farmer for growing a crop in a private field that protesters oppose or for another matter. If the protesters tunnel under the private field, which could cause disruption and is annoying for the farmer, but it does not destroy the crops, what should happen? There are some complications in terms of the police concerns, which we need to bring to light here.
Chris Noble said in his oral evidence:
“this probably goes to the core of one of the key issues that police are keen to discuss within the Committee—the vast majority of that work is done by the landowners and private companies that are skilled and experienced within this work. While I have some dedicated resources allocated to that at present, if that responsibility was to significantly shift to policing, it would cost me… in the region of £80,000 a day to resource that. It would need significant officer resources, which clearly would need to come from elsewhere”.
That is crucial.
He said:
“The key… is not so much even, necessarily, an offence around tunnelling, because we may well have powers that, broadly speaking, exist to deal with it—we are keen to develop that conversation. The challenge is in preventing it in the first place, and then in how we can work with industry and landowners”
so we can
“potentially remove individuals more quickly.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 12, Q14.]
The challenge is how to prevent tunnelling. The new powers replicate powers the police already have, and we agree with the NPCC on a lot of their concerns.
The NPCC also raised concerns about the responsibility that the new offences will place on police. The Bill has drawn out a bit of conflict between the police and private companies, which is interesting. John Groves from HS2 said:
“Certainly, there is frustration from my team on the ground that the police are not more direct with some of the protesters”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 23, Q43.]
Then we have the police asking the Government to consider that this offence is restricted to public places. Surely the intention of Government legislation like this is to make the lives of the police and private companies building infrastructure easier. It is perhaps problematic when complications are raised on both sides. We need to be mindful of the position that this may put the police in, blurring the lines of public and private that we understand. Policing of protests is called public order policing for a reason: it is usually about protests happening on public land.
Kit Malthouse
I understand the argument that the hon. Lady is making, but I think we have accepted the principle that what these people are doing is not protesting. They are effectively committing a crime, and it is a well-established principle that regardless of whether a crime—for example, a burglary—is committed on public or private land, the police will apprehend, prosecute and investigate. Unless the hon. Lady is saying that tunnelling is a legitimate protest—notwithstanding the dangerous things that we have all talked about, and the cost—I do not understand her argument. Secondly, it is worth bearing in mind that regardless of whether the cost falls on HS2 or the police, it is falling on the taxpayer.
Sarah Jones
The point I was trying to make was to echo the concerns that the police have expressed about the expectation on them to go and do things on private land, the cost associated with that, and the need to deal with that issue. To reiterate, they have said that they think there are already suitable powers for them to stop people when they are committing a criminal act, which we agree tunnelling is. They have said they do not need this extra power. There is also criminal damage, which carries a sentence of up to 10 years in prison, so there are different forms of offences that we can look to.
With regard to the new powers, there is also the issue of training. According to the Police Foundation, over the seven years up to 2017-18, 33 forces reduced their budgeted spending on training in real terms by a greater percentage than their overall reduction in spending. Some 40% of police officers say they did not receive the necessary training to do their job, so I am concerned that many things in the Bill, particularly the new clauses, need to go along with properly resourced training to make sure that people understand and know what the new powers are. We have talked about the complexities of introducing new laws and expecting the police to understand them all many times before, not least with all the covid legislation.
Kerry McCarthy (Bristol East) (Lab)
I thank my hon. Friend for mentioning that, because it is something that has been bothering me. As I have said before, I was with the police in the operation centre when they were looking at protests in Bristol. Part of the briefing before protests involves telling the police what offences might be committed, what to look for and so on. We have a plethora of offences, and they have to make judgments on whether something is a serious disruption. The more complex it is, the more difficult it will be for the police to know what they are supposed to do when they are out on the streets in a very difficult situation.
Sarah Jones
I thank my hon. Friend for that perfect point. This is the challenge that policing has, and we have seen it with the recruitment of new officers as well. We need to make sure that everybody has the right training and understands the legal routes that they can use, and piling new and complex legislation on top of what we think is satisfactory legislation is problematic.
Mrs Natalie Elphicke (Dover) (Con)
Having listened carefully to the hon. Lady, I have become more concerned about the complexity of the current situation that the police find themselves in. Is tunnelling okay if it is under a field because someone does not like genetically modified crops? What if the tunnelling is to do with something that will happen in the future, such as HS2? It seems to me that the Bill is a very clear piece of legislation that will address the public order issues that exist today. We will know that tunnelling is criminal, and it will be stopped under the Bill. I, too, have been in control rooms dealing with public order issues down in Dover, and it will make the police’s job easier to have the kind of clarity that the Bill will bring.
Sarah Jones
I refer back to the fact that the police themselves do not share the hon. Lady’s view. In this case, what they are saying is perfectly sensible. I do not think anybody is saying that we want people to be tunnelling in dangerous situations and putting people’s lives at risk; nobody wants that. Everybody agrees that there should be criminal sanctions. That is not the point.
Moving to deterrents and whether this measure would act as one, companies like HS2 hope that it will. It said many times in evidence that it was not an expert on the legal side, but that it hoped the measures would be a deterrent. HS2’s written evidence refers to how it is pursuing the route-wide civil injunction. It reads:
“Whilst, if granted, it is hoped that the route-wide injunction will significantly reduce disruption to the project caused by trespass and obstruction of access, it is unlikely to eliminate the problem.”
HS2 also writes that civil injunctions
“serve as a relatively effective deterrent to unlawful (in the civil legal sense) activity by some groups of protestors”.
We will talk about injunctions later, but as HS2 says, it is a relatively effective deterrent—if not also expensive.
The Government will take ages to implement more offences. My hon. Friend the Member for Stockton North made a speech on Tuesday about the court backlog. If we are adding new and complex criminal offences, maybe we need to sort the court backlog and the record 708 days it takes on average from offence to completion of a case. That is an extraordinarily long period of time. The longest delay from offence to completion was in Bournemouth, which recorded waits of 23 months in 2021.
I will conclude my remarks at this point by reiterating that we think tunnelling is very dangerous and that it is a difficult issue. There are existing laws in place, and we do not think that these measures are the answer. Therefore, we are not entirely convinced by the Government’s arguments today.
Amendment 25 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Kit Malthouse
It is clear that police need the powers to proactively prevent criminal protest activity before it occurs. The hon. Lady has put great store by the evidence of the National Police Chiefs’ Council. She will recall it specifically saying that the ability to stop and search people in and around protests would be helpful, and in its report on the policing of protests, Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services argued that stop-and-search powers would improve the police’s ability to prevent serious disruption.
Clause 6 extends existing suspicion-led stop-and-search powers to a range of protest-related offences. Police officers will have the power to stop and search anyone they reasonably suspect is carrying items that could be used for locking on, obstruction of major transport works, interference with key infrastructure, public nuisance, obstruction of the highway or the new offences of tunnelling and being present in a tunnel, which have been tabled as Government amendments to the Bill. Existing safeguards, including statutory codes of practice, body-worn video to increase accountability and extensive data collection will continue to apply to ensure that the police use stop and search in an effective and proportionate manner.
While I understand the concerns that have been shared about the expansion of stop and search widely in society, it is clear that these powers are required to allow the police to take the necessary action to prevent the small minority of determined protesters causing serious disruption. I commend the clause to the Committee.
Sarah Jones
Clause 6 amends section 1 of the Police and Criminal Evidence Act 1984—PACE, as we call it—to allow a constable to stop and search a person or vehicle if they have reasonable grounds for suspecting that they will find an article made, adapted or intended for use in the course of or in connection with a range of offences listed in the Bill. The exercise of stop-and-search powers under section 1 of PACE is subject to PACE code of practice A, which will be updated to reflect the extension of the section 1 powers. This gives the police wide-ranging powers to stop and search anyone in the vicinity of a protest, such as shoppers passing a protest against a library closure. In the words of Liberty:
“This amendment constitutes a mass expansion of police powers through the creation of protest-specific stop and search. This is in spite of the fact that there is no consensus among the police that protest-specific stop and search is necessary or desirable.”
Alex Cunningham (Stockton North) (Lab)
My hon. Friend will recollect that when she and I worked on the Police, Crime, Sentencing and Courts Act 2022, many issues were raised about the disproportionate effect that that legislation would have on young black people. The same applies here. What comments would she make about how, yet again, we will see a disproportionate effect on people of ethnic minorities?
Sarah Jones
As always, my hon. Friend makes a good point. I will come on to talk about that in my later remarks.
Lord Kennedy, in the Lords, said:
“the Government are mirroring laws that currently exist for serious violence and knife crime.”
He went on to say that
“these measures apply to peaceful protesters, not people carrying knives or causing violence.”—[Official Report, House of Lords, 24 November 2021; Vol. 816, c. 992-993.]
Matt Parr, Her Majesty’s inspector, said that current suspicionless stop and search powers
“are intended to be used by the police to combat serious violence and the carriage of ‘dangerous instruments or offensive weapons’. Using a similar suspicion-less power to target peaceful protesters, who may cause serious (but non-violent) disruption, is a significantly different proposition. Given the potential ‘chilling effect’ on freedom of assembly and expression in terms of discouraging people from attending protests where they may be stopped and searched, we would expect any new suspicion-less powers to be subject to very careful scrutiny by the courts.”
In the same document, it was said that
“police officers highlighted operational difficulties in the targeted use of the power. Others were also concerned over the proportionality of any search as well as the potentially intrusive nature when looking for small items.
One officer reflected that the proposal had ‘complications’ – for instance, whether an otherwise innocuous items was really intended to be used to lock-on. He said that having a tube of superglue in your pocket, or chain and padlock that you intend to use to lock your bike, ‘doesn’t prove intent and presents difficulties’.”
Kerry McCarthy
Concern about that has been expressed in Bristol. There are a lot of cyclists in Bristol and many who would be carrying bike locks around with them. College Green is the area where people tend to congregate if there is going to be a march or a protest. However, there would be an awful lot of people in that area who might well be carrying things that, if the police wanted to be difficult, might put them under suspicion. Does my hon. Friend share my concern? [Interruption.] I do not quite know how it works if I am intervening. I am intervening on my shadow Minister, not the Minister.
The Chair
The Minister will have the opportunity to have his say at the end of this discussion.
Sarah Jones
That is absolutely right, and it is one of our issues with the Bill in general and this clause in particular. The powers are being made so broad that it makes it difficult for the police to interpret them in a meaningful way. If somebody is searching for a knife, drugs or a gun, they know if they have found it. It is a criminal offence there and then. It gets more complicated when stop and search is extended to somebody who may or may not be peacefully attending a protest but who still could be stopped under the new powers.
Andrew Bridgen (North West Leicestershire) (Con)
Surely if someone were using their bicycle to travel to a protest, when they got to the protest they would have already got off their bicycle and used the chain to secure it in place. They would therefore arrive at the protest without the cycle lock.
Sarah Jones
They might be pushing their bicycle through the centre of the protest and their bicycle lock would be on their bicycle. That would be covered under the Bill. The lunacy of that is in the legislation, not our interpretation of it. It is a fact.
Lee Anderson
Does the hon. Lady really believe that our police are that daft that they would arrest somebody for carrying a lock when they are on their push bike going to a protest or wherever else? Does she really believe that?
Sarah Jones
I do not believe that our police are daft at all. I am a big champion of our police and a supporter of everything that they are trying to do. The point is that if someone goes to a protest and is carrying an item such as a bike lock, they could be stopped by the police and that that will have a chilling effect on protesters—not on the protesters we have been talking about who are about to lock on, who glue their hands to things and do need to be arrested and charged for the disruption that they cause, but on anybody else who wants to attend a peaceful protest. We are slipping from a society in which peaceful protest is a right and something that we encourage to one in which we want everybody to think twice before they go on a protest. I do not think we want to be that kind of country.
Kerry McCarthy
To give one example, a few years ago there was a protest in Bristol that involved people blocking the road by sitting and laying their bicycles down in it. That would potentially mean that they would have bike locks on them and could be subject to stop and search, would it not?
Sarah Jones
My hon. Friend is right. I urge colleagues to read the powers in clause 6. They are very clear and broad.
When Her Majesty’s inspectorate of constabulary and fire and rescue services consulted police on the Home Office’s proposal for a new stop-and-search power, one officer said that
“a little inconvenience is more acceptable than a police state.”
That was a police officer speaking. HMICFRS went on to state that it agreed with that sentiment.
As I have said already, stop and search is a useful tool. It is important in preventing crime. But it is an invasive power and can be counterproductive and undermine the legitimacy of and trust in policing if it is not used correctly. Rightly, it is designed to be used to prevent the most serious crime—knife crime, or drug dealing—and the police themselves have recognised serious concerns about disproportionality and that those who are black are much more likely to be stopped and searched than those who are white.
Marco Longhi (Dudley North) (Con)
A lot of the suggestions coming from the shadow Minister seem to be predicated on the basis that the police do not know what they are doing and that they are completely devoid of any sort of common sense. We all have to acknowledge that no one is perfect. The police will not be perfect, the law cannot be perfect and we are certainly not perfect. We are trying to give the police the widest possible tools that they can have to prevent the public from being disrupted to the extent we have seen so far. It is about the application of common sense and it seems to me that everything that is coming from the Opposition is about trying to stop that happening and effectively sending out a message that they are not on the side of ordinary citizens.
Sarah Jones
I completely disagree. I am absolutely on the side of ordinary citizens, and the evidence I am referring to comes from the police, not direct from me. I am quoting police officers who took part in the consultation back when Matt Parr did his report, and I am raising organisations’ concerns. The police have talked about the disproportionate nature of stop and search; this is not me speaking, but them. Let me quote the recent Independent Office for Police Conduct report on the matter:
“Stop and search is a legitimate policing tactic…The powers have been described as an important tool in dealing with knife crime and drugs, in particular. However, its disproportionate use against people from a Black, Asian, or other minority ethnic background, particularly young Black men, has been a concern for many years and it remains one of the most contentious policing powers.”
Unlike when the Minister was in the Mayor’s office—stop and search went down in every year for which the Prime Minister was Mayor of London—we are debating this against the backdrop of a significant increase in the use of stop and search. In the year ending March 2021, the use of stop and search increased by 24%.
Kit Malthouse
For the sake of accuracy, when I was Deputy Mayor for policing, stop and search increased. The hon. Lady is quite right that it decreased in the second half of the Mayor’s eight-year term. By then, we had got on top of the number of knife crime murders that were happening across London, not least in her constituency—although she was not the Member of Parliament then.
I want to address the issue of disproportionality. No one would deny that when stop and search is used for violence, there is disproportionality, particularly in London although not uniformly across the country. However, we are talking about stop and search in protest situations. For those numbers to show up in stop and search relies on the population in a vicinity of protest being disproportionately reflected demographically. I worry that in their desire to undermine the policy, the Opposition are conflating the two. There is no reason why people showing up to an Extinction Rebellion protest should be stopped and searched disproportionately compared with their demographic background, unless half the people who show up to the protest happen to be from a minority background. We would hope that the stop and search numbers would reflect the population coming to the protest.
The Opposition seem to think that the country is filled with police officers just waiting for their moment to stop and search us, or just looking for an opportunity to be difficult. The hon. Member for Bristol East spoke about the police wanting to be difficult, as if they ever want to be difficult. That indicates a lack of trust in the ability of our police to exercise, as my hon. Friend the Member for Dudley North said, exactly the kind of discretion that we ask them to use every day on the streets, whether in a protest environment or not. I know that the hon. Member for North East Fife has great experience of the fact that we rely on our police officers to use their discretion and judgment. In these circumstances, we are talking about suspicion-led stop and search. There have to be legitimate reasons why the police would stop and search somebody.
Sarah Jones
I would be worried if the Minister were not considering these issues. Disproportionality means that if somebody is from a different race—in this case, particularly if they are black—they are more likely to be stopped and searched than they would be if they were white. It has nothing to do with the make-up of criminals; it is to do with disproportionality. The report by the NPCC and the College of Policing—I am sure the Minister has read it—talks at great length about the problem of disproportionality and how it needs to be tackled. In previous conversations in the Police, Crime, Sentencing and Courts Bill Committee, the Opposition have said that we need to get those things right before we expand powers. The police would agree that there is a big problem to be fixed.
Wendy Chamberlain (North East Fife) (LD)
I would characterise Opposition parties’ arguments in this Committee as seeking clarity to help the police and the legal system. Our role as legislators is to provide that clarity. The hon. Member for Bristol East highlighted in the evidence session last week that people arrested in relation to the destruction of the Colston statue were acquitted. We are asking for clarity in legislation, to enable the police to make the right decisions and be supported on that, and to encourage the courts to follow through on.
Sarah Jones
I agree. This is about clarity in law to enable the police to do their job. The Government are introducing sweeping and increasingly wide-ranging powers to cover things that stop and search has not historically been used for, and the Opposition think that is wrong.
Kit Malthouse
Clause 7 builds on the Government’s plans to give the police the powers they need to prevent serious disruption at protests by introducing suspicion-less stop and search powers. The hon. Member for Croydon Central referred in her previous speech to both suspicion-led and suspicion-less stop and search.
Although the extension of suspicion-based stop and search powers, provided for by clause 6, will help the police to manage disruptive protests more effectively, it is not always possible in high-pressure, fast-paced protest environments for officers to form reasonable suspicion that individuals may be about to commit an offence. Clause 7 therefore introduces a suspicion-less stop and search power for the offences covered under clause 6.
If an officer of the rank of inspector or above believes that any of the specified offences may be committed in their police area and that individuals are carrying prohibited objects for the commission of those offences, officers may stop and search individuals and vehicles within the area specified by the senior officer, whether or not they suspect those individuals are carrying prohibited objects. If such items are found, the police may seize them.
These powers are modelled on existing suspicion-less stop and search powers available under section 60 of the Criminal Justice and Public Order Act 1994. The powers are well understood by the police, and emulating them prevents confusion between the powers and the complication of officers’ training. As with section 60, powers under clause 7 may not last longer than 24 hours unless an officer of superintendent rank or higher deems it necessary to extend them by a further 24 hours. Such an extension may happen only if senior police officers deem it necessary to prevent the offences in scope from being carried out or to prevent prohibited objects from being carried.
The hon. Lady criticised both suspicion-led and suspicion-less stop and search, and I hope I can allay some of her concerns. As with all stop and search powers, we believe, as she does, that no one should be stopped based on a protected characteristic, and there are safeguards to ensure these powers are used proportionately. This point was emphasised by Her Majesty’s inspector in the recent report on the policing of protests, in which he recognised that
“the proposed new power has the clear potential to improve police efficiency and effectiveness”
in managing protests, so long as they are
“subject to strong and effective safeguards”.
As the hon. Lady knows, we intend to amend PACE code A. We regularly review safeguards, and we now collect more data on stop and search than ever before. That data is posted online, enabling police and crime commissioners and others to hold forces to account. It is also important that communities hold PCCs to account through the electoral process, as I am sure she would agree.
We have responded to the “Inclusive Britain” report by saying that we intend to enhance the safeguards through the development of a national framework for scrutiny of stop and search by local communities, and through the consideration of any unnecessary barriers to the increased use of body-worn video. We also asked the College of Policing to update its stop and search guidance to ensure fair and proportionate use. The updated guidance, which is available to all forces, was published in July 2020 and provides best practice examples of community engagement and security. HMICFRS continues to inspect regularly on stop and search.
Sarah Jones
It is slightly worrying how the Minister talks about this differently from his own police. The NPCC and the College of Policing talk about it in a very different way. They say that stop and search is an important tool—on which we all agree—but that its implementation is disproportionate and lots of work needs to be done to fix that. The Minister seems to be saying that it does not need to be fixed. Perhaps he should talk to the NPCC, the College of Policing and those who put that report together to ensure that they are on the same page as him.
Kit Malthouse
Notwithstanding the hon. Lady’s patronising tone, I speak to the National Police Chiefs’ Council and senior police officers all the time. In fact, I have lived the stop and search journey for the last 14 years. I have probably spent more time than most talking to people in communities that are affected by violence and where stop and search is regularly utilised about its challenges and its efficacy in protecting people.
I repeat what I have said in the House: I have often been challenged during those 14 years on the disproportionality in the use of stop and search, but I have never been challenged on the disproportionality in the people who are killed with knives. No one has ever said to me that it is a total disgrace that the vast majority of those people are young black men. I would welcome that challenge and a proper set of solutions to that problem.
Sarah Jones
That is a completely unreasonable distinction to make. I have challenged the number of young black men who have been murdered in my constituency many, many times. Indeed, that is why I set up the all-party parliamentary group on knife crime and why I have worked on that exact issue ever since I entered Parliament. The two things are not comparable. Just because most victims of knife crime murders happen to be young black men in London, that does not mean that the majority of black people are criminals.
Sarah Jones
No, but I am saying that the two are not connected, and we cannot connect them. The victims are often young black people—I find that as awful as anybody else would, and I have campaigned to do something about it—but that is not the point. The point is that stop and search is disproportionate not because of the nature of crimes, and not because of the victims of crimes, but because it is disproportionate.
Kit Malthouse
I understand what the hon. Lady is saying, but there are complicated reasons why stop and search is disproportionate. Some of them are to do with geography, some with offence types, and some with the way that section 60 is used. I do not think that it is entirely cultural within the police.
There are other disproportionalities of concern. On cannabis possession in London, for example, which the hon. Lady mentioned, there is a strange disproportionality that does not, in my experience, reflect the pattern of cannabis use in London. We need to pay some attention to that. Having said that, I do not necessarily think that that problem and the solutions to it should be a barrier to using the stop-and-search power.
We heard clearly from the National Police Chiefs’ Council’s lead for public order that the use of stop and search—both suspicion-led and, in a fast-moving protest situation, suspicion-less—would be useful and enable police to get ahead of and prevent some of those offences. Indeed, I think I remember him saying that if police had those powers, it would result in less of an infringement on the rights of protestors. We therefore believe that the case has been made.
Sarah Jones
I will spend a bit of time of clauses 6 and 7 as they are the two important chunks that address suspicion-led and suspicion-less stop and search. The further stop-and-search clauses contain additional but less significant provisions.
Clause 7 addresses peaceful protest as if it were a social ill akin to knife crime, terrorism, serious organised crime or other situations in which people are stopped and searched. Section 1 of the Police and Criminal Evidence Act already allows officers to stop and search those whom they have reasonable grounds to suspect possess stolen or prohibited articles. For the purposes of section 1, prohibited articles include any item that has been made or adapted to be used to cause criminal damage. That would cover most of the scenarios that the Government are worried about.
The issue is that lock-ons, which we have debated and agreed have caused significant problems, are infrequent compared with protests as a whole. There might be a very large protest of 100,000 people, with 10 people or fewer trying to do something disruptive or illegal. That does not make the entire protest illegal; it makes those protestors unlawful. Our concern about the even broader extension of the powers, and the Bill more widely, is that we are not criminalising the criminals; we risk criminalising the vast majority of the people who want to protest and have their say on the issues of the day.
I am sure Matt Parr must be pleased, because we talk about him so much in Committee. The Minister is absolutely right that he agreed that the power could be a useful tool, but he listed a lot of concern in his report about how it would be implemented:
“Current suspicion-less stop and search powers for weapons…are intended to be used by the police to combat serious violence and the carriage of ‘dangerous instruments or offensive weapons’. Using a similar suspicion-less power to target peaceful protesters, who may cause serious (but non-violent) disruption, is a significantly different proposition. Given the potential ‘chilling effect’ on freedom of assembly and expression in terms of discouraging people from attending protests where they may be stopped and searched, we would expect any new suspicion-less powers to be subject to very careful scrutiny by the courts.
Such powers could have a disproportionate impact on people from black, Asian and other minority ethnic groups. We have repeatedly raised concerns about the police’s disproportionate use of stop and search in previous inspection reports…If and when contemplating the use of such powers in future, forces will need to carefully consider the demographic composition of the protest groups concerned. The importance of this issue should not be underestimated.
We would wish to see appropriate legal thresholds and authority levels set for authorising the use of the power, and the use of such powers monitored in a similar way to existing stop and search powers…When a person is stopped and searched, they may make an application for a written statement that they were searched. We would also wish to see high standards of training, vigilance and caution in the use of such a power”.
It is a well-used expression, but this is using a hammer to crack a nut. We do not want all the peaceful protesters to be hammered by the legislation when they are not doing anything unlawful.
Marco Longhi
The hon. Lady made a point moments ago that she has the unfortunate situation of BAME members of her community being killed because of knife crime. We are ignoring an important statistic, which is the fact that very often, people who come to harm or die because of knife crime do so as a result of the knife they have brought themselves. I hear what she is saying, but the measure is about saving lives and saving people from harm. I come back to the point that we are trying to have a common-sense approach that will save lives. If that has such a chilling effect on people attending so-called protests, then I wonder whether there is a balance that we need to consider. Which is more important, the saving of lives or the potential disruption to people’s willingness or want to participate in demonstrations or protests?
Sarah Jones
I do not think that anyone is arguing that we should not have stop-and-search powers for knife crime. Absolutely, in a lot of knife crime cases, who the victim or the perpetrator is depends on whoever happens to win the fight at the time. That is very difficult to deal with, but it is not relevant to this argument, which is about giving the police disproportionate powers to deal with a situation that they already have powers to deal with, in the meantime potentially criminalising people who would not have been, and should not be, criminalised.
The concerns about disproportionality exist for suspicion-less stop and search far more than for suspicion-led stop and search. The more ambiguity and the greater lack of evidence there is for who should be stopped, the more the disproportionality increases. This is something that the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), was very interested in when she was Home Secretary. She insisted that stop and search be intelligence-led, and there was an improvement on her watch in the proportion of people who were found to be carrying something illegal. I think the figure at the moment is that one in 100 stop and searches for knives under section 60 leads to the discovery of a knife. We absolutely want to find that knife, but 99 stop and searches is a lot of police time and resources, and there are other ways to gather intelligence and solve crime.
I want to stress how many organisations are concerned about the powers. We have been very lucky to have people give evidence and write to us about their concerns. Organisations believe that the powers are incompatible with article 11 of the ECHR and article 21 of the international covenant on civil and political rights, as they relate to freedom of peaceful assembly. During the debate on the Police, Crime, Sentencing and Courts Bill in the Lords, Lord Carlile compared the powers with the use of stop-and-search powers under the Terrorism Act. He noted that:
“The Terrorism Act stop and search power is there for the prevention of actual acts of actual terrorism which kill actual people.
The dilution of without-suspicion stop and search powers is a menacing and dangerous measure.”—[Official Report, House of Lords, 17 January 2022; Vol. 817, c. 1435.]
In a similar way, Liberty has noted that stop and search without suspicion has normally been used
“in the context of crimes that will potentially kill many, many people.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 75, Q145.]
Lord Carlile concluded that the power
“is disproportionate, and the Government should think twice about it.”—[Official Report, House of Lords, 17 January 2022; Vol. 817, c. 1435.]
In its oral evidence, Amnesty noted that
“the proposal fails the test of lawfulness…the confiscation powers that go behind the stop-and-search powers around the locking-on offence capture an enormously broad range of items that an officer could argue might be capable of causing an offence. You have so many caveats that you will get into a situation where an ordinary person could have no idea why they were stopped, or why somebody might be taking an item off them that was completely lawful—everything from string to a bit of glue. It fails on that basic principle of lawfulness, which I think is incredibly problematic.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 75-76, Q145.]
The list of bodies and individuals—including HMICFRS, the College of Policing, former police chiefs and the right hon. Member for Maidenhead—have highlighted issues and broad concerns about suspicion-less stop and search. I say to the Minister that a whole raft of work is being done by the NSPCC and the College of Policing, and that should be done before we try to extend such extreme powers to the police without putting in place any measures to stop the disproportionality.
I will leave it there. We have the same view on clause 7 as we did on clause 6: we do not think it is necessary or proportionate. We think that it will criminalise potentially innocent protesters and that the Government should think again.
Question put, That the clause, as amended, stand part of the Bill.
Kit Malthouse
The clause makes further provision as to how police officers should authorise the aforementioned stop and search. It extends to the British Transport Police. It is self-explanatory.
Sarah Jones
Amendment 8, tabled by the hon. Member for Glasgow North East, is supported by me and the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), and we believe the clause should be struck from the Bill.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9
Further provisions about searches under section 7
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
The clause provides that anyone searched or who has their vehicle searched under the new suspicion-less stop-and-search powers is entitled to apply for a written statement from the police confirming that they have been searched. That is in line with the existing stop-and-search powers, and a number of forces will allow a person to do that electronically. It also allows the Home Secretary to make regulations, subject to the negative resolution procedure, governing the retention, keeping and disposal of prohibited objects seized by the police under these powers.
Sarah Jones
We agree with amendment 9, tabled by the hon. Member for Glasgow North East, and we would leave out the clause.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clause 10
Offence relating to section 7
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
Anyone who intentionally obstructs a constable exercising suspicion-less stop-and-search powers under clause 7 commits an offence, with a maximum penalty of one month’s imprisonment or a level 3 fine. That is in line with other stop-and-search powers.
Sarah Jones
We support amendment 10, tabled by the hon. Member for Glasgow North East, and we would leave out the clause. We do not support the measure. Liberty has suggested that a consequence of the offence is that it could be used to target legal observers who may be stopped and searched on their way to a protest for carrying items such as bus cards or for wearing an identifiable yellow bib. There are legitimate concerns that should be considered, so we do not support the clause.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Processions, assemblies and one-person protests: delegation of functions
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
The clause reflects a request from the Metropolitan Police to reflect the differential rank structure with regard to the delegation of powers of authorisation such that an assistant commissioner in the Metropolitan Police can delegate the authorisation powers to a commander, which would be different from other forces in the rest of the UK, but it seems a sensible and proportionate measure, given the differential rank structure.
Sarah Jones
We have no issues with the clause. To quote Matt Parr in the evidence session:
“That strikes me as entirely pragmatic. If you look at the Met, the real expertise in public order tends to be at commander rank, rather than above, where people get a bit more generalist. The deep professional experts in London, in my experience, are the commanders. That strikes me as perfectly sensible.”––[Official Report, Public Order Public Bill Committee, 13 June 2022; c. 56-57, Q117.]
We agree.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Serious disruption prevention order made on conviction
Wendy Chamberlain
I beg to move amendment 38, in clause 12, page 12, line 16, leave out
“on the balance of probabilities”
and insert “beyond reasonable doubt”.
This amendment would raise the burden of proof for imposing a serious disruption prevention order to the criminal standard.
The Chair
With this it will be convenient to discuss amendment 39, in clause 12, page 12, line 21, leave out
“on the balance of probabilities”
and insert “beyond reasonable doubt”.
This amendment would raise the burden of proof for imposing a serious disruption prevention order to the criminal standard.
Wendy Chamberlain
The purpose of these amendments is to raise the burden of proof in relation to SDPOs to the criminal standard, rather than the balance of probabilities. Simply put, there is a reason why we use a higher bar for crimes that result in people being fined or losing their liberty, and the risks are the same here. One condition of an SDPO could be that someone has to wear an electronic monitor and have their every movement tracked. Given the impact on day-to-life, it is not acceptable that that could be imposed just because the evidence suggests that the offence is more likely than not to have been committed. Justice requires that people are given due process, and it is vastly inappropriate for a low standard of proof to be used when we are, effectively, taking away someone’s rights and restricting their movements. I think this measure shows that we are slipping into a concerning state of affairs, and that is why my amendments suggest that the situation should be rectified.
I also want to talk about keeping trust with the public, and I am thinking of Peter Fahy’s comments last week about the challenges of dealing with protests. Our concern with the legislation is that when the police fail to deal with things effectively, they are seen as incompetent, and that risks public trust. For the public to have trust, they must feel that punishments are fairly applied. We heard a lot in the evidence sessions last week about the importance of policing by consent. That is something that I am passionate about as a former police officer, and it is what makes British policing unique. It is a fundamental principle enshrined in our justice system, and to maintain this consent and to further trust, people must know that sanctions are applied fairly.
Sarah Jones
I do not wish to add to what the hon. Lady has said, other than to say that we agree with the amendments.
Kit Malthouse
The amendments, I am afraid, are a deliberate attempt to water down the courts’ ability to place an SDPO on those who are intent on repeatedly disrupting the lives of others, as we have talked about a lot during our consideration of the Bill. Amendments 38 and 39 attempt to raise the burden of proof required for SDPOs from
“on the balance of probabilities”
to “beyond reasonable doubt”, in effect requiring the criminal rather than the civil standard of proof. Amendment 38 raises the burden of proof required when considering whether an offence constitutes a protest-related offence for the purpose of making a serious disruption prevention order. Amendment 39 does the same when a court considers whether a person has engaged, in the last five years, in previous behaviour that would qualify them for an SDPO.
The amendments would make it more challenging for a court to place an SDPO on prolific activists who engage in criminal or unjustifiable behaviour. As this is a court order, I see no issue with requiring the civil burden of proof. The Opposition have shown much enthusiasm for injunctions, which operate to a civil burden of proof, and the same burden would be required here. For the avoidance of doubt, for someone to be convicted for breaching an SDPO, the criminal burden of proof would apply.
Kerry McCarthy
I want to query the Minister’s use of the phrase “unjustifiable behaviour”. What would that cover?
Kit Malthouse
We have discussed the range of offences that offenders commit. In presenting the requirement for this order to a court, the police would have to make a case that a series of offences had occurred, or indeed that serious disruption had been caused by the individuals’ behaviour, to warrant this order. We will come on to the substance of those matters, and we can debate it at that point. For the reasons I have given, we do not agree with the amendment, and we hope that the hon. Member will withdraw it.
Wendy Chamberlain
This is a probing amendment to get the Government’s view on the matter. The Minister has made it clear that he thinks the civil burden is appropriate at this time, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Public Order Bill (Sixth sitting)
Thursday 16th June 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Public Order Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 16 June 2022 - (16 Jun 2022)
The Committee divided: - Ayes: 7 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 6 - Question accordingly agreed to.
The Minister for Crime and Policing (Kit Malthouse)
Clause 12 will protect the British public from the small minority of protesters who are determined to repeatedly inflict disruption on those who simply wish to go about their daily lives. In 2021, approximately 170 Insulate Britain protesters were arrested about 980 times for obstructing motorways. That means that each protester was arrested on average nearly six times, on separate occasions. It is clear that something needs to be done to prevent these people from returning time and time again to ruin the daily life of the wider public, and to stop them cocking a snook at our justice system.
We have heard, and no doubt will hear more, criticism of serious disruption prevention orders, but there is one big misconception that I want to address: the claim that SDPOs ban protests. Critics have referred to the report by Her Majesty’s inspectorate of constabulary and fire and rescue services about the policing of protest, which found protest banning orders to be incompatible with human rights legislation, and we heard that during our evidence day. But the clue is in the name: HMICFRS considered orders that sought to outright ban people from protesting. SDPOs only enable the independent judiciary to place necessary and proportionate conditions on people to prevent them from engaging in criminal acts of protest and causing serious disruption time and time again. Those conditions could include curfews or electronic monitoring. Most importantly, they will be for the courts, not Government, to decide.
Under this clause, an SDPO can be imposed on a person convicted of a protest-related offence where, in the past five years, that person has been convicted of another offence or has committed other specified protest-related behaviour. A breach of an order will be a criminal offence, punishable by an unlimited fine, six months’ imprisonment, or both. An SDPO can be made if the court is satisfied, on the balance of probabilities, that the person has, on two or more occasions, been convicted of a protest-related offence; has been found in contempt of court for a protest-related breach of an injunction; has caused or contributed to a protest-related criminal offence or breach of an injunction; or has carried out, or caused or contributed to the carrying out by another person of, protest-related activities that resulted, or were likely to result, in serious disruption.
Along with the stop-and-search measures, these measures provide pre-emptive powers for the police. Officers will be able to interrupt and arrest those who breach the conditions of their SDPO before they have the opportunity to commit another disruptive act. SDPOs mirror many characteristics of injunctions, which the Opposition parties have been so keen for us and others to use. I urge that clause 12 stand part of the Bill.
Sarah Jones (Croydon Central) (Lab)
A raft of clauses relate to serious disruption prevention orders, but clauses 12 and 13 are the most significant, so I will direct focus my attention on them. The shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), and I put our names to amendment 12, which would have left out the entirety of clause 12.
The clause, as we know, creates a new civil order—the serious disruption prevention order. These orders can be imposed on individuals who have a previous conviction for a protest-related offence and who have participated in another protest within a five-year period. There is a very broad list of conditions that may be met, including that the offender has been convicted of another protest-related offence; has been found in contempt of court for a protest-related breach of an injunction; has carried out activities related to a protest that resulted, or were likely to result, in serious disruption to two or more individuals or to an organisation; has caused or contributed to any other person committing a protest-related offence or protest-related breach of an injunction; or has caused or contributed to the carrying out by any other person of activities related to a protest that resulted, or were likely to result, in serious disruption to two or more individuals or to an organisation. That means that someone can be given an order if they have one previous protest-related offence and just contribute to another person’s activities, which were likely to result in serious disruption to only two people. As in so much of the Bill, that is a low threshold for such a restriction on someone’s rights.
Serious disruption prevention orders can last anywhere from a week to two years, with the potential to be renewed indefinitely. They can ban individuals from protesting, associating with certain people at certain times, and using the internet in certain ways. Those subject to the orders might have to report to certain places at certain times, and even be electronically monitored. If they fail to fulfil one of the requirements without a reasonable excuse, provide the police with false information, or violate a prohibition in the SDPO, they will have committed a crime. The consequence is a maximum of 51 weeks’ imprisonment, a fine, or both.
When we debated these clauses previously, we had, as the Minister referred to, a conversation about protest banning orders and the work that has gone into looking at them. In the evidence session, the Minister said of SDPOs that
“this measure is a conditional order, which may place restrictions or conditions on somebody’s ability to operate in a protest environment.”
However, the restrictions are significantly broader than just being prevented from attending protests. Martha Spurrier from Liberty pointed out that
“the serious disruption prevention orders have the capacity to be absolute bans in the same way as the protest banning orders...under judicial supervision—but... to a low standard of proof.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 69, Q131.]
Again, the Government are extending to peaceful protest powers that we would normally make available just for serious violence and terrorism.
Kit Malthouse
Perhaps I can reiterate the point that I made, because I am interested in the hon. Lady’s view, although I know we want to get through a lot this afternoon. Other than, for example, the condition of electronic monitoring, which we will come to, what would be the difference between an injunction, on which she is so keen and which could be used as a complete ban on attending any protest, and an SPDO, which has many more safety measures around it?
Sarah Jones
I do not think that an SPDO has much more safety around it. The conditions under which someone can get an order—which I have just read out—include that they have caused, or contributed to, the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals. Conditions could be put on people and, if those people were deemed to have not adhered to them, new conditions could continue indefinitely, or people could go to prison or be fined. There is a specific condition that is put on an individual, with a very broad and legally difficult to identify range of conditions that would then be possible. It is different.
Police officers themselves, whom we turn to so often, said that an SPDO is
“a severe restriction on a person’s rights to protest and in reality, is unworkable”.
It is worth reflecting on what the inspectorate said about protest banning orders:
“We agree with the police and Home Office that such orders would neither be compatible with human rights legislation nor create an effective deterrent. All things considered, legislation creating protest banning orders would be legally very problematic because, however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order.”
The inspectorate’s report also said:
“This proposal essentially takes away a person’s right to protest and…we believe it unlikely the measure would work as hoped.”
In the evidence sessions, the National Police Chiefs’ Council protest lead said:
“unless we knew the exact circumstances of the individual it would be hard to say how exactly the orders could be justified.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 15, Q23.]
Senior officers noted that protest banning orders would
“unnecessarily curtail people’s democratic right to protest”
and be
“a massive civil rights infringement”.
In the words of Liberty, the orders are
“an unprecedented and highly draconian measure that stand to extinguish named individuals’ fundamental right to protest as well as their ability to participate in a political community. They will also have the effect of subjecting individuals and wider communities to intrusive surveillance.”
It is worth digging down a little into the detail of these prevention orders. For example, would buying a lock, paint or superglue, observing a protest from afar or holding a banner be enough to contribute to a protest-related offence? As the noble Lord Paddick noted at Report stage of the Police, Crime, Sentencing and Courts Bill, when these measures were first introduced,
“you do not even have to have been to a protest to be banned from future ones.”—[Official Report, House of Lords, 17 January 2022; Vol. 817, c. 1439.]
That is where we are.
Restrictions imposed via a serious disruption prevention order are not necessarily directed at preventing anything criminal, but at preventing the facilitation of non-criminal protest-related activities, which could include sharing songs or chants, flag designs or just some information about where protests are being held. Underpinning our concerns is the wide and diffuse definition of serious disruption, and the power of the Secretary of State to redefine it.
For those given an SDPO, there are a wide set of requirements and prohibitions, which, again, might interfere with rights to respect for private and family life and to freedom of thought, belief and religion, expression, and assembly. Individuals might be prevented from associating with particular people or community members. They might not be able to possess locks, paint or glue. Crucially, they would not be allowed to participate in protests. They might also not be allowed to worship—the Quakers see direct action as a crucial part of their faith. Although there is a safeguard in the Bill, it does not match up to the overreach that the clauses represent.
The enforcement of an SDPO is also potentially problematic. Let us take electronic monitoring. There is the potential for 24/7 GPS tracking under the Bill. We are unclear whether that is proportionate for the undefined prevention of serious disruption.
Failing to comply with an SDPO could result in a maximum of 51 weeks in prison, a fine, or both, but none of the breaches is criminal without an SDPO. The clause criminalises potentially normal activities. When we consider that there is no limit to the number of times that an SDPO can be renewed by the court, we risk people being pushed into a cycle of criminalisation and indefinite periods of not being able to protest or associate with people, look on the internet or take part in other normal parts of life.
For something that places really serious restrictions on a person’s liberty, the court can make an SDPO if it is satisfied
“on the balance of probabilities that the current offence is a protest-related offence”,
rather than that being beyond reasonable doubt. That is the civil standard of proof. SDPOs on conviction can be made on the basis of lower-quality evidence.
Kit Malthouse
I am conscious of the point the hon. Lady is making about the infringement of people’s liberties. Will she accept that this is not a novel concept and in fact happens already? For example, she will remember the incident where anti-lockdown protesters chased and harassed a journalist outside Downing Street. When that happened, those protesters got a fine and unpaid work, but the judge also banned them from attending near Parliament and in Whitehall for 18 months as part of the condition of their punishment. This concept is not a novel one. In many ways, codifying this seems a sensible thing to do, rather than leaving it entirely to judicial discretion.
Sarah Jones
I will come in a moment to similar orders that I think the police are struggling with in terms of how they are implemented. I hope to make a point about some of the problems with these measures as they stand.
Amnesty’s written evidence states:
“Even where based on previous convictions, these provisions are wholly disproportionate—they restrict the exercise of a fundamental right of peaceful assembly based on past conduct and there is no requirement that the past conduct be of a serious nature. Given the extremely broad and vaguely defined list of potential convictions that could be used to impose an SDPO, this provision…will risk depriving a large number of people for up to five 5 years of a fundamental universal human right.”
We heard from Amnesty in the evidence sessions about how there is
“a disconnect…between the statements that the UK puts out internationally and the role we see ourselves playing in the world community, and the kinds of measures we are putting in place on our own domestic legislative front.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 65, Q124.]
Amnesty noted Lord Ahmad’s closing remarks at the 49th session of the Human Rights Council. He made reference to the resolution about the need to promote and respect the rights of human rights defenders around the world. He said that the resolution essentially requires that all states refrain from measures that excessively criminalise human rights defenders and their rights to freedom of expression.
Amnesty’s written evidence states that it is
“striking to note that many of the provisions in the”
Public Order Bill
“mirror similar public order provisions in countries considered by the UK to be overly repressive, including through placing undue restrictions on the rights to freedom of assembly.”
When the Police, Crime, Sentencing and Courts Bill comes into force, the Government could stop protesters singing the Ukrainian national anthem too loudly in the street, while the SDPOs in clause 12 mirror the restrictions in countries where laws prohibit certain categories of people from organising protests. The UK’s reputation on the world stage as a beacon of democracy, freedom of expression and a style of policing that works through a social contract with the public based on consent is at risk of being undermined by the provisions in this Bill. As Amnesty wrote,
“The UK often uses its voice on the international stage to condemn repressive policies in a number of countries.” —
quite right. We should not have such policies in this country.
Serious disruption prevention orders, as we know and as the Minister has just said, mirror the kinds of orders that the Government have brought in to deal with other things, such as serious violence. Serious violence reduction orders were in the Police, Crime, Sentencing and Courts Bill and are yet to be implemented. They will be piloted first.
Knife crime prevention orders were in a previous Bill, and I was a member of that Bill Committee. It would be useful to look at how knife crime prevention orders are working in practice, because it does not look at the moment as though they are working. An article from last September said that the pilot had failed to result in a single court action during the first six weeks of the 14-month trial that started last July. The PA news agency’s freedom of information request showed that only two orders were applied for by the Met during the first six weeks of the trial, and both were turned down by magistrates.
Knife crime prevention orders have challenges in themselves. We debated at the time how we would enforce them if we put a condition on somebody that they have to attend a certain place. For example, in the knife crime situation, they have to attend a meeting with a youth worker every week. If they do not attend, is it really the job of the youth worker to intervene in the criminal situation and report to the police that the individual has not turned up? The point of the youth worker is to build relationships with that individual. We know that there are significant problems. Does the Minister have any more information on how knife crime prevention orders are working? There could be similar issues.
As the Minister has acknowledged and as we have said many times, it is a very small proportion of hard-line protesters who are causing disruption and who we are trying to deal with. Our concern is that the Government are introducing wide-ranging laws on protest that will potentially bring a large number of peaceful protesters into the criminal justice system, as well as applying disproportionate penalties when there are already significant laws in place.
One point about the existing laws that I have not made yet, which is brought out in places such as the Matt Parr report, is that there are some offences for which we do not gather data. We do not know, for example, how many times the police have made applications to prohibit trespassory assemblies, so in some cases, we know that there are offences but do not have the numbers on how often they are used.
I will conclude by saying, as I have said many times, that there is a British way to deal with these things—and clause 12 does not sit happily alongside it.
Kit Malthouse
The fount of these orders is the antisocial behaviour order, which as you will remember, Mr Mundell, was introduced by the then Labour Government in 1998. Alarmingly, I do not think that the hon. Lady has paid enough attention to the high bar that all this conduct must cause serious disruption. She also seems to have little faith in the ability of our independent judiciary to form a judgment about when the orders should be applied.
Question put, That the clause stand part of the Bill.
Kit Malthouse
Clause 13 provides that the police may make applications to the magistrates court for an SDPO to be imposed on an individual. The conditions that the court must be satisfied of before making an SDPO, and the purposes of any SDPO made on application, are the same as for SDPOs made on conviction. I will not repeat them here, but instead refer the Committee back to my comments on clause 12. It will be the responsibility of chief constables to apply for an SDPO; however, as with SDPOs on conviction, it will ultimately be for the independent judiciary to decide whether to impose an SDPO, and ensure that the conditions included are necessary and proportionate.
Sarah Jones
I will start, as I did with clause 12, by noting that I and the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford, have put our names to amendment 13, which would leave out the entirety of clause 13.
This clause creates the new civil order, the serious disruption prevention order, which can be imposed on individuals who have never been convicted of a crime. Subsection (2) sets out the conditions that must be met for an order to be made, namely that the person in question must have done two of the following during different protests, or during the same protest but on different days: been convicted of a protest-related offence; been found in contempt of court for a protest-related breach of an injunction;
“carried out activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation”;
caused or contributed to any other person’s committing
“a protest-related offence or a protest-related breach of an injunction”;
or
“caused or contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation”.
The two trigger protest-related events must have occurred no earlier than the period starting five years before the order is made, but each event must have taken place after clause 13 comes into force, and the person concerned must be aged 16 or over at the time. The fact that an SDPO could be imposed on a person who has not committed a criminal offence at all, but only contributed to the carrying out by someone else of activities related to a person, goes way further than we believe makes sense in law. The vagueness of how and when the serious disruption prevention orders can be imposed is astonishing.
Under subsection (2)(a)(v), the courts must be satisfied on the balance of probabilities that on two different occasions someone
“caused or contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption”.
The person does not even need to have done the act themselves. Someone else could have caused—or not even caused, but just been likely to cause—the disruption of two people, and the person in question only needs to have caused or contributed to someone else’s action. Just to be clear, that other person does not need to have caused serious disruption to two or more people.
The wording is so broad. Rather than trying to work out what activity needs to be done to assist someone doing anything related to a protest, perhaps thinking about what would not need to be done would have been a shorter exercise. I am concerned that there does not seem to be any requirement for the person to have had knowledge that the protest activities were going to cause serious disruption when they caused or contributed to the carrying out of those activities.
The clause could also capture a wide range of behaviour. Let us say that the person being considered for an SDPO attends a peaceful protest, they shout something about the issue that they are angry about, and the person next to them becomes violent, but that act of violence was not within the control of the person who was shouting. Could that person who was shouting be held responsible under clause 13?
As I laid out when detailing our concerns about clause 12, the police are concerned that the use of serious disruption prevention orders is unworkable and potentially unethical. This proposal essentially takes away a person’s right to protest, and we believe it unlikely that the measure would work as hoped. In the evidence sessions, the National Police Chiefs Council protest lead said:
“From a policing point of view, unless we knew the exact circumstances of the individual it would be hard to say how exactly the orders could be justified.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 15, Q23.]
Senior officers noted that protest banning orders would necessarily curtail people’s democratic right to protest and be a massive civil rights infringement, and in the evidence sessions Matt Parr could not have been any clearer in what he said:
“I have mentioned that we were not supportive of SDPOs.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 55, Q117.]
I suggest to the Committee that these views are not just held by Liberty or Amnesty International—the pressure groups founded on the basis of protecting human rights—but are concerns from senior, experienced police officers and the Home Office.
Alex Cunningham (Stockton North) (Lab)
It strikes me that my hon. Friend is talking about the need for training. The Minister has talked about guidance and all manner of other measures being put in place, but if the police do not understand what they are doing in relation to this particular set of orders, how on earth are we supposed to train them to recognise the extent of their powers and how they can apply them?
Sarah Jones
My hon. Friend makes a really good point, and we have seen exactly that with the pilots of the knife crime prevention orders. In the first six weeks only two police officers made the request to the courts, and both were turned down. Probably because of the lack of clarity about how the orders should be imposed, there were not vast numbers of police officers coming forward. Equally, there must have been confusion between what the police thought the conditions were and what the courts thought the conditions were, because the courts turned those two cases down.
Alex Cunningham
I am grateful to my hon. Friend for giving way again.
I was chastised on Tuesday by the Chair for talking about the courts at some length. My hon. Friend has already talked about the need to go to court for this particular order, which seems a waste of time to me. More and more time is being placed on the courts, which of course are in crisis as it is, so perhaps this is one that the Government could let go.
Sarah Jones
My hon. Friend is exactly right. In the HMICFRS report on protests, many interviewees expressed intense frustration with the system, and the many reasons they gave for protest cases being stopped included “substantial backlogs in court” and
“so much time passing since the alleged offence that the CPS deemed prosecution to be no longer in the public interest”,
which is really important and has probably stopped quite a lot of people going to court who should have done. Those issues cannot be ignored when we are looking at this subject.
As I was saying, it is not just the likes of Liberty or Amnesty that have issues with the Bill; it is experienced senior officers and many organisations involved in criminal justice. We do not believe that SDPOs are workable in practice, and the language of the clause reflects the concerns that we have had throughout. A serious disruption prevention order could be applied to someone who has never committed a criminal offence before, but who is deemed—on the civil standard, not the criminal one—to have contributed to someone else’s action that is “likely to result” in serious disruption to two or more people.
It is worth picking that apart. Any one of us in the room could be given an order—one with really intrusive measures attached—on the mere probability that we have contributed to, not caused, another person’s action that has possibly, but not definitely, caused disruption to two or more people. I do not have to have attended a protest and no disruption needs to have been caused, and all this is on the balance of probability. Surely basing the orders on hard cases and a minority of hardliners could have wide-ranging implications for peaceful protesters.
The Bill was the Government’s flagship legislation in the Queen’s Speech. Despite the fact that crime has increased significantly in the last two years, prosecutions are down significantly. There is a cost of living crisis, a climate crisis and many other things with which the Government could concern themselves. There was no victims Bill in the Queen’s Speech, and nothing to tackle violence against women and girls. The Government have focused on this Bill, which is full of broadly drafted and unworkable clauses that would apply the same kinds of restrictions to peaceful protesters who have been convicted of no crime as could be applied to violent criminals and terrorists.
Alex Cunningham
These orders will apply to women, as they will to men. Has my hon. Friend seen the statement from Hannah Couchman, the senior legal officer for Rights of Women? She says:
“Rights of Women has joined together with 17 other women’s rights and VAWG organisations to resist the measures outlined in this Bill. Protest is a feminist issue, firmly embedded in the struggle for women’s rights—and particularly the rights of Black and minoritised women. Our fight to end violence against women relies heavily upon our ability to gather together and collectively demand change.”
These types of order could prevent people from organising effective protests with Rights of Women and other groups.
Sarah Jones
My hon. Friend makes a good point. I have not yet quoted from the evidence we had from the coalition of about 20 very reputable women’s organisations that have come together to form a view, which is worth listening to.
Similar conditions that exist in law are imposed on terrorists and violent criminals, but we do not think these conditions should be imposed on protesters. These provisions will increase disproportionality, bring peaceful protestors unnecessarily into the criminal justice system and undermine public trust in the police trying to do their job. We have seen worrying figures about public confidence. We deeply support the police and want them to do the best job they can, but public confidence in policing has gone down in recent times because of a series of events that have taken place.
It is our job in this place to do everything we can to ensure that the public can and do have confidence in the police, but passing this broad, difficult to implement legislation, which may never even be implemented because it is too complex, is not helpful. We should be giving the police the resources they need, being much clearer about what we expect them to do, and ensuring they can spend the right resources in the right places in order to reduce crime and support victims.
Although potentially open to interpretation, in his report Matt Parr called for only a “modest reset” of the scales. Throughout the debates on the Police, Crime, Sentencing and Courts Bill, we argued that that Bill was not introducing a modest reset of the scales, but this is a whole raft of legislation on top of what is in Police, Crime, Sentencing and Courts Act 2022 that has yet to be implemented.
On clause 13, does the Minister genuinely believe that the creation of the serious disruption prevention orders, which can be given to people who have not committed any criminal act, is a modest reset? We think it is not and that the orders will contribute to the chilling effect on peaceful, legitimate protest that we have talked about, and we are not convinced that they would stand up in court. The requirements and prohibitions in this clause, as in clause 12 and as laid out in clause 15, are too harsh and too intrusive, and we cannot support it.
Kit Malthouse
The hon. Lady asked me if I genuinely believe these orders are a modest reset; I genuinely do. I take from her speech that she has no answer to the statistic I put to her that some of these protesters have now been arrested six times and are still not responding to the suite of charges brought against them.
I remain dismayed at the hon. Lady’s lack of faith in our independent judiciary to make sensible judgments within this framework, as they do in—
Kit Malthouse
In a moment. I am also dismayed at her implication that there are not enough police officers who are members of Mensa and that they cannot cope with what, in my view, is a relatively simple concept that the hon. Lady seems to think is complex. I assure her that police officers deal with much more complex situations than this.
This clause is about giving the police the ability to apply for an order to an independent judiciary to deal with somebody who is persistently offending or assisting offending that causes serious disruption to the public. We have seen the current legislative arsenal that the police are able to deploy in action over the last two years, and it simply has not been enough, so that is why we support the introduction of these orders.
Question put, That the clause stand part of the Bill.
Kit Malthouse
Clause 14 provides detail on the kind of prohibitions or requirements that a court may include in an SDPO. It is important to note that the clause provides a non-exhaustive list. The court will still—as it does now, as I outlined—have the discretion to impose whatever prohibitions or requirements it considers are necessary. The prohibitions and requirements are in the Bill. I do not propose to repeat them and I am sure the hon. Member for Croydon Central will not want to either, but they include curfews and a requirement to check in at a local police station at certain times.
Furthermore, courts must, so far as is possible, ensure that the requirements and prohibitions imposed are such that those subject to an SDPO can continue to practise their religious beliefs and access their place of work and education. I said to the hon. Lady earlier that this is not a novel concept. We already have an individual who has been banned from protesting outside the mother of democracies for 18 months, and we have a number of protesters who are subject to similar conditions through injunctions. I hope she will see the sense in codifying the measure, and I commend the clause to the Committee.
Sarah Jones
I think I have made my criticisms about SDPOs clear. We disagree with clause 14 and the premise of serious disruption prevention orders. There is a non-exhaustive list, which includes a person not being allowed in a particular place or their being subject to electronic monitoring. We believe the conditions are harsh given the fact that, as I said earlier, someone could be given an SDPO without having ever attended a protest.
Kit Malthouse
indicated dissent.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clause 15
Requirements in serious disruption prevention order
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
As with clause 14, clause 15 details part of the framework for SDPOs. It sets out that when requirements are placed on a person, the court must specify who is responsible for supervising their compliance with the requirements or prohibitions that have been set. The clause is relatively self-explanatory and I commend it to the Committee.
Sarah Jones
The shadow Home Secretary—my right hon. Friend the Member for Normanton, Pontefract and Castleford—and I have put our names to amendment 15 tabled by the hon. Member for Glasgow North East, who is not present today. The amendment would leave clause 15 out of the Bill. We have made our criticisms clear, and we think clause 15 should be struck from the Bill.
I note that the clause requires a named individual or organisation to supervise compliance with an SDPO. We know from the knife crime prevention orders that that has been problematic. If an organisation is to supervise, there must be a specific individual named within that organisation. Implementation could be problematic, but our opposition to this general topic stands on clause 15.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Kit Malthouse
Clause 16 allows courts to consider using electronic monitoring as a requirement of an SDPO. Electronic monitoring—or tagging—has been an extremely useful tool to ensure compliance with the terms of existing preventive court orders, such as domestic abuse protection orders. The clause makes it clear to the courts that they may consider making tagging a requirement in an SDPO.
Given that an SDPO may prohibit individuals from being in certain places at certain times of day, electronic monitoring offers the courts and authorities a useful tool with which to ensure compliance. The clause is modelled on the electronic monitoring requirement in the Domestic Abuse Act 2021. Courts will be able to impose electronic monitoring only in cases in which the person subject to an SDPO, and if necessary, a person whose co-operation with the monitoring is required, are present at the hearing. The courts must also be satisfied that the necessary provisions for monitoring exist in their local justice area.
In practice, any notification about electronic monitoring arrangements available to the courts will come from the Ministry of Justice. An SDPO that includes electronic monitoring must also specify the person or authority responsible for the provision of any necessary apparatus and the monitoring of the subject. The clause provides a delegated power for the Home Secretary to identify that responsible person via regulations. Those regulations will not be subject to any parliamentary procedure.
Individuals who are subject to an electronic monitoring requirement must allow the authorised person to install, inspect and repair any of the monitoring apparatus, and take all necessary steps to keep it in working order, including by not interfering with or damaging their tag. Anyone who does so will be in breach of a requirement of their SDPO, which, as clause 20 establishes, is an offence.
We recognise that electronic monitoring is a large intrusion on people’s lives and freedoms, particularly their article 8 right to a private life under the European convention on human rights. To ensure that any electronic monitoring requirement is proportionate, clause 18 provides that any such requirement may last only a maximum of 12 months at a time. However, as I have said, electronic monitoring has already proven a useful tool to ensure compliance with the terms of a range of preventive court orders. The Committee will be aware of our recent expansion of alcohol monitoring, which has been enormously successful. I see no reason why electronic monitoring should not be used in respect of SDPOs.
Sarah Jones
As we have for other amendments, the shadow Home Secretary and I have put our names to amendment 16, which was tabled by the hon. Member for Glasgow North East and would leave out clause 16.
The clause deals with electronic monitoring. I do not have personal experience of tagging, but I have talked to people who have been tagged and monitored, and there is, for sure, a place for it in the justice system. I have even met a gentleman who was involved in crime and gang activity and actually wanted to be tagged so that he could say to the people he was engaging with that he could not participate in anything anymore because he had been tagged and had to stay at home. Tagging meant he had an excuse to get out of the crime he was involved in without having to say to those potentially dangerous people that that was what he wanted.
Although its intrusiveness is an issue, electronic monitoring it does have its place. Labour does not think, however, that its place is in this Bill, and Liberty wrote a comprehensive briefing laying out its concerns about electronic monitoring. We do not believe that electronic monitoring is proportionate for a serious disruption prevention order or that it should be needed after someone has attended a protest. The Minister said there is a 12-month limit on electronic monitoring, but 12 months is a long time.
The original protest banning orders, which were considered by Her Majesty’s inspectorate of constabulary and fire and rescue services, were based on football banning orders in Scotland. Research showed that the methods used in policing them were disproportionate, unfair and selective. In 2018, the Ministry of Justice moved from radio frequency tags, which work by detecting when someone has moved out of a particular area past a certain time, such as a curfew, to GPS tags, which provide 24/7 monitoring. That is more intrusive than tagging was previously. Given the breadth and vagueness of the ways in which an SDPO can be imposed, we do not think it is at all appropriate to use such monitoring in this instance.
Kit Malthouse
indicated dissent.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17
Notification requirements in serious disruption prevention order
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
Clause 17 establishes the information that individuals subject to an SDPO must give to the police, to ensure that the police are aware of anyone subject to an order within their area and can monitor their compliance accordingly. Within three days of first receiving an SDPO, individuals must notify their local police, in person, at the local police station, of their name and any alias, their home address and any other address at which they regularly stay. If any of that information changes, the individual must notify their local police within three days of the change. It will be an offence, established under clause 20, for individuals to knowingly give false information under the requirements of this clause. I ask that it stand part of the Bill.
Sarah Jones
Clause 17 covers the general issue that we have debated already in considering earlier clauses, and although we object to it, I do not have anything further to add.
Kerry McCarthy (Bristol East) (Lab)
I seek a couple of quick clarifications. Subsection (3) states that there is a duty to notify the police about
“the address of any other premises at which…P regularly resides or stays.”
However, subsection (4) then refers to P deciding
“to live for a period of one month or more”
somewhere else. Obviously, there is a difference there, so I wondered what counted as regularly residing or staying. What happens if P was in a relationship with somebody and stayed over somewhere? Quite a lot of people have a permanent home address but they stay over at somebody else’s for a few days or weeks, and they might notify that. But let us suppose they were not in a relationship at the time the order was granted and so have not given notice of a second address. I understand the provision to mean that if they were then in a relationship, they would not have to give notice of it if it was the sort of set-up in which they were staying somewhere else for part of the week, and that they would have to provide notification only if they were doing it for a month at a time. Is that right?
Kit Malthouse
No, that is not my interpretation. In that example, when the order is granted and the individual is not in a relationship, they would give their home address. If during course of the order they enter a relationship and start spending time at somebody else’s address on a regular basis—they might be there a couple of nights a week—they should also notify as to that address. If they then move from either of those addresses for one month or more and reside elsewhere, they should provide notification of those changes as well.
Kerry McCarthy
I do not think that is actually what the Bill says, although it is a fairly technical point.
I have one other query on notifications. Subsection (6) says that the notification can be given by
“attending at a police station”,
which is fair enough, or by
“giving an oral notification to a police officer, or to any person authorised for the purpose by the officer in charge of the station.”
I am a little concerned about this “oral notification”. Will there be a process for recording it and making sure there is a record of it happening? I am surprised that a notification in writing would not be accepted. Is there a particular reason why that would not be allowed?
Kit Malthouse
The notification requirements and the notification change requirements broadly mirror other notification requirements that are given to the police. However, although I am keen to keep the clause in the legislation, I am happy to discuss matters and provide clarity to the hon. Lady before we get to Report, so that she can see that, as I say, it is not unusual in these kinds of circumstances for people to have to notify their whereabouts or their likely whereabouts overnight to the police.
Kerry McCarthy
I have slightly lost track as to whether we are still at an intervention or not, but I think I am continuing my speech.
I have had immigration cases in which people have had a duty to report to the police station and their attending has somehow not made it on to the record, and people have fallen foul of the law as a result. It can be quite difficult for someone to prove that they did something if the police did not keep accurate records of their doing it. I just want to avoid that situation.
Kerry McCarthy
That is the end of my speech.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Clause 18
Duration of serious disruption prevention order
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
Clause 18 provides that an SDPO may last for a minimum of one week or a maximum of two years. This provides flexibility to courts in deciding for how long any prohibitions or requirements of an SDPO are necessary to prevent the subject from causing serious disruption at a protest—we should never forget that high bar of serious protest. In particular, a court can specify that certain requirements or prohibitions of an SDPO may apply for a more limited period than the order itself, thereby allowing courts maximum flexibility when the determine individual cases for an SDPO.
In the case of an SDPO that imposes electronic monitoring requirements, the requirements may last for no longer than 12 months at a time. As I said earlier, this is to prevent a disproportionate encroachment on the subject’s right to a private life. That is in line with existing legislation on electronic monitoring.
Normally, an SDPO will take effect on the day the court imposes it. However, when someone is subject to an SDPO and is remanded in custody, serving a custodial sentence or on licence, the clause provides that their SDPO may not take effect until they are released from custody or cease to be on licence. This reflects the fact that, due to the restrictions imposed by a custodial sentence, they are unlikely to attend a protest.
Sarah Jones
Our issues with this clause are similar to those we have with all the others. We support the amendment to pull the clause from the Bill in its entirety, as it supports the general principle that we have debated at some length and with which we continue to disagree.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Clause 19
Other information to be included in serious disruption prevention order
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
Clause 19 simply states that when imposing an SDPO the court must set out the reasons why it has made the order and the possible penalties available if the individual breaches the terms of their order. This is to provide clarity all round.
Sarah Jones
My comments are similar to those I have made about previous clauses.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Offences relating to a serious disruption prevention order
Wendy Chamberlain (North East Fife) (LD)
I beg to move amendment 40, in clause 20, page 21, line 19, after “fine” insert
“not exceeding level 2 on the standard scale”.
A person convicted of an offence related to a serious disruption prevention order may be subjected to a fine. Under this clause there is currently no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
This amendment is similar to the amendments I tabled to previous clauses that we discussed on Tuesday. It is a probing amendment to test the Government’s justification and explanation for why they are proffering unlimited fines in the Bill. I do not intend to move the motion today and look to withdraw it.
Kit Malthouse
I will just say briefly, as I have about the hon. Lady’s previous amendments, that I am afraid we just do not think that 500 quid is enough of a deterrent, not least because we want to recognise the fact that we are talking about the breach of a judicially imposed order. The level of fine suggested in the amendment is just not proportionate to that kind of offence, so we urge the hon. Lady to withdraw the amendment.
Wendy Chamberlain
What would be acceptable to the Minister then? I suppose that is the purpose of my probing amendment.
Mrs Natalie Elphicke (Dover) (Con)
Opposition Members seem very sympathetic to these extreme protesters. As the Committee knows, I am no stranger to the frontline when it comes to a protest, but we need to recognise the impact of these extreme protesters.
In Dover, when protesters close the main road—be they Extinction Rebellion, the oil brigade or anyone else that decides to rock up and make a nuisance of themselves—it does not just bring our trade to an end; it disrupts the lives of everybody in the town. It also puts the emergency services at risk because they cannot get through if people glue themselves to the motorway and cannot be moved safely. The provisions are important to areas such as mine that are at the forefront of actions by extremists. It is proposed that this be a summary offence; does the Minister think that the level of fine is appropriate? How has he come to that decision?
Kit Malthouse
My hon. Friend is making broadly the same point. We think the provisions in clause 20 are commensurate and in line with those for other breaches of judicially imposed orders; effectively, there can be an unlimited fine. Certainly, if an injunction is breached, the judge has unlimited powers of fine—something that I know the hon. Member for Croydon Central is keen on. Given that this is a judicially supervised order, it should be for the judge to decide what the fine should be. It is worth remembering that when judges are given flexibility in making fining decisions, they have to take into account the circumstances of the individual—they have to means-test them, effectively—decide on the level of impact and the likely deterrent effect of the fine. We think that should be left to judicial discretion.
Wendy Chamberlain
I have nothing further to add. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
As we have discussed, clause 20 creates various offences relating to a serious disruption prevention order. It will be an offence for an individual to, without reasonable excuse, fail to comply with any requirement of their order, or do anything that the terms of their order prohibit them from doing. For example, an individual subject to an SDPO could commit an offence if they attend a protest at a designated time and place that is prohibited under the terms of their order. In line with the notification requirements established in clause 17, an individual subject to an order will also commit an offence if they knowingly provide false information to the police as part of their notification requirements.
If found guilty of one of these offences, upon summary conviction, the court will be able to impose a maximum sentence of 6 months’ imprisonment and/or an unlimited fine. Subsection (3) provides that the maximum term of imprisonment will increase to 51 weeks if section 281(5) of the Criminal Justice Act 2003 comes into force. This sentence reflects how seriously the Government take anyone breaching the terms of an SDPO, and also acts as a deterrent to anyone considering breaching this judicially imposed and supervised order. As I outlined while discussing clause 19, courts will be required to make clear the possible penalties for a breach of an order to each individual subject to an SDPO, so there will be clarity about what happens if they do not do as the order requires.
Kerry McCarthy
Can I ask the Minister to clarify a bit more? He said that someone would be in breach of the order if they attended a protest that the order covered. In Bristol, we tend to have quite a lot of political activity. We have marches that wind their way through the city centre and parks. We also had the Police, Crime, Sentencing and Courts Bill protests, which lasted for several days in certain pockets. I am concerned about how “attending a protest” would be interpreted; if someone was just walking through the city centre alongside a march, would they be deemed to have attended the protest? I am concerned about how the courts would interpret “without reasonable excuse”. It might be difficult to prove that someone was just on their way through town, as opposed to being part of a march.
Kit Malthouse
Obviously, those questions would be matters for judicial judgment. When an individual is presented to the judge for breach of the order, it is for the judge to decide what penalty is required. The police, in presenting that individual, will have to provide evidence. These are not novel matters. An individual has already been barred by a judge from attending a protest outside Parliament. If that individual were to walk down Whitehall and the police were to apprehend them and present them to court for breach of that order, evidence would have to be produced. That is a standard practice; we have courts in which police and others can offer evidence and the accused can offer a defence. A judge can then decide. The same would be true in these circumstances.
Sarah Jones
First, I should respond to the comment that Labour Members are in some way sympathetic to extreme protesters who are breaking the law. We absolutely are not. I want to be very clear about that, as I have been all the way through our conversations.
There are already offences that can be used by the police in such cases. Whether it is wilful obstruction of the highway, criminal damage, aggravated trespass, breaching an injunction, public nuisance, failure to comply with a condition, organising a prohibited trespassory assembly or participating in a trespassory assembly, there are many avenues that the police can and do use for repeat offenders, who put people’s lives at risk; that is not in question.
Clause 20 sets out certain conditions with which failure to comply is an offence. It highlights the fact that we have not sufficiently teased and played out how these orders will work in practice. When this Government introduced knife crime prevention orders, they introduced pilots before their implementation. When serious violence reduction orders were introduced in the Police, Crime, Sentencing and Courts Act 2022, the Government introduced pilots for them. Colleagues may remember, as I do, the debate during the passage of that Bill on what those pilots should be, how they should work and where they should be applied. These things are difficult to interpret.
Clause 20(1)(a) says that someone commits an offence if they fail
“without reasonable excuse to do anything”
that they are
“required to do by the order”.
We have already talked about those conditions, which relate to where someone lives, their addresses and their use of the internet. We are talking about very broad, difficult to understand, complicated things that it is easy to fail to do. Someone could break the conditions without knowing it.
We remain deeply concerned about the serious disruption prevention orders. I encourage the Government to do a bit more thinking, provide a bit more guidance and, perhaps, pilot the orders before bringing them in.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clause 21
Variation, renewal or discharge of serious disruption prevention order
Wendy Chamberlain
I beg to move amendment 41, in clause 21, page 21, line 29, leave out “, renewing”.
This amendment would prevent an existing serious disruption prevention order from being renewed.
The Chair
With this it will be convenient to discuss the following:
Amendment 42, in clause 21, page 22, line 15, leave out “, renewing”.
This amendment would prevent an existing serious disruption prevention order from being renewed.
Amendment 43, in clause 21, page 22, line 23, leave out paragraph (b).
This amendment would prevent an existing serious disruption prevention order from being renewed.
Amendment 44, in clause 21, page 23, line 12, leave out paragraph (b).
This amendment would prevent an existing serious disruption prevention order from being renewed.
Amendment 45, in clause 21, page 23, line 14, leave out “or renewing”.
This amendment would prevent an existing serious disruption prevention order from being renewed.
Wendy Chamberlain
These amendments take out all the provisions that allow an SDPO to be renewed once its original period has expired. We need sanctions in the justice system to be applied consistently and fairly, and to provide a degree of certainty. The Bill allows the police to apply for an SDPO and, effectively, renew it indefinitely, if they think not only that there is a risk that someone will commit a further offence, but—particularly in relation to clause 13—that renewing the order will prevent offences from being committed generally.
We do not stop people going to the shops because they once got caught stealing. We do not punish people into perpetuity just to control the actions of others, which would be a consequence of an SDPO in relation to clause 13. It would be like the Standards Committee deciding that suspensions from the House could be renewed indefinitely because there was a risk that someone might fail to comply with the standards expected of Members of this House. It is unacceptable for the Government to limit the right to protest, free speech and freedom of assembly when we apply different standards to ourselves.
Sarah Jones
As we do not support this entire section of the Bill, I will not talk at length about the hon. Lady’s comments. We support the amendments, and I thank her for her tabling them.
Kit Malthouse
As the hon. Member for North East Fife said, amendments 41 to 45 would prevent the courts from being able to renew serious disruption prevention orders. That would mean that where there was evidence that a person subject to an SDPO would go on to commit a protest-related offence or cause serious disruption soon after its expiration, nothing could be done to ensure that they were still bound by the conditions of their order. As a result, these amendments would undermine the purpose of the orders. I therefore encourage the hon. Lady to withdraw amendment 41.
Wendy Chamberlain
I intend to withdraw the amendment, but I do not agree with the Minister that we should apply orders that can apply indefinitely, and that could therefore breach people’s right to freedom of assembly and speech. If a police officer agrees that another SDPO is needed, they should apply for a new one, rather than renewing one in perpetuity, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
I am happy to address the hon. Lady’s earlier point in the sidebar if she wishes, but in effect it would be for a judge to make a judgment about renewal; it would not necessarily just be for the police to impose a renewal.
Clause 21 enables a person—an individual subject to an SDPO or a relevant police officer—to apply to the appropriate court for the variation, renewal or discharge of an SDPO. Either of those individuals may apply at any point during the duration of the SDPO, and subsection (12) provides that the normal six-month time limit on magistrates hearing complaint cases does not apply. That is to ensure that applications for SDPOs with a duration of six months or longer can still be made to these courts.
When deciding whether to vary, renew or discharge an order, the court must hear from both sides—for example, the relevant police officer applying for a renewal of the order and the person subject to that order—before making its decision. That is to ensure that the court has the opportunity to consider arguments both in favour and against any changes to the terms of the order. When making its decision, the court can decide to vary, renew or discharge either the whole of an SDPO or certain prohibitions or requirements in an order, depending on the evidence presented to it. In deciding whether to vary or renew an order, the court must satisfy itself on the same grounds as are required when imposing an order—namely, that the order will prevent the person subject to an SDPO from committing, or contributing to others committing, a protest-related offence, a protest-related breach of an injunction or activities that result or are likely to result in serious disruption at a protest. It must also consider whether varying or renewing the terms of an order will protect organisations or two or more individuals from the risk of serious disruption arising from any of these activities.
Any changes to an SDPO will be subject to the requirements set out in clauses 14 to 19, apart from subsections (2) and (3) of clause 17, which deal with notification requirements when an order is first made. In practical terms, this means that any changes to an SDPO will be subject to the same duration limits as apply when an SDPO is first imposed—namely, they may last a minimum of one week and a maximum of two years. If a court decides to vary or renew an electronic monitoring requirement, that will again be limited to a 12-month duration. Nothing in this clause prohibits further variances or renewals of an SDPO if a court and a judge consider them necessary. I urge that clause 21 stand part of the Bill.
Sarah Jones
I do not have a significant contribution to make on this clause, given that we have already debated the principle. I will just ask this. The Minister has twice said that there will be a duration limit of 12 months on an electronic monitoring requirement. That is true; it is in subsection (9). However, the explanatory notes to the Bill say that
“this does not preclude a further extension…if the SDPO is renewed.”
Therefore in reality that requirement can be extended—if the SDPO is renewed—in the same way as other conditions.
Kit Malthouse
That is certainly the case, if evidence is presented to the judge that the person is likely to persist in the disruptive activity for which the original order was originally imposed, which seems perfectly reasonable to me.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill
Clause 22
Appeal against serious disruption prevention order
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
Clause 22 provides for various routes of appeal either against either the imposition of an SDPO or against an SDPO being removed, varied or discharged under clause 21. When an SDPO has been imposed following a conviction for relevant protest-related offences, subsection (1) provides that the individual on whom the SDPO is imposed may appeal against the making of the order, following the normal procedure for appealing against a sentence imposed following conviction for a criminal offence.
The appellate court will be the court immediately senior to that which imposed the original order, so if an order is made following conviction in a magistrates court, the appeal would be made to the Crown court, and so on. When an SDPO is imposed following an application by the relevant chief police officer to a magistrates court, the individual on whom the SDPO is imposed may appeal against the order to the Crown court. In cases where the magistrates court refuses to impose an order, the relevant chief officer of police may appeal that to the Crown court also. If a Crown court made the SDPO, the appellant court would be the Court of Appeal. Furthermore, both individuals who are subject to an SDPO and the relevant chief officer of police may appeal to the Crown court against the decision of a magistrates court to vary, renew or discharge an SDPO. As is the case with all other routes of appeal detailed in the clause, the Crown court has the power to make any orders necessary to give effect to its decisions on appeals and any necessary consequential or incidental matters.
Sarah Jones
The many and various ways in which someone can appeal to the courts depend on the court system working. As we know, it does not at the moment. The delays are many, and tens of thousands of cases are clogging up our courts. As we heard, the Crown Prosecution Service has had to drop cases because of the amount of time that has passed. Although I do not have a particular objection to the clause, I would say that people will be lucky if they find their slot in court.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23
Guidance
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
Clause 23 provides that the Home Secretary may issue guidance to chief officers of police relating to SDPOs. While the guidance may cover any aspect of SDPOs, we envision that it will guide police on the exercise of their functions, particularly for orders made following application to a court. The guidance will include advice on identifying persons for whom it might be appropriate for the police to make an application for an SDPO and on how police can assist prosecutors for SDPOs made on conviction. Any guidance issued under the clause must be published and may be revised by the Home Secretary. Chief officers of police will be required to consider any guidance issued when exercising their functions in relation to SDPOs. Our intention is to provide as much assistance as possible to the police, so that the orders are used in a proportionate and effective manner.
Sarah Jones
Given that the SDPOs have no pilots, unlike serious violence prevention orders and knife crime prevention orders before them, will the Minister consider producing some of the guidance in time for Report, as happened with the Police, Crime, Sentencing and Courts Bill, so that Members can look at it and get more clarity on the intention behind the orders?
Kit Malthouse
I will certainly consider the hon. Lady’s request, although we are obviously keen for this legislation to hit the statute book as quickly as possible, given the serious disruption that has been caused by a small number of protesters. I will give consideration to whether it is practical to do that before Report in this House, but I shall have to consult with officials.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Guidance: Parliamentary procedure
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
Clause 24 establishes the procedure by which Parliament may have a say on any guidance the Home Secretary issues to police regarding these orders. It provides that guidance will be laid before both Houses of Parliament under the draft negative resolution procedure. Members of either House will have 40 days to adopt a resolution against such guidance. If neither House chooses to adopt such a resolution within 40 days, the guidance may be issued.
Sarah Jones
I would add only that if the Government, in this clause, are keen to ensure that the Houses of Parliament, both the Commons and the Lords, have as much information and as much opportunity to look at the draft guidance as possible, that strengthens my request that some of this guidance be provided in time for either the Commons or the Lords Committee consideration.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clause 25
Data from electronic monitoring: code of practice
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
Clause 25 requires that the Home Secretary publish a code of practice for the processing of data collected from individuals subject to an electronic monitoring requirement in one of these SDPOs. While in line with existing codes of practice on data from electronic monitoring, the code will not be binding. It will offer clear guidance to controllers and authorities on the retention of data, sharing and transmission of data and other associated issues, while ensuring that all data gathered is held in accordance with the data protection requirements.
Sarah Jones
We have talked about the intrusive nature of electronic monitoring and the fact that new types of monitoring mean that it does not just register whether someone has gone beyond a certain boundary at a certain time of day, but tracks them every moment of every day. That data, as we know, is worth a lot of money and is very intrusive, and there are organisations, and indeed hon. Members on both sides of this House, concerned about the gathering of data and what is done with it. In this case, the guidance is not binding, so I add our concern that we need to be very clear what happens to that data and how it is used.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26
Interpretation of Part
Question proposed, That the clause stand part of the Bill.
Sarah Jones
I will just continue in the same vein: we disagree with SDPOs in the main.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27 ordered to stand part of the Bill.
Clause 28
Extent, commencement and short title
Kit Malthouse
I beg to move amendment 22, in clause 28, page 26, line 32, at end insert—
“(3A) Section (Assemblies and one-person protests: British Transport Police and MoD Police) comes into force at the end of the period of two months beginning with the day on which this Act is passed.”
This amendment provides for the new clause inserted by NC4 to come into force two months after Royal Assent.
The Chair
With this it will be convenient to discuss the following:
Government amendment 23.
Government new clause 4—Assemblies and one-person protests: British Transport Police and MoD Police.
Government amendment 24.
Kit Malthouse
New clause 4 closes a gap in the existing powers at part 2 of the Public Order Act 1986 for policing public processions and assemblies. It does so by harmonising the position between on one hand the territorial police forces, those covering a geographical force area, and on the other hand the British Transport police and Ministry of Defence police force.
The present position is that the territorial forces are able to exercise those powers, but the British Transport police and MOD police are not. New clause 4 extends to those forces some of the powers of part 2 of the 1986 Act where there is an operational case for doing so. It does not extend all the part 2 powers, as not all are relevant to the functions of those forces. I emphasise that new clause 4 does not create any new powers, nor does it broaden existing ones. It simply serves to close a potential gap in jurisdiction by extending certain existing powers to these two additional non-territorial police forces. The powers contain various limitations and safeguards. For example, only the most senior of the officers present may exercise the powers, and there is a requirement that the officer must reasonably believe that the assembly may result in certain forms of serious disorder. These limitations and safeguards are replicated in new clause 4.
These modest and proportionate measures largely seek to address an anomaly in the powers currently available to our specialist non-territorial forces. I imagine it would surprise the British public that the British Transport police in particular does not have these powers.
Mrs Elphicke
Will the Minister confirm that port police are not included in these provisions relating to transport because they operate using existing powers? I have the port of Dover police in mind particularly.
Kit Malthouse
My hon. Friend is exactly right. It applies where they are part of a territorial police force. I know she has a particular interest in Dover port police, and we will seek clarity for her on that before Report.
I think the British public would be surprised to know, given how much protest is targeted at the transport network, that the British Transport police does not have these powers. The new clause will deal with that anomaly. The existing legal tests and safeguards for the use of these powers will continue to apply. Making these changes will help to promote a consistent and effective response to public order protests. I commend the amendments to the Committee.
Sarah Jones
When we debated the Police, Crime, Sentencing and Courts Bill, the Government brought in a police covenant, for which many people had campaigned for years. We had a debate at that time because British Transport police and Ministry of Defence police were not included in that covenant. The Government said it was too difficult to include them in any Bill that introduced new powers. After a lot of pressure from other organisations, they were able to do it. It is good to see them doing it again.
The various parts of our policing system have different funding pots, ways of existing and remits, but they are just as important as our main police force. British Transport police does crucial work on all kinds of issues, particularly county lines over recent years. The provisions on protests we are debating here cover everything BTP does as well as potentially what the Ministry of Defence police does. We do not agree with the premise of the Bill, but I have spoken to people in some parts of the policing system who say they feel slightly neglected by the wider policing family. It is absolutely right that they should be on the face of the Bill and play a part of wider policing.
Amendment 22 agreed to.
Wendy Chamberlain
I beg to move amendment 27, in clause 28, page 26, line 32, at end insert—
“(3A) Except as provided by subsection (3), sections 1 to 5 and 11 to 22 of this Act may not come into force before the Secretary of State has laid before Parliament and published a report containing—
(a) an assessment of the current capability of police services in England and Wales in relation to the provisions of this Act,
(b) an assessment of the numbers of police officers who will need to be trained in relation to the provisions of this Act, the number of officers who will be needed to deliver the training and the amount of time that that training will take for each officer,
(c) details of how police units will be deployed in relation to the provisions of this Act, including the number of police officers who may be redeployed from other duties, and
(d) an assessment by the Home Office of the likely impact of the provisions of this Act on the number of police officers who will be moved from their usual duties to public order operations in other places.”
This amendment would mean that sections 1 to 5 and 11 to 22 of this Act could not come into force until the Government has laid before Parliament a report assessing the current capability of police services to operate the provisions in those sections and the impact on police deployment.
The Chair
With this it will be convenient to discuss amendment 28, in clause 28, page 26, line 35, at end insert—
“, which for sections 1 to 5 and 11 to 22 may not be before the date of publication of the report set out in subsection (3A)”
See Explanatory Statement for Amendment 27.
Wendy Chamberlain
Amendment 28 is consequential on amendment 27. We may not have found much to agree on so far in Committee, but what we have all agreed on is how hard our police officers work, how challenging the job is, and how difficult it can be to fulfil their variety of functions. The amendments would place a duty on the Government to report to Parliament on the police’s ability to meet their obligations under the Bill before it comes into force.
I am asking for an assessment that includes an analysis of current capability, how many officers would need to be trained to fulfil the requirements, and how many officers would be diverted from day-to-day policing. We all care about local policing and local services, and ensuring that when somebody does contact the police, they have a timeous response that deals with their complaint. We need police officers in our communities, we need them on the streets, and we need them to respond to the public and investigate crimes.
Kerry McCarthy
I entirely agree with the hon. Lady. As I said, the police in Bristol will be used to dealing with these sorts of situations on the streets, but we will have to bring in police from other forces who will not be accustomed to dealing with them. Does she agree that that is of particular concern? They will not have the knowledge that comes from just being on the job, dealing with cases and talking to colleagues.
Wendy Chamberlain
I agree with the hon. Member. The COP26 policing effort of last year involved mutual aid. That involved, for example, training in Scots law for officers coming from England and Wales, so that created an additional training requirement as well. We have to think about those things. As for my own police experience, my specialism was in sexual offences; I was a sexual offences-trained officer, but from a general perspective, I policed football matches, marches and local demonstrations, and interpreted the law accordingly.
Returning to the evidence given by Chief Constable Noble, the chief constable for Staffordshire, if his numbers are reflective of England and Wales as a whole and assuming that no more officers need to be trained—although I have illustrated why I do not think that is the case—over 3,000 officers across England and Wales will have to be removed from duties and trained in these new laws. That is equivalent to about 125 lost days of frontline policing in local communities, and once those people are fully trained, they will need to be diverted from their duties to police the offences set out in the Bill.
It is logical to think that if it takes 25 officers, currently, to police a protest—I am not putting a number on how many people might be there—through the additional offence of being equipped to lock on, and opening the door to extensive stop and search, many more officers may be required. As I said on Tuesday, if we start arresting protesters, we will run out of police officers before we run out of protesters. I also remember Chief Superintendent Dolby talking about the fact that part of their safety techniques in dealing with protesters involves five police officers to arrest a single protester, so the Minister can quickly see how the odds shift.
Nearly 47,000 incidents of knife crime were reported to the police in England and Wales in 2021. That is 128 every day. There were nearly 185,000 sexual offences —more than 500 each day. Given the choice between having police officers responding to those calls, filling in paperwork for SDPOs or stopping and searching protesters, I think I know what I and the public would choose. In a recent YouGov poll, more than half of respondents stated that they do not have any confidence in the police to deal with crime. Traffic offences were the only crime that more people than not thought the police were handling with enough rigour.
I also know what the police would choose. That is because our witnesses told us, and because it is set out in the HMICFRS report. Accepting that protests do need policing, all the evidence tells us that best practice requires strong, pre-existing community relations, which simply cannot be established by constantly lifting police officers in and out of the day job and abstracting them to other duties.
I would hope that these amendments would just require the Government to properly look at how the police are resourced. Government Members want this legislation to be successful, but it will not be if the police are under-resourced. Again, Sir Peter Fahy referenced the fact that, in relation to the response to protest, the police could be viewed as incompetent. I am sure that those on the Government Benches would not like that to be the outcome of this legislation.
The Minister heard the same evidence that I did, and he will have heard the same significant concerns about resourcing. Will we get to a position where, in all areas, police officers have been called to deal with protests, and where a demonstration is more strongly policed than crime? The police cannot be given more work and left to struggle. I would argue that all our communities deserve more. I am potentially looking to withdraw my amendment, but I would be happy to discuss, constructively, with the Minister, how we ensure that capability is there.
Sarah Jones
I thank the hon. Lady for her speech. She covered a wide range of challenges the police have before them. It is not unreasonable to expect the Government to ensure that there is capacity within policing to implement legislation if we are making them do so. I also think that she is probably the only person in this room who has policed protests, so, unless anyone else has, we should probably listen to what she says.
On funding, there is a raft of information out there on the lack of and need for training. I would add a couple of other points, made by the inspectorate and others, on what we must do to ensure that we do these things better. The first is on intelligence gathering—finding out, upstream, what is being planned—to ensure that we have enough resources in that area, because that is one of the most effective ways to prevent those repeat offenders.
There is also an interesting chapter in Matt Parr’s report on collaboration between agencies, because to effectively police a protest, we need all of the other agencies, such as the local authority and emergency services, alongside the police as well. There were many examples where that collaboration was not working properly, perhaps because people do not have the time to put that in place. In his report, Matt Parr recommended a joint review of that process. I understand that there will be one, but, of course, that has not happened yet, and so those challenges are still there.
I know that the hon. Member for North East Fife is intending this as a probing amendment. However, I think it is a reasonable challenge to the Minister that we should have enough resources to implement this when crime has risen, prosecutions have fallen, and we have seen huge cuts to policing across the board—the numbers have not yet gone back to previous levels. We would support the hon. Lady’s amendments.
Kit Malthouse
I have great respect for the experience of the hon. Member for North East Fife, and I salute her service as a police officer. It is a noble calling and she has my admiration for her career, but I am genuinely perplexed by the amendments. They are unnecessary, not least because much of what we have discussed so far and the amendments that we are putting through are about giving the police more prosecutorial powers and allowing them to get ahead of certain protest tactics and to prevent them, therefore reducing the resources required.
For example, we have discussed stop and search. We have had episodes where police officers have seen the lorries going past with the scaffolding poles sticking out of them, but are unable to stop the vehicles and search them for the equipment and have to wait until the individuals erect them. Then the height team has to be called and the unlocking team has to be called. The ability to intervene earlier would mean that we need fewer specialist teams; that we are able to deal with things much more quickly and on a preventative basis, and therefore there is likely to be less call upon resources.
Notwithstanding what the hon. Lady says, we have significant police resources at our disposal now. The last published police officer numbers figure was 142,000. The peak in 2010 was 144,000. We still have 6,000 or 7,000 to go in our recruitment, so we will be well above the previous peak when we get there. There are lots of resources there.
Obviously, police officers need to be trained properly and there need to be adequate resources to deal with public order issues, but we are acting in this debate as if the police are not already heavily engaged in public order, and as if there is not already an enormous absorption of resources. With the Just Stop Oil protests, for example, officers were drafted from Scotland to come down and assist Essex police and Warwickshire police with the policing of the protests.
We are acting as if it is the legislation that we are going to pass—I hope—that will put a demand on the police, rather than the protesters themselves, who are dragging the police officers away from their important work dealing with knife crime and burglary and robbery in our neighbourhoods. The hon. Member for Croydon Central makes much of overall crime being up; she never mentions that kinetic crime—crime in our neighbourhoods—is actually well down. As she says, fraud is up, and that adds to crime and is something that we need to address but, overall, the crimes that impact on us physically are significantly down and that is a tribute to the work that the police have been doing over the last couple of years.
The other thing I find perplexing is the unwillingness to address the urgency of the situation. I understand that on a hot afternoon, on a Thursday with a one-line Whip, it is easy to be relaxed about this, but we should be in no doubt that in recent months we have seen some extremely dangerous protest tactics: people lighting cigarettes on top of petrol tankers; strapping themselves to fuel gantries, through which millions of gallons of fuel are flowing; or digging tunnels that have been caused to collapse on contractors, bringing people’s lives into danger.
There is an urgency to what we need to put in place. I understand the desire of the hon. Member for North East Fife to have a training audit before we do anything, but I do not think the situation gives us the time to do that at our leisure. We have to act as swiftly as possibly. I am happy to write to the hon. Lady with what we understand the impact is likely to be, but I ask her to withdraw the amendments on the basis that we must act urgently.
We cannot wait, given the danger that is being presented to the protesters and certainly to the police, and the disruption that the public are seeing. At this time of a cost of living crisis, with people struggling and with rail strikes and whatever we may see over the summer to come, we really cannot have these protest tactics taking place. That is why I would be keen for her to withdraw her amendments.
Wendy Chamberlain
I suppose we could say that the Minister and I have a difference of opinion here. Without an assessment, we will not know who is accurate. The Minister’s position is that the measures in the Bill will ultimately mean less abstractions. My argument is that they potentially mean more, from a training and deployment perspective. Without an assessment, we will not know.
The hon. Member for Stockton North asked Sir Peter Fahy about resources last week. Sir Peter said that
“the public think that there are lots of police officers sitting around in police stations doing nothing, whereas the reality is—somehow the police service needs to find a better way of articulating this—that no, even the Metropolitan police does not have loads of spare officers.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 62, Q123.]
The Minister has said that he believes there are sufficient resources, but he also went on to say that the authorities needed to bring police officers from Scotland in order to stop a Just Stop Oil protest. There are issues with resources, and my amendment would ensure that there was a report looking at the capability of police services. I welcome the Minister’s offer to write to me on what assessment the Government have taken into consideration, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Kit Malthouse
I beg to move, That the clause be read a Second time.
I will be brief, because we have already had a substantive debate on the new tunnelling offence. As with the overall offence, the offence of going equipped to tunnel makes it clear that protesters’ tactic of building tunnels in order to disrupt legitimate activity—while endangering themselves, the police and the emergency services that respond—will not be tolerated. New clause 7 makes it an offence to go equipped for tunnelling, which will be punishable by six months’ imprisonment, an unlimited fine or both.
As we heard from the NPCC, it is clear that the police need powers to proactively tackle tunnels before they occur. New clause 7, combined with amendments 25 and 26, will allow the police to take the necessary preventive action against those who they believe may be intending to tunnel, protecting the public from serious disruption. We have already debated the principle of the offence of going equipped, and the police’s ability to decide between those who are going equipped to commit an offence and those who are going equipped for legitimate purposes.
Sarah Jones
This new clause creates a new offence committed by a person who has an object with them in a place, other than a dwelling, with the intention that it might be used in the course of, or in connection to, the commission by any person of any offence relating to tunnelling—under new clauses 5 and 6, which we have just agreed to.
The concerns that I raised earlier apply to new clause 7, so I do not intend to detain the Committee for long. Our key point, as I said earlier, is that the National Police Chiefs’ Council lead in this area, Chris Noble, said of the Government’s plans to make it an offence to cause serious disruption by tunnelling, or be present in a tunnel or equipped for tunnelling:
“Whilst forces have experienced tunnelling in recent operations, we do not believe that a specific offence around tunnelling will add anything above and beyond our current available powers.”
We know the Criminal Damage Act 1971 creates those offences of damaging property and having articles to damage property. The Minister talked about the police’s inability to stop people who might be on their way to commit some of these offences, but the police already have the power to search in order to allow them to find articles or equipment intended to cause damage. In the case he cited—I do not know which case that was—that power is there, so a new offence of being equipped for tunnelling will only add to the police’s existing powers to address the problem of tunnelling.
We do not believe the new offence would be a deterrent for repeat offenders who may have the means to withstand fines or may see convictions as a badge of honour. We heard about people using crowdfunding to pay fines, which is another example of repeat offenders who want to be in the criminal justice system.
Commenting on the new provisions, the Home Secretary said that the tunnelling protests
“divert precious police resources away from where they are needed most”.
That is true, but then she said:
“These measures will give our police the powers they need to crack down on this lawlessness and continue to make our streets safer.”
We do not believe that is the case.
The National Police Chiefs’ Council, the national co-ordination body for law enforcement in the United Kingdom and a representative body for police chief officers, is telling the Government that the police do not need these powers on tunnelling. We all appreciate how irritating hard-line protestors are, how much they put people in danger and how much taxpayers’ money is spent on policing what they have done, but I repeat that we believe the police could use existing powers to deal with these issues, and therefore we do not support new clause 7.
Question put and agreed to.
New clause 7 accordingly read a Second time, and added to the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Public Order Bill (Seventh sitting)
Tuesday 21st June 2022
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Public Order Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 21 June 2022 - (21 Jun 2022)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Chair
I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during sittings, except for the water provided. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes @parliament.uk or, alternatively, passed their written speaking notes to the Hansard colleague in the room.
New Clause 1
Offence of interference with access to or provision of abortion services
“(1) A person who is within a buffer zone and who interferes with any person’s decision to access, provide, or facilitate the provision of abortion services in that buffer zone is guilty of an offence.
(2) A ‘buffer zone’ means an area with a boundary which is 150 metres from any part of an abortion clinic or any access point to any building or site that contains an abortion clinic.
(3) For the purposes of subsection (1), ‘interferes with’ means—
(a) seeks to influence; or
(b) persistently, continuously or repeatedly occupies; or
(c) impedes or threatens; or
(d) intimidates or harasses; or
(e) advises or persuades, attempts to advise or persuade, or otherwise expresses opinion; or
(f) informs or attempts to inform about abortion services by any means, including, without limitation, graphic, physical, verbal or written means; or
(g) sketches, photographs, records, stores, broadcasts, or transmits images, audio, likenesses or personal data of any person without express consent.
(4) A person guilty of an offence under subsection (1) is liable—
(a) in the first instance—
(i) on summary conviction, to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding level 5 on the standard scale, or
(iii) to both; and
(b) on further instances—
(i) on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine, or to both; or
(ii) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, or to both.
(5) Nothing in this section applies to—
(a) anything done in the course of providing, or facilitating the provision of, abortion services in an abortion clinic,
(b) the operation of a camera if its coverage of persons accessing or attempting to access an abortion clinic is incidental and the camera or footage is not used for the any of the purposes listed in subsection (3), and
(c) a police officer acting properly in the course of their duties.”—(Dr Huq.)
This new clause would introduce areas around abortion clinics and hospitals (buffer zones) where interference with, and intimidation or harassment of, women accessing or people providing abortion services would be an offence.
Brought up, and read the First time.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
I beg to move, That the Clause be read a Second time.
At the last count, 35 other right hon. and hon. Members, from seven parties, including at least one Member of every party of England and Wales, had signed up to the new clause. I do not know whether the number has gone up since then.
We have talked quite a lot in Committee about what could happen. We have talked about what could happen if someone was carrying, as I am today, a bike lock— I thought I would have to cycle in; I cycled part of the way, to the house of another Member who gave me a lift the rest of the way—and whether I could be criminalised for having that on my person. Could two little old ladies from the Women’s Institute be arrested for linking arms? The new clause, though, addresses what is actually happening every day, up and down our country, at abortion clinics.
Some of the fanciful stuff we have talked about, such as members of Extinction Rebellion gluing themselves to trains, or the blocking of the A40 in my constituency, which I have spoken about, are pretty rare and the exception, not the rule; but every day, women are unable to make their way into abortion clinics to have a perfectly legal procedure. It has been legal in this country since 1967 or 1968, I think—for more than 50 years, anyway. There is disruption not just to the women who use the clinics, but to users of the public highway and local residents. The figures are there—the Home Office has done the crunching—and they show that tens of thousands of women, at a number of locations, are affected every year.
I have previously ventilated this issue through a ten-minute rule Bill and a letter to the then Home Secretary, Amber Rudd. Loads of MPs from both sides of the House signed up to those, because they know, as do their local police forces, what a waste of time it is for the police to have their people tied up in adjudicating between two groups of protesters. There are two groups. There are the anti-choice people, and then there is a group in my constituency called Sister Supporter; its members, who wear pink hi-vis vests, want to escort women into the clinic. There is friction, and the police, who should be fighting crime, are tied up there.
Kerry McCarthy (Bristol East) (Lab)
My hon. Friend mentioned the impact of the people outside the clinics on the people going into the clinics, and the obstruction of the pavement and passers-by, but does she agree that there is a difference between the two? As we have discussed in Committee, protests that cause people inconvenience are legitimate, but there is quite a difference between that and the harassment of people making a possibly difficult life choice. Does she agree that there is a difference in the impact on people, and that protesters could hold a protest without being close to the clinic?
Dr Huq
My hon. Friend makes a really good point. When is a protest not a protest? These women are subject to harassment. There is a time and place for protest. If someone wants to attack legislators, they should protest here, or they could protest at the Department of Health and Social Care, wherever that is now—I know it is not in Richmond House anymore, because my office is there. There are legitimate places where people can hold a protest without shaming individual women and rubbing their noses in it. We have heard how these things are filmed and put on Facebook Live, and the new clause takes that into account.
The Minister has chided me on this before, but last time there was a Labour amendment on this issue, it also concerned anti-vax protests. The former Minister for vaccines used to have a Friday call with all of us that was very popular, and he pointed out that stuff has been done in law to stop those protests. This is not dissimilar. We said after the horrible Sarah Everard episode that women should be able to go about their lawful business, to use the public highway and to walk down the street without being impeded by others. Some people would describe what is happening outside clinics as a protest; the people doing the “protesting” would say they were holding vigils and offering advice to the women, but there is a time and a place for that, and it is not at the clinic gates when women are making the most difficult decision of their life, as my hon. Friend the Member for Bristol East said. They are not doing it lightly, and it may be for all sorts of reasons, such as fatal foetal abnormality.
Other jurisdictions have similar legislation. The French legislation brackets the offence with causing psychological distress, and the amendment is lifted from British Columbia. Several American states have such an offence, as does Australia. I have given the example of Ealing before, and I am proud that my local authority was the first to set up a public spaces protection order, or PSPO. Ministers have told me, “Well, councils can do that,” but that order was set up in 2018, and only three other councils in the country have done the same, although new locations for such action are popping up all the time. The Minister might not understand, but my hon. Friend the Member for Bristol East and the shadow Minister, my hon. Friend the Member for Croydon Central, will know that walking past certain unpleasant things will send a shiver down a woman’s spine anyway. Imagine how that might be magnified when they face a difficult medical procedure. Women can sometimes be uneasy about using the public highway; such activity adds a whole new dimension.
As I say, only three other councils have used a PSPO. Why have other councils not done so? Because setting them up is time-consuming and clunky for local authorities, who have quite a lot on their plate. In Ealing, we have the west London Marie Stopes clinic. It is not just my constituents who use it; women come from all over the country, and women from Ireland historically have used it. We are lucky in Ealing: protesters are moved away from the clinic gates. They are moved only 150 metres away, because there is a main road boundary there. We could be flexible about the limit; it could depend on where the clinic gates are, and where women have to pass. As a mother, I have taken little ones past these groups. We are not just talking about protests; there can also be gruesome images of foetuses and 3D dolls. I have been asked, “Mummy, what’s that?” People who are not even using the clinic have had to divert and use other roads so as not to pass that distressing scene.
Other councils have not followed Ealing because doing so is very resource intensive. We had this situation for 24 years in Ealing before the council took the imaginative route of using antisocial behaviour order byelaws; that is what PSPOs are thought of as being. The order is only temporary; it lasts three years before it has to be renewed, and a huge burden of evidence is needed. There is the principle of consistency before the law. We are lucky in Ealing, but this should not be a matter of luck. People should have equal protection under law, wherever they live, and there should be such restrictions for every clinic. I understand that Birmingham has two clinics, one in the north and one in the south; sometimes the protest gang will be at the north clinic, and sometimes at the south one. The element of uncertainty needs to be eliminated. Life has enough uncertainties as it is.
We are often told in Committee, “There is sufficient legislation.” Opposition Members have at times asked the Government, “Why do you want to create a new offence? There is sufficient legislation out there. These people can be stopped.” In this instance, it is proven that there is not sufficient legislation. Whenever I have ventilated the issue, the idea of taking action has been popular on both sides of the House. As constituency MPs, we all know about the complaints we get in our postbags when a street becomes unusable and police are tied up in dealing with unnecessary stuff. I was discussing this offline with a Committee member who I cannot see in his place today. He has an issue with abortion, but this is not about abortion at all; it is not about the number of weeks before which a person can have an abortion, or about being anti-abortion or pro-abortion. It is just about people not having a protest within the buffer zone, however many metres wide we define that as being. People can make their protest in a way that does not interfere with women’s right to walk into the clinic and have the procedure.
As my hon. Friend the Member for Bristol East pointed out, having an abortion is a huge, difficult decision, and women should be informed of the pros and cons and their choices by medical professionals, counsellors and family members. These things should not happen in the street, in a pressurised environment, and in a distressing and confrontational way that is about trying to bring on all these feelings of guilt and shame.
This issue is just not going away. The number of protest sites is growing year on year. The stuff going on across the Atlantic, where Roe v. Wade is being revisited, is very regressive. I do not want us to take a polarised position in Britain. As I have said before in this Committee, the Ealing decision has been challenged at every level—in the High Court, the Supreme Court and the Court of Appeal—and it has always won. Judges have seen that someone having a medical procedure has a right to privacy that trumps freedom of belief, thought, conscience and expression. The two do have to be balanced, and people can have their protest, but not in a way that interferes with women’s right to use the public highway, and to have a procedure to which they have been legally entitled for decades—for longer than my lifetime. All the medical opinion supports this approach; it is supported by the British Medical Association, all the royal colleges, the nurses and midwifery people, and even good old Mumsnet, who are not normally seen as militant crazies.
I think I have said my bit for now. As I say, this measure was massively popular when it was a ten-minute rule Bill, and that was at the height of covid, so not everyone was in the building, but I think the numbers in support of it were crushing. If there was a free vote on the measure, I think that the House would support it. The Government should adopt it; they can then show that the Sarah Everard case was not in vain, and that something has been done for women and girls, even though there are zero mentions of the issue in the Bill.
Mrs Natalie Elphicke (Dover) (Con)
I agree with the hon. Member for Ealing Central and Acton that the new clause is not about abortion rights. This is a Public Order Bill about the right to protest, the extent of active protesting that seriously disrupts others, and where the balance lies.
The public order subject matter of new clause 1 has been debated previously and was the subject of an in-depth review by the Government in 2018. That review engaged with more than 2,500 people and organisations, and it concluded that national exclusion zones of the type proposed in new clause 1
“would not be a proportionate response, considering the experiences of the majority of hospitals and clinics, and considering that the majority of activities are more passive in nature.”
I note the evidence submitted to the Committee by a Mr Damien Fitzgerald, who described in the following way the activity we are discussing:
“Peaceful pro-life vigils are not ‘protests’…Pro-lifers at peaceful vigils do not behave in a harassing or intimidating manner. They are simply praying and making it clear that help is available.”
That description was echoed in the findings of the Government’s review:
“The main activities reported to us that take place during protests include praying, displaying banners and handing out leaflets.”
The review went on to say that there were
“relatively few reports of the more aggressive activities described.”
Those examples included
“handing out model foetuses, displaying graphic images, following people, blocking their paths and even assaulting them.”
Such behaviour is entirely unacceptable and should, like all such activity on any issue, be tackled robustly.
There are existing laws to address personal intimidation and assault, as the then Home Secretary set out at the time of the review. There are also laws that allow local authorities to introduce local exclusion zones, where they believe that to be right. I note what the hon. Member for Ealing Central and Acton says about Ealing Council’s order, which has been in place since 2018. I therefore suggest that new clause 1 is wholly unnecessary for addressing the harm that has been outlined. It can be addressed, and indeed is being addressed, under current laws.
On balancing those rights, I note that new clause 1 is considerably wider in scope than the Ealing order. I would be grateful if the hon. Lady explained the reasoning behind the significant widening in the new clause. In particular, the Ealing order relates specifically to protests approving or disapproving of abortion services, but the new clause would criminalise only those who disapprove of abortion services. It seems that any person who wishes to facilitate the provision of such services within the buffer zone, for example by providing a physical or verbal presence in the zone, would not be criminalised by the new clause. That is a considerable difference from the approach taken in the Ealing order.
The Ealing order specifies that the people who are to be protected are service users—the women seeking the services—and those who work in the abortion clinics, but not protesters. Under the Ealing order, where there is a protest and a counter-protest at the same site, all protesters are treated equally, but that is not the case under subsection (1) of the new clause. It favours one side of a protest over another. That is an issue on which the Committee has heard evidence; I will come to that in a moment.
The Ealing order limits the offence to interfering, intimidating, recording or photographing service users or members of staff in the controlled area. New clause 1 contains no such limitation, which raises the question of whether a protester could be criminalised for photographing a counter-protester—not a member of staff or service user—when both are in the buffer zone, or indeed when one is in the buffer zone but the other is outside it.
On “seeks to influence” in subsection (3)(a), I draw the Committee’s attention to the evidence we received from Martha Spurrier of Liberty, who said:
“People are entitled, as part of their right to protest, to seek to influence people, as long as they do not do so in a way that is harassing.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 74, Q143.]
The new clause seems much broader than the Ealing order, and I would be grateful if the hon. Lady could explain why in detail.
Subsection (2) of the new clause specifies that the buffer zone boundary should be 150 metres from any part of the abortion clinic, or any access point to the site. The hon. Lady stated in evidence:
“The distance need not be 150 metres. We just took that from Ealing, because that is where the main road is, so then it is not in the eyeline.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 73, Q143.]
I think she expressed a similar view just now.
The map of the area covered by the Ealing order shows that it has a highly unusual shape. It is a fat T; it covers a long strip of main road along the top, and a section of the park in which the clinic is situated. Reports, including from the BBC, refer to it as a 100-metre buffer zone, rather than a 150-metre one. I would be grateful if the hon. Lady clarified the basis for that, and her understanding of how the measures would operate in different locations. Is it intended, as the drafting suggests, that the buffer zone be a 150-metre circle around the site, or does she envisage a more site-specific approach being taken, as was the case in Ealing? She referred to Ealing, but the new clause does not provide for a site-specific or case-by-case approach.
Anne McLaughlin (Glasgow North East) (SNP)
Thank you for allowing me to speak, Mr Dowd, despite my being a couple of minutes late. I am sorry, but I could not find room 10; I could find rooms 9 and 11 but not 10. I thought I was in a Harry Potter plot.
Anne McLaughlin
Yes, but it does not have a number outside. I was unable to be here last week due to a diary clash, and I apologise for that, although I advised the Committee.
I recall that the previous week the Minister and others in the debate and here today suggested that there is some hypocrisy going on. That is my reason for saying a few words today. I want to explain why they are wrong in their assessment. That said, the measure applies to England and Wales only, so I will abstain in any vote because, as most colleagues know, the SNP does not vote on matters that do not directly impact on their constituents. However, I will put my name to a motion similar to this at the SNP conference later this year.
The position is not hypocritical, because there is a world of difference between somebody being harassed, as the Minister puts it, by protesters, and being told an airport is not doing enough for climate change. There is a world of difference between that and somebody being told with words, verbally, on a poster, or implied by presence, “You are killing your child. You individually are responsible for the death of your child.” That is what those protesters are saying.
I know women who have had abortions, and even those certain from the outset that it is absolutely the only and right choice for them, wrestle with their conscience, and they live with that decision forever. The guilt is there already; they do not need somebody else to make them feel even more guilty, yet that is what the protesters do. Even the ones who silently stand and pray quite often have posters with pictures of foetuses and the message that abortion is murder. It is cruel in the extreme.
Nobody changes their mind once they have got to the clinic. Nobody who turns up at the clinic and who is attacked by someone verbally, on posters or by their presence, stops and says, “Wait a minute—you are right. I am killing my child. I am going to cross the road to you and ask for your help.” That does not happen. It is fine for people to have those views and want to offer assistance, but not at that stage and in that way. That is why it is completely different from any other type of protest talked of in the Bill. I am sorry that I cannot vote for it. That is not much good for the hon. Member for Ealing Central and Acton, though others are not going to vote for it anyway. However, I do want to voice solidarity, because I support the gist of what she is trying to do.
Sarah Jones (Croydon Central) (Lab)
Given the contributions so far, I will be brief. I want to add to what the hon. Lady has just said and to try to explain that this different, because it stops people getting the medical support that they need.
I have had cause to walk into the abortion clinic in Streatham. On that occasion, I was not getting an abortion but, I promise, if I had been what I saw would have made me feel very scared, guilty and inclined not to go in. Although the protesters were not shouting and yelling, they were judging. For many women—people—that judgment means they want to run away. It was worse when we came out than when we went in. The protesters do not know what has gone on inside, so the judgment when you come out is 10 times worse than when you go in, because the protesters think that you have committed murder. This is a very different matter; it is about getting medical attention that you are entitled to. It is about your legal duty to—
The Chair
May I stop the hon. Lady? I remind hon. Members not to use the second person singular and use “you”. The occasional use of “you” is okay but we are now in the territory of multiple uses. Will people please stick to the protocol?
Sarah Jones
Forgive me, Mr Dowd. That was wrong of me. I am going off script, which is why I did that.
We heard in evidence from Liberty that it is supportive of this new clause, because these behaviours are harassment. Even if it is not verbal, it is definitely harassment. I have felt it myself, so I think that this is a very different order of thing. It is in the same category as the kind of debates we have had about people being prevented from getting their vaccines.
I will leave it there. I am very happy to support my hon. Friend the Member for Ealing Central and Acton, as many Members from across the House have done. There is a genuine debate to be had. My hon. Friend is doing an excellent job of keeping this conversation going; it is important that we continue to have it.
The Minister for Crime and Policing (Kit Malthouse)
Given the comprehensive nature of the speeches, not least that of my hon. Friend the Member for Dover, I will keep my remarks short. During the course of the Committee’s debates, it has been interesting to hear how Members have tried to strike a balance between the competing rights that we acknowledge exist in society.
The hon. Member for Ealing Central and Acton put her finger on what is basically the entire point of the Bill when she asked, “When is a protest not a protest?” I think we can all agree that there is a case for the rights of the individual to be balanced when anybody faces harassment—people screaming at them, pretending to be protesters; effectively any sort of verbal assault—whether that is on entering an abortion clinic or, indeed, in the case of the women protesters in Bristol at the weekend. These are different situations where we, as democratic politicians, have a duty to try to balance the competing rights on display.
The hon. Member for Ealing Central and Acton has campaigned passionately on this issue; I salute her for her indefatigable pursuit. Her new clause is very similar, if not identical, to one she tabled during the passage of the Police, Crime, Sentencing and Courts Act 2022. The remarks made at the time by the Minister responsible for the Bill—the Minister of State, Ministry of Justice, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins)—are essentially the same as our position now. We believe that a suite of existing offences can handle this harassment, as the hon. Lady knows. The Public Order Act 1986 makes it an offence to display images or words that may cause harassment, alarm or distress, attracting six months’ imprisonment or a fine. It also means the police can impose certain conditions on protests.
Kit Malthouse
I will give way in a moment. We also have the Protection from Harassment Act 1997, which makes it an offence for someone to pursue a course of action that they know will amount to harassment of someone else; again, this offence attracts six months’ imprisonment and/or a fine. There are also the PSPOs, which the hon. Lady talked about. We have three in operation—Ealing, Richmond and Manchester—that have successfully put an end to some of those harmful protests.
The hon. Lady can respond at the end to the points that have been raised. Before she does so, however, I would just say that there are some difficulties with the scope of her new clause, as my hon. Friend the Member for Dover pointed out. It goes much further than existing PSPOs and covers private dwellings and places of worship that fall within 150 metres of a clinic, as well as other premises where the behaviours she has described would not have the impact of interfering with access, but could be criminalised. That, I am afraid, would be disproportionate. As my hon. Friend said, it would also include doctors in surgeries within 150 metres of a clinic who offer advice to patients about abortions. That too would be disproportionate.
We believe that the argument the hon. Lady made strengthens the case for locally driven responses that take into account local facts, issues and circumstances, rather than a nationwide blanket ban. As my hon. Friend said, we reviewed this matter in 2018, with a further review in 2020. We will continue to keep it under review, particularly by engaging with the National Police Chiefs’ Council and local authorities as they see these events unfold.
Based on the evidence, we have concluded that it would not be proportionate to introduce a blanket ban. Obviously, none of the provisions in the Bill that we have talked about so far has imposed a blanket ban. They are all about imposing conditions when a protest crosses the line, as the hon. Member for Ealing Central and Acton says, into being something else—into being a crime. As the hon. Member for Glasgow North East knows, it is possible to impose such conditions in Scotland; we would like to mirror that in England and Wales. The hon. Member for Ealing Central and Acton voted against Second Reading on the basis that the Bill would curtail the right to protest, but here we are with a new clause that puts a blanket ban on protests, rather than placing conditional controls on them that would essentially seek to balance competing rights.
We understand the intentions behind the hon. Lady’s new clause, and see her passionate campaigning. I know that she has support from across the House, and that the issue will emerge again, but for the reasons that we have set out, I am afraid that I urge her to withdraw the new clause.
Dr Huq
There is quite a lot of stuff to respond to there. There has been quite a lot of whataboutery. I will start with the hon. Member for Dover. She made a large number of points, and I did not want to stop her flow, because she was reading out her speech so nicely, but there were some misunderstandings. The new clause is not identical to the Ealing order. I think that I explained that the new clause is based on the British Columbia provision, and I am happy to work with the Government to iron out any wrinkles in it. The distance of the boundary of the buffer zone should depend on the situation of the clinic. I understand that the Streatham clinic is in a cul-de-sac, so the buffer zone there would be different.
The Ealing PSPO came in relatively recently, in 2018, whereas the protest there has been going on since the ’90s. A great number of people thank me for the PSPO, and say that they can now use the pavement. The hon. Lady described BPAS in east London. I do not know the lay-out of that clinic, but she says that it is in a doctor’s surgery. Unusually, in this country, these services tend to be provided in stand-alone clinics. It is different in Scotland, where they are often provided in a hospital.
Dr Huq
Let me finish what I am saying. There are two main providers: BPAS and Marie Stopes, which runs the West London clinic in my constituency. They have stand-alone clinics, and these services are all that the clinics provide. The east London clinic is not known to me. I advise the hon. Lady to take a trip to the Marie Stopes in Maidstone, the nearest one to her, and look at the evidence logs. Getting the PSPO involved presenting the evidence logs.
The Chair
Order. Hon. Members must ask the person speaking if they will give way, and should not carry on talking if the other person is still talking.
The Chair
No. To be absolutely clear, when a Member is speaking, and someone wants to intervene, they ask if the Member will accept the intervention. If the Member carries on speaking, they have not agreed to the intervention. Could we follow that process? Otherwise, things will get chaotic.
Mrs Elphicke
I am grateful to the hon. Lady for giving way. That is not what I said; I wanted to clarify, because I think that there has been a factual misunderstanding. I was describing the location of the BPAS centre, and mentioned the things around it—a doctor’s surgery, a school, a midwifery clinic. I was not saying that the BPAS centre sits in a doctor’s surgery.
Dr Huq
I think there has been plenty of misunderstanding of our two positions. I think that there are about 77 clinics across the country, including in Streatham and Bournemouth. Three local authorities have orders in place; that is a tiny number. I wanted to ask the Minister whether he knows how many prosecutions there have been under the Public Order Act 1986 and all the other bits and pieces of legislation that he cited. I think it is pretty much zero. Again, there was whataboutery; it was said that the new clause would criminalise people unnecessarily. [Interruption.] Yes, exactly; that stuff.
The Chair
Order. Can we let people speak? I do not want shouting across the Committee. If people want to intervene, they need to ask to intervene.
Dr Huq
Thank you, Mr Dowd.
We have heard hypotheticals about the new clause criminalising x, y and z. It has been pointed out that these people are passive and very nice—they hold rosary beads, or whatever. There have been zero prosecutions in Ealing, because these people are actually quite law-abiding, and they have simply moved their protest to the other side of the road. They are complying with the law—I think there was one warning at the very beginning. As I say, the order has been renewed once, in 2018.
My worry is that we are going down a very American sort of route. There are very well endowed groups, largely from across the Atlantic, that fund things such as the research and statistics we have heard. There are several of those groups. There is one called 40 Days for Life that is active every Lent, which shows how these protests are sometimes sporadic. That is why it would be wise to have a consistent approach—I call it consistent, not blanket—where, under the rule of law, every woman has that protection, not just if they live in Ealing, Richmond or Manchester. Every Lent, 40 Days for Life pops up and does a 40-day running protest. Again, that is something that should not be there, but we do not know.
It is claimed that these protests are passive and that the protesters are only praying. I have been trying to explain how that can be intimidatory and psychologically disturbing to women. How many times do we sometimes cross to the other side of the road or go the other way because some bloke looks a bit dodgy? I am disappointed that the hon. Member for Dover, as a sister, did not understand that—although the Minister, as a robust bloke, might not get the same feelings walking down the street that we do. The French version talks about psychological distress, as well.
The hon. Member for Dover described it as peaceful, but that is utterly subjective—it can be quite sinister and chilling to see these people with their rosary beads. The entire thing is designed to affect a termination and to individually shame women. That is what it is about. My hon. Friend the Member for Croydon Central, the shadow Minister, described this experience of running the gauntlet and the onslaught that people can feel, and she was going to a clinic as an observer. She was not even a user. There are examples from America of women staff of these clinics having had their cars booby-trapped. It is really quite alarming. We are going down that road.
We seem to be stuck in a groove in 2018. We have been told there was a review in 2018, but when I have asked questions about this, the Home Secretary has even said that it is under constant review. So what is going on? Have the Government shut the lid—“It was done in 2018; sorry, go away”—or is it under constant review? This issue is dynamic, and it needs to be looked at.
The conclusion in 2018 was that things are not bad enough. How many women are we saying need to be affected? How bad does the threshold have to be? It does not happen at every clinic all the time, but it could happen at any clinic. That is what we should look at. We are talking about 100,000 women a year, and there are other Members with clinics in their seats. The hon. Member for Harwich and North Essex (Sir Bernard Jenkin) and I are very misaligned on Brexit and loads of other issues, but he is my cosignatory on this new clause.
There is just so much I could say. The last time there was a vote on this issue was my ten-minute rule Bill, the Demonstrations (Abortion Clinics) Bill, which passed by 213 votes to 47. The hon. Member for Glasgow North East was saying that the SNP will vote against it. If Members had a free vote, it would be very different. We have seen with the Northern Ireland abortion stuff—
Anne McLaughlin
We will not be voting against it. We will just be abstaining on it because it is our principled stance not to vote for it. I certainly support it.
Dr Huq
I totally get what the hon. Lady is saying. Subject to Supreme Court review, Northern Ireland is about to introduce protections for women using these clinics along these lines. Scotland is very sensibly consulting on this and having a serious conversation. Soon it could be only England and Wales that are in this invidious situation. All the other countries of the Union are going the right way on this.
What I meant is that the hon. Member for Glasgow North East said that the SNP will vote against it. When offered a choice, when not subject to whipping, Members who have clinics in their seats know the trouble caused to ordinary clinic users—to ordinary street users—all the time.
Dr Huq
My ideal would be to sit down with the Government to make something better. I will not press the new clause to a vote today, because I think it can be improved—I take those points—so I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 2
Hostility towards sex or gender
“(1) After Section 5 of the Public Order Act 1986 insert—
‘5A
Offences aggravated by sex or gender
(1) An offence under section 5 of this Act is aggravated by sex or gender where the offence is—
(a) aggravated by hostility toward the sex or gender of the victim,
(b) of a sexual nature, or
(c) both of a sexual nature and aggravated by hostility toward the sex or gender of the victim.
(2) A person guilty of an aggravated offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
(3) It is not a defence under this section that a person did not believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress if a reasonable person in possession of the same information would think that there was a person within hearing or sight who was likely to be caused harassment, alarm or distress.
(4) An offence is “aggravated by hostility towards the sex or gender of the victim” for the purposes of this section if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s sex or gender (or presumed sex or gender); or
(b) the offence is motivated (wholly or partly) by hostility towards members of a group based on their sex or gender.
(5) In this part, gender has the same meaning as in the Gender Recognition Act 2004.’
(2) Part 3A of the Public Order Act 1986 (Hatred against persons on religious grounds or grounds of sexual orientation) is amended as follows—
(a) In the heading for Part 3A at the end insert ‘or grounds of sex or gender’.
(b) In the italic cross-heading before section 29A at the end insert ‘and hatred on the grounds of sex or gender’.
(c) After section 29AB insert—
‘29AC
Meaning of “hatred on the grounds of sex or gender
29AC In this Part “hatred on the grounds of sex or gender” means hatred against a group of persons defined by reference to their sex or gender.’
(d) In the italic cross-heading before section 29B at the end insert ‘or hatred on the grounds of sex or gender’.
(e) In section 29B(1) at the end insert ‘or hatred on the grounds of sex or gender’.
(f) In section 29C(1) (publishing or distributing written material) at the end insert ‘or hatred on the grounds of sex or gender’.
(g) In section 29D(1) (public performance of play) at the end insert ‘or hatred on the grounds of sex or gender’.
(h) In section 29E(1) (distributing, showing or playing a recording) at the end insert ‘or hatred on the grounds of sex or gender’.
(i) In section 29F(1) (broadcasting or including programme in programme service) at the end insert ‘or hatred on the grounds of sex or gender’.
(j) In section 29G(1) (possession of inflammatory material) at the end insert ‘or hatred on the grounds of sex or gender’.”—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham
I beg to move, That the clause be read a Second time.
The new clause was tabled by my hon. Friend the Member for Walthamstow (Stella Creasy), to whom I pay tribute for her tireless campaigning on this issue. Last year, when we were debating the Police, Crime, Sentencing and Courts Bill, I and my Labour colleagues on the Bill Committee spoke at length about how the Government were missing a golden opportunity to take robust action to protect women and girls from the violence and harassment that they face every day. Sadly, however, the Government chose to miss that opportunity, instead pushing the Bill through without any consideration of the steps that they could take to ensure that women and girls were able to go about their lives without worrying about their safety.
You can imagine, Mr Dowd, how pleased I was last week when, about to present my private Member’s Bill on the Floor of the House, I heard the right hon. Member for Tunbridge Wells (Greg Clark), a few Bills ahead of mine, presenting his Protection from Sex-based Harassment in Public Bill to make provision against causing intentional harassment, alarm or distress to a person in public when the behaviour is done because of that person’s sex. I do not know whether he was seeking some form of review or specific action, but clearly there is support for such measures in all parts of the House. It is time for the Government to put aside all the talk about acting on misogyny and to accept the new clause. Furthermore, given the Minister’s speech in the debate on new clause 1, I feel somewhat encouraged that he, too, is ready to take some action.
Last week I received a letter from the hon. Member for Louth and Horncastle, who is the Minister for ending violence against women and girls. She provided an update on the Government’s response to the end-to-end rape review. She ended her letter by saying:
“Thank you for your engagement on these crucial issues. Violence against women and girls is a global problem and it is our collective mission to support victims and bring perpetrators to justice. I look forward to working with you to address these crucial issues and bring about the transformational change that victims deserve.”
I found that message extremely heartening because she is, of course, correct that we need to work together in all parts of the House as a collective to improve the dire outcomes that women and girls face when seeking justice. I hope the Minister will share that sentiment, engage positively with the substance of the proposed new clause and accept that it should be included in the Bill.
I know that the Minister will be aware of the scale of the problem, which affects women and girls across the county on a daily basis. Some 66% of girls in the UK have experienced sexual attention or sexual or physical contact in a public space. That gets worse with age: a report by UN Women UK published in January 2021 showed that in a poll of 1,000 women, 71% had experienced sexual harassment in a public space. That figure rose to 97% for women under 25. That harassment, intimidation and abuse never shows up in formal crime statistics, not because it is not serious enough, but because women do not think that going to the police will help.
House of Commons Library data shows that half a million crimes against women go unreported every year, and women are less likely than men to report abuse to the police. Research shows that two thirds of women experience abuse or harassment in public places, but 80% of them do not report those crimes to the police as they do not believe they will be addressed or taken seriously.
There are two reasons why it is so important that these supposedly lower-level offences are taken seriously by the police and the criminal justice system. First, those who perpetrate violence against women are often repeat offenders whose violence and abuse shows a pattern of escalation. That is not to say every misogynist who shouts at women in the street goes on to violently attack women, but many of those who do carry out such attacks start by throwing verbal abuse. If we can identify, monitor and—where necessary—restrict those who commit the early offences, we will be better able to prevent the all-too-familiar pattern of escalation before it has dire consequences.
Secondly, by letting these offences go unregistered or unpunished, we are sending a message about how seriously—or not—we take violence against women and girls. If someone is abused because of their sexuality, ethnicity or religion, the law rightly says that the abuse—based on who someone is—is unacceptable. Unfortunately, the law does not say the same thing if someone is abused simply for being a woman or a girl.
We all recognise that more needs to be done to tackle misogynistic abuse, but if we do not act, we are endorsing a legal system that is permissive of such abuse. If we do not act, we are endorsing a system that sees women repeatedly targeted but then choosing not to report the crime because they—too often rightly—suspect that it will not be treated as seriously as it should. I cannot repeat that fact enough: until we demonstrate that the law is on the side of women and girls, most of them will not report the abuse, which we ought to recognise as crimes.
The proposed new clause would be a crucial first step in tackling the harassment and abuse that women and girls face every day. It would, in simple terms, put in place harsher sentences for those who commit abuse or harassment motivated by misogyny or misandry. Sentences would be set at the same level as intentional harassment, allowing courts to recognise the higher degree of culpability that these crimes should carry. It would, for the first time, recognise that there is something particularly damaging about targeting someone solely because of their sex, in the same way that we do if someone is targeted for other aspects of their identity.
During the passage of the Police, Crime, Sentencing and Courts Act 2022 in the other place, the Minister there said that the Government would bring forward a consultation on public sexual harassment. That was some time ago, but I am afraid there are two reasons why I do not think that is an appropriate solution. First, a myopic focus on sexual harassment ignores other harassment that women and girls face on a daily basis. If the focus is narrowed to only behaviour that is explicitly sexual or for the purposes of sexual gratification, conduct such as ripping off a Muslim woman’s hijab would not be covered.
That would be counterproductive, because it would suggest that such behaviour is somehow less serious than sexual harassment, and it would prevent the police from gathering crucial information about patterns of offending. Instead, we need to adopt the approach that the new clause takes and recognise that, at its root, sexual harassment is about power and hostility, and we should treat it as such. We should not separate out sexual abuse from sexist abuse; we should treat them as symptoms of the same underlying problems.
The second reason is that we all know that a Government consultation is absolutely no promise of action. Indeed, the Government’s own adviser on sexual harassment has said that both she and the Home Secretary are supportive of action, but the idea is being vetoed by those higher up in Government. Given how few people are able to overrule the Home Secretary, the Minister will forgive me if I am sceptical that a Government led by the current Prime Minister will take action on sexual harassment without being pressed to do so.
Even putting those misgivings aside, this is not an issue that can wait for the slow cogs of Government policy making to engage. If we do not take the opportunity that the new clause offers us, it could be years before we have another opportunity to act. In that time, millions more women will experience this behaviour and not report it because they know our legal system does not treat it with the seriousness it deserves. I appreciate that we are yet to see the detail of the Protection from Sex-based Harassment in Public Bill, in the name of the right hon. Member for Tunbridge Wells. Whatever measures he may succeed in introducing, however, it could be a year or more before they take effect. We can take out the uncertainty now and prevent further delay.
Proposed new subsection (2) is aimed at those who may never carry out a violent or abusive act themselves, but who may encourage others to do so. Encouraging racial or homophobic abuse is already a criminal offence, and rightly so. As we have seen across the world, and during the tragic events in Plymouth last year, there are people out there who seek to stir up hatred of women for no reason other than that they are women. That is clearly unacceptable, and I was pleased that the Law Commission recommended last year that we bring our laws into the 21st century and tackle the stirring up of misogynistic and misandrist hatred.
I am sure the Minister will say that the Government are considering very carefully what the Law Commission has said and will respond in due course, but we know that when it comes to radicalisation, every day can make a difference. Every day that the Government delay is another day in which poisonous ideologies, such as so-called incel culture, have a chance to spread further and do more damage to the fabric of our society. This new clause would enable us to skip the inevitable delays of Government going back and forth over an issue when the right course of action is clear to us all, and immediately tackle those who seek to spread such hate. I know that the Government may act eventually in this area, but I appeal to the Minister and other Government Members to put an end to it all—end the talk about the issues I have raised, end the delay in taking action and back the new clause.
Anne McLaughlin
I certainly support properly acknowledging and tackling crimes motivated by sex or gender, but this new clause applies to England and Wales only, so I will abstain, in keeping with my party’s aforementioned stance. However, I think it would be useful for Members to look at the report commissioned by the Scottish Government on misogyny, entitled “Misogyny—a Human Rights Issue”. The independent working group was headed up by Baroness Helena Kennedy QC from the other place, and the report was published on International Women’s Day, 8 March—also my birthday, if anybody wants to put that in their diary. The recommendations were described by the First Minister as “bold” and “far reaching”. It would be great to have both Governments working together on this.
I offer my solidarity with the hon. Member for Walthamstow (Stella Creasy) and the hon. Member for Stockton North, who has just given a really good speech, on the issues that they are trying to tackle with the new clause. I could say a lot more about misogyny—we all could—but I think he has covered it really well.
Kit Malthouse
The matter of whether and where sex or gender fits into hate crime legislation was, as the hon. Member for Stockton North has said, subject to significant deliberation during consideration in the previous Session, only six weeks ago, of the Police, Crime, Sentencing and Courts Act 2022. Before that, it was widely discussed during consideration of the Domestic Abuse Act 2021. Both Houses had an opportunity to express their views and come to a settled position, and I am afraid that I do not believe matters have changed since then. The hon. Gentleman has cited some distinction between new clause 2 and the previous attempts of the hon. Member for Walthamstow to amend the law in this area, but the essential issue remains the same. I suggest that we should consider hate crime laws in the round, rather than seeking to pick off individual items in a piecemeal way.
Let me deal first with the new clause’s proposed new section 5A to the Public Order Act 1986. To put it into ordinary language, it is an attempt to introduce a new offence of public sexual harassment. I remind Members that during debate on the Police, Crime, Sentencing and Courts Act in the previous Session, the Government committed—as the hon. Gentleman has said—to launch a consultation before the summer recess. I can confirm that that remains our intention. We are finalising those plans now, so given that undertaking, I am a bit surprised that the hon. Member for Walthamstow has tabled this new clause, as its effect would be to pre-empt that consultation. I have my views on the intrinsic merits of new clause 2, but it would be fairer and better for us to wait for that consultation to run its course and then draw our conclusions from it.
The other part of the new clause would amend part 3A of the Public Order Act, which deals with what could be described in shorthand as hate speech offences. The hon. Lady has in the past cited recommendation 23 of the Law Commission’s review, which does, in a basic sense, endorse the notion that those offences be extended to cover sex or gender. However, I am afraid that that overlooks a crucial detail: while the Law Commission dedicated just over 10 pages to that extension, it dedicated more than 70 pages to the need for those offences to be fundamentally reformed. The new clause does nothing to contribute to such reform, but root-and-branch change is needed, given that these are hate speech offences. They have the basic potential to significantly chill free speech, and are an area of law in which public consent for change must be carefully considered. The Law Commission noted that those offences represent
“some of the most controversial aspects of hate crime laws.”
There are also issues with the current legislation that we first need to grapple with. The Law Commission noted that the legal defences for people accused of those crimes are currently unclear, and certain terms used in the legislation are legally ambiguous. Most importantly, it tempered all proposals to expand the law with a condition that doing so must be coupled with provisions that make clear what is not criminal. For each characteristic added to the law, those so-called free speech provisions would clarify that merely offensive speech on topics related to such characteristics is not in itself a crime. The Law Commission noted that, particularly in relation to gender identity,
“without such protection, activists would seek to test the limits of the extended offence.”
The new clause does not account for those free speech protections. More broadly, it does nothing to reform the existing provisions as the Law Commission proposes; it only adds to the statute book, whereas the Law Commission suggests repeal and replacement.
In short, any reform of these laws would need to be comprehensive. If it is not, we risk compounding the problems in the law that the Law Commission identified and potentially harming free expression rights. We would essentially be building on very shaky foundations. The Law Commission found that one change is usually interdependent with another. As the hon. Member for Stockton North has said, the Government are actively considering all of the Law Commission’s recommendations, and I can assure the Committee that we are putting the final touches on the Government’s response to all 34 of the Law Commission’s recommendations and will publish that response shortly. I think it would be wiser for the Committee and, indeed, the House to wait for its publication. We do not think it is wise to put the cart before the horse, so I encourage the hon. Gentleman to withdraw the new clause.
Alex Cunningham
First, I know that the hon. Member for Glasgow North East cannot change the policy of the Scottish National party on the hoof, but I ask her to think about her sisters in England and Wales. Moreover, I do not think it is necessary for the Government to look at anything that has been brought forward by the Scottish Government or any other organisation, because the evidence on this issue is staring us in the face. We do not need additional evidence to prove that this sort of change in the law is needed.
The Minister mentioned how we have talked about these issues in the past while debating this or that Act, or this or that review. We have talked about it till the cows come home, but nothing has actually happened—there has not yet been any change in the legislation. He said that the Government are still hoping to launch their consultation ahead of the summer recess. On Monday we will be five weeks away from the summer recess. While the Minister says that they are still hoping for this, that does not give him very much time, especially if he does not actually know when it is going to start happening. Now is the time for action. He said that the Law Commission says that the law in this area is unclear. I am inviting the Committee to make it clear today by supporting the new clause. For that reason, I will be pushing it to a vote.
Question put, That the clause be read a Second time.
Mrs Elphicke
I beg to move, That the clause be read a Second time.
I move the new clause on behalf of my hon. Friends the Members for Thurrock and for Blackpool North and Cleveleys (Paul Maynard). Right hon. and hon. Members will be more than aware of the disruption and danger caused by offences involving locking on and obstructing major roads, which have caused gridlock and stopped emergency services getting through during recent severe protests.
New clause 3 seeks to ensure that the particular and additional harm of preventing emergency services—police, ambulances and the fire service—is included as an aggravating factor in the primary offences considered for conviction under clauses 1 and 3 of the Bill, rather than relying on a separate offence. The new clause would provide a more effective and appropriate reflection of the total harm caused by the additional seriousness of blocking emergency workers getting to people in need. I am grateful to the Committee for its consideration of the new clause.
Sarah Jones
I will keep my comments very brief. As the hon. Lady has said, the new clause would create an aggravated offence when someone in the course of locking on or obstructing major transport works impedes an emergency worker in exercising their function.
We did not support the clauses that new clause 3 relates to—those being clause 1, “Offence of locking on” and clause 3, “Obstruction etc of major transport works”. We will not be supporting the new clause today, but we believe very strongly in the principle of emergency workers being able to exercise their functions. In other parts of the Bill, we have talked about adding emergency workers to the list of critical national infrastructure necessary for the country to function as we want it to. Although we are sympathetic to the principle that emergency workers are crucial and need to be exercising their functions in any way they need to, we will not support it today because it is attached to parts of the Bill that we do not support.
Kit Malthouse
I am grateful to my hon. Friend the Member for Dover. We all sympathise with the intentions of the new clause, initially tabled by my hon. Friend the Member for Blackpool North and Cleveleys. It is completely unacceptable that a small minority of individuals cause significant disruption, and it is even more unacceptable when that disruption strays beyond delaying or inconveniencing the public and into interfering with the emergency services. We all remember well the scenes of ambulances stuck in traffic on the M25, and thank God that there was no major fire that the fire service needed to get to, or a worse incident. Such behaviour is unacceptable and the new clause seeks to ask the courts to account for this behaviour when convicting individuals for obstructing major transport works and for locking on in particular. I applaud my hon. Friend’s support for the new clause.
As I have said previously, however, acts that obstruct emergency workers from exercising their functions are sadly not new and are—happily, perhaps—already illegal under existing law. The Emergency Workers (Obstruction) Act 2006 already makes it an offence to obstruct without reasonable excuse an emergency worker such as a police officer or paramedic from responding to an emergency. It also provides an offence of hindering someone assisting an emergency worker in responding to an emergency. Anyone found guilty of those offences faces an unlimited fine.
Given that there are existing legal remedies, we do not believe it necessary to legislate to direct courts to consider using the maximum penalties available to them when sentencing individuals convicted of locking on or obstructing transport works in those scenarios. Courts can already consider a whole range of aggravating and mitigating circumstances presented to them by the prosecution and defence when deciding whether to convict a defendant and impose a sentence proportionate to their crime. When assessing cases relating to the two offences mentioned in new clause 3, courts may wish to consider impeding emergency workers as an aggravating factor, but that is a decision for them. While we understand the intention behind the new clause, we hope that my hon. Friend will withdraw it at this stage.
Mrs Elphicke
I am grateful to the Minister for his comments and ask him to consider in greater detail whether the action is sufficient. This was a probing new clause, which I spoke to on behalf of my hon. Friends the Members for Thurrock and for Blackpool North and Cleveleys. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 8
Publication of data about use of stop and search powers
“(1) The Secretary of State must publish data about the use of the stop and search powers under sections 6 and 7 within three years of—
(a) if sections 6 and 7 come into force on the same date, the date on which they come into force, or
(b) if sections 6 and 7 come into force on different dates, the later of those two dates.
(2) The data published under this section must include—
(a) the total number of uses of stop and search powers by each police force in England and Wales, including whether the powers were used on suspicion or without suspicion,
(b) disaggregated data by age, disability, ethnicity/race, sex/gender and sexual orientation of the people who have been stopped and searched, and
(c) data relating to the outcomes of the use of stop and search powers.”
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 9—Review of the use of stop and search powers—
“(1) The Secretary of State must appoint an independent reviewer to assess and report annually on the use of the stop and search powers under sections 6 and 7.
(2) In carrying out their review, the person appointed under subsection (1) must—
(a) consider the impact of the use of stop and search powers on groups with protected characteristics under the Equality Act 2010, and
(b) consult such civil society organisations as appear to the person appointed under subsection (1) to be relevant.
(3) The person appointed under subsection (1) must ensure that a report on the outcome of the review is sent to the Secretary of State as soon as reasonably practicable after the completion of the review.
(4) On receiving a report under this section, the Secretary of State must lay before Parliament—
(a) a copy of the report, and
(b) the Government’s response to the findings.
(5) The first report under this section must be completed no later than one year after the date provided for under section [publication of data about use of stop and search powers](1).”
Dr Huq
These new clauses are authored by my hon. Friend the Member for Battersea (Marsha De Cordova) and address clauses 6 and 7 of the Bill, on stop and search. New clause 8 would make it mandatory for the Home Office to collect data on how stop and search is going—demographic data on who it affects, how old they are and what ethnic group they are from. New clause 9 would create a new position of an independent reviewer, who would then assess the use of the powers.
Over the past few days and weeks, we have heard how this Bill criminalises protest tactics and potentially drags more people into the criminal justice system. My hon. Friend and I would say that it is people from black and minority ethnic communities who will suffer the most. They are already over-policed and targeted by the authorities. There were the notorious sus laws in a former age. It took quite a lot of good will between the police and the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), to ease tensions, but now I feel that we are going backwards here.
Sarah Jones
I rise to support my hon. Friends the Members for Ealing Central and Acton and for Battersea on the sensibleness of the new clauses.
Requiring the Secretary of State to publish data, and requiring the establishment of an independent reviewer to assess and report annually, seems to me to be the very least that the Government should be doing when they are bringing in such a broad range of powers. We know that there is significant concern—we have debated it at length—about the extension to protests of stop and search in both its forms, including suspicionless stop and search. There are organisations and representatives of the police who are worried about the potential disproportionality of those parts of the Bill. The College of Policing and the inspectorate have all looked at stop and search and said that it can erode trust between the police and local communities and that it is disproportionate. My hon. Friend the Member for Ealing Central and Acton listed the stats on that.
Publishing the data is an easy thing to do, and I hope the Home Office would do it anyway. Establishing an independent reviewer is easy to do—Lord Geidt may be free. There will be other good people who could do the job. With such a significant expansion of police powers, it really would be alarming if we did not do those things. I hope the Government will consider new clauses 8 and 9.
Kit Malthouse
I will speak first to new clause 8. The Home Office continues to publish extensive data on the use of stop and search to drive transparency, as the hon. Lady for Ealing Central and Acton requested. In 2021, for the first time, we collected and published data on the age and gender of all individuals stopped and searched, alongside our long-standing collection of data on ethnicity. That allows us to create a clearer picture on how stop and search is used and how best to build on the existing trust and confidence held between the police and the community they serve.
I want to make it clear that, as with all stop and search, nobody should be stopped and searched under the new powers because of their ethnicity or on the basis of any other protected characteristic. I know that the hon. Lady did not mean to imply that the police operation of stop and search is, as she said, “racist” at the moment. There are complicated reasons that sit behind the disproportionality in stop and search, which undoubtedly exists in some parts of the country, that we need to be conscious of and address. However, she will also be aware that there are safeguards in place, including the use of body-worn video and statutory guidance in code A of the Police and Criminal Evidence Act 1984, and those safeguards will also apply to the new powers in the Bill. Data on their use will be collected and published, broken down by age, gender and ethnicity—including the outcome of the search—as it is for existing stop-and-search powers.
Sarah Jones
I want to make the point that we do not actually know what causes the disproportionality. That is why the National Police Chiefs’ Council and the College of Policing are going to do a lot of work in that space. We do not have the answers, so we do not definitively know what is causing it. A lot of people suspect it is racism in the police force; a lot of people think it might be other things. We do not actually know.
Kit Malthouse
The hon. Lady is making exactly my point. I am afraid that the hon. Member for Ealing Central and Acton did use the word “racist” regarding the operation of stop and search. I was refuting that as a conclusion that may be drawn. There are complicated reasons behind the disproportionality in stop and search, and we all have a duty to try to understand what they may be.
Sometimes, there are statistical anomalies. There is a well-known anomaly in Dorset from a couple of years ago where a couple of drug dealers travelled down to deal drugs and they were stopped and searched. They happened to be from a BME background. Even though they were the only two people who were stopped and searched during that period, that stop and search and their apprehension as drug dealers meant that someone was 40 times more likely to be stopped and searched in that part of Dorset if they were from a BME background.
There are lots of complicated reasons that we need to understand about the disproportionality, and I am not downplaying the significance of it. As somebody who has fought crime in London during my political lifetime, I am very conscious of the impact it can have. I have sat and worked with all communities across London, particularly those affected by very serious violence, to understand the impact of stop and search. I have to say that body-worn video, in particular, is making a huge difference.
On new clause 9, I agree with the hon. Lady that independent oversight of the use of intrusive powers is essential. We all expect the police to use their stop-and-search powers as they see fit and to scrutinise their use of powers to ensure they remain focused, legitimate, proportionate and necessary. However, it is also true that having an independent body increases accountability and enhances the service officers are giving to the public.
I am pleased, therefore, to remind the Committee that we are fortunate to have two independent bodies that already perform that vital task. First, Her Majesty’s inspectorate of constabulary and fire and rescue services inspects forces on their use of stop and search as part of their annual inspections, and makes recommendations for improvement where needed. That allows the public to see whether their local force is meeting the high standards we expect. Forces should be able to explain their use of stop and search, including any disparities, to HMIC and the public, and we expect forces to respond to the inspectorate’s recommendations with alacrity.
Secondly, the Independent Office for Police Conduct provides a function through which complaints about police use of stop and search can be investigated. It is also able to issue recommendations to which forces are legally obliged to respond. As the “Inclusive Britain” report set out, the Government also recognise the importance of scrutiny by local communities. We are already enhancing these safeguards through the development of a national framework for community scrutiny of stop and search.
I know the hon. Lady will join me in praising the hard work of those two independent bodies in scrutinising police powers, and indeed the hard work of the police in using stop and search over the past couple of years to remove about 50,000 knives from the streets. I hope I have offered her some reassurance that we are conscious of our duty to deal with disproportionality, and that the existing safeguards and structures, as well as the new powers in the Bill, will be aligned with respect to that responsibility. On that basis, I hope she will withdraw the new clause.
Dr Huq
I hear what people have said, but the new clause would make the publication of data mandatory. The Minister has said that there are statistics around, but the new clause would make that a targeted, mandatory thing, given the huge increase in stop-and-search powers. He said that I called their application at the moment racist, but I spoke, in fact, about revelations and allegations. That would be flushed out by having statistical data that we could see—is it the case or not? There is this whole whataboutery point; people are saying, “This will criminalise a whole load of people, and it will be black and ethnic minority people who are hit hardest by it.” Let us publish the data and see.
As for the independent reviewer, we have that with other things, such as terrorism. In the interests of openness and transparency, we should be overseeing these things. The Minister talked about the IOPC, but it takes years for a complaint to go through it, whereas this measure would mean an ongoing, dynamic process of collecting figures. Yes, nobody should be subject to racist stop and search, but Members should look at the figures, which cause one to think, “Oh, what’s going on here?” Let us have the data.
Question put and negatived.
New Clause 9
Review of the use of stop and search powers
“(1) The Secretary of State must appoint an independent reviewer to assess and report annually on the use of the stop and search powers under sections 6 and 7.
(2) In carrying out their review, the person appointed under subsection (1) must—
(a) consider the impact of the use of stop and search powers on groups with protected characteristics under the Equality Act 2010, and
(b) consult such civil society organisations as appear to the person appointed under subsection (1) to be relevant.
(3) The person appointed under subsection (1) must ensure that a report on the outcome of the review is sent to the Secretary of State as soon as reasonably practicable after the completion of the review.
(4) On receiving a report under this section, the Secretary of State must lay before Parliament—
(a) a copy of the report, and
(b) the Government’s response to the findings.
(5) The first report under this section must be completed no later than one year after the date provided for under section [publication of data about use of stop and search powers](1).”—(Dr Huq.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Question negatived.
New Clause 10
Guidance on locking on
“The Secretary of State must by regulations issue guidance to police forces about the protest technique of locking on, which includes—
(a) examples of best practice, and
(b) detailed guidance on addressing new and developing forms of locking on.”—(Sarah Jones.)
Brought up, and read the First time.
Sarah Jones
I beg to move, That the clause be read a Second time.
New clauses 10, 11 and 12 are in similar vein, and are about checks and balances to go alongside the legislation about which we have significant concerns. New clause 10 would mandate the Secretary of State to issue guidance to police forces on the protest technique of locking on, including the sharing of best practice and detailed guidance on addressing and developing forms of locking on.
Kit Malthouse
The new clause introduces a requirement on the Home Secretary to issue statutory guidance to the police on responding to lock-ons. While we agree that the Government should guide the police in the exercise of their powers, the police already have specialist teams trained to remove protesters from lock-ons. These teams continually develop their knowledge and training to keep pace with innovations in locking on, and I believe that the police themselves are best placed to develop guidance on the matter. Given that, I ask the hon. Lady to withdraw the new clause.
Sarah Jones
I thank the Minister for his comments. We suggest that the College of Policing and the National Police Chiefs’ Council would develop the detail—we do not suggest that us legislators would do that—but I am happy to withdraw the new clause because he has said that there will be significant guidance. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 11
Consolidated protest guidance
“(1) Within three months of Royal Assent to this Act, the Secretary of State must by regulations issue guidance which consolidates into a single source—
(a) the College of Policing’s authorised professional practice for public order guidance,
(b) the National Police Chiefs’ Council’s operational advice for protest policing, and
(c) the National Police Chiefs’ Council’s protest aide memoire.
(2) The Secretary of State must regularly review the guidance and, if appropriate, must by regulations issue revised consolidated guidance.
(3) The consolidated guidance must include specific updated guidance about the protest technique of locking on.”—(Sarah Jones.)
Brought up, and read the First time.
Sarah Jones
I beg to move, That the clause be read a Second time.
The new clause makes provision for consolidated protest guidance, bringing together the College of Policing’s public order authorised professional practice, the NPCC’s operational advice for protest policing and the NPCC’s protest aide-mémoire. The guidance must also include specific updated guidance about the protest technique of locking on. Similarly to the previous new clause, new clause 11 would help the police—in what we think is a broadly-defined piece of legislation—gather the guidance and equip themselves with the statistics necessary to do their job to the best of their ability. If the evidence sessions pointed to anything, it was that at the top of the police, there are good practices of introspection. They talk about and share good practice and want to scrutinise what is done well and what is done badly. The new clause merely puts that in law.
On training, Matt Parr believed that more could be done—although he was complimentary in some areas. The Minister talked about the specialist forces. He highlighted that that was patchy. When it comes to provisions on the policing of protests in this legislation, the NPCC remains concerned about some aspects of the document’s commentary, which it felt were open to misinterpretation. For that reason, we think it would be better to have that clarity in the law, which the new clause seeks to do.
Kit Malthouse
Although I recognise the hon. Lady’s intent on the issue, I struggle to see the benefit of the new clause. Protest guidance is the responsibility of the police and the College of Policing. She referred to a recommendation from Her Majesty’s inspectorate of constabulary and fire and rescue services on the policing of protests. The College of Policing is responsible for setting standards, providing training and sharing good practice for police forces. It is best placed to implement the recommendation. In fact, the college has already acted on it, and an updated public order authorised professional practice can be found on its website. The APP has consolidated guidance and links to other relevant guidance. I understand that it will be continually reviewed and updated.
Given that the effect of the new clause is already in place, we will not be supporting it. The inspectorate has sensibly recommended that the updating and management of national protest guidance is done by the College of Policing. It is the body with the knowledge and expertise to provide guidance to police forces. We do not see what benefit placing that obligation on the Government would bring, so I ask her to withdraw the new clause.
Sarah Jones
Although we will not press the new clause to a vote, I hope that I have put on the record the Labour party’s concern and our expectation that the Minister will come back to discuss with us the guidance that will be issued to ensure that the Bill is implemented as effectively as possible. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 12
National monitoring tool
“(1) The Secretary of State must develop a consistent national monitoring tool, accessible by all police forces, to monitor the use of or requests for specialist protest officers across England and Wales.
(2) Data collected under this section may be used to evaluate capacity and demand for specialist protest officers across England and Wales.
(3) The monitoring tool must be accessible on a national, regional and local basis.
(4) The monitoring tool must include—
(a) examples of best practice from policing protests across the United Kingdom, and
(b) data on how many trained officers have been required for any protests during the period in which monitoring took place.”—(Sarah Jones.)
Brought up, and read the First time.
Sarah Jones
I beg to move, That the Clause be read a Second time.
The new clause would require the Secretary of State to develop a consistent monitoring tool that is accessible by all police forces to monitor the use of, or requests for, specialist protest officers across England and Wales. Data that is collected may be used to evaluate capacity and demand for specialist officers. The tool, which must be accessible nationally, regionally and locally, could include examples of best practice from policing protests and data on how many trained officers have been required for any protest during the monitoring period.
I will not go into more detail than that, as the new clause speaks to arguments that we have already made for new clauses 10 and 11.
Kit Malthouse
In effect, the new clause brings back a clause that was initially tabled to the Police, Crime, Sentencing and Courts Act in January 2022 on Report. As the hon. Lady said, it would require the creation of a monitoring tool.
As the Government stated in the House of Lords in January, such a tool is not necessary. The National Police Co-ordination Centre, which is known as NPoCC and is part of the National Police Chiefs’ Council, already co-ordinates and monitors the use of and requests for protest removal-trained officers across the UK. Furthermore, following recommendations by the inspectorate, the police’s national public order and public safety lead is already working on an evaluation of the requirement for specialist protest officers.
On the sharing of best practice, the College of Policing has, as I have said, updated the existing authorised professional practice on public order and public safety policing. That resource is easily accessible to all forces and will help them to understand best practice when policing protests. On the basis that this House should legislate only when it is strictly necessary, and that such work is already under way, I ask the hon. Lady to withdraw the motion.
Sarah Jones
It is slightly alarming that the Minister fails to understand the concept of checks and balances to ensure that such a serious and significant piece of legislation is properly implemented, but I will not divide the Committee. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 13
Injunction to prevent serious disruption to effective movement of essential goods or services
“(1) Upon an application by a person under subsection (4), an injunction may be ordered by a Judge of the High Court against ‘persons unknown’ in order to prevent a serious disruption to the effective movement of any essential goods or any essential services occasioned by a public procession or public assembly.
(2) The ‘persons unknown’ may be—
(a) anonymous persons taking part in a public procession or public assembly who are identifiable at the time of the proceedings; and/or
(b) persons not presently taking part in a public procession or public assembly protest but who will in future join such a public procession or public assembly.
(3) The conditions under which such an injunction may be granted are as follows—
(a) there must be a real and imminent risk of a tort being committed which would result in a serious disruption to the effective movement of any essential goods or any essential services;
(b) a method of service must be set out in the order which may reasonably be expected to bring the proceedings to the attention of the ‘persons unknown’;
(c) the ‘persons unknown’ must be defined in the order by reference to their conduct which is alleged to be unlawful;
(d) the acts prohibited by the order must correspond with the threatened tort;
(e) the order may only prohibit lawful conduct if there is no other proportionate means of protecting the effective movement of essential goods or essential services;
(f) the terms of the order must set out what act or acts the persons potentially affected by the order must not do;
(g) the terms of the order must set out a defined geographical area to which the order relates; and
(h) the terms of the order must set out a temporal period to which the order relates, following which the order will lapse unless a further order is made upon a further application by the applicant.
(4) An applicant for an injunction to prevent serious disruption to effective movement of essential goods or services may be—
(a) a local authority with responsibility for all or part of the geographical area to which the proposed order relates;
(b) a chief constable with responsibility for all or part of the geographical area to which the proposed order relates; or
(c) a person resident in, or carrying on a business within, the geographical area to which the proposed order relates.
(5) ‘Serious disruption to effective movement of essential goods or services’ includes a prolonged disruption to—
(a) the effective movement of the supply of money, food, water, energy or fuel;
(b) a system of communication;
(c) access to a place of worship;
(d) access to a transport facility;
(e) access to an educational institution; or
(f) access to a service relating to health.”—(Sarah Jones.)
Brought up, and read the First time.
Sarah Jones
I beg to move, That the Clause be read a Second time.
The clause makes specific provision for an injunction to prevent serious disruption to the effective movement of essential goods or services, and sets out the circumstances in which an injunction may be granted against “persons unknown”. Those circumstances are based on the principles set out in paragraph 82 of the Court of Appeal’s 2020 decision in Canada Goose UK v. Persons Unknown. The clause also sets out the parties that may apply for such an injunction. They are:
“a local authority with responsibility for all or part of the geographical area to which the proposed order relates; a chief constable with responsibility for all or part of the geographical area to which the proposed order relates; or a person resident in, or carrying on a business within, the geographical area to which the proposed order relates.”
The new clause uses the definition of “serious disruption” that was introduced in the House of Lords during the later stages of the passage of the Police, Crime, Sentencing and Courts Act 2022. I put on the record again my disagreement with the definitions of serious disruption— which include “noise”—in subsections 12(2C) and (2E) of the Public Order Act 1986, which section 73 of the 2022 Act inserted. We have had significant debates on that issue, and I will not rehearse them again, but I will quote the right hon. Member for Hereford and South Herefordshire (Jesse Norman), who said in a letter to the Prime Minister:
“No genuinely Conservative government should have supported the recent ban on noisy protest—least of all when basic human freedoms are facing the threat of extinction in Ukraine.”
Although the definition of “serious disruption” is not perfect, the Opposition welcome the fact that a definition has been put in the Bill to replace the original provision, which would have left the Secretary of State to decide what serious disruption means. It is right that this definition remains subject to a power to amend these provisions. As the right hon. Member for Maidenhead said:
“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”—[Official Report, 15 March 2021; Vol. 691, c. 78.]
New clause 13 focuses on the definition in proposed new subsection (2A)(b) to section 12 of the 1986 Act, as inserted by the 2022 Act. It puts into statute the case law principles from the Canada Goose case, which allowed injunctions to be taken out against “persons unknown”, so these ideas are not new. The new clause puts into statute what already exists in case law, so if the Government oppose it, they are opposing existing case law decided by the judiciary.
The new clause allows local authorities, affected residents or business owners and chief constables to work together to prevent the kinds of serious disruption we have seen in the Just Stop Oil protests, protests against HS2 and in actions by Insulate Britain. The definition of “persons unknown” includes
“persons…who will in future join such a public procession or public assembly”,
So this new clause is putting into statute a law that already exists.
It is not necessary, as we have argued throughout the Bill Committee debates, to bring in unnecessary and complex new offences when there is a raft of existing laws that the police, local authorities and businesses can use to deal with protest that disrupts essential goods and services.
Subsection (3) sets out
“the conditions under which such an injunction may be granted”,
and it is clear that
“the acts prohibited by the order must correspond with the threatened tort”.
That word was new to me but I now understand what it means, although I will not go into it now. Also, there
“must be a real and imminent risk of a tort being committed which would result in a serious disruption to the effective movement of any essential goods or any essential services”.
Police officers have told us that some of the most effective measures they use in the face of potentially serious disruption are injunctions. The NPCC protest lead, Chris Noble, said:
“The feedback we have had is that when they are appropriately framed and developed at an appropriate pace, they can be very useful in terms of what we are trying to control and how we are trying to shape people’s behaviour... Injunctions have been used increasingly frequently, but the challenge is framing them appropriately and securing them within a reasonable timescale so they can have maximum impact.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 8, Q7.]
How long it can take public and private authorities to get injunctions in place is a problem, and we acknowledge that they are costly, but the cost of responding to seriously disruptive protest must fall somewhere and there is a conversation to be had about that balance.
Nicola Bell, regional director of Highways England, said that
“once people saw that injunctions were being followed through, committal proceedings were happening and people were going to prison, that did have a deterrent effect”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 28, Q57.]
HS2 said that
“injunctions do serve as a relatively effective deterrent to unlawful…activity by some groups of protestors”.
The courts take them seriously, the judicial oversight ensures that the powers are not misused and they can have faster enforcement processes than for individual offences.
HS2’s written evidence, talking about its route-wide civil injunction, said:
“Whilst, if granted, it is hoped that the route-wide injunction will significantly reduce disruption to the project caused by trespass and obstruction of access, it is unlikely to eliminate the problem.”
The police tell us they are frustrated by private companies and public authorities not acting fast enough to seek injunctions, and therefore leaving the responsibility to tackle disruption to the police, instead of taking on the responsibility themselves.
If people are in trouble, it is fairer that they have their eyes open to that possibility beforehand. For similar reasons, a clear injunction about what specific actions a person may not take is likely to be a better deterrent than criminal offences which are vaguer than a specific injunction.
I want to leave sufficient time for the Minister to make his points, but an injunction warns a person beforehand what they must not do. If they breach the injunction, they do so in the knowledge that it could lead to proceedings against them, so it is fairer. For similar reasons, a clear injunction about what specific actions a person may not take is likely to be a better deterrent than criminal offences, which are vaguer than a specific injunction.
It may also be easier to prove a breach of an injunction than to make good a criminal charge, so it may also be a more efficient way to enforce protection of vital infrastructure. We think this is a route that exists already and is there in case law, and so we have put it on the face of the Bill.
Kit Malthouse
As the hon. Lady said, new clause 13 looks to create a framework that allows local authorities, chief constables, residents, and business owners in an area to apply for an injunction to prevent serious disruption to the effective movement of essential goods or services. She quite neatly illustrates the problem with prescriptive definitions, but has created a new one with the notion of “prolonged”. I am not sure how long she thinks prolonged should be. Nevertheless, these are naturally definitions that we have in the past left to the courts.
We agree with the hon. Lady that injunctions have an important part to play in the response to the criminal protests, as we have seen this past year. However, we are not clear what she is trying to achieve with the amendment. As we have seen with Insulate Britain and Just Stop Oil protests, injunctions can already be taken out by businesses and local authorities to prevent protesters from causing serious disruption to the effective movement of essential goods or services. Unlike the proposed new clause, the wider measures already in the Bill change the status quo, providing greater protection against the guerrilla activism that we have seen from recent protest groups.
We recognise the need to ensure better co-ordination of injunctions. However, the new clause does not address this challenge. We have heard the calls from the Opposition on this, and the Government are exploring what more can be done at a national level to protect key infrastructure and prevent disruption to the flow of essential goods and services. The clause as it stands does not deliver meaningful change. It creates a definitional problem of its own. Given that, I urge the hon. Lady to withdraw her amendment.
Sarah Jones
I am grateful to the Minister for saying that he is exploring what more can be done and for accepting that injunctions have a role to play. I suspect that members of the other place may want to return to this at another stage, so I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Title
Amendment made: 24, in title, line 2, leave out “delegation” and insert “exercise”. —(Kit Malthouse.)
This amendment is consequential on NC4.
Bill, as amended, to be reported.
Public Order Bill
Tuesday 18th October 2022
(2 years, 1 month ago)
Commons ChamberRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 18 October 2022 - large print - (18 Oct 2022)
16:31 - The House divided: - Ayes: 188 / Noes: 313 - Question accordingly negatived.
16:47 - The House divided: - Ayes: 186 / Noes: 311 - Question accordingly negatived.
17:01 - The House divided: - Ayes: 297 / Noes: 110 - Question accordingly agreed to.
17:14 - The House divided: - Ayes: 235 / Noes: 302 - Question accordingly negatived.
17:37 - The House divided: - Ayes: 283 / Noes: 234 - Question accordingly agreed to.
The Minister for Crime, Policing and Fire (Jeremy Quin)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
Government new clause 8—Injunctions in Secretary of State proceedings: power of arrest and remand.
New clause 1—Guidance on locking on—
“The Secretary of State must by regulations issue guidance to police forces about the protest technique of locking on, which includes—
(a) examples of best practice, and
(b) detailed guidance on addressing new and developing forms of locking on.”
New clause 2—Consolidated protest guidance—
“(1) Within three months of Royal Assent to this Act, the Secretary of State must by regulations issue guidance which consolidates into a single source—
(a) the College of Policing’s authorised professional practice for public order guidance,
(b) the National Police Chiefs’ Council’s operational advice for protest policing, and
(c) the National Police Chiefs’ Council’s protest aide memoire.
(2) The Secretary of State must regularly review the guidance and, if appropriate, must by regulations issue revised consolidated guidance.
(3) The consolidated guidance must include specific updated guidance about the protest technique of locking on.”
New clause 3—National monitoring tool—
“(1) The Secretary of State must develop a consistent national monitoring tool, accessible by all police forces, to monitor the use of or requests for specialist protest officers across England and Wales.
(2) Data collected under this section may be used to evaluate capacity and demand for specialist protest officers across England and Wales.
(3) The monitoring tool must be accessible on a national, regional and local basis.
(4) The monitoring tool must include—
(a) examples of best practice from policing protests across the United Kingdom, and
(b) data on how many trained officers have been required for any protests during the period in which monitoring took place.”
New clause 4—Injunction to prevent serious disruption to effective movement of essential goods or services—
“(1) Upon an application by a person under subsection (4), an injunction may be ordered by a Judge of the High Court against ‘persons unknown’ in order to prevent a serious disruption to the effective movement of any essential goods or any essential services occasioned by a public procession or public assembly.
(2) The “persons unknown” may be—
(a) anonymous persons taking part in a public process or public assembly who are identifiable at the time of the proceedings; and/or
(b) persons not presently taking part in a public procession or public assembly protest but who will in future join such a public procession or public assembly.
(3) The conditions under which such an injunction may be granted are as follows—
(a) there must be a real and imminent risk of a tort being committed which would result in a serious disruption to the effective movement of any essential goods or any essential services;
(b) a method of service must be set out in the order which may reasonably be expected to bring the proceedings to the attention of the “persons unknown”;
(c) the “persons unknown” must be defined in the order by reference to their conduct which is alleged to be unlawful;
(d) the acts prohibited by the order must correspond with the threatened tort;
(e) the order may only prohibit lawful conduct if there is no other proportionate means of protecting the effective movement of essential goods or essential services;
(f) the terms of the order must set out what act(s) the persons potentially affected by the order must not do;
(g) the terms of the order must set out a defined geographical area to which the order relates; and
(h) the terms of the order must set out a temporal period to which the order relates, following which the order will lapse unless a further order is made upon a further application by the applicant.
(4) An applicant for an injunction to prevent serious disruption to effective movement of essential goods or services may be—
(a) a local authority with responsibility for all or part of the geographical area to which the proposed order relates;
(b) a chief constable with responsibility for all or part of the geographical area to which the proposed order relates; or
(c) a person resident in, or carrying on a business within, the geographical area to which the proposed order relates.
(5) A “serious disruption to effective movement of essential goods or services” includes a prolonged disruption to—
(a) the effective movement of the supply of money, food, water, energy or fuel;
(b) a system of communication;
(c) access to a place of worship;
(d) access to a transport facility;
(e) access to an educational institution; and
(f) access to a service relating to health.”
New clause 5—Definition of “serious disruption”—
“(1) For the purposes of this Act, ‘serious disruption’ means—
(a) significant delay to the delivery of a time-sensitive product to consumers
of that product, or
(b) prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a place of worship,
(v) an educational institution, or
(vi) a service relating to health.
(2) In subsection (1)(a) a ‘time-sensitive product’ means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”
New clause 6—Offences impeding emergency workers—
“(1) This section applies where—
(a) the court is considering for the purposes of sentencing the seriousness of an offence under sections 1 (Offence of locking on) or 3 (Obstruction etc of major transport works) of this Act, and
(b) the commission of the offence had the effect of impeding an emergency worker in exercising their functions, subject to the exception in subsection (2).
(2) The exception is that the emergency worker was exercising their functions in connection with the offence for which the person is being sentenced or in connection with any action which the court considers to be related to that offence.
(3) The court—
(a) must treat the fact mentioned in subsection (1)(b) as an aggravating factor (that is to say, a factor that increases the seriousness of the offence), and
(b) must state in open court that the offence is so aggravated.
(4) In this section, ‘emergency worker’ means—
(a) a constable;
(b) a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;
(c) a National Crime Agency officer;
(d) a prison officer;
(e) a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;
(f) a prisoner custody officer, so far as relating to the exercise of escort functions;
(g) a custody officer, so far as relating to the exercise of escort functions;
(h) a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services;
(i) a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);
(j) a person employed for the purposes of providing, or engaged to provide—
(i) NHS health services, or
(ii) services in the support of the provision of NHS health services, and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public.
(5) It is immaterial for the purposes of subsection (4) whether the employment or engagement is paid or unpaid.
(6) In this section—
‘custodial institution’ means any of the following—
(a) a prison;
(b) a young offender institution, secure training centre, secure college or remand centre;
(c) services custody premises, as defined by section 300(7) of the Armed Forces Act 2006; “custody officer” has the meaning given by section 12(3) of the Criminal Justice and Public Order Act 1994;
‘escort functions’—
(a) in the case of a prisoner custody officer, means the functions specified in section 80(1) of the Criminal Justice Act 1991;
(b) in the case of a custody officer, means the functions specified in paragraph 1 of Schedule 1 to the Criminal Justice and Public Order Act 1994;
‘NHS health services’ means any kind of health services provided as part of the health service continued under section 1(1) of the National Health Service Act 2006 and under section 1(1) of the National Health Service (Wales) Act 2006;
‘prisoner custody officer’ has the meaning given by section 89(1) of the Criminal Justice Act 1991.”
New clause 9—Publication of data about use of stop and search powers—
“(1) The Secretary of State must publish data about the use of the stop and search powers under sections 9 and 10 within three years of—
(a) if sections 9 and 10 come into force on the same date, the date on which they come into force, or
(b) if sections 9 and 10 come into force on different dates, the later of those two dates.
(2) The data published under this section must include—
(a) the total number of uses of stop and search powers by each police force in England and Wales, including whether the powers were used on suspicion or without suspicion,
(b) disaggregated data by age, disability, ethnicity/race, sex/gender and sexual orientation of the people who have been stopped and searched, and
(c) data relating to the outcomes of the use of stop and search powers.”
New clause 10—Review of the use of stop and search powers—
“(1) The Secretary of State must appoint an independent reviewer to assess and report annually on the use of the stop and search powers under sections 9 and 10.
(2) In carrying out their review, the person appointed under subsection (1) must—
(a) consider the impact of the use of stop and search powers on groups with protected characteristics under the Equality Act 2010, and
(b) consult such civil society organisations as appear to the person appointed under subsection (1) to be relevant.
(3) The person appointed under subsection (1) must ensure that a report on the outcome of the review is sent to the Secretary of State as soon as reasonably practicable after the completion of the review.
(4) On receiving a report under this section, the Secretary of State must lay before Parliament—
(a) a copy of the report, and
(b) the Government’s response to the findings.
(5) The first report under this section must be completed no later than one year after the date provided for under section [publication of data about use of stop and search powers](1).”
New clause 11—Offence of interference with access to or provision of abortion services—
“(1) A person who is within a buffer zone and who interferes with any person’s decision to access, provide, or facilitate the provision of abortion services in that buffer zone is guilty of an offence.
(2) A “buffer zone” means an area which is within a boundary which is 150 metres from any part of an abortion clinic or any access point to any building or site that contains an abortion clinic and is—
(a) on or adjacent to a public highway or public right of way,
(b) in an open space to which the public has access,
(c) within the curtilage of an abortion clinic, or
(d) in any location that is visible from a public highway, public right of way, open space to which the public have access, or the curtilage of an abortion clinic.
(3) For the purposes of subsection (1), ‘interferes with’ means—
(a) seeks to influence,
(b) persistently, continuously or repeatedly occupies,
(c) impedes or threatens,
(d) intimidates or harasses,
(e) advises or persuades, attempts to advise or persuade, or otherwise expresses opinion,
(f) informs or attempts to inform about abortion services by any means, including, without limitation, graphic, physical, verbal or written means, or
(g) sketches, photographs, records, stores, broadcasts, or transmits images, audio, likenesses or personal data of any person without express consent.
(4) A person guilty of an offence under subsection (1) is liable—
(a) in the first instance—
(i) on summary conviction, to imprisonment for a term not exceeding 6 months,
(ii) to a fine not exceeding level 5 on the standard scale, or
(iii) to both; and
(b) on further instances—
(i) on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine, or to both, or
(ii) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, or to both.
(5) Nothing in this section applies to—
(a) anything done in the course of providing, or facilitating the provision of, abortion services in an abortion clinic,
(b) anything done in the course of providing medical care within a GP practice, hospital or other healthcare facility,
(c) the operation of a camera if its coverage of persons accessing or attempting to access an abortion clinic is incidental and the camera or footage is not used for any of the purposes listed in subsection (3), and
(d) a police officer acting properly in the course of their duties.”
New clause 12—Justice impact assessments for Wales—
“(1) Within six months of the passage of this Act, the Secretary of State must issue a justice impact assessment for any provision of this Act, or any regulations which have been made under this Act, which impact on matters which are devolved to Senedd Cymru.
(2) Within one month of the date on which they are made, the Secretary of State must issue a justice impact assessment for any regulations made under this Act which are not included in the assessment required under subsection (1) which impact on matters which are devolved to Senedd Cymru.
(3) The Secretary of State and the Welsh Ministers must jointly prepare and publish guidance on the implementation of the provisions on which justice impact assessments have been issued under subsections (1) and (2).”
New clause 13—Intentional harassment, alarm or distress on account of sex—
“(1) A person (P) commits an offence under this section if—
(a) P commits an offence under section 4A of the Public Order Act 1986 (intentional harassment, alarm or distress), and
(b) P carried out the conduct referred to in section 4A(1) of that Act because of the relevant person’s sex In this subsection ‘the relevant person’ means the person to whom P intended to cause, harassment, alarm or distress.
(2) For the purposes of subsection (1)(b) it does not matter whether or not P carried out the conduct referred to in section 4A(1) of the Public Order Act 1986 for the purposes of sexual gratification.
(3) For the purposes of subsection (1)(b) it does not matter whether or not P also carried out the conduct referred to in section 4A(1) of the Public Order Act 1986 because of any other factor not mentioned in subsection (1)(b).
(4) A person who commits an offence under subsection (1) is liable–
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court, to a fine or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years, to a fine, or to both.
(5) If, on the trial on indictment of a person charged with an offence under subsection (1), the jury find the person not guilty of the offence charged, they may find the person guilty of the basic offence mentioned in that provision.
(6) References in this section to P carrying out conduct because of another person’s (B’s) sex include references to P doing so because of B’s presumed sex.”
New clause 14—Harassment, alarm or distress on account of sex—
“(1) A person (P) commits an offence under this section if—
(a) P commits an offence under section 5 of the Public Order Act 1986 (harassment, alarm or distress), and
(b) P carried out the conduct referred to in section 5(1) of that Act because of the relevant person’s sex.
In this subsection ‘the relevant person’ means the person to whom P intended to cause, or caused, harassment, alarm or distress.
(2) For the purposes of subsection (1) it does not matter whether or not P carried out the conduct referred to in section 5(1) of the Public Order Act 1986 for the purposes of sexual gratification.
(3) For the purposes of subsection (1) it does not matter whether or not P also carried out the conduct referred to in section 5(1) of the Public Order Act 1986 because of any other factor not mentioned in subsection (1).
(4) A person who commits an offence under subsection (1) is liable—
(a) on summary conviction to a fine not exceeding level 5 on the standard scale;
(b) on conviction on indictment to imprisonment to a term not exceeding 6 months, or to a fine not exceeding level 5 on the standard scale, or to both.
(5) If, on the trial on indictment of a person charged with an offence under subsection (1), the jury find the person not guilty of the offence charged, they may find the person guilty of the basic offence mentioned in that provision.
(6) References in this section to P carrying out conduct because of another person’s (B’s) sex include references to P doing so because of B’s presumed sex.
(7) It is not a defence under this section for P to claim that they could not reasonably have foreseen that their behaviour may constitute an offence.”
New clause 15—Public inquiry into the impact of policing of public order on Black, Asian and minority ethnic people—
“Within six months of the date of Royal Assent to this Act, the Secretary of State must set up an inquiry under the Inquiries Act 2005 into the impact of the policing of public order on Black, Asian and minority ethnic people.”
New clause 16—Equality Impact Analyses of provisions of this Act—
“(1) The Secretary of State must review the equality impact of the provisions of this Act.
(2) A report of the review under this section must be laid before Parliament within 12 months of the date of Royal Assent to this Act.
(3) A review under this section must consider the impact of the provisions of this Act on—
(a) households at different levels of income,
(b) people with protected characteristics (within the meaning of the Equality Act 2010),
(c) the Government’s compliance with the public sector equality duty under section 149 of the Equality Act 2010, and
(d) equality in the different nations of the United Kingdom and different regions of England.
(4) A review under this section must include a separate analysis of each section of the Act, and must also consider the cumulative impact of the Act as a whole.”
New clause 17—Public inquiry into the policing of protests—
“Within six months of the date of Royal Assent to this Act, the Secretary of State must set up an inquiry under the Inquiries Act 2005 into the policing of public order and protests, including investigation of the use of—
(a) force,
(b) kettling,
(c) police horses,
(d) policing powers contained in the Police, Crime, Sentencing and Courts Act 2022, and policing powers contained in this Act.”
Amendment 3, page 1, line 4, leave out clause 1.
Amendment 28, clause 1, page 1, line 6, after “they” insert
“, without reasonable excuse, and using a device or substance that impedes detachment”.
This amendment, together with Amendment 30, would give effect to a recommendation of the Joint Committee on Human Rights by taking the burden of proving “reasonable excuse” away from the Defendant and make it an element of the offence. It would also narrow the meaning of “attach” to focus on the use of devices or substances that make removing the protester difficult.
Amendment 29, clause 1, page 1, line 10, leave out paragraph (1)(b) and insert
“that act causes, or is likely to cause, serious disruption to the life of the community, and”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by replacing the current threshold of serious disruption with a higher threshold based on serious disruption to the life of the community (defined in Amendment 32).
Amendment 30, clause 1, page 1, line 16, leave out subsection (2).
Amendment 31, clause 1, page 1, line 20, leave out
“the maximum term for summary offences”
and insert “three months”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by reducing the maximum penalty for the offence of locking on.
Amendment 32, clause 1, page 2, line 1, leave out subsections (4) and (5) and insert—
“(4) For the purposes of subsection (1)(a), in determining whether a person has a reasonable excuse, particular regard must be had to the importance of the right of peaceful protest in a democracy by virtue of Article 10 and Article 11 of the European Convention on Human Rights.
(5) For the purposes of subsection 1(b), “serious disruption to the life of the community” means a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a transport facility,
(v) an educational institution, or
(vi) a service relating to health.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by inserting an express requirement to have particular regard to the right to peaceful protest when considering whether an individual has a “reasonable excuse” for their actions when locking on. It also provides detail on the meaning of serious disruption to the life of the community.
Amendment 4, page 2, line 11, leave out clause 2.
Amendment 33, clause 2, page 2, line 13, leave out
“may be used in the course of or in connection with”
and insert “will be used in”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by narrowing the scope of this offence.
Amendment 5, page 2, line 20, leave out clause 3.
Amendment 6, page 3, line 23, leave out clause 4.
Amendment 7, page 4, line 19, leave out clause 5.
Amendment 8, page 4, line 35, leave out clause 6.
Amendment 34, clause 6, page 4, line 36, leave out subsection (1) and insert—
“(1) A person commits an offence if—
(a) the person obstructs the undertaker or a person acting under the authority of the undertaker—
(i) in setting out the lines of any major transport works,
(ii) in constructing or maintaining any major transport works, or
(iii) in taking any steps that are reasonably necessary for the purposes of facilitating the construction or maintenance of any major transport works, or
(b) the person interferes with, moves or removes any apparatus which—
(i) relates to the construction or maintenance of any major transport works, and
(ii) belongs to a person within subsection (5), and
(c) that act causes, or is likely to cause, significant disruption to setting out the lines of, the construction of or the maintenance of the major transport works affected, and
(d) the person intends their act—
(i) to obstruct the undertaker or person acting under the authority of the undertaker as mentioned in paragraph (a) or to interfere with or remove the apparatus as mentioned in paragraph (b), and
(ii) to have a consequence mentioned in paragraph (c) or are reckless as to whether it will have such a consequence.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by narrowing the scope of this offence to ensure it criminalises only conduct that would cause or be likely to cause serious disruption to major transport works. It would also introduce a requirement of intention or recklessness.
Amendment 35, page 5, line 9, leave out
“It is a defence for a person charged with an offence under subsection (1) to prove that”
and insert
“A person does not commit an offence under subsection (1) if”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by taking the burden of proving “reasonable excuse” or that the act was part of a trade dispute away from the Defendant and making it an element of the offence.
Amendment 36, page 5, line 14, at end insert—
“(2A) For the purposes of subsection (2)(a), in determining whether a person has a reasonable excuse, particular regard must be had to the importance of the right of peaceful protest by virtue of Article 10 and Article 11 of the European Convention on Human Rights.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by inserting an explicit requirement to have particular regard to the right to peaceful protest when considering whether an individual has a “reasonable excuse” for their actions.
Amendment 9, page 6, line 42, leave out clause 7.
Amendment 37, clause 7, page 7, line 5, leave out
“It is a defence for a person charged with an offence under subsection (1) to prove that”
and insert
“A person does not commit an offence under subsection (1) if”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by taking the burden of proving “reasonable excuse” or that the act was part of a trade dispute away from the Defendant and making it an element of the offence.
Amendment 38, page 7, line 10, at end insert—
“(2A) For the purposes of subsection (2)(a), in determining whether a person has a reasonable excuse, particular regard must be had to the importance of the right of peaceful protest by virtue of Article 10 and Article 11 of the European Convention on Human Rights.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by inserting an explicit requirement to have particular regard to the right to peaceful protest when considering whether an individual has a “reasonable excuse” for their actions.
Amendment 39, page 7, line 18, leave out “to any extent” and insert “to a significant extent”.This amendment would give effect to a recommendation of the Joint Committee on Human Rights by narrowing the scope of the offence to prevent it sweeping up minor interference.
Amendment 40, page 7, line 22, after “means” insert “an essential element of”.This amendment would give effect to a recommendation of the Joint Committee on Human Rights by narrowing the meaning of “key national infrastructure” to exclude inessential elements of infrastructure.
Amendment 51, page 7, line 31, at end insert—
“(j) farms and food production infrastructure.”
Amendment 10, page 8, line 17, leave out clause 8.
Amendment 41, clause 8, page 8, line 24, leave out “or B”.
Amendment 42, page 8, line 27, after “Act)” insert
“, but excludes infrastructure that is not essential for the purposes of transporting goods or passengers by railway”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights to narrow the scope of the offence by narrowing the meaning of “rail infrastructure” so as to ensure the offence does not extend to interference with inessential elements.
Amendment 43, page 8, line 39, after “Act)” insert—
“(c) but excludes infrastructure that is not essential for the purposes of transporting goods or passengers by air”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights to narrow the scope of the offence by narrowing the meaning of “air transport infrastructure” so as to ensure the offence does not extend to interference with inessential elements.
Amendment 44, page 8, line 41, leave out “or in connection with”.
This amendment, together with Amendments 45 to 48, would give effect to a recommendation of the Joint Committee on Human Rights to narrow the scope of the offence, and reduce uncertainty, by narrowing what amounts to key national infrastructure.
Amendment 45, page 9, line 5, leave out “or in connection with”.See the explanatory statement for Amendment 44.
Amendment 46, page 9, line 20, leave out “or in connection with”.
See the explanatory statement for Amendment 44.
Amendment 47, page 9, line 35, leave out “or in connection with”.
See the explanatory statement for Amendment 44.
Amendment 48, page 10, line 1, , leave out “or in connection with”.
See the explanatory statement for Amendment 44.
Amendment 49, page 10, line 18, leave out
“‘newspaper’ includes a periodical or magazine.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights to narrow the scope of the offence by narrowing the meaning of “newspaper” so as to prevent it extending to any periodical or magazine.
Amendment 52, page 10, line 18, at end insert–—
“(16) “Farms and food production infrastructure” means—
(a) any infrastructure, used for the commercial growing of crops and horticultural produce or rearing of livestock for human consumption or as an ingredient in items for human consumption; or
(b) any premises on which items for human consumption are processed, produced, or manufactured for commercial purposes; or
(c) any abattoir.”
Amendment 11, page 10, line 20, leave out clause 9.
Amendment 12, page 11, line 1, leave out clause 10.
Amendment 13, page 12, line 29, leave out clause 11.
Amendment 14, page 13, line 9, leave out clause 12.
Amendment 15, page 13, line 33, leave out clause 13.
Amendment 16, page 14, line 6, leave out clause 14.
Amendment 17, page 14, line 15, leave out clause 15.
Amendment 1, page 18, line 7, leave out clause 16.
Amendment 2, page 20, line 15, leave out clause 17.
Amendment 20, page 22, line 11, leave out clause 18.
Amendment 21, page 23, line 12, leave out clause 19.
Amendment 22, page 24, line 12, leave out clause 20.
Amendment 23, page 25, line 20, leave out clause 21.
Amendment 24, page 26, line 9, leave out clause 22.
Amendment 25, page 27, line 1, leave out clause 23.
Amendment 26, page 27, line 8, leave out clause 24.
Amendment 27, page 27, line 26, leave out clause 25.
Amendment 53, page 29, line 33, leave out clause 26.
Amendment 54, page 30, line 28, leave out clause 27.
Amendment 55, page 31, line 8, leave out clause 28.
Amendment 56, page 31, line 23, leave out clause 29.
Amendment 57, page 31, line 30, leave out clause 30.
Amendment 58, page 32, line 10, leave out clause 31.
Government new schedule 1—Injunctions in Secretary of State proceedings: powers to remand.
Government amendment 50.
Jeremy Quin
I thank hon. Members who have joined us for this important debate today and I look forward to the lively discussion that we are bound to have over the course of the afternoon. Although there will inevitably be differences of opinion, which I will come on to, I hope we can all agree on the fundamental point that should be underpinning this discussion—namely, that it is completely unacceptable for a selfish minority to wreak havoc on the lives of people going about their daily business. I would like to open the debate by speaking to the amendments in the Government’s name, and I will respond to other amendments in my closing remarks.
I will also touch on new clause 11, which covers abortion clinic buffer zones. We totally endorse the sentiment behind the new clause, but I look forward to setting out in my summing up why measures in existing legislation combined with the growing use of public space protection orders—PSPOs—can be used and are effective.
Jeremy Quin
I think the hon. Lady will want to hear me out.
We recognise that this is a matter closely associated with issue of abortion, on which people have very strong views across the House. Therefore, as far as we are concerned, there will be a free vote on new clause 11. Members will hear the debate, and I will set out why the current legislation is proportionate and how PSPOs are increasingly being used and are increasingly effective, but this is a matter on which hon. Members will make their own judgment.
Before going further into the debate, it might be helpful if I briefly recap what the Bill does and does not do. This Bill does not criminalise the right to protest, as some hon. Members have said. The right to protest is a fundamental principle of our democracy, and that will never change. Any suggestion that we are intent on interfering with or watering down the right to protest peacefully is simply wrong.
What the Bill does is target acts that cause serious disruption, such as those that wreak havoc on our roads, disrupt thousands of journeys, cost the taxpayer millions and put lives in danger. It does this by giving the police the enhanced powers they need to respond to such disruption and better balance the rights of protesters with the right of the public to go about their daily lives.
I will now speak to Government new clauses 7 and 8, Government new schedule 1 and Government amendment 50. Some of the protest tactics we have seen in recent months have had significant consequences for the public. Protests such as those by Insulate Britain and Just Stop Oil have targeted fuel supply chains and created blockades. Indeed, hon. Members will be familiar with recent images of ambulances, fire services and cars carrying babies to hospital being blocked by the selfish actions of protesters in the name of Just Stop Oil. These tactics are not only seriously disruptive but dangerous.
We have heard the Opposition’s calls to ensure that injunctions are in place to prevent serious disruption, including through new clause 4 tabled by the hon. Member for Croydon Central (Sarah Jones). It is a pleasure to see her in her place, and I look forward to working with her across this Dispatch Box.
We have seen how effective injunctions can be, and we believe we can build on the current position in which only private persons and local authorities can pursue this legal remedy through the courts. That is why the Government tabled new clauses 7 and 8, new schedule 1 and amendment 50 to provide the Secretary of State with a specific mechanism to apply for an injunction where it is in the public interest to do so because the activity causes serious disruption to key national infrastructure, prevents access to essential goods or services, or has a serious adverse impact on the public. This will be accompanied by a power of arrest to support swifter enforcement action. This does not affect the right of local authorities or private landowners to apply for an injunction, but it gives the Secretary of State an additional way to act in the public interest where the potential impact is serious and widespread.
These measures will support better co-ordination between the Government, law enforcement, local authorities and private landowners in responding to serious disruptive behaviour. We know injunctions can play a major role in helping to constrain some of the tactics deployed and, as a result, can limit serious disruption. Although I understand the sentiment behind new clause 4, tabled by the hon. Member for Croydon Central, I do not think it achieves the change she seeks, as the law already enables private persons and local authorities to pursue an injunction where they can evidence harm to their rights or interests in civil law. The police already have a range of powers and avenues to manage protest and to act on criminal or antisocial behaviour.
I therefore encourage the hon. Lady not to press her new clause and to support Government new clauses 7 and 8, new schedule 1 and amendment 50.
Stella Creasy
I rise to support all the amendments in the name of the Labour Front Bench, and to speak to new clauses 11, 13 and 14.
I put on record my gratitude to the Minister for respecting the convention that issues around abortion are matters of conscience, and new clause 11 is about abortion because, let us be honest, nobody is praying outside the places where people go to have a hip operation. Nobody offers rosary beads or dead foetuses outside the places people go when they have an ankle injury. This is about women accessing a very specific form of healthcare.
This goes to the heart of the Bill. Whatever the Bill’s merits, it is about protest. At the point at which women are accessing an abortion, they have made a decision and they are not opening themselves up for a debate or further discussion. These women are often in a very vulnerable state, and they want to be able to access basic healthcare.
New clause 11 would not stop free speech on abortion, and it would not stop people protesting. I have regularly been subjected to protests, and new clause 11 would do nothing to stop the protests I have experienced from many of the people involved in this subject. New clause 11 simply says that people should not have a right to protest in another person’s face, and very often these protesters are right up in front of people, at a point when they have made a decision.
Huw Merriman (Bexhill and Battle) (Con)
I pay tribute to the hon. Lady for what she has done to bring us to this position. I am grateful that the Minister has confirmed that this will be a free vote, as it should be.
I support the Public Order Bill because it is about stopping people interfering with the right of others to go about their business. Does the hon. Lady agree that this is at the heart of new clause 11, which is about protecting women who want to go about their lawful business from being harassed? They are emotionally vulnerable, and the decision is hard enough as it is, let alone with what they have to go through outside the clinic. Does she agree that it is a Conservative principle of the Bill to ensure women have the right to go about their lawful business?
Stella Creasy
I would not deign to comment on or set out Conservative principles, although I have the free speech to do so, but I share the hon. Gentleman’s recognition that this is about balancing rights. This is an omission from the Bill because it is such a specific issue. Let me be clear: PSPOs are not working and new clause 11 is very tightly drawn about abortion clinics themselves. At 28 weeks pregnant. I was subject to sustained campaigns in my town centre. People put up pictures of my head next to dead babies. They told my constituents to stop me and they incited anger and intimidation. This would not be covered by the new clause. That is the free speech debate that we might want to have another day. Perhaps if those protesters had thrown a can of tomato soup at me, the police might not have seen it as a “both sides now” conversation. This is something different. These women have not put themselves up for debate and I understand that. As a public figure, I have put myself up for debate. Obviously, I had not put my unborn child up for debate, which is what those protesters felt that they could do.
This is about when a woman wants to access an abortion. The new clause specifies abortion clinics. It is no more broad than that, because this is a very specific problem. The challenge in this place is that we can dance on the head of a pin having theoretical debates, but it is our constituents who see the reality. They see the people shouting at these women. They see the women who are frightened, scared and vulnerable, who just want to make a decision in peace—who just want to go about their business.
That is why this amendment has such support from across the House, from among the royal colleges, and from among those who work with women and campaigners, particularly organisations such as the British Medical Association and the Fawcett Society. It is also why there have been so many emails pouring into our inbox. A person does not have to be a supporter of abortion to think that, at that point, we probably need to protect that person. A person does need to be a supporter of abortion to think that, if something is stopping women or is designed to deter them at a point when they have made a decision to have an abortion, we need to step in and not leave it to local authorities to find the money to cover the court costs, or even for that to be part of the decision they are making.
I understand that the Minister will talk against this measure. He needs to explain why, when 50 clinics have been targeted, only five have managed to get PSPOs. The current legislation is not satisfactory in dealing with that balance. It leaves it to chance and creates a postcode lottery of the protection that people recognise is required—whether or not they support abortion and whether or not they think about free speech.
I ask the Minister to listen to women. Women in their droves are asking for this protection for their sisters who are making this decision. They should not be shouted at when they are accessing it. Let them make that decision in privacy. If we consider abortion to be a human right, do not ask them to run a gauntlet to get one, which is what is happening now. I hope that colleagues across the House will recognise the thought, care and attention that has gone into this new clause, the widespread support across the House for acting and for not leaving it to local authorities to have to deal with these issues, and the fact that the abortion debate must continue, but that there is a time and a place for it.
Let me turn now to new clauses 13 and 14, which, again, I hope will have cross-party support. They reflect a concern that we need to tackle the experience of women on our streets, and, in particular, the fact that 24,000 women a day experience street harassment in this country. For too long that has become normalised. For too long, we have taught young girls ways to minimise their exposure rather than challenging those people who do it. For too long, we have asked the questions, “Did you have your headphones on?” “Were you wearing a short skirt?” What did you say when that person said that?” We do that rather than recognising this as a form of harassment.
I welcomed the words of the Prime Minister when she said that violence against women and girls does not have to be inevitable. She said:
“Women should be able to walk the streets without fear of harm, and perpetrators must expect to be punished.”
She also said:
“It is the responsibility of all political leaders, including us in Westminster and the Mayor of London, to do more.”
I know that the Mayor of London wants to do more because I have been working with him for many years on the campaign to learn from our police forces who treat misogyny as a form of hate crime and use that to identify the perpetrators of these crimes. I know, too, that there is support across the House for doing that. There is no other crime that happens on such a scale on a daily basis where we have not made progress. I welcome the fact that there is agreement in this place that we need to tackle street harassment. As ever, when it comes to upholding a woman’s rights and freedoms and basic ability to go about her daily business, the challenge today is that it goes on the backburner when something else turns up. It is something that we will get round to eventually. It is something that is terribly complicated, when shouting at statues is not.
I ask the Minister today to commit to joining all of us in saying, “Enough is enough, and we will legislate and legislate promptly.” We should not be at a point in 2022 going into 2023 where thousands of women are still experiencing street harassment. Over their lifetime, seven in 10 women will experience sexual harassment in public. It is clear that those who engage in these behaviours often escalate to further and more serious crimes. Recognising sexual harassment and tackling it, which is what the police forces who are treating misogyny as a form of hate crime have been able to do, offers us valuable lessons about how we can move forward.
I recognise what the Law Commission said, and I recognise that the debate has moved on, but having a standalone offence, which identifies where women are being targeted for street harassment, would help us to gather the data and send that very powerful message that no woman should have to look behind her or carry her keys in her hand just because she wants to go out and buy a pint of milk. That is a daily experience.
Fay Jones (Brecon and Radnorshire) (Con)
My concern about street harassment is that it could be too broad. I am particularly concerned about the rising prevalence of cyber flashing, and I very much urge the Government to pursue their intention to make that a criminal offence through the Online Safety Bill. Does the hon. Lady agree that we are at risk of going too broad and too shallow and not focusing on individual crimes such as cyber flashing?
Stella Creasy
I agree that cyber flashing is an issue that needs to be addressed, but I caution the hon. Lady to understand the importance of recognising where harassment is targeted at women; it does not have to be sexual to be harassment. There is a risk here that we deny the experience of women from minority communities of the multiple ways in which they are harassed. A couple of years ago, a gentleman was going around my community targeting Muslim women, pulling off their hijabs. That was both Islamophobic and misogynistic—he was not targeting Muslim men. Yet, under our current hate crime framework, we ask the victims to pick a particular box to tick to identify a crime. The evidence from the areas of the country where they are using this approach shows that where we have that understanding of how misogyny motivates crime, we see the victim as a whole and victims themselves have much more confidence to come forward. I recognise the hon. Lady’s concern about being specific in law, but there is a really important issue for all of us not to focus purely on sexual behaviour, but to recognise what is driving these crimes: it is power, entitlement and privilege that some men have—it is mainly men who do this—to target women for crimes.
New clause 13 looks at intentional harassment. New clause 14, which I hope the Minister will address in his comments, looks at foreseeable harassment. That is a really critical issue and why it is so important to get these new clauses accepted to help change the culture. If the harassment is foreseeable, it is recognising that there should be no defence, such as, “I thought she would enjoy being groped by me.” “I thought she would like it if I followed her down the road.” “I thought that she would find it flattering.” In 2022, we should not be breeding a generation of men who think that that is acceptable. I promise the Minister that I will stop campaigning on these issues when I go to a wedding and the bride gets up and says, “He tried to get me in the back of a van. I thought that it was the most fantastic thing ever and I immediately had to get to know this man.” That does not happen, but that is often an everyday experience for many women in this country—to be followed, to be targeted and to be hassled.
Finding ways to recognise that in law and not give someone the defence of saying, “I don’t know why she was upset by what I said” is what new clause 14 does. The Minister may tell me that he has better ideas. I know the right hon. Member for Tunbridge Wells (Greg Clark) has an important Bill coming up. What all of us are looking for is a commitment to act promptly and not to leave this for another five or 10 years—the Law Commission review dates back to the heady days of 2016—and also to not give people a defence that women themselves are being difficult by wanting simply to go about their freedoms and not be hassled.
Madam Deputy Speaker (Dame Eleanor Laing)
The right hon. Gentleman cannot intervene because he was not here at the beginning of the hon. Lady’s speech. He can intervene later, but he cannot intervene halfway through a speech when he was not here at the beginning of it. I appreciate that the hon. Lady is proposing amendments that everybody wants to hear about, but she has held the Floor for 15 minutes. We have three hours for this debate and I have more than 20 people who wish to speak, so I have to appeal for brevity. I would rather not put on a time limit, because that curtails debate. I hope the hon. Lady will appreciate the position of everybody else in the Chamber who also has to have an opportunity to speak.
Stella Creasy
Thank you, Madam Deputy Speaker; I promise I was just about to wind up. I hope the Minister will address the issue in new clause 14 about foreseeable harassment and that perhaps over the course of the debate he will rethink his opposition to new clause 11. I know many of us across the House would welcome that.
Caroline Nokes (Romsey and Southampton North) (Con)
It is a pleasure to follow the hon. Member for Walthamstow (Stella Creasy).
Steve McCabe (Birmingham, Selly Oak) (Lab)
I apologise for not having been here earlier, Madam Deputy Speaker; I was dealing with other parliamentary business. I have a clinic on Station Road in my constituency where, after a lot of hard work, residents secured a public space protection order on 7 September. Because of the concern about the legal considerations and the consultation, it was drawn quite tightly, and its effect has been simply to push the protesters further down the road so that, ironically, they are now nearer to the local school. That makes it easier for gentlemen my age and sometimes older to approach 13 and 14-year-old girls and ask them if they know where babies come from and what God’s view of pregnancy might be. Normally, I would call anyone doing that a bit of a pervert, but apparently these people are speaking on behalf of some higher order. Does that not demonstrate that the need for communities to individually pursue PSPOs at local expense is not a satisfactory way to proceed, and that we need some national legislation that everyone can draw upon?
Caroline Nokes
The hon. Gentleman is absolutely right. We need national legislation; we do not want a piecemeal approach or to push the problem to a different area or from one clinic where a public space protection order has been put in place to a clinic where protest may still be legal. It is imperative that we have a coherent national approach and that we protect women from that sort of harassment.
I hope the Minister will confirm what further action the Home Office will take in the event that this new clause falls today. I hope it will be successful; I hope this House can come together and recognise the benefit that the new clause will provide, and that we can make some progress on the issue.
I will speak briefly about the finances. I referred to the cost to a local authority and the hon. Member for Birmingham, Selly Oak (Steve McCabe) indicated that in his constituency it will have been expensive for the council to bring a PSPO forward. Too often, councils face legal challenges from campaign groups with very deep pockets, which are potentially not even funded from this country.
I vividly remember going to a sixth form college just outside my constituency at the start of the summer and talking to the female students there, girls aged between 16 and 18. They talked to me specifically about abortion, because they were scared that they would see their right to access healthcare being eroded. They asked whether I thought the overturning of Roe v. Wade would travel across the Atlantic and impact us here.
At the time I said, “No, I don’t”, but since then I have watched the deep pockets of largely American-funded campaigns opposing our local councils when they seek to bring legal orders to protect women from harassment. How can I now look at those teenagers and say, “Of course the overturning of Roe v. Wade won’t come here. Of course the American influence will not impact your right to access healthcare in this country”? It is about time that this country and this Government were prepared to step up where the United States has stepped back. That is why I will be supporting new clause 11, tabled by the hon. Member for Walthamstow. It is imperative that we send a message to women—I was going to say young women, but it is actually to all women in this country—that we are on their side.
Joanna Cherry (Edinburgh South West) (SNP)
I rise to speak to the amendments in my name and the name of the hon. Member for Vauxhall (Florence Eshalomi), which arise from the legislative scrutiny of the Bill by the Joint Committee on Human Rights. They are amendments 28 to 31, 33, 34 to 36, 37 to 40 and 41 to 49, and also amendments 12 to 15, which appear first in the name of my hon. Friend the Member for Glasgow North East (Anne McLaughlin), and 1 and 2.
I remind hon. Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords, and we undertake scrutiny of the human rights implications of all Bills. I speak here in my capacity as the Chair of the Committee rather than in my personal capacity. I have great sympathy for new clause 11—similar measures are being taken in the Scottish jurisdiction—but, as my Committee did not have the chance to consider it, I will not be speaking about that new clause.
The Public Order Bill contains further significant changes to the law on public order in England and Wales, following on from those introduced in the Police, Crime, Sentencing and Courts Act 2022. It is obvious from my accent that I am a Scottish MP. Despite the fact that this law only applies in England and Wales, it is of interest to a lot of Scots, because they come to London to protest—I see the Minister laughing, but it is the truth, and many of us have been doing it for years, since before we were elected to this House.
Jeremy Quin
I welcome that. I am a firm believer that we are stronger together and a firm believer in the Union. I always welcome hearing the views of Scots people in London, and indeed of English people who wish to protest in Edinburgh.
Joanna Cherry
I suspect the Minister will still hear our views after we become independent, so I would not get too upset about that.
During the passage of the Police, Crime, Sentencing and Courts Bill, the Joint Committee looked very carefully at a large volume of responses and heard from two panels of witnesses about the issue of the public order provisions. The Minister has said the stated intention of the Bill is to strengthen police powers to tackle dangerous and highly disruptive protest, but we think the measures go beyond that, to the extent that we believe they pose an unacceptable threat to the fundamental right to engage in peaceful protest. That was the conclusion of the Committee’s report dated 17 June, in which we proposed the amendments that I am speaking to today.
Wendy Chamberlain (North East Fife) (LD)
I wanted to reflect on the point that it is not just about our constituents in Scotland being concerned about the provisions in the Bill. One of the fundamental parts of policing in the UK is mutual aid, so there will be considerations for Police Scotland in relation to the Bill, if it is passed, when we have police officers from Scotland attending protests in other parts of the UK.
Joanna Cherry
That is a very good point and I am grateful to the hon. Lady for making it.
It is a matter of regret that when the Government responded to our cross-party report they said:
“Any chilling effect on the right to protest, damage to the UK’s reputation, or encouragement of other nations seeking to crack down on peaceful protest is more likely to arise from the misleading commentary on the PCSC Act and this Bill”
than anything else. No, Minister. That is not the case. The Committee’s conclusions are not misleading commentary. They are the conclusions of a cross-party Committee of this House, informed by evidence from many different sources and advice from our own legal experts on the European convention on human rights, to which, thank God, the UK is still a signatory and which is still enforceable under the Human Rights Act 1998, which seems, thankfully, safe for the time being.
Before I turn to the amendments, I want to quickly make the point that the criminal law and the powers of the police already allow for action to be taken against violent protest and disruptive non-violent protest. That is addressed in detail in paragraph 18 of our report, where we list all the existing provisions under the criminal law of England and Wales that cover the situations about which the Minister says he is concerned. So not only do we think that the Bill is an attack on the fundamental rights of freedom of speech and freedom of assembly, but we believe that it is unnecessary and simply replicating existing law.
Our first tranche of amendments deal with the new offences set out in clauses 1 and 2—the proposed offences of “locking on” and
“being equipped to lock on”.
The purpose of those amendments is to try to water down what we consider to be far too stringent positions. We are particularly concerned about the reversal of the burden proof, putting it on the accused. The purpose of our amendments is to reverse that and put that burden on the prosecution, as is consistent with the presumption of innocence and therefore with article 6 of the ECHR. So amendments 28 to 33 would narrow the scope of clauses 1 and 2 and improve safeguards against violation of convention rights.
We believe that the offence of obstructing major transport works in clause 6 is so widely drafted that it could easily criminalise the peaceful exercise of rights under articles 10 and 11, so our amendments 34 to 36 would narrow its scope, including by introducing a requirement of intent and removing the unnecessary reversal of the burden of proof.
We think the proposed offence of interfering with “key national infrastructure” is too widely drawn and thus risks criminalising, without justification, behaviour that would fall within the provisions of articles 10 and 11 of the ECHR. Amendments 37 to 49 would narrow its scope and remove the unnecessary reversal of the burden of proof.
The proposal to extend stop-and-search powers to cover searches for articles connected with protest-related offences risks exposing peaceful protesters and other members of the public to intrusive encounters with the police without sufficient justification. We would like the utilisation of these new powers to be carefully monitored. In that respect, I note with approval the terms of new clauses 9 and 10 in the name of the hon. Member for Battersea (Marsha De Cordova).
Sir Bernard Jenkin (Harwich and North Essex) (Con)
I am grateful to have the opportunity to support new clause 11, which was tabled by the hon. Member for Ealing Central and Acton (Dr Huq). She has got into a bit of a scrape because she said something silly, but those of us who know her know that she is an extremely committed parliamentarian and very public spirited, and I hope that order will be restored in that department as soon as possible.
I also congratulate the hon. Member for Walthamstow (Stella Creasy) on new clause 11 and I thank my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) for supporting it. I note that SNP Members support the new clause, although I am not sure whether they will vote on it—they might decide that it is an English measure—but it is interesting that similar measures are being considered in Scotland.
I am grateful to the Minister for Crime, Policing and Fire, my hon. Friend the Member for Horsham (Jeremy Quin), who kindly saw me at short notice yesterday about this matter. The Government may well oppose this new clause. I hope they do not, but I know they are seized of the issue and are giving it consideration. I will listen very carefully to what he has to say about it later.
“Clinic harassment” is the term used to describe the presence outside abortion clinics of groups who seek to dissuade and deter women from accessing healthcare that is their right under our law. Many people would call them protests, but mere protest is not the purpose of the activity and the groups who organise them do not call them protests. It is not about politics or campaigning; it is about stopping individual women from accessing their legal rights. New clause 11 would simply introduce a statutory buffer zone around any location where abortion services or advice are provided, making it illegal to carry out such activities as those eloquently described by the hon. Member for Walthamstow.
We are told that the scale of the problem is small and does not require a national response. That is false. Every year, around 100,000 women are treated by a clinic targeted by these groups. In the last three weeks alone, at least 15 clinics across the country have had people outside, including clinics based in hospitals, GP surgeries and in residential areas. That has impacted hundreds of women’s care and psychological wellbeing.
We are also told that the police and councils already have powers to restrict harmful protests. If that is true, why are they still happening? The fact is that abortion providers have proactively tried to use all the laws suggested by the Home Office to stem the problem, but even where individual protesters and groups have been dealt with by the courts and local authorities, the presence outside clinics has not stopped.
Let us be absolutely clear: we are not debating the principle of whether these so-called protests should be banned; they already are banned in certain places, and the principle of that has been supported by the House. We are just asking whether the existing statutory arrangements—the public spaces protection orders—used by councils to introduce buffer zones around individual clinics are effective. Only five out of 50 targeted clinics are protected.
There are three issues relating to PSPOs: they create a random patchwork of protections, which is inadequate; they are expensive to introduce and very difficult to uphold in the courts; and crucially, they can be introduced only with evidence that harassment is taking place. I made this point to my hon. Friend the Minister last night, and it is a painful thing for him to have to accept, but it is the Government’s policy that women should be harassed outside abortion clinics before a PSPO can be issued. Can the House think of any other policy that requires women to be harassed before the Government or the local authority do something that is perfectly justified? That is an immoral basis for PSPOs.
Jeremy Quin
My hon. Friend makes a powerful point, as indeed he did yesterday evening. I was concerned and looked into the matter. The antisocial behaviour statutory guidance states that a PSPO can be made by a council if it is satisfied on reasonable grounds that the activity or behaviour carried out, or likely to be carried out, in a public space has had, or is likely to have, a detrimental impact. I hope that gives him some reassurance that if activity is anticipated and people are concerned that it may take place, there is a means whereby a PSPO may be taken out. He might not consider that a perfect scenario, but where an activity is foreseeable, action can be taken in advance.
Sir Bernard Jenkin
I say rather wryly to my hon. Friend, “Good try.” But it is not really adequate, is it? All our local authorities are under huge spending pressure and do not want to spend money on drafting orders and so on, so what local authority will be preoccupied with this problem unless there is a problem? The strength of the case for implementing a PSPO is supported by evidence of likelihood, which will only be evident if the activity has already happened. I am afraid that my hon. Friend the Minister has not really addressed the point, although I commend him for making a good attempt.
We are also told that these groups are only quietly praying and that there is no harassment involved. Well, the hon. Member for Walthamstow told us about what happens, and sometimes people attend in very large numbers.
My final comment on this may answer points that my hon. Friend the Minister will make later. I have been involved for years in discussions with the Home Office, and here I also thank my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) for the assiduous attention she gave us as she wrestled with this problem, which I know has vexed her. Although she never persuaded the Government to accept a previous amendment, the sincerity of her engagement with us was wonderful, and I am grateful. So finally, we are also told that our amendment contravenes protesters’ human rights. Well, I note that the Chair of the Joint Committee on Human Rights, the hon. and learned Member for Edinburgh South West (Joanna Cherry), does not think that is the case—albeit that the Committee has not actually considered this amendment.
We have to recognise that rights have to be balanced, and the exercise of one person’s rights are very often to another person’s detriment. We have to strike a balance, and my argument is that new clause 11 strikes the right balance. The amendment would not stop people sharing their opinions about the vexed issue of abortion. It balances the rights of people who oppose abortion with the rights of women to access healthcare confidentially and free from harassment and intimidation. It does not ban protest; it simply moves it down the road to preserve the space immediately outside the clinic for women seeking care, and for nurses and doctors providing that care. In Committee, when asked about this directly by the Minister, rights groups did not oppose new clause 11. Canada, Australia, Spain, Ireland, Northern Ireland and Scotland all have comparable laws in place or are in the process of introducing them.
I need not detain the House any longer. If the House does not support this amendment tonight, the argument will carry on until an acceptable means of protecting women exercising their legal rights is found. I am grateful to the Government for allowing a free vote on the matter, which is right and proper in the circumstances.
John McDonnell (Hayes and Harlington) (Lab)
It is a privilege to follow the hon. Member for Harwich and North Essex (Sir Bernard Jenkin). I rise to support a range of amendments—amendments 1, 2, 11 and 12, new clauses 9, 11 and 13 to 16, and most of those that stand in the names of the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the hon. Member for Glasgow North East (Anne McLaughlin). I commend my hon. Friend the Member for Walthamstow (Stella Creasy) for her continuing campaign on this issue, and the right hon. Member for Romsey and Southampton North (Caroline Nokes) for the eloquence with which she spoke on it.
I believe that we should consider carefully the implications of any piece of legislation for our constituents. We must ask ourselves who will be affected, and how? I will discuss specifically how the Bill will have a dramatic effect on my constituents. In my constituency there has been a 40-year campaign against Heathrow expansion, particularly against the third runway. According to the airport itself, 4,000 homes will be either demolished or rendered unliveable as a result of air and noise pollution. Ten thousand people will lose their homes. There is a history of peaceful protest against this by my constituents. Their protests have involved demonstrating noisily, linking arms, marching, sitting down to block the roads into Heathrow and blocking the tunnel into Heathrow. They have involved camping in the local field with Climate Camp, and yes, they have involved training in locking on, to ensure that if someone’s home is threatened with demolition, they can lock themselves to the home.
Yes, the existing law has been used against my constituents, and people have taken it on the chin. The existing law has proved to be effective in many ways in ensuring that people understand the law and know when they cross the limit of the law. I remind the House that there are also specific laws relating to airports.
This campaign demonstrated to me how the democratic process, both inside and outside Parliament, works effectively, because it was successful. It persuaded the Conservative party to change its policy, and the party’s then leader, Mr Cameron, to say:
“No ifs, no buts, no third runway.”
We were disappointed when he later caveated that, saying that the commitment would last for only one Parliament. Nevertheless, it demonstrated that peaceful demonstration in support of the campaign actually did change Government policy, and I believe that it reinforced people’s appreciation of our democratic system.
The threat of a third runway has not gone away. The new discussions taking place on various Benches mean that people are now planning a new wave of protests to protect their homes. In fact, it has gone beyond a nimby campaign, because it is now also about tackling the climate change emergency that is happening now.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
I entirely share the right hon. Gentleman’s commitment and his opposition to a third runway at Heathrow, but does he acknowledge that the reason the campaign has succeeded is the intelligent and appropriate use of the legal process, through a series of injunctions and challenges brought by the London Borough of Hillingdon, rather than the protests around Heathrow airport itself?
John McDonnell
I agree with the hon. Gentleman to a certain extent. I congratulate Hillingdon Council, which has worked on a cross-party basis, and commend it for the work it has done with other local authorities of all political parties. I do not think, however, that the legal process was sufficient. What changed the minds of politicians— of David Cameron and the Conservative party—was the mobilisation of mass demonstrations and mass public support. I had been campaigning on the issue for 30 years before we saw that shift in policy.
Fiona Bruce (Congleton) (Con)
I rise to oppose new clause 11 on the basis of its grave implications—indeed, threats—to freedom of thought, conscience, speech, belief and assembly. Let us be clear: new clause 11 flies directly in the face of those freedoms. It has far wider implications than on abortion alone; it potentially criminalises even those who simply stand peaceably near abortion clinics, and who do so mainly on the basis of their faith-based beliefs. I believe that the clause contravenes human rights. Notably, for example, article 18 of the universal declaration of human rights states:
“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
The broad wording of new clause 11 is open to such wide interpretation, particularly the words “seeks to influence”, that it could well catch virtually any activity. The proposed criminalisation of influencing is imprecise, unclear and unpredictable in its effect and potential impact, which contravenes the basic principle of certainty of the rule of law. Certainty is vital so that citizens can tailor their behaviour and remain within the law’s boundaries. Could a social worker advising a confused teenager going to an abortion clinic be seen as influencing within the meaning of this clause and therefore be at risk of criminal liability? This new clause fails the test of certainty and should be rejected for that reason alone.
Sir Bernard Jenkin
I am grateful to my hon. Friend for giving way and I am listening carefully to what she is saying, which I know reflects beliefs of great sincerity. Does that mean, however, that she is against the existing law that allows local authorities to ban those same activities around abortion clinics, for example, on a selective basis? It seems to me that the House has already accepted that principle. If she cannot accept that principle, we really are on a different page.
Fiona Bruce
I have spoken against that principle on a number of occasions in this place and I will come on to explain why.
The wording of new clause 11 could even catch those who are quietly praying, but when did it become against the law in this country to pray? Unfortunately, five councils have now defined protest as including the word “prayer”. During court proceedings, that has even been confirmed to include silent prayer. That is a grave development that we in this House, more than anyone, must stand against. Staggeringly, it would effectively mean criminalising the affairs going on within the privacy of an individual’s mind. Yet freedom of thought is an absolute, unqualified right. As the Minister for the Americas and the Overseas Territories said earlier today in response to the urgent question, peaceful protest is a “fundamental part” of UK society.
Whatever our individual views on abortion, we must stand against new clause 11. Otherwise, we risk opening the door to discrimination even more widely. Why not have buffer zones around political conferences? A young Hongkonger told me yesterday that when she attended the recent Conservative party conference, she was “scared” of accessing the conference centre because of the aggressive behaviour of political opponents around it, yet there is no suggestion of having buffer zones there, and nor should there be. As MPs, we would be aghast if we risked a fine and imprisonment simply for handing out a campaign leaflet containing our political views on the street and seeking to influence others at election time. No: new clause 11 is specifically targeted at those with faith-based views and we should be equally aghast at it.
Of course, harassment or intimidation around abortion clinics—or anywhere—has to be addressed, although in more than a quarter of a century of people quietly gathering around abortion clinics, there have been relatively few, if any, reports of that and there are already several pieces of legislation that could tackle it if needed. The Offences against the Person Act 1861, the Public Order Act 1986, the Protection from Harassment Act 1997, the Criminal Justice Act 1988 and the Anti-social Behaviour, Crime and Policing Act 2014, and the Police, Crime, Sentencing and Courts Act 2022, which was passed only this year, all provide sufficient powers to tackle harassment and intimidation. This addresses the point of my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin): rather than creating new and unnecessary laws, the police’s and our efforts should be on ensuring that they and the prosecution use the powers that they already have.
This new clause goes further and potentially criminalises peaceable gatherings. Indeed, looking at the wording of the new clause, it is perfectly possible to see an argument being made that just one person standing alone quietly near a clinic could be guilty of the criminal offence proposed in it. Widely or poorly drafted legislation, as here, can have serious unintended consequences, as we have seen in recent years. During the pandemic, Rosa Lalor, a 76-year-old grandmother, was arrested, prosecuted and charged for nothing less than praying and walking outside an abortion centre. It took over a year before Merseyside police force dropped the charges, noting that her actions were completely within the law. For her, however, the punishment was the process, despite being completely innocent of any wrongdoing.
Too often, in recent years, the mere expression of unpopular viewpoints has been interpreted, or rather misinterpreted, as automatically being abusive or harassing under the Public Order Act 1986, due to the broad discretionary powers the police have. We must stand against this. We have seen numerous examples of street preachers and others arrested for nothing more than peacefully expressing traditional views in public. When arrested and prosecuted, it is very rare for this to lead to conviction, but by the time they are vindicated the damage is done to the individual subjected to a prolonged criminal process, to the public’s confidence in policing and, indeed, to freedom of speech. Such miscarriages of justice have an abiding chilling effect, leading many—indeed, many thousands of people—across our country today to self-censor deeply-held views, which is a problem far more widespread than is currently recognised and that will no doubt be exacerbated by new clause 11.
Fiona Bruce
I am just about to conclude.
One of the main reasons freedom of speech and thought are treasured and rightly protected in law is so that they can be used precisely for the purposes of influence. The free and frank exchange of viewpoints is the lifeblood of a genuinely democratic society. Rather than seeking to erode this most precious principle, we should be seeking instead to strengthen the law, to put it beyond doubt that freedom of speech—and, indeed, of belief—when peaceably expressed should never be a criminal offence. We must stand against this here today. Our cherished freedoms of thought, conscience, belief, speech and assembly have been hard fought for, and our democracy depends on their robust protection.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to follow the hon. Member for Congleton (Fiona Bruce), although I respectfully disagree with her position on this, and I will come to that shortly. I also welcome the Minister to his post.
I do not think anybody in this House was not deeply irritated by the sight of an ambulance having to turn around and go a different route because of protesters glued to the road, and I do not think there are many people in this House, when they saw protesters throwing soup at a van Gogh painting, who did not at least question whether that action had helped or hindered the cause of climate change. We all passionately believe in the right to protest, do we not? But we all understand that our fundamental freedoms are always balanced with the need to ensure business can carry on in its usual way.
That is why I thank the police for their response to the protesters who blocked the ambulance. They arrested 26 people for wilful obstruction of a highway and removed people glued to the road. Wilful obstruction is an offence that can carry a prison sentence. I also thank the police for the way in which they dealt with the incident in the National Gallery. Two people have been charged with criminal damage, which is an offence that can carry prison sentence.
Madam Deputy Speaker, you may ask yourself why, if the police were quick to respond, quick to arrest and quick to charge, we are debating a Public Order Bill to create a raft of new powers to tackle protest, after we have only just finished debating another Bill—the Police, Crime, Sentencing and Courts Act 2022—which has introduced another raft of new provisions against protest.
Jeremy Quin
Is the hon. Lady therefore fully satisfied that the powers that exist are fully complete and fully perfect in all respects? Is she satisfied that police officers will be taken from her constituency to police central London to guard the public from protests? Should we not be taking stronger action?
Sarah Jones
I thank the Minister for his intervention, and I will shortly come on to speak about the powers that already exist and what I think we need to do to make sure that we have the best system we can have.
I think the reason we are here debating this legislation is that we are not currently governed by grown-ups who understand the serious and delicate balance between policing and protest. We are governed by people who seek to win through division, by pitting one group against another and by wilfully threatening the delicate balance of policing by consent that marks out our form of policing from French, Spanish or Italian paramilitary-style police forces.
Sir Edward Leigh (Gainsborough) (Con)
If new clause 11 is agreed to, will the Labour party vote against Third Reading?
Sarah Jones
I will come to new clause 11 shortly, and express my support and our support for that new clause. We have supported it many times in many different forms through many different debates.
The Labour party, last April, called for greater injunction powers following the disruption by Just Stop Oil, when millions of people could not access fuel. We argued that the raft of existing powers could be used more effectively. We suggested injunctions because they are more likely to prevent further disruption to, say, an oil terminal than more offences to criminalise conduct after it has taken place, with all the added costs and logistics of removal. Injunctions are more straightforward for the police, they have more safeguards as they are granted by a court, and they are future-proof when protesters change tactics.
Police officers have told us that some of the most effective measures they use in the face of potential serious disruption are injunctions. The National Police Chiefs’ Council protests lead, Chris Noble, said that
“they can be very useful in terms of what we are trying to control and how we are trying to shape…behaviour.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 8, Q7.]
In Kingsbury with Just Stop Oil and on the M25 with insulate Britain, people were arrested, removed and charged for breaching injunctions.
We introduced a new clause in Committee to bring what is known as the Canada Goose case into law. The Canada Goose case allowed injunctions to be taken out against persons unknown. This means that when groups of protesters form outside, the applicant does not have to know all their names or the names of people who may come in the future. Sadly, in Committee, the Government voted against our injunctions new clause. They said it would not create meaningful change.
The Government have since had a change of heart, however—another U-turn from the Government—but our suggestions for injunctions are still not being supported; they have introduced their own in new clauses 7 and 8. We believe these new clauses are flawed in several ways. First, there are some drafting problems, and lawyers we have spoken to are unclear on what the legal basis of an injunction would be. Secondly, we have concerns about placing the responsibility and power in the hands of the Home Secretary. Thirdly, we have concerns about where the burden of cost will fall; at a very difficult economic time, the Government can through this Bill shift financial responsibility from the private sector to the public sector, and that needs to be looked at.
In Committee, we heard evidence from HS2, who were in the process of applying for a route-wide injunction to protect their sites from serious disruption. This has now been granted by the High Court. The documents detailing the High Court decision show that the judge granted it partly on the basis that it satisfied the requirements of the Canada Goose case, the guidelines set by the Court of Appeal. Our new clause 4 puts on to the statue books the Canada Goose case law principles. Surely the Minister does not oppose principles set by the Court of Appeal; why does he not look again at Labour’s sensible amendment to tackle serious disruption?
Our new clause 5 seeks to make a simple but important change. The Police, Crime, Sentencing and Courts Act 2022 contains a definition of serious disruption—after we called on the Government to define it as they had not done so originally. That definition includes “noise generated by people”. We want that definition removed, so that when the police are deciding what constitutes serious disruption, they cannot do this on noise alone. We have all debated this many times in the House and I will not repeat the arguments we have made. Instead, I will quote the current Foreign Office Minister, the right hon. Member for Hereford and South Herefordshire (Jesse Norman), who said in a letter to the previous Prime Minister:
“No genuinely Conservative government should have supported the recent ban on noisy protest—least of all when basic human freedoms are facing the threat of extinction in Ukraine.”
We agree with him and tonight the Government have the chance to do so too and to right that wrong. Surely, the Prime Minister, fixated supposedly on freedom, would want to defend the right to chant and sing at a protest, just like she did as a child against the party she now leads.
Since we now have a new Home Secretary, perhaps these words from the right hon. Member for Maidenhead (Mrs May) are worth her also bearing in mind:
“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”—[Official Report, 15 March 2021; Vol. 691, c. 78.]
That has never been more the case than now.
This Bill gives the police wide-ranging powers to stop and search anyone in the vicinity of a protest: for example, shoppers passing a protest against a library closure, tourists walking through Parliament Square, or civil servants walking to their desks in the Cabinet Office. But these far-reaching powers to stop and search without suspicion go too far. We know the police will not feel comfortable using them—we have spoken to several who have said the same—and in an area of policing already prone to disproportionality, they represent a disproportionate way of preventing what is in the vast majority of cases a minor public order offence at most.
In the same way, a serious disruption prevention order, also introduced in this Bill, treats a peaceful protestor, who in some instances will have committed no crime, as if they were a terrorist. Is that what the Home Secretary really thinks? Does she really want her Government to be responsible for treating peaceful, if admittedly annoying, protestors like serious criminals? The SDPO is draconian, preventing people from going to places and seeing people when they have not even committed a crime. And we must remember that to be eligible for an SDPO, serious disruption does not even need to have occurred; as the Bill states, I could be given an SDPO if I helped someone else do something which was
“likely to result in, serious disruption to two or more individuals”.
The phrase “likely to result in” amounts in real world terms to absolutely nothing, and just two people being required to experience, or being likely to experience but not actually experiencing, serious disruption is too low a bar.
On new clause 11, everyone has a right to access healthcare without fear of intimidation. The same principles applied when we had debates in this place about buffer zones—public space protection orders—outside vaccine centres when there were protests against people having their vaccine. Access to healthcare is a fundamental right and we must safeguard it. Many Members have been making this argument for many years in many different ways. The shadow Home Secretary has been calling for it since 2014. I have only been in Parliament since 2017 and we debated it in the Police, Crime, Sentencing and Courts Act 2022 and we do it again now. The Minister has the opportunity to do some good here; I think there is agreement on that on both sides of the House.
We all agree that the disruption we have seen from the small groups of hard-line protesters is unacceptable, whether blocking ambulances or stopping people getting to work for long periods of time, but our job as legislators is to come up with proposals that will actually help. It is our jobs to be grown-ups. This Government have created a piece of legislation that is disproportionate and threatens our unique model of policing by consent. In the evidence sessions, Sir Peter Fahy, a very well-respected former chief constable, spoke to us about the British style of policing. He said that we do not live in France or any other country with a paramilitary aspect to their policing and that
“in our policing system…policing is by consent… There would need to be a huge shift in the public mood and I think British policing is not really set up and does not have the mentality to use the degree of force that you see in other countries.
People do not realise that we are pretty unique...that is the British style”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 62, Q122.]
The Government would do well to listen to Sir Peter’s warnings. They are undermining that style of policing and upsetting that careful balance between the police and the people, and the fine line between being popular and populist. We are not the French. At a time when the economy is crashing and inflation is soaring, Ministers are choosing to spend precious parliamentary time trying to create political and cultural dividing lines, to chase headlines instead of actually finding sensible and workable solutions. The Government should rethink this flawed legislation.
Sir Charles Walker (Broxbourne) (Con)
Over the past few days I have been accused of being tired, emotional, erratic, and, just to put the record straight, I am all of those things and more. I want to be clear: unlike some Members in this Chamber, I have no time for those people who block roads, throw soup, and make a general nuisance of themselves. They are agents against their own interests, as they repel normal ordinary people. Having said that, serious disruption prevention orders are not the answer. They leave me absolutely cold; in fact I would go so far as to say that they are absolutely appalling because there are plenty of existing laws that can be utilised to deal with people who specialise in making other people’s lives miserable.
I know there is a convention here that we do not read lists, but I hope, Madam Deputy Speaker, that I will be allowed to read a very short list just to set out the laws that already exist and have been covered by colleagues: obstructing a police officer, Police Act 1996; obstructing a highway, Highways Act 1980; obstruction of an engine, Malicious Damage Act 1861—we all remember that one —endangering road users, Road Traffic Act 1988; aggravated trespass, Criminal Justice and Public Order Act 1994; criminal damage, Criminal Damage Act 1971; and public nuisance, the Police, Crime, Sentencing and Courts Act 2022. There are also other laws. There is the Public Order Act 1986 that allows police officers to ban or place conditions on protest.
So the Government’s attraction to SDPOs demonstrates our own impotence as legislators and the impotence of the police as law enforcers to get to grips with the laws already in place and to enforce them. This is what we do now in politics: we have these machismo laws where something must be done, so we go out and do it, and that makes a good headline in The Daily Telegraph and The Times, but we do it and then very little happens, or if it does happen it is way over the top.
Jeremy Quin
My hon. Friend rightly compliments the police for routinely arresting and charging those who are responsible for wrongdoing. Does he agree that it is not an acceptable circumstance where 460 individuals have been arrested a total of 910 times for Just Stop Oil protests and that there is a difficult point of cumulation that we must accept?
Sir Charles Walker
I thank the Minister for his intervention, because I am now warming to my task to nail a stake through the heart of this nonsense that we are debating. [Interruption.] It is absolute nonsense, Minister. For the benefit of Hansard, that is what the Minister said from a sedentary position. I would just say this. There is the idea that in this country we will ankle-tag someone who has not been convicted in a court of law. Those Chinese in their embassy will be watching that closely at the moment—they might actually be applying for some of this stuff once we have passed it in this place, as I suspect that we will.
Now I am getting tired and emotional. I say this to the Minister. During the covid lockdowns, when we banned protest, I warned that we would get to this point and that once the Government and politicians were emboldened by placing restrictions on a right and turning it into a freedom, they would not stop.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
The hon. Gentleman is making a fantastic speech that is being admired on both sides of the House. I wonder if he might be concerned that somebody could say that warnings on Radio 4 that the Conservative party might end up smaller than the SNP after the next election would be conducive to public disorder. Does he fear in any way being prosecuted himself as a result of that?
Sir Charles Walker
The Conservative party is the architect of its own misfortune, and we must deal with that and respond to it, so I will not be tempted down that track by the hon. Gentleman. All I will say is that this is as unconservative as our Budget a few weeks ago. This is not what the Conservative party does. We believe in proportionate laws, like we used to believe in sound money. I will therefore be joining hon. Members from across the House in voting against this piece of legislation.
As I said a moment ago, I warned, over a pint of milk—the metaphor that I used—that our right to protest was being eroded. Now, we are crying over spilt milk.
Bell Ribeiro-Addy (Streatham) (Lab)
I rise to speak to the new clauses tabled in my name and those of my hon. Friends the Members for Walthamstow (Stella Creasy), for Vauxhall (Florence Eshalomi) and for Battersea (Marsha De Cordova), the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the hon. Member for Glasgow North East (Anne McLaughlin) as well as all those amendments that stand against this fundamentally flawed Bill.
One of my motivations for my new clauses was the fatal police shooting in my constituency of Chris Kaba, an unarmed black man, which sent shockwaves through a traumatised community. I offer my condolences to the Kaba family, his friends and his community. I will not say more for risk of sub judice, especially since an inquest is ongoing and the Independent office for Police Conduct is conducting a homicide investigation and considering whether race was a factor in his shooting. I am sure that everybody across the whole House will agree that a just society is one in which your race does not determine whether or not you are over-policed as a citizen and under-policed as a victim. But with a Government who seem hellbent on ramping up policing powers and presiding over worsening inequalities, it is clear that there will be an uphill struggle to realise that vision.
The Bill contains a significant expansion of police powers, including measures that the Government already attempted to put into the Police, Crime, Sentencing and Courts Act 2022. Those measures were opposed in the other place, so I do not understand why they are trying to bring them back. That is one reason why new clause 15 states that there must be a public inquiry into the policing of black, Asian and minority ethnic people. New clause 16 would require an equality impact assessment of the Bill. Yet again, we are having to ask that the Government respect that equality is the law and do not propose legislation that clearly infringes on the rights of minoritised groups.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
We hear figures from Wales that eight out of every 1,000 white people are stopped and searched. When we compare that with a rate of 56 per 1,000 black people, we see that there is something appalling in the state of stop and search across the United Kingdom—this legislation relates to England and Wales—and that there is something particular in Wales for which we need a Wales-specific justice impact assessment to understand and get to the root of why the figures are so extreme.
Bell Ribeiro-Addy
The right hon. Member is absolutely right. That is why I support new clauses 9 and 10 in the name of my hon. Friend the Member for Battersea on the use of stop-and-search powers. In them, she attempts to consult civil society organisations and consider the impact on groups with protected characteristics, as has been mentioned. That should clearly be done by the Government each and every single time they propose legislation, but they do not do it at all.
In this Black History Month, when we talk about some of the civil rights struggles of black people in this country, it is particularly offensive that, instead of reacting to them by bringing about change, the Government are attempting to provide police with even more unaccountable powers. Those are the same police who currently have extremely low trust and confidence among black communities, not least following the recent case of Ian Taylor, who died in police custody in the borough in which my constituency sits, the kidnap, rape and murder of Sarah Everard by a serving police officer, also in my constituency, the disproportionate levels of stop and search, and the treatment of Child Q and other children who have been strip-searched, as well as extensive evidence of institutionalised racism and misogyny in the police.
Just this week, Baroness Casey’s report found that many claims of sexual misconduct, misogyny, racism and homophobia were badly mishandled. These are
“patterns of unacceptable discrimination that clearly amount to systemic bias”,
and they cannot continue. Those are not my words but those of the new Metropolitan Police Commissioner, Sir Mark Rowley.
We know that our criminal justice system continues to be held back by institutional racism—well, at least Opposition Members know that. We have heard about institutional racism in the policing of black communities in every single review—from Macpherson to Lammy—except the Government’s recent Commission on Race and Ethnic Disparities report, which claimed that it did not exist at all.
Not only is the Bill a missed opportunity to remedy all of that profound injustice; it will only exacerbate the racial bias and the discrimination that continues to persist. That is part of the reason why I will speak in favour of a range of civil liberties amendments that seek to ensure human rights for all our citizens. I turn to new clause 11, tabled by my hon. Friend the Member for Walthamstow. I am a person of faith, and I believe that our human rights should be universal, but when a person exercising their rights begins to infringe on somebody else’s rights, that is the point at which we know that that right is wrong. We legislate on these things in this House again and again. The idea that we could use the right to free speech to infringe on someone else’s right to get healthcare is absolutely wrong, so I am pleased to support that new clause.
The Bill continues to follow a pattern from a Government who voice support for protests all around the world but want to crack down on the right to speak up here at home. Protest is an important part of a democratic country because it is one of the driving factors that allows individuals to exercise their rights to free speech and speak up against an unfair and unjust Government—like this Government—and their laws. That is why I tabled new clause 17, which sets out that there must be a public inquiry into the policing of protest, which would address: the use of force; kettling; the deployment of horses; and the new policing powers contained in the Bill and the Police, Crime, Sentencing and Courts Act. I have also signed a range of amendments and new clauses that would seek to protect our civil liberties and trade union rights, including addressing those recommendations from the Joint Committee on Human Rights and those supported by Liberty, Amnesty and others.
I draw colleagues’ attention to amendment 36, tabled by the hon. and learned Member for Edinburgh South West, the Chair of the Joint Committee on Human Rights, about the burden of proving “reasonable excuse” or that an act was part of a trade dispute away from the defendant and making it an element of the offence. The Government are not even attempting to sugar-coat the aim of that measure, which is trade unions. I see trade unions as our last line of defence against the relentless and accelerating attack that we see on the living standards of the working-class. The Government know that their economic policies are unpopular and cause suffering, so they want to remove everybody’s right to resist and fight back.
Jeremy Corbyn (Islington North) (Ind)
I thank my hon. Friend for giving way. She is making a very powerful speech in support of her amendments. I was with her at the demonstration outside New Scotland Yard following the death of Chris Kaba. It was an emotional and passionate occasion. Everyone there was looking for justice and looking for knowledge and an inquiry. Does she support more pressure on the Home Office to hurry it up, so that we can get some closure on that terrible loss of life and the pain that goes with it? The beautiful way in which his cousin spoke at that demonstration will stay with me for ever.
Bell Ribeiro-Addy
I thank my right hon. Friend, and he is absolutely right. Far too often, families like the Kaba family have to spend months, even years, seeking answers and justice for their loved ones. I hope that in the years to come, the Independent Office for Police Conduct quickly begins to look at measures to speed up the investigations that give family members answers about why they have died. We have to remember that around the time Chris Kaba died, not to mention him too much, he was one of two men who had been killed following contact with police, and one of over 1,000 who have died in police custody or following contact with police since 1990. Since that time, only one police officer has ever been prosecuted. That absolutely needs to change.
In conclusion, the Public Order Bill is a continuation of the Government’s assault on the right to protest, further criminalising people who call for the change we need and ramping up police powers to restrict demonstrations. It could also have a very negative impact on black, Asian and minority ethnic communities. It is authoritarian and disadvantages the poorest and most marginalised communities. Unless it is fundamentally amended, I believe it must be opposed.
Sir Edward Leigh (Gainsborough) (Con)
I am surprised we are debating this again. It was only in 2018 when the Home Office concluded there was no need to introduce so-called buffer zones. I am referring here to new clause 11. Buffer zones are disproportionate in the restrictions they impose on freedom of expression, and unnecessary in that there remains a lack of evidence that they are needed. The Government have recently affirmed this position, and rightly so given that existing laws enable the police and local authorities to deal with protests that are harmful. Before we rush to create new laws, it is only right that the Government expect the police and local authorities to use their current powers appropriately and where necessary.
The 2018 review showed that
“it would not be proportionate to introduce a blanket ban”
as the evidence found that protests occurred at less than 10% of abortion clinics. That is a very small number. Of course—we emphasise this point—any kind of harassment is absolutely wrong. It should be dealt with by the law and can be dealt with by existing laws. We have heard much in the debate about how we should turn to existing laws, rather than create new ones. Any remedy must be proportionate to the problem. The review—not my review, but an objective Government review—concluded that most of the activities during these protests were passive in nature. My hon. Friend the Member for Congleton (Fiona Bruce), in a very powerful speech, described just how passive they can be. They can be standing there and praying silently, not even holding up a banner of any nature or saying anything. It could include praying or handing out leaflets. The review found that disruptive or aggressive behaviour was the exception, not the norm. Crucially, it also confirmed that the police have the necessary powers already to take action and protect the public when protests become harmful or disruptive. A blanket ban of the kind proposed in new clause 11 would be disproportionate in the face of those facts. The law must be proportionate.
To be clear, the people this amendment targets are peaceful protestors, often elderly grandmothers, frankly, who are entirely peaceful. They politely pray and hand out leaflets. The contrast could not be greater between those protestors and those of the likes of Just Stop Oil, who glue themselves to roads and create human blockades that are disruptive and obstructionist. If any so-called protesters at abortion clinics did anything like that, they would be immediately arrested. While the police have the powers to take action so that ordinary people can go about their daily lives, they will not stop Just Stop Oil protests.
Are we in this House really going to criminalise people who are peacefully trying to raise awareness about support available? This is the point.
Sir Edward Leigh
No, I have been told not to speak for long and I want to get on with it.
Olivia Blake (Sheffield, Hallam) (Lab)
It is pleasure to follow the right hon. Member for Gainsborough (Sir Edward Leigh), although I do not agree with much of what he said. We must remember in this place that we do not know the reasons why women present themselves at abortion clinics. I have been campaigning and advocating for women who have experienced miscarriage, and I want the House to know that that is a primary reason why someone may present at an abortion clinic. For someone to be presented with a picture of a foetus when they consider themselves to be a mother is beyond the line, so I support buffer zones.
Dame Maria Miller (Basingstoke) (Con)
This may be the intervention that another Member was about to make. The protests around buffer zones affect about 10% of clinics, but it is estimated that they affect up to 50% of women, because they tend to target the larger clinics. Does the hon. Lady agree that it is important that that is put on the record?
Olivia Blake
I thank the right hon. Lady for that intervention, and I absolutely agree. We know that women sometimes have to travel very far to get access to this sort of healthcare, so of course this will impact more women at certain clinics.
Before getting into the subject of the Bill, I wish to highlight the economic context in which this is being played out, because it is directly related to why the Bill is being proposed in the first place. For more than a decade, the austerity agenda has led to stagnating wages and declining conditions at work, and it has weakened the fundamentals of our economy. Researchers at the University of Glasgow recently found that the Government’s scorched earth economic policy contributed to 330,000 excess deaths between 2010 and 2019. After the massive transfer of incomes, resources and wealth from the poorest to the richest in our society, we were left in no condition to weather a pandemic and the subsequent soaring cost of living.
In September’s financial statement, although it has been massively U-turned on, the Government succeeded in turning the cost of living crisis into a run on the pound. Now it is as though we have turned the clock back to 2010, with the new Chancellor telling us that he will have to make eye-watering decisions about spending. The cycle continues: we are facing austerity all over again. The services our communities rely on will be hit hard.
The problems at the core of the stagnation and crises are underinvestment, profiteering and the chasms of inequality and divide in our society. But rather than fixing those, Government Front Benchers seem intent on making them worse, which is exactly why they need this Bill. If wages keep being cut and the services that people rely on are dismantled, they will express their opposition to that through protests, strikes and direct action.
The recent spy cops Act, the Police, Crime, Sentencing and Courts Act 2022, and now this Bill are all about reducing the rights of people to come together to give a collective voice to their dissent—and that is without mentioning the attacks on the right to organise in our workplaces and to take industrial action to defend pay and conditions. Like any paranoid authoritarian measure to curb dissent, some of the proposals in the Bill are completely ridiculous. I have a staff member who rides a bike to work and carries a bike lock. Is she “equipped to lock-on”? How will police gauge whether she intends to use it to commit an offence? Some of the wording in the Bill is so loose it could apply to everything and anything. What does “locking-on” actually mean? Could linking arms be locking-on? What does it mean to cause “serious disruption”?
I am concerned that the real reason for the loose wording is to create a chilling effect on any kind of dissent at all. That is reflected in the serious disruption prevention orders. The right to protest is a human right. The idea of banning individuals from attending a demonstration regardless of whether they have committed a crime is draconian. Just think about who that would have applied to in our history. Think of Millicent Fawcett, whose statue stands in that square outside, looking up at this building. Would I be standing here today if women such as her had not had the right to protest? The Government do not seem particularly keen on elections right now. Perhaps the Home Secretary would be dishing out these SDPOs to the Chartists or the Pankhursts, or other uppity troublemakers.
I think this Bill is rotten to the core, but I will be supporting all the amendments that seek to curb its excesses and to prevent it from cracking down on our right to voice opposition. I will be opposing the proposals to extend stop-and-search powers—powers that have already done so much damage to communities, as my hon. Friend the Member for Streatham (Bell Ribeiro-Addy) mentioned. We do not need this legislation. What we need is a Government who address the real causes of peoples’ concerns: the cost of living crisis, the climate crisis and the lack of trust in our democratic institutions. The draconian proposals we are debating today are about equipping this Government to do the exact opposite.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
I wish to start by expressing my strong support for the provisions that the Bill brings forward. In my life before Parliament, as a local councillor and as a magistrate, I had cause to engage with many of the issues the Bill seeks to address. It seems to me that on the whole it is a sensible and proportionate way of bringing forward new police powers and new laws to ensure that our constituents lives’ are not unduly and unfairly disrupted.
In particular, I wish to place on the record my thanks to constituents, such as the late Roy Parsons, who over the years have contributed a huge amount to law and order in the community. Their efforts have helped to illuminate my thinking as a Member of Parliament about how some of these challenges need to be addressed.
My constituency is very much a place of commuters, with people travelling to work by road, rail and bus. I am conscious that especially for those who are part of the lifeblood of the economy of our capital the disruption that has been caused to their lives by protests that seek to test existing laws to the very limits is considerable. There is a cost to people’s businesses and people’s jobs, and it creates a great deal of nuisance for those seeking to attend hospital appointments and, in some cases, to respond to emergencies. It is therefore absolutely right that the Government listen to the voice of the law-abiding people who are part of the lifeblood of our capital city and seek to address the changing tactics that we have seen from protesters over the years.
I was struck by the comments of my hon. Friend the Member for Broxbourne (Sir Charles Walker), who was absolutely right to refer to the plethora—the patchwork—of existing laws. The challenge I have heard about—not least from those responsible for leading policing in the capital and in my local area—is that there is often not the required specific power available as protest groups seek to change and update their tactics. I listened to the right hon. Member for Hayes and Harlington (John McDonnell), and I am sure that he recalls the moves by a particular organisation to sell single square feet of space in a field adjacent to Heathrow airport, with a view to using the due process of law to frustrate the legal processes that were being gone through at the time in the context of Heathrow expansion. Although I agree entirely with the purpose, it is absolutely right that that should have been frustrated. We have seen those tactics beginning to create disruption in what should be a legal and democratic decision-making process, so introducing proposals that update the law in the light of those changes, in my view, is absolutely spot on.
Let me address new clause 11, which I intend to support in the House today. My experience has been of issues relating to the existing legislation, particularly the ability of local authorities to obtain public space protection orders or to use other provisions that are out there. It is extremely costly and often very complex and fraught with legal difficulty to follow those processes. That is why, following occasions in the House when we debate creating provisions that we expect to be used, for example, by local authorities, they are often little used in practice. We need to ensure, if we are taking seriously the issue of an unacceptable degree of harassment, that we put in place provisions that will deal with that properly and effectively.
I am very sympathetic to many of the points that have been made on the pro-life side of the argument, but I take the view that, whatever we think about the detail of the abortion debate, it is absolutely right that we ensure that all our citizens are properly protected from the harassment that may take place. There are some issues with the drafting of what has been proposed, in that we want to ensure that appropriate, lawful interventions that are helpful to people can take place. I will support the new clause, however, and I hope that the Government will perhaps in due course consider the weight of opinion that appears to be being expressed in the House and ensure that that finds its ultimate expression in a way that works to provide appropriate, lawful and proportionate protection to women in that context.
Marco Longhi (Dudley North) (Con)
Following on from my hon. Friend’s argument, for which I have some sympathy, does he agree that perhaps there should be a buffer zone around this place? Many of us in this place are often—on a daily basis—harassed by people out there.
David Simmonds
My hon. Friend knows of what he speaks. There are many Members who have been subject to the very strong expression of political opinions, but what differentiates this point is that we are talking about people who go to undertake a legal, lawful medical procedure. They go to access a form of healthcare that the laws of this land, established by this Parliament, determine that they should be able to access. Although it is absolutely right that people should be able to engage in peaceful protest to make points to those of us who are engaged in the democratic process of the land—sometimes including noisy, disruptive protests—that should clearly never cross the line that existing laws establish, which would cover such things as assault and appropriate protection. However, it is absolutely clear, in my view, that we need to ensure that those who are accessing healthcare can do so without having that lawful access unduly interfered with.
Let me finish by referring to the amendments and points that have been raised on behalf of the Joint Committee on Human Rights. I am a member of that Committee, which spent time looking at not just this Bill, but a wide range of legislation, setting that against expectations that might be found in relation to the UK’s membership of the European convention on human rights. There is always debate in the legal profession about how provisions apply, but the points that have been raised seem legitimate. I hope that in his reply the Minister will address how due process and the right to lawful protest will be appropriately balanced under the Bill.
My view as a Back-Bench Member in the governing party, having considered the Government’s arguments, is that they are proportionate and balanced. However, it is clear that many people are asking questions and want them answered. It would be helpful if some of the legal thinking behind the drafting were illuminated, particularly with respect to balancing the need to prevent undue disruption to people’s normal working and private lives with the rights of others to enjoy free speech and lawful protest.
Wendy Chamberlain
I rise to speak in support of several amendments, including new clauses 1 to 5, tabled by the official Opposition, and new clauses 9 to 14. I agree that there should be a free vote on new clause 11, to which I am sympathetic and which I will support. The speeches on it so far have been very powerful. I also wish to speak to new clauses 15 to 17—the hon. Member for Streatham (Bell Ribeiro-Addy), who is no longer in her place, spoke powerfully about them—and to the amendments tabled by the hon. and learned Member for Edinburgh South West (Joanna Cherry) on behalf of the Joint Committee on Human Rights, by the hon. Member for Glasgow North East (Anne McLaughlin) on behalf of the SNP, and by the hon. Member for Broxbourne (Sir Charles Walker).
I speak on behalf of my constituents who are concerned about what the Bill means for the right to protest. It might be argued that the Bill will not affect them directly, but like the hon. and learned Member for Edinburgh South West, I have constituents who will travel to England and Wales to protest. As I highlighted in my intervention about mutual aid policing arrangements, the Bill is likely to mean additional training requirements for Scottish officers deployed elsewhere, as at last year’s G7 meeting.
We have heard from many Members of this House with a legal background and training, but I believe I am the only former police officer in this debate; I do not see the other two hon. Members who I know were police officers. I am also the wife and daughter of former police officers—indeed, my husband was a senior public order commander—and I am the stepmother of serving police officers. I have policed demonstrations. It might have been some time ago, but I speak with some knowledge and direct experience.
Laws should be necessary, but as we heard in our Bill Committee evidence, the police already have the power to respond to protests; I am grateful to the hon. Member for Broxbourne for raising that point. Ideally, laws should not break our already stretched systems—that was an area of focus for me in Committee—but this law risks our police’s very ability to tackle day-to-day crime, which the Home Secretary says is a priority for the Government.
Regardless of rank, length of service or extent of training, the first officer to attend any incident—protest or otherwise—is the officer in charge until they are relieved of that duty. I say that not to denigrate, but to illustrate. That officer will have to determine whether there is a risk of serious disruption and, if so, whether an offence under the Bill or any other law is being committed. I am concerned that there is a risk of inconsistent application of the criminal law and a breach of the rule of law. I therefore support the official Opposition’s new clauses 1 to 5, which would ensure that the Bill’s provisions are applied appropriately.
It is not just me. The National Police Chiefs’ Council’s evidence to the Bill Committee suggested similar concerns, which would be at least partially addressed by some of the amendments, particularly those tabled by the hon. and learned Member for Edinburgh South West to implement the recommendations of the Joint Committee on Human Rights. I remain concerned that the police, particularly those in junior roles, may end up ill-equipped to make the judgment calls that the Bill requires.
Let us be clear: the police do not need this Bill to respond when protests cross the line. Where there is criminal damage or trespass, they already have the power to respond. However, if the Bill is passed with no amendments but the Government’s, all protest will effectively be frozen for fear of being caught by the legislation. Importantly, the Bill is also likely—I refer to the comments that the shadow Minister, the hon. Member for Croydon Central (Sarah Jones), made about policing in France and elsewhere—to freeze the police’s relationships with a wide range of activist groups, which involve constant dialogue to balance the facilitation of protests with the rights of others to go about their daily business. That dialogue happens all the time in all our communities and is something to be celebrated.
Jeremy Quin
I deeply respect the hon. Lady’s policing experience and that of her family, but she has implied that the Bill will allow the freezing of protests and an inability to protest, which is not the case. I think that, as a former police officer, she would recognise serious disruption. We are absolutely clear about this: a protest constitutes something that is really interfering with people’s way of life, preventing them from getting to work and engaging in their normal business.
Wendy Chamberlain
What I am trying to say is that the existing legislation already deals with those circumstances, and that, given that some of the Bill’s provisions mean that people need not even have done anything to be subject to them, there is a fear that it will prevent them from doing anything at all. I believe that the fact that our police service is grounded in policing by consent—unlike those in other countries whose police forces have evolved from more militaristic origins—is something to be celebrated.
If the police do not need the powers, if all that the Bill does is make it harder for legitimate protest to take place and if it restricts the right of citizens, I would argue that we do not need it at all. We should reflect on the fact that the Minister, in his opening remarks, claimed that the existing legislation was a reason for rejecting new clause 11.
Let me now raise another point, which I have touched on already. It is not about protecting the democratic rights of our citizens, but in many ways it is just as important, because it concerns the real impact on the capacity of the police service. In Committee I tabled a number of amendments, and although I have not tabled them again on Report, this is a key consideration.
When we pass poor legislation, we sometimes see the results in our constituency surgeries, but when it comes to legislation such as this, we will not be dealing with the outcomes directly. I believe that if the Government are confident that the Bill, in its current form, will do what it is intended to do, they should be comfortable with receiving reports from the College of Policing and from police forces about the capability and capacity of those forces to deliver the legislation—and that is before we even think about the huge backlogs in the criminal justice system. It will take some time for people to come before the courts in the context of this Bill.
The proposed new powers will require additional officer training. Sir Peter Fahy, the former chief constable of Greater Manchester Police, gave evidence to the Bill Committee. The simple fact is this:
“If there are not enough police officers trained to properly respond to protests and apply these new laws, that means that more people must be trained—training that costs thousands of pounds and means that officers are potentially in classrooms, not out on the street.”––[Official Report, Public Order Public Bill Committee, 16 June 2022; c. 191]
Chris Noble, the chief constable of Staffordshire Police, estimated that, under the current legislation, it takes an officer two or three weeks per year to keep up with necessary additional public order skills. The offences specified in the Bill will require significantly more training at the outset, at the least, and will mean even more days of actual policing lost at significant cost, with simply abstracts from core policing duties. Once the officers are trained, it is likely that deployment to protests will increase as a result of the Bill’s restrictions. Simply put, people cannot be in two places at once, and resources are limited. According to evidence given to the Committee, the arrest of a protester usually involves six officers. We will run out of police officers before we run out of protesters.
I know where I would rather the police were. I would rather see an officer making sure that the streets were safe for women and girls walking home at night, going after gangs and those working across county lines, stopping the scammers who target our elderly and vulnerable, working on counter-terrorism, and preventing organised crime. I ask colleagues to reflect on what they and their constituents really want when faced with the reality of these choices, which were made even more stark by the Chancellor when he stood at the Dispatch Box yesterday.
Policing by consent is one of the greatest attributes of our country, and it is something that I am passionate about. The Bill undermines that. Although we will support amendments that curb its worst excesses, I will continue to argue that the decision in the other place to remove these clauses when they were part of the Police, Crime, Sentencing and Courts Act 2022 was correct. I cannot support the Bill in its current form.
Victoria Atkins (Louth and Horncastle) (Con)
I rise to speak in favour of new clause 11.
In a perfect world, no woman or girl would be raped; no foetus would have life-shortening, agonising conditions or endanger the life of the mother; and every baby born would be yearned for and cherished. But we do not live in a perfect world, and that is why Parliament has settled laws for the regulation of the provision of abortion services. This is what new clause 11 concerns. It is not about the form of those laws, or their details; it is about the provision of those services in day-to-day life.
I had the responsibility for looking after abortion clinic buffer zones from 2017 until I was promoted from the Home Office last year. It was, as my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) says, an issue with which I grappled, because there is a real balancing skill involved in weighing up not only the concerns of those women seeking medical services and those who support them, but the sincerely held beliefs of those who do not agree with abortion. My right hon. Friend the Member for Gainsborough (Sir Edward Leigh), who is no longer in his place, has set out some of the history of this, and I was an active part of it, so I really am trying to help the Minister when I try to explain some of the shifting of that balancing operation.
In 2017 Amber Rudd was Home Secretary, and in response to concerns voiced by parliamentarians she commissioned a review into demonstrations and protests outside abortion clinics. We announced the results of that review in, I think, 2018, when my right hon. Friend the Member for Bromsgrove (Sajid Javid) was Home Secretary. At that point I stood at the Dispatch Box and I signed letters to say that we had looked at the number of clinics and weighed up the power of PSPOs. At that point, from memory, one council—maybe two—had applied for a PSPO, and we felt that the balance was in favour of PSPOs being using on a targeted basis for those clinics affected.
The review continued—I genuinely kept this under constant review—thanks to the efforts of my hon. Friend the Member for Harwich and North Essex and my right hon. Friends the Members for Romsey and Southampton North (Caroline Nokes) and for Basingstoke (Dame Maria Miller), among many others on this side, as well as the hon. Members for Ealing Central and Acton (Dr Huq) and for Walthamstow (Stella Creasy). It is a pleasure to see the hon. Member for Walthamstow in her place today. Indeed, only last summer we looked at this again in the Police, Crime, Sentencing and Courts Bill. At that point, although the number of clinics affected by demonstrations had increased since the initial review, we felt that in the interest of balancing both sets of interests, PSPOs were the right way to go.
Today, however, five councils have applied for these orders, and happily the imposition of those orders has been upheld by the Court of Appeal as being lawful. We have heard in the course of this debate the concern that the five PSPOs cover five clinics out of some 50 that have been the subject of protests and demonstrations. My right hon. Friend the Member for Basingstoke made the important point that this is not just about the number of clinics; it is about the number of women who go to the clinics for these services. I think I am right in remembering that she cited the statistic that around half of women who seek these services had attended clinics where there had been protests and demonstrations.
So I find myself in the position of agreeing with new clause 11, not because I like banning things or because I am against the legitimate and sincerely held beliefs of those who cannot support the provision of abortion services, but because I come back to the point about the provision of services to women who need them and the circumstances in which they find themselves as they walk that long and lonely path to the doors of the clinic, hospital or surgery providing those services. I know from speaking to women who have been through these protests that they have made a difficult decision. There may be many factors surrounding the decision, involving their home lives, the circumstances in which the pregnancy came about and the concerns for what might happen if their friends, families or the wider society found out that they had had these operations. These are fundamental healthcare services that we provide, rightly and lawfully, in the 21st century. We must surely enable women to access these services as and when they need them so that they get the right help and advice.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
I advise the House that I will be calling Anne McLaughlin to start the wind-ups no later than 4.12 pm, but she can be called earlier. The debate on Report must finish at 4.37 pm.
Caroline Lucas (Brighton, Pavilion) (Green)
Frankly, there is so much wrong with the Bill that it is difficult to know where to start. It basically needs a line striking through the vast majority of it, and I am therefore pleased to support the amendments tabled by the hon. Members for Glasgow North East (Anne McLaughlin) and for Broxbourne (Sir Charles Walker) seeking to do exactly that.
Peaceful protest is a fundamental right protected in international law, and this Bill is just the latest in a concerted attack on our rights by this dangerous and populist Government. It is a draconian rehash of measures resoundingly voted down just months ago. As I have said previously in this House, the Government are pursuing policies and legislation that are deeply dangerous in the threat they pose to our fundamental and universally acknowledged human rights. People who vote in favour of this Bill tonight need to be fully aware and honest about what they are endorsing and what is occurring on our watch.
Defending the right to peaceful protest matters, especially to me, because it is one of the time-honoured ways in which people from all walks of life have sought to protect our natural world, and it is particularly critical right now. The hon. Member for Sheffield, Hallam (Olivia Blake) spoke eloquently about the wider context of austerity and economic suffering that so many of our constituents are facing. I want to widen that context and talk about the attack, frankly, that Ministers are unleashing on policies to protect nature, from issuing new oil and gas licences and lifting the moratorium on fracking to scrapping 570 laws that make up the bedrock of environmental regulation in the UK, covering water quality, wildlife havens, clean air and much else.
Ministers may hide behind endless repetitions of their promise to halt the decline of nature by 2030, but their actions are taking us in precisely the opposite direction. Those who oppose this direction of travel must have the right to take action themselves, and they must have the right to protest. Rather than plunging more and more people into the criminal justice system, the Home Office could be doing all manner of much more useful things, including properly supporting and resourcing community policing.
We should not be giving the Government the ability to create new public order offences as and when they choose, yet that is precisely the combined effect of new clauses 7 and 8. As colleagues will know, injunctions may usually be applied for only by affected parties. New clause 7, however, allows the Secretary of State to apply for a so-called precautionary injunction against people who might go on a protest or who might carry out protest-related activities. This might occur if there is reasonable belief that particular activities are likely to cause serious disruption to key national infrastructure or access to essential goods and services.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
In all honesty, it is worth wondering whether Welsh language rights would exist at all today if measures proposed by the Government had existed in 1963 when Cymdeithas yr Iaith protesters closed Trefechan bridge—Pont Trefechan—in Aberystwyth. Their act of peaceful civil disobedience led to no arrests, but was broadcast across Wales. Indeed, the King’s Welsh language tutor, Tedi Millward, was among the protesters. Does the hon. Member agree that, almost 60 years later, the Secretary of State and the Welsh Government should be considering the specific impact on Wales of these justice changes and how that in turn could have had a very bad result in terms of the Welsh language had it been enacted 60 years ago?
Caroline Lucas
I thank the right hon. Member for her powerful contribution with which I entirely agree.
I was just explaining about the combined effect of new clauses 7 and 8. New clause 7, crucially, allows the Government to propose that the Secretary of State be allowed themselves to apply for an injunction despite not being affected or being a party in the normal sense. Added to that is the effect of new clause 8, which gives the Secretary of State another new power, namely to apply to the court to attach a power of arrest and of remand to injunctions granted under new clause 7.
Let us imagine what that could look like in practice. Let us suppose that the Government set their sights on a group of countryside ramblers planning a walk headed in the direction of a nature reserve that is home to a protected species and about to be dug up by investment zone bulldozers. The Secretary of State might decide that there is a risk that the ramblers will link hands to try to close down a major bridge that is required for vehicle access to the nature reserve. The Government might then apply for an injunction to stop the walk and for the power to arrest anyone who breaches that injunction and goes rambling in the countryside—regardless of their intentions. If successful, a new public order offence will have effectively been created on the basis of potential disruption of key national infrastructure, and the ramblers concerned will be at risk of being fined or even imprisoned. I do not think that it is an over-exaggeration to call such powers Orwellian. They are anti-freedom, anti-human rights and anti-democratic.
Jeremy Corbyn
My hon. Friend is making an absolutely excellent speech. The right to roam would not have happened without the mass trespass at Kinder Scout in the 1930s. We owe our liberties to those who took risks by demonstrating in the first place. Every Member of this House has benefited from those liberties that came about as a result of the risks that others took.
Caroline Lucas
Do I agree? Yes, I do. The right hon. Gentleman makes a very important point. As someone who took part in some recreations of that trespass on Kinder Scout earlier this year, I could not agree with him more about the importance of people taking that action.
It is also important to note that while existing and expansive civil injunctions are being used with growing and alarming frequency to clamp down on direct action tactics, with a wider, chilling effect on the right to protest, the majority of civil injunctions do not give the police powers of arrest. I have repeatedly warned that the Government’s approach overall amounts to a dangerous politicising of policing, and these two new clauses are cut from exactly the same cloth. Moreover, a seemingly ideological determination to stop people standing up for what they believe in is woven through every clause of this Bill.
In my remaining time, I want to speak specifically against serious disruption prevention orders and in favour of the amendments to remove them. On Second Reading, I set out my objection to these new civil orders and said that they might more accurately be called “sinister disproportionate political orders”. Nothing I have heard since then has persuaded me otherwise.
The Government want to be able to impose such orders on individuals who have participated in at least two protests within a five-year period, whether or not they have actually been convicted of any crime. That is a massive expansion of police powers. Furthermore, the range of activities that could result in someone being given an SDPO is extremely broad. It includes actions that would not themselves be criminal but for the creation of the new, widely-drawn offences in the Bill. The threshold is so low as to be laughable, were the consequences not so grave. The conditions for imposing an SDPO include activities related to a protest that might—might—cause serious disruption to two or more people. The Bill is a massive clampdown on our civil liberties and we have to oppose it.
Finally, I wish to put on record my support for the new clauses of the hon. Member for Streatham (Bell Ribeiro-Addy), and for new clause 11, which has been much discussed already this afternoon. I also want to say a few last words about new clauses 13 and 14, which I support because they are consistent with so much of the work that has been done over many years to make misogyny a hate crime and to end violence against women and girls. Sexual harassment is still at epidemic proportions. Women are disproportionately subjected to harassment, abuse and intimidation every day. Those offences are still not properly addressed by the police or the criminal justice system.
New clauses 13 and 14 would bring sentencing for harassment offences motivated by the sex of the victim in line with the approach already followed for offences motivated by race or religious identity. Crucially, they do not create any new public order offences or make anything illegal that is not already illegal; rather, they seek to ensure a serious response from the police and the courts. I hope that, in turn, harsher sentencing for those hate crimes would act as a deterrent and encourage women to report sex-based harassment, confident that they will be taken more seriously than at present.
Some 97% of women under the age of 25 have experienced sexual harassment in a public space—a huge number. There is no room for complacency. If we want to tackle hate crime against women, we must support the changes set out in new clauses 13 and 14.
Carla Lockhart (Upper Bann) (DUP)
In introducing new clause 11, the hon. Member for Walthamstow (Stella Creasy) is merely picking up the baton from amendments originally sponsored by the hon. Member for Ealing Central and Acton (Dr Huq), who has tried to bring these plans forward three times already since 2020. It will come as no surprise that I rise to speak against the new clause or that our party will vote against it. It is not needed now for the same reasons it was not needed on those occasions.
We already have laws on the statute book to prevent harassment and maintain public order, including laws in place to ensure that women are not harassed or intimidated outside abortion clinics. Therefore, the new clause is simply unnecessary. The law gives the police the powers they need to maintain public order, to intervene if demonstrations cause serious disruption and to tackle threatening or abusive behaviour that may intimidate women.
In the vast majority of cases, there is no evidence that hospitals and abortion clinics are affected by protesters, so a blanket ban is an unnecessary and disproportionate response, especially when the police can protect women through other lawful means. The police already have the tools they need to protect women. There is no evidence of the scale of harassment that the hon. Member for Walthamstow and others in this House have referred to. Therefore, I repeat, the new clause is not necessary. It would risk unintended consequences for freedom of speech and freedom of expression, and it would be bad for women.
Many women have been helped by volunteers outside abortion clinics. The right hon. Member for Gainsborough (Sir Edward Leigh) referred to Alina Dulgheriu, who wrote last week about her experience and how a lady helped her outside an abortion clinic. I will not repeat the story, but she explained that her
“beautiful daughter would not be here today”
without support from a volunteer handing out a leaflet outside the clinic.
Another mother, who is happy for her testimony to be shared with parliamentarians but does not want her name shared because of fears of retaliation from pro-choice campaigners, explained that she was “under immense pressure” to go through with her abortion, but on her way into the abortion clinic a woman handed her a leaflet and simply said that she was there if she needed her. Her conversation with that woman gave her the support and confidence she needed to keep her baby.
That mother further recounted:
“The potential introduction of buffer zones is a really bad idea because women like me, what would they do then? You know, not every woman that walks into those clinics actually wants to go through with the termination. There’s immense pressure, maybe they don’t have financial means to support themselves or their baby, or they feel like there’s no alternatives. These people offer alternatives.”
She describes her daughter as
“an amazing, perfect little girl”
and the love of her life. She shared her testimony because she wants MPs advocating for buffer zones to realise that her daughter would not be alive today if they had had their way. Buffer zones would deprive many other women who do not want to abort their babies but perhaps feel they have no other choice of the same support that these two who have bravely shared their stories received.
Before I conclude, there are a number of other points I want to make. Under this new clause, as drafted, it would be a crime to offer help to those women who ideally would like to continue with the pregnancy but cannot, due to economic circumstances. That is just abhorrent. The new clause would criminalise anyone making such an offer regardless of how they went about it or their views on abortion. How is that pro-choice?
Anne McLaughlin (Glasgow North East) (SNP)
I am so disappointed that we are debating a piece of legislation that should have been resigned to the scrap heap, along with the previous Cabinet’s regressive legislative programme. We are firefighting an economic crisis on an unprecedented scale and valuable Government time in this place is being wasted on draconian legislation that nobody, with the exception of selected Government Members, actually wants. I include in that the people who will be sent out on the streets to try to enforce this nonsense. Representatives from police forces have said time and again, throughout the consultation and Committee stages of the Bill, that this is not required.
The powers already exist to police protests in an effective and proportionate manner, and that is what I will focus on—proportionality. After all, this is a balancing act between the fundamental rights that allow us to protest, for whatever cause and whatever reason, and the rights of those who might be inconvenienced or affected by a protest.
At what stage does the scale tip? Government Members will undoubtedly cite cases where protestors glued themselves to the M25 or threw tomato soup at a priceless artwork, albeit one that was behind protective glass, but at what point does their right to stand up and say, “Wake up! The world is on fire,” become less important than someone’s right to get to work on time or to gaze upon a painting? The right hon. Member for Gainsborough (Sir Edward Leigh) said that people standing shouting at people outside abortion clinics were “just raising awareness”. Well, he cannot argue that such protestors are doing anything other than trying to raise awareness.
Throughout the stages of the Bill and repeatedly during the passage of the Police, Crime, Sentencing and Courts Act 2022, it was made clear to the Government that the whole point of a protest is to make a noise and get noticed. I am sure that when Muriel Matters and Helen Fox chained themselves to the grille in the Ladies’ Gallery of this place in 1908, shouting,
“We have been behind this insulting grille too long!”,
they intended to be heard. Thanks to protests like that, not only can I now vote, but I can stand here and represent the voices of my constituents—as long as my own voice does not pack up soon.
Let us imagine this Bill had been in place in 1908. Muriel and Helen might have been stopped and searched on the way here, and a chain or lock may have been found on them. Maybe they would be serving 51 weeks in prison, or maybe the chilling effect of knowing this might happen would have stopped them altogether, so maybe women would not have got the vote. Do you see where I am going with this, Mr Deputy Speaker? I am not even delving into the vast number of ways a person could be snared by the Bill.
We have a new Home Secretary, who has taken the wheel and veered further into the realms of “Nineteen Eighty-Four” and “The Handmaid’s Tale” in a way that brings to mind that iconic lyric from one of my favourite bands, The Who:
“Meet the new boss, same as the old boss.”
Her scant regard for human rights, the European convention on human rights, and our obligations under international law are well documented, so any lip service to the claim that the Bill is somehow compliant with the ECHR is exactly that.
Like the hon. Member for Brighton, Pavilion (Caroline Lucas), I will take some time to focus on part 2 and serious disruption prevention orders. I much prefer the colloquial name given to these orders by civil liberties groups including Liberty and Big Brother Watch: protest banning orders. That is what they are. I have talked to a lot of people about the Bill, and the conversation usually starts with locking on and tunnelling. They are headline grabbers, and rightly so, but when the discussion moves on to protest banning orders and just how far and wide the net spreads to catch people, jaws visibly drop. People just cannot believe that this could happen to them. I can hardly believe it, and I am a really cynical person.
We are talking about an order placed on a person—it could be you, Mr Deputy Speaker—that can restrict where they go, who they see, what they do and how they use the internet, and could result in them having to wear a GPS tag for an indefinite period. It can be slapped on someone who has not even attended a protest. I am hoping for an intervention from a Member trying to claim that I am oversimplifying this, but I doubt I will get one, because I am not. As others have said, all somebody has to do to be served with a protest banning order is to participate in at least two protests within a five-year period, whether or not they have been convicted of a crime. An order can be placed on a person who has carried out activities or contributed to the carrying out of activities by any other person related to a protest that resulted in, or was likely to result in, serious disruption on two or more occasions. Wow!
This provision could not be broader. It could apply to anyone. Take me for example. What if I let my partner borrow my mobile phone to tweet about a Black Lives Matter protest? Could it be claimed that I am inadvertently contributing to the carrying out of activities by another person related to a protest that is likely to result in serious disruption? What is serious disruption? Members should not bother flicking through the Bill, because the definition is not there. The closest definition we might be able to rely on is in the Police, Crime, Sentencing and Courts Act 2022, under which—rather conveniently—the Home Secretary has discretion to redefine it any time she sees fit to do so.
We had hours of debate on this in Committee. The issue has been and always will be that “serious disruption” is wholly subjective, so it sets an incredibly low threshold for these draconian measures being placed on individuals who are simply exercising their human rights. I agree with the Labour amendment that states we must have a definition of serious disruption, but let me be clear: my position and that or my party is that we must get rid of these provisions all together.
When I get my SDPO, I have to fulfil a host of obligations, and if I do not, I cross the line into criminal behaviour for breach of a civil order, ending with a 51-week stay in prison, a fine, or both. Not that civil after all, it appears. I might not be able to attend future protests. I might be stopped from using the internet in ways that might encourage people to carry out activities that are related to a protest, or that are likely to result in serious disruption—again, there is no definition of the term. I do not even have to have been at a protest to be banned from any future protest—a point not lost on Lord Paddick when the Police, Crime, Sentencing and Courts Bill was on Report in the other place.
Why do we find ourselves in the realm of preventive justice? On Second Reading, I referred to the movie “Minority Report”, where precogs could look into the future and predict a crime before it happened. That is a movie; it is not supposed to be a template to base actual laws on. The police have roundly rejected the concept of protest banning orders and have claimed that they
“would neither be compatible with human rights legislation nor create an effective deterrent,”
so why are we doing this?
We cannot electronically tag people who have committed no crime and claim that we are respecting their human rights, although shamefully the Government have no qualms about doing that to asylum seekers. A GPS tag’s data can carry the most personal and sensitive information, such as who someone’s GP is, where they shop and who they visit. It is a massive invasion of privacy that marks a new era of state surveillance.
We very much support of amendment 1, which removes SDPOs from the Bill. I thank the hon. Member for Broxbourne (Sir Charles Walker) for his work on the amendment, for his fantastic speech today—I never thought that I would hear myself say that about someone on the Conservative Benches, but it hit the mark—and for his collaborative approach to the amendment, which was in his name and is now in my name. I hope to press it to a vote tonight.
I have spent much of the time available to me discussing SDPOs, but I reiterate the SNP’s complete opposition to the Bill in its entirety, because it is draconian. As my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) said, we need only to look at the JCHR report to find the list of powers that already exist and can be used—the hon. Member for Broxbourne listed them for us.
Our opposition to the Bill in its entirety is made clear by our amendments not to amend the Bill but to remove all but one little clause. That is a radical step, but it attracted much public and cross-party support. I thank the hon. Members who put their name to those amendments. Unfortunately, as SNP spokesperson, I cannot realistically press more than one of my amendments to a vote—if I could, I would press them all to a vote. In particular, in addition to amendment 1, I would press amendment 12, which would remove suspicion-less stop and search. I hope that Labour will move that amendment so that we can vote on it and, clearly, support it.
We support many amendments from other hon. Members, including all those in the name of my hon. and learned Friend the Member for Edinburgh South West on behalf of the Joint Committee. We also agree with the hon. Member for Streatham (Bell Ribeiro-Addy) about the need for a public inquiry into the impact of the policing of public order on black, Asian and minority ethnic people.
I support new clause 11 on buffer zones in the name of the hon. Member for Walthamstow (Stella Creasy) but, in answer to the hon. Member for Harwich and North Essex (Sir Bernard Jenkin), it will not surprise him or the hon. Lady that we will not vote on it if it is pressed to a vote, because it applies only to England and Wales. The Scottish Government are progressing work on it for Scotland. I agree with everything she said on it and I pay tribute to the work that she and the hon. Member for Ealing Central and Acton (Dr Huq) have been doing on it for some time.
In closing, we do not need this Bill—nobody needs this Bill. Our right to protest is fundamental. It is the only tool available to many people—most people—to effect real change. The Bill comes on the back of photographic voter ID, restrictions on judicial review, and the Police, Crime, Sentencing and Courts Act 2022 that we are yet to feel the full force of. When will the Government stop? When will they put their hands up and say, “We’ve got this wrong”? They need to realise that, instead of slamming their hand down on people who are protesting because they are desperately worried, they should extend a hand of solidarity to them and fix the problems that people are protesting about in the first place.
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am expecting four Divisions when the Minister resumes his seat.
Jeremy Quin
I hope that we will have fewer, Mr Deputy Speaker, and that hon. Members will be withdrawing their amendments during my remarks.
I start by thanking the hon. Member for Glasgow North East (Anne McLaughlin) and all hon. Members who have contributed to this lively debate. I know that all hon. Members treat this debate and these issues with the great seriousness and concern that they deserve. With the leave of the House, I will respond to some of the points made throughout the debate and to some of the key amendments.
I will start with the amendments in the name of my hon. Friend the Member for Broxbourne (Sir Charles Walker) and the hon. Member for Glasgow North East—appropriately—which seek to remove the serious disruption prevention orders from the Bill. My hon. Friend said that he was cold when he turned up today. I think he misheard me from a sedentary position; I merely said that he had certainly warmed up during his speech.
Our experience of some of the recent protests has shown that the police are encountering the same individuals who are determined to repeatedly inflict disruption on the public. For example, as of July this year, 460 individuals had been arrested a total of 910 times at Just Stop Oil protests, while during Insulate Britain’s campaign, 268 individuals were arrested a total of 977 times. It cannot be right that a small group of individuals can repeatedly commit criminal offences against our roads and railways, to name only a few places, and not face appropriate restrictions.
Jeremy Quin
I have lots of Members to cover, but I will of course give way.
Sir Charles Walker
The Minister is his usual charming self, but what we are talking about is putting ankle tags on people who have not been convicted of any crime. That just does seem way over the top.
Jeremy Quin
That would be a decision made by a court in very specific circumstances, and I do trust our courts to take appropriate action. They can only do so on the weight of evidence, and they are very used to taking these decisions. After all, there is a tried and tested process whereby injunctions can be sought and obtained to prevent a future harm. I do not think this is as radical as my hon. Friend is suggesting. However, I congratulate him on the points he made, even though I disagree with him, and also my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds) on his contribution to this point of the debate. I would love to prevail on my hon. Friend the Member for Broxbourne to withdraw his amendment, but I do not think that is going to happen, and I look forward to opposing it.
Turning to the hon. Member for Croydon Central (Sarah Jones), I spoke earlier in the debate about why we believe that injunctions are useful. We absolutely accept the point being made by the hon. Lady that they are appropriate when used properly, and that is why we have tabled our amendments. I think ours is a more competent and effective way of achieving our shared objectives.
On new clause 5, which seeks to define the meaning of “serious disruption” for the purposes of this Bill, I have to say that no two protests, nor the operational response required, are ever the same. Being too prescriptive risks the ability of the police to respond to fast-evolving protest tactics while also risking the exploitation of loopholes by those intent on causing as much disruption as possible. That is not to say that I dismiss the principle of this amendment. There is a balance to be struck between a definition that is broad and one that is prescriptive, so while I do not agree with the hon. Lady’s amendment, we will reflect further on its intent.
I turn now to perhaps the most vexed issue in today’s debate—namely, new clause 11, proposed by the hon. Member for Walthamstow (Stella Creasy). New clause 11 seeks to create 150-metre buffer zones outside abortion clinics in which all activity interfering with a person’s right to access abortion services would be prohibited. As the hon. Lady would accept, that is a blunt instrument. It is there to achieve an objective, but within those 150-metre buffer zones there could be houses and churches, and this would be a national decision covering the 150 metres around all clinics.
At the outset of the debate, I made it clear that, from the Government’s perspective, it is a free vote for members of our party. My good friend, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), said that this is a difficult issue to grapple with, and it is indeed difficult. However, I would like to make it clear that it is entirely possible to support totally a woman’s right to an abortion and to view protests outside abortion clinics as abhorrent while still believing that the current legislative framework provides an appropriate response.
Sir Bernard Jenkin
I think the Minister should now be persuaded, particularly as one of his predecessors, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), has now made it clear that she supports this amendment. It is time for the Government to say that we have to recognise that the present arrangements are not adequate, and we will be thinking about how to build on the arguments that have been presented in new clause 11. Just to rest on the status quo is not a sufficient response, however the Government vote today.
Jeremy Quin
I sympathise with the sentiment behind new clause 11. I hope we all agree that it is wholly unacceptable for women to feel harassed or intimidated when accessing abortion services. However, bearing in mind the size, scale and frequency of those protests, it is still our view that placing a nationwide blanket ban on protests outside all abortion clinics in England and Wales would be a blunt approach and disproportionate given the existing powers that can and should be used.
Stella Creasy
I know that the Minister is listening both to the testimony of previous colleagues and the sentiment across the House, but might the answer to this lie in the great institutions of this place, in that we should accept this amendment today and seek to further refine how it could work in the other place? We could today send a message to the other place that we will grapple with the issue and resolve it. The testimony from the hon. Member for Louth and Horncastle (Victoria Atkins), a former Home Office Minister, powerfully set out that this is a road to travel. The challenge in this place is that without those opportunities for scrutiny and further refinement, the status quo will remain, and what the Minister is hearing from across the House is that the status quo is not acceptable. Might that not be a way forward?
Jeremy Quin
My hon. Friend the Member for Louth and Horncastle mentioned the reviews that have been done: the review conducted in 2018 went into this in great depth and there has been further work since, and the hon. Lady referred to further work being done in relation to the Police, Crime, Sentencing and Courts Act 2022. That maintained the Government position that the current arrangements are still proportionate. There is legislation; the Public Order Act 1986 and the PSPOs provide those routes, and we continue to believe that is proportionate, but this is ongoing work and we need to continue to ensure that it is still proportionate. I will be reviewing and making certain that I understand fully the pattern of protests and the effectiveness and indeed the cost of PSPOs, and I will certainly make sure that that work is constantly refreshed if the House agrees we should maintain the current legislative environment.
There are existing laws to protect people from harassment and intimidation outside abortion clinics. The police have robust powers to deal with protests that obstruct access to clinics, and cause alarm, harassment or distress, and where protests cause harm, we expect the police and local authorities to work together at the local level to respond in a way that takes into consideration the local facts, issues and circumstances. In addition, local authorities already have powers to implement PSPOs; these can be introduced when a local authority is satisfied that protests are having, or are likely to have, a detrimental effect. We have seen increased use of these in recent weeks, with five local authorities imposing an order outside abortion clinics.
Fiona Bruce
Because some of our colleagues will not have been able to follow the whole debate, will the Minister confirm what I believe he is saying, which is that he personally will vote against new clause 11 this afternoon?
Jeremy Quin
It is a free vote and I will be voting against the amendment. I believe the powers and legislative environment we have are appropriate at the current juncture, and that is the position the Government have taken in the past. It is also the case that we continue to do work on this; I will continue to ensure that we are reviewing the scale of protests, the adequacy of the current legislative framework, and the effectiveness and cost of PSPOs. We need to maintain that work although I will be voting against the amendment this afternoon.
My hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) said that, if the new clause falls, he will not give up. I would have been surprised had he said anything else, and I would be surprised if the hon. Member for Walthamstow gave up if she lost the vote. As I said, we will continue to review and assess this area, but it is important to get it right. There are powerful arguments on both sides of the debate, as enunciated by my hon. Friend the Member for Congleton (Fiona Bruce), the hon. Member for Upper Bann (Carla Lockhart) and my right hon. Friend the Member for Gainsborough (Sir Edward Leigh), and, on the other side, the hon. Member for Walthamstow, my hon. Friend the Member for Louth and Horncastle and my right hon. Friends the Members for Romsey and Southampton North (Caroline Nokes) and for Harwich and North Essex. I have set out how, through the current legislation and PSPOs, a lot can be done. The House will determine whether it believes that to be insufficient.
I turn to new clauses 13 and 14 tabled, again, by the hon. Member for Walthamstow, who is a passionate campaigner on these issues. In last year’s “Tackling violence against women and girls strategy”, we confirmed that we are looking carefully at where there may be gaps in existing law and how a specific offence of public sexual harassment could address them. In the light of that work, just before summer recess, we launched a targeted consultation on whether there should be a specific offence of public sexual harassment and, if so, what it should look like. The hon. Lady knows that. The consultation closed in September, and we are grateful to her for sending us her comments. We are working at pace to analyse the responses and to determine the best way forward. I reassure her that, for example, her comments on foreseeability of intent are absolutely part of that consultation. What I cannot do—I am sorry to disappoint her—is give a commitment today on our next steps. That would not be appropriate until we fully analyse the consultation. I look forward to sharing our views with the House as soon as possible.
I turn to the several amendments tabled on the recommendations of the Joint Committee on Human Rights. Again, I thank the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the Committee for the vital work that they do in supporting parliamentary scrutiny, as was referred to by the hon. Member for North East Fife (Wendy Chamberlain) and my hon. Friend the Member for Ruislip, Northwood and Pinner. Amendments 28, 30, 35 and 37 aim to move the burden of proof for a reasonable excuse from the defendant to the prosecution for the relevant offences. As we made clear in our formal response to the Committee’s report, whether or not someone has a reasonable excuse for their actions is specific to each incident, and we see it as entirely appropriate that the defendant who committed the offence in the first place and has personal knowledge of those facts is required to prove them. Beyond that, our courts are experts in assessing whether an individual has a reasonable excuse for a multitude of criminal offences. I do not see the value in placing that burden on the prosecution.
Amendments 32, 36 and 38 seek to require the courts to have particular regard to articles 10 and 11 of the European convention on human rights when assessing whether someone has a reasonable excuse for offences. Courts and other public bodies are already obliged to act compatibly with ECHR, and we do not believe that it is necessary to repeat that obligation.
Finally, several amendments seek to narrow the Bill’s scope. I will not address each individual amendment. The Government believe that the scope of the offences is not only appropriate but proportionate to the serious disruption inflicted.
I turn to a couple of other amendments.
Jeremy Quin
I was about to turn to my hon. Friend. She tabled amendments 51 and 52, which would add farms and food production infrastructure to the list of key national infrastructure. That would significantly increase the scope of the Bill. As she is aware, there are some 216,000 farm holdings and 13,560 food and drink manufacturers—it goes on. However, I understand and am sympathetic to the point she made about the importance of food and food manufacture. I will take up with my colleagues in the Department for Environment, Food and Rural Affairs whether we need to look further at that area in the Bill, and I will share with her the results of that at pace.
Alicia Kearns
I thank my hon. Friend for recognising that the actions of vegan militias over the summer in disrupting milk supply chains were unacceptable. They hurt our farmers and our food security. When he tasks his officials and those of DEFRA to look at that, will he commit to meeting me in December and consider secondary legislation to protect our food producers and our food security?
Jeremy Quin
I am delighted to confirm that I will meet my hon. Friend in December and talk through our view with her, having discussed it. I am sympathetic to how food is an important aspect of our national resilience.
On stop and search, I am grateful to the hon. Member for Battersea (Marsha De Cordova) for tabling new clauses 9 and 10, and to the hon. Member for Streatham (Bell Ribeiro-Addy) for speaking to them so capably. The Home Office continues to publish extensive data on the use of stop and search to drive transparency. That will continue with the introduction of these new powers. As my predecessor did in Committee, I can assure the hon. Lady that data on the use of these powers will be collected and published. It will be broken down by age, gender and ethnicity and include the outcome of the search, as for existing stop-and-search powers. On the creation of an independent reviewer of the powers, I point the hon. Lady to the existing independent bodies, to which she referred, the IOPC and His Majesty’s inspectorate of constabulary and fire and rescue services, which will ensure that proper oversight of the powers is embedded in its inspections.
Mr Deputy Speaker (Mr Nigel Evans)
As I said earlier, I am anticipating four Divisions. The first one will, I believe, be on new clause 4. If somebody from the SNP could inform the Chair who their Tellers might be, should they decide to have a vote on their amendment, I would be extremely grateful.
Question put and agreed to.
New clause 7 accordingly read a Second time, and added to the Bill.
New Clause 8
Injunctions in Secretary of State proceedings: power of arrest and remand
(1) This section applies to proceedings brought by the Secretary of State under section (Power of Secretary of State to bring proceedings) (power of Secretary of State to bring proceedings).
(2) If the court grants an injunction which prohibits conduct which—
(a) is capable of causing nuisance or annoyance to a person, or
(b) is capable of having a serious adverse effect on public safety,
it may, if subsection (3) applies, attach a power of arrest to any provision of the injunction.
(3) This subsection applies if the Secretary of State applies to the court to attach the power of arrest and the court thinks that—
(a) the conduct mentioned in subsection (2) consists of or includes the use or threatened use of violence, or
(b) there is a significant risk of harm to—
(i) in the case of conduct mentioned in subsection (2)(a), the person mentioned in that provision, and
(ii) in the case of conduct mentioned in subsection (2)(b), the public or a section of the public.
(4) Where a power of arrest is attached to any provision of an injunction under subsection (2), a constable may arrest without warrant a person whom the constable has reasonable cause for suspecting to be in breach of that provision.
(5) After making an arrest under subsection (4) the constable must as soon as is reasonably practicable inform the Secretary of State.
(6) Where a person is arrested under subsection (4)—
(a) the person must appear before the court within the period of 24 hours beginning at the time of arrest, and
(b) if the matter is not then disposed of forthwith, the court may remand the person.
(7) For the purposes of subsection (6), when calculating the period of 24 hours referred to in paragraph (a) of that subsection, no account is to be taken of Christmas Day, Good Friday or any Sunday.
(8) Schedule (Injunctions in Secretary of State proceedings: powers to remand) applies in relation to the power to remand under subsection (6).
(9) If the court has reason to consider that a medical report will be required, the power to remand a person under subsection (6) may be exercised for the purpose of enabling a medical examination and report to be made.
(10) If such a power is so exercised the adjournment is not to be in force—
(a) for more than three weeks at a time in a case where the court remands the accused person in custody, or
(b) for more than four weeks at a time in any other case.
(11) If there is reason to suspect that a person who has been arrested under subsection (4) is suffering from mental disorder within the meaning of the Mental Health Act 1983 the court is to have the same power to make an order under section 35 of that Act (remand for report on accused's mental condition) as the Crown Court has under that section in the case of an accused person within the meaning of that section.
(12) In this section—
“harm” includes serious ill-treatment or abuse (whether physical or not);
“the court” means the High Court or the county court and includes—
(a) in relation to the High Court, a judge of that court, and
(b) in relation to the county court, a judge of that court.”—(Jeremy Quin.)
This new clause contains provision for the court to attach powers of arrest to an injunction granted in proceedings brought in the name of the Secretary of State in accordance with NC7. This new clause also contains related provisions in connection with the remand of arrested persons .
Brought up, read the First and Second time, and added to the Bill.
New Clause 4
Injunction to prevent serious disruption to effective movement of essential goods or services
“(1) Upon an application by a person under subsection (4), an injunction may be ordered by a Judge of the High Court against ‘persons unknown’ in order to prevent a serious disruption to the effective movement of any essential goods or any essential services occasioned by a public procession or public assembly.
(2) The “persons unknown” may be—
(a) anonymous persons taking part in a public process or public assembly who are identifiable at the time of the proceedings; and/or
(b) persons not presently taking part in a public procession or public assembly protest but who will in future join such a public procession or public assembly.
(3) The conditions under which such an injunction may be granted are as follows—
(a) there must be a real and imminent risk of a tort being committed which would result in a serious disruption to the effective movement of any essential goods or any essential services;
(b) a method of service must be set out in the order which may reasonably be expected to bring the proceedings to the attention of the “persons unknown”;
(c) the “persons unknown” must be defined in the order by reference to their conduct which is alleged to be unlawful;
(d) the acts prohibited by the order must correspond with the threatened tort;
(e) the order may only prohibit lawful conduct if there is no other proportionate means of protecting the effective movement of essential goods or essential services;
(f) the terms of the order must set out what act(s) the persons potentially affected by the order must not do;
(g) the terms of the order must set out a defined geographical area to which the order relates; and
(h) the terms of the order must set out a temporal period to which the order relates, following which the order will lapse unless a further order is made upon a further application by the applicant.
(4) An applicant for an injunction to prevent serious disruption to effective movement of essential goods or services may be—
(a) a local authority with responsibility for all or part of the geographical area to which the proposed order relates;
(b) a chief constable with responsibility for all or part of the geographical area to which the proposed order relates; or
(c) a person resident in, or carrying on a business within, the geographical area to which the proposed order relates.
(5) A “serious disruption to effective movement of essential goods or services” includes a prolonged disruption to—
(a) the effective movement of the supply of money, food, water, energy or fuel;
(b) a system of communication;
(c) access to a place of worship;
(d) access to a transport facility;
(e) access to an educational institution; and
(f) access to a service relating to health.”—(Sarah Jones.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The Secretary of State for the Home Department (Suella Braverman)
I beg to move, That the Bill be now read the Third time.
The Public Order Bill reflects the Government’s duty to put the safety and interests of the law-abiding majority first. We are on their side, not the side of extremists who stick themselves to trains, glue themselves to roads, interfere with newspaper distribution, vandalise properties, disrupt the fuel supply, disrupt this Chamber, or block ambulances. The growing tendency of those with strong opinions to mix their expression with acts of violence cannot and will not be tolerated.
The most generous interpretation of the kind of characters who glue themselves to roads is that they are dangerously deluded, but in fact—much worse—many of them have the deranged notion that their ends justify any means whatever. In the eyes of the militant protesters, the everyday priorities of the hard-working, law-abiding, patriotic majority can always be disregarded in pursuit of their warped schemes.
These extremists stop people from earning a living, gaining an education or caring for a loved one in need. Ordinary people who are working, learning or caring are never deemed by the extremists as important enough to stand in the way of their plots and plans. No Government should fail in their duty to protect their citizens from such abuse, and this Government will always put the law-abiding majority first and foremost.
Marco Longhi
Does the Home Secretary agree that the police should consider the wider, cumulative impacts of protests on a local community, rather than a narrow, notional assessment, in isolation, of whether a serious disruption threshold has been reached? In other words, can we get the police to start locking them up, please?
Suella Braverman
My hon. Friend makes a very important point. Fundamentally, police and key partners should view the impacts of disruption cumulatively. The clock should not be reset every day and in each location; they need to look at the tactics in the round.
We need the police to act proactively, decidedly and diligently, so there are various factors that they need to include in their assessment of serious disruption. They need to consider the overall length and the time and impact on communities. They need to look at the disruption to a general area. They need to look at the police resources that have been drained by the action. They need to look holistically and actively at how they take action.
Gareth Bacon (Orpington) (Con)
Does my right hon. Friend agree that, given the strict limitation of police resources, the police should perhaps deploy those resources on dealing with the guerrilla tactics that are putting the people of London at risk of harm and less time policing pronouns on Twitter?
Suella Braverman
My hon. Friend raises an issue that is close to my heart, which is that we need our police officers—our brave men and women, the majority of whom are heroes, frankly, in this nation’s law enforcement and security—to be focusing on our priorities and the priorities of the law-abiding majority. Common sense policing means focusing on targeting and fighting the bad guys, fighting the criminals and stopping crime, not policing pronouns and not pandering to politically correct campaigns.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
Will the Home Secretary give way?
Suella Braverman
I will make progress, I am afraid.
No Government should fail in their duty to protect their citizens from such abuse, and this Government will always put the law-abiding majority first. In a democracy, we make policy through civilised debate and at the ballot box, not through mob rule and not by visiting chaos and misery on our fellow citizens.
Suella Braverman
I am afraid I do not have much time.
When I was the Attorney General, I went to court to establish that it is not a human right to commit criminal damage. The Court of Appeal agreed with me in the Colston statue case that serious and violent disorder crosses a line when it comes to freedom of expression. That is common sense to the law-abiding majority.
Since 1 October alone, the Metropolitan police have made over 450 arrests linked to Just Stop Oil, and I welcome this, but more must be done. That is why I welcome the fact that, today, Transport for London has succeeded in securing an injunction to protect key parts of the London roads network. That is an important step forward in the fight against extremists. However, these resources are vital and precious, and this has drained approximately 2,000 officer days at the Met already. Those are resources that are not dealing with knife crime and are not dealing with violence against women and girls.
I am afraid to say—and I will come to a close soon—that that is why it was a central purpose of the Police, Crime, Sentencing and Courts Bill, now an Act, to properly empower the police in face of the protests, yet Opposition Members voted against it. Had Opposition Members in the other place not blocked these measures when they were in the Police, Crime, Sentencing and Courts Bill, the police would have already had many of the powers in this Bill and the British people would not have been put through this grief. Yes, I am afraid that it is the Labour party, the Lib Dems, the coalition of chaos, the Guardian-reading, tofu-eating wokerati and, dare I say, the anti-growth coalition that we have to thank for the disruption we are seeing on our roads today. I urge Opposition MPs and Members of the other place to take this second chance, do the right thing, respect the rights of the law-abiding majority and support this Bill.
Madam Deputy Speaker (Dame Rosie Winterton)
There is very little time left. I call the shadow Home Secretary.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
I just think it is astonishing: the Home Secretary actually talked about a “coalition of chaos”, and we can see it in front of us as I speak. I understand that the Government do have concerns in that they face issues with a selfish majority wreaking havoc, and someone who is resisting all the attempts of the powers that be to remove them—causing serious disruption, disorder and chaos, with serious consequences for the public, businesses, politics and financial markets—but they had glued themselves under the desk. We wish Conservative Members luck with their attempts to extricate another failing Tory Prime Minister from No. 10, but I suggest that that is not a reason to change the law for everyone else.
This is the second Public Order Bill in the space of six months. The Government could have got through a victims Bill by now; they chose not to. They could have put more time into action on violence against women and girls; they chose not to. Instead, they are repeating the same debates we have had already. The Home Secretary referred to acts of violence and blocking roads. These are, rightly, already crimes. These are all, rightly, already offences. In fact, this Conservative Government have put fewer thugs and criminals behind bars because prosecutions for violent crime have plummeted on their watch. Antisocial behaviour action in many areas has totally collapsed.
We have seen certain things recently that have angered all of us. Defacing works of art is a total disgrace. Blocking roads and preventing ambulances from getting through is appalling. Both those are rightly against the law already, and we have seen people rightly arrested and charged for criminal damage and for blocking highways. We support the action of Transport for London in taking out injunctions. That is why we have argued from the start for making taking injunction action smoother for organisations, but today Members from all parts of this House have also stood up for the principles of peaceful protest in the face of the truly appalling images we have seen from outside the Chinese consulate in Manchester, including a serious assault that put one protestor in hospital.
Parliament must stand up for peaceful rights; as the Minister for the Americas and the Overseas Territories, the right hon. Member for Hereford and South Herefordshire (Jesse Norman) rightly said earlier today, peaceful protest is a fundamental part of British society, and in our country everyone has the right to express their views peacefully. That is why we have to make sure that when we legislate in these areas we do so with care, because in a democracy people need the freedom to speak out against authority and make their views heard, and we should also have protections and safeguards against serious disruption to essential services.
That is why we put forward measures; that is why we have supported buffer zones around abortion clinics, and that is why we have put forward measures in previous Bills on vaccine clinics and making sure people could not be targeted by harassment and intimidation. Hon. Friends have talked about the legislation that is already in place, but the measures in the Bill will not tackle this issue. Instead they mean a police inspector will have the power to stop and search anyone in the vicinity of a protest regardless of whether they suspect them of being involved in committing a criminal offence. It could mean people being stopped and searched in Parliament Square pretty much any day of the week when protests are taking place.
The Home Secretary says that she sees herself as a champion of freedom of speech and expression. She has said that freedom of speech must be protected, but, it turns out, not if it is too noisy. Speaking is fine, but speaking too loudly could be a criminal offence. She says that being offended goes hand in hand with free speech, but she has made it an offence to be seriously annoying. Defend offence but not annoyance—it is totally illogical.
Four hours having elapsed since the commencement of proceedings on the programme motion, the debate was interrupted (Programme Order, this day).
The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the Bill be now read the Third time.
Public Order Bill
Wednesday 19th October 2022
(2 years, 1 month ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Amendment Paper: Consideration of Bill Amendments as at 18 October 2022 - large print - (18 Oct 2022)
Baroness Williams of Trafford (Con)
My Lords, it has been suggested that we might adjourn for five minutes while we just double-check the rules.
Baroness Williams of Trafford (Con)
My Lords, it might be helpful to read from the Companion about the status of a First Reading:
“The Question is put from the Woolsack. The first reading of a bill is agreed to without dissent or debate, both as a matter of courtesy and because the House has no knowledge of the contents of the bill until it is published.”
On that basis, I beg to move that this Bill is read a first time.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, that is a very helpful answer but if that is the case—and it is—why does the chair have to say “Content” or “Not Content”? Does it not make this House look even more stupid?
Baroness Williams of Trafford (Con)
My Lords, it is a formal process for receiving a Bill.
Lord Kennedy of Southwark (Lab Co-op)
Can I just endorse the comments from the Government Chief Whip? It is a formal process; let us get on with the business.
Public Order Bill
Tuesday 1st November 2022
(2 years ago)
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Lord Sharpe of Epsom
That the Bill be now read a second time.
Relevant document: 1st Report from the Joint Committee on Human Rights
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the duty of any Government is to protect the safety and interests of the law-abiding majority. This means working to prevent and reduce crime, giving the police the tools they need and ensuring that those who break the law face proportionate consequences of their actions. Fighting crime and keeping communities safe is at the forefront of the Government’s agenda. That is why we have invested £17 billion in policing. It is why we are running a police uplift programme that is well on the way to recruiting 20,000 additional officers, and why we introduced the Police, Crime, Sentencing and Courts Act, which received Royal Assent in April.
While that Act has given the police some of the tools they need better to manage disruptive protests, we were frustrated in our attempts to implement the full suite of measures needed to ensure that the public can go about their daily lives free from serious disruption or harm. The Public Order Bill therefore builds on the Police, Crime, Sentencing and Courts Act to bolster our ability to crack down on disruptive and dangerous tactics of the kind we are seeing deployed all too frequently.
Specifically, the Bill targets acts by a minority of people that cause serious disruption to the hard-working majority, such as those we have seen in recent months that have brought roads to a standstill, blocked emergency services and forced thousands of police officers away from the critical work of protecting their communities. In October alone, the Metropolitan Police made more than 650 arrests in relation to Just Stop Oil activity in London.
When speaking about some of this disruption, Metropolitan Police Commissioner Sir Mark Rowley noted that his force’s response over 11 days of protests had been the equivalent of more than 2,150 officer days. That, I am sure noble Lords agree, is a striking number. It encapsulates why it is so crucial that we act. The police perform a unique role in our society; theirs is undoubtedly a job with many different strands. These include public order, but it cannot be right that so much of their time and resources are taken up by tiresome and disruptive stunts that, far from advancing the protesters’ cause, serve only to infuriate everyone else.
Peaceful protest is a fundamental part of our democracy. We will never agree on everything, which is why vigorous but sensible debate is something we hold so dear. What we cannot and should not accept is a situation in which the lives and livelihoods of decent, law-abiding citizens are impeded by the actions of a selfish and reckless few. The public are fed up with what they see happening day after day, and who can blame them? It is now up to us, as parliamentarians, to act in their best interests and get this crucial Bill on the statute book.
I will now speak to the measures set out in the Bill. First, the Bill introduces a new criminal offence of locking on, accompanied by a further criminal offence of going equipped to lock on, criminalising the tactic of intentionally causing disruption by locking on to busy roads, buildings or scaffolding. Locking on is as risky as it is disruptive, endangering not only the protesters but the police removal teams. I was therefore pleased to hear the leader of the Opposition confirm last week that his party would press ahead with tougher prison sentences for protesters who glue themselves to roads.
Secondly, the Bill introduces a new criminal offence of tunnelling, being present in a tunnel and going equipped to tunnel, making it clear that the protest tactic of building and occupying tunnels in order to disrupt legitimate activity will not be tolerated. HS2 has been targeted on multiple occasions with tunnels that have caused enormous cost to the project, with three removal operations alone costing in excess of £10 million. But it is not just about the costs. Tunnelling is dangerous and reckless, endangering not just those who occupy the tunnels but the responding emergency workers. We cannot wait to act until someone is seriously injured or worse.
Thirdly, the Bill establishes new offences for obstructing major transport works and interfering with key national infrastructure, reflecting the serious impact of such acts and our determination to tackle them. I have already touched on some of the disruption to projects such as HS2. HS2 estimates that sustained protester action has led to additional costs to the project of more than £146 million, an amount projected to rise to £200 million by the end of next year. The offence of obstruction of major transport works therefore ensures that all stages of construction and maintenance will be protected from disruptive action, while the key national infrastructure offence will ensure that our major transport networks, energy and fuel supplies are protected.
The new offences in the Bill are accompanied by an extension of stop and search powers for police to search for and seize articles connected to protest-related offences such as locking on and tunnelling.
Lord Bellingham (Con)
I absolutely agree with what the Minister says about the police being given these new powers, which are long overdue, but does he agree that once they have them, it is incredibly important that they use them? There have been examples of the police—not the Met but other forces—adopting a “softly, softly” approach that has encouraged the people who have been locking on and causing disruption.
Lord Sharpe of Epsom (Con)
I agree, of course, with my noble friend and I am sure we will come on to that subject in some detail later.
In its report on the policing of protests, His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services concluded that stop and search powers will improve the police’s ability to prevent serious disruption, and we agree. I want to be clear to noble Lords that existing safeguards around the use of stop and search powers, including statutory codes of practice, use of body-worn video to increase accountability and extensive data collection will continue to apply.
Next, the Bill lowers the rank of officer to whom the commissioners of the City of London and Metropolitan police forces can delegate powers to prohibit or set conditions on protests. The rank is being lowered from assistant commissioner to commander. This retains senior level involvement but will allow the most senior officers more time to focus on the challenges that the Metropolitan Police Service faces. It will bring London forces into line with forces across England, Wales and Scotland, whose chief officers can already delegate their powers to the commander-equivalent rank of assistant chief constable. The Bill also extends to the British Transport Police and Ministry of Defence Police existing powers to manage public assemblies in Part II of the Public Order Act 1986.
The Bill contains two other measures, as well as an addition from the other place. First, it establishes a new preventive court order, the serious disruption prevention order, which may be sought either on conviction or following an application by a chief police officer. This is targeted at protesters who are determined to repeatedly inflict disruption. The courts will be able to place conditions on individuals to prevent them engaging in criminal acts of protest and causing serious disruption time and time again. These conditions could include curfews or electronic monitoring but, most importantly, they will be for the courts to decide, not the Government. The threshold for the imposition of these orders is appropriately high and I trust our police and courts to impose them only where necessary.
The second measure provides a Secretary of State with a specific mechanism to apply for an injunction in relation to protest activity that causes, or threatens to cause, serious disruption to key national infrastructure, or to access to essential goods or services. An injunction could also be sought where the protest activity has, or is likely to have, a serious adverse impact on public safety. This does not affect the right of local authorities or private landowners to apply for an injunction but gives a Secretary of State an additional route to act in the public interest where the potential impact is serious and widespread. For example, a Secretary of State could have applied for an injunction on behalf of the various local authorities affected by the recent Just Stop Oil protests that obstructed roads across London.
Finally, on a free vote with cross-party support, an amendment was inserted into the Bill by the other place on Tuesday 18 October. Clause 9 establishes buffer zones around abortion clinics where interference with people accessing or providing abortion services would be an offence. The Government will consider how to implement and deliver this amendment. Noble Lords may have seen a Written Ministerial Statement which I issued last week, in which I indicated that I was presently unable—before introduction—to sign a statement of compatibility with the European Convention on Human Rights. I would particularly welcome your Lordships’ engagement on this clause.
I conclude my opening remarks by saying that there are inevitably differences of opinion, which we will come to consider throughout the course of this debate. But I hope all noble Lords recognise that blocking ambulances, preventing cars carrying sick children from passing, or damaging artworks is completely unacceptable, whatever the cause. That sort of behaviour is not only breathtakingly selfish; it pulls the police away from the people and places that need them the most. This cannot continue. I beg to move.
Lord Coaker (Lab)
My Lords, I thank the Minister for introducing this Second Reading. There is no difference between us, it seems to me, on the right to peaceful protest being a fundamental part of our democracy. Many of us in this Chamber, including me, have been part of protests, campaigns and demonstrations. Throughout history, in generation after generation, people have made their voices heard and taken action against the decisions and policies of the powerful. Indeed, we have stood and applauded those taking action and protesting in countries around the world, most recently in Iran and Russia.
We are not an authoritarian country, and I do not believe that the Government wish to ban all protests. But the Bill contains a number of provisions that undermine our historic and democratic rights. The Joint Committee on Human Rights said:
“While the stated intention behind the Bill is to strengthen police powers to tackle dangerous and highly disruptive protest tactics, its measures go beyond this, to the extent that we believe they pose an unacceptable threat to the fundamental right to engage in peaceful protest. The right to peaceful protest is a cornerstone of democracy, which should be championed and protected rather than stifled.”
The Government’s response is to dismiss these fears and say that they are the outpourings of middle-class liberals who are out of touch—or, worse, “tofu-eating wokerati”. I had to look up what tofu was.
More seriously, why are the Government doing this? Much of it is in response to the recent protests. Let there be no doubt: we also strongly criticise the serious disruption caused by Just Stop Oil, Insulate Britain and Extinction Rebellion. We have seen behaviour that is unacceptable to us all. Of course vital infrastructure and services on which we all depend need protecting so that others are not put at risk, as we recently saw with an ambulance struggling to get through. That was unacceptable and wrong, as was the dangerous blocking of the M25 or wasting milk, leaving it to low- income cleaners to mop up.
But our contention and belief are that we need to look at the existing laws and powers that the police have to deal with serious disruption and intimidation. Blocking a road or defacing a work of art are already crimes, and we support the continued strict enforcement of these laws and giving the police the confidence to pursue them. The Government should highlight, as the Minister did, the hundreds of arrests of protesters over the last few months. The fear of arrest and actual arrest deter most people, and one wonders what laws would prevent people as determined as those who are protesting at the present time. The Government’s Bill will potentially inadvertently criminalise many from a huge law-abiding majority.
Under existing laws, five Insulate Britain members were jailed for breaching M25 restrictions, Just Stop Oil protesters who threw tomato soup were charged with criminal damage, 11 people were arrested for criminal damage at a dairy in the West Midlands, 80 people were arrested at an oil facility near Heathrow for aggravated trespass and 25 people were arrested in central London for obstructing the highway. There is example after example of arrests by our police service using existing laws. Perhaps there should be tougher sentences, as the Minister said, but that should be done under existing legislation, not simply reacting to what is happening and seeing whether any more laws are needed.
The Bill contains a number of new measures, many of which were not supported by the police inspectorate, including the creation of protest banning orders, as we call them, and locking on. The so-called new threat of locking on, including the use of superglue, is not new: if the Minister looks to the Home Office, he will see that it is referenced in the 2006-07 ACPO Manual of Guidance on Dealing with the Removal of Protestors. This contains action that the Government suggest should be taken with those who use superglue, as well as pictures reminiscent of those we see today. The Government of the day did not respond to those protesters with new draconian laws.
One of the most worrying new powers in the Bill is to do with stop and search, which is always contentious and controversial, particularly because of its adverse impact on ethnic minorities and other marginalised groups. There is stop and search on suspicion if it is believed that, for example, someone will commit a protest-related offence. But suspicionless stop and search, which is usually reserved for protection against terrorism and the most serious violence, would allow the police to stop and search people without suspicion in a specific place, if an inspector or an officer of higher rank “reasonably believes” that a protest offence may be committed in that area. This would allow the police to stop and search not only completely peaceful protesters but also anyone in the vicinity of a protest, including unknowing passers-by. If Parliament Square were so designated, anyone—people going to work, shoppers, school students, parliamentary staff or tourists—could be stopped without reason. Is that where we want to go? Unacceptable.
Part 2 of the Bill deals with serious disruption prevention orders—or, as we and many others call them, protest banning orders. These can be applied both on conviction and without conviction; people can be banned from a particular place and banned from being with certain other people; and they even include, as the Minister told us, electronic tagging. Such an order can be applied when someone has been convicted of a protest-related offence, but also otherwise than on conviction where a person has on two separate occasions carried out activities causing serious disruption to two or more people or has contributed to others doing so. A chief police officer can apply for a protest banning order.
Measures such as suspicionless stop and search mirror laws that, as I have said, exist for terrorism or serious violence. Is this really where we want to go in this Parliament with our laws on protest? I suggest that this undermines the traditions this country has had. Of course, we do not want to see the disruption that we see. However, I must say—although this may be unpopular—that sometimes there is a price for democracy, a price for freedom and a price for campaigning, which the authorities may not find acceptable. Of course, that means that protesters should not get in the way of people going to hospital or be overly disruptive, but the price of democracy allows people to protest—and we play with that at our peril.
Indeed, when this proposal on protest banning orders was first suggested, the Home Office itself rejected it on the grounds that it essentially takes away a person’s right to protest and would likely lead to legal challenge. It was not the “tofu-eating wokerati”—I cannot resist quoting that phrase again—but the police inspectorate which said,
“however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order.”
There are many other areas beyond the two I have highlighted which we will need to debate in Committee, around tunnelling, various restrictions on protests around major infrastructure projects, and so on. I remind this Chamber that it was the last Prime Minister but one—I cannot keep count—Boris Johnson who himself said, about a major infrastructure project, that he would lie down in front of the bulldozer that sought to build the third runway at Heathrow.
These are broad, sweeping and vaguely defined powers with low thresholds that we will need to debate in Committee. We have seen totally unacceptable actions by protesters: defacing buildings and works of art, pouring out milk and causing serious disruption to the everyday lives of so many. However, many of these protesters have been charged under existing laws, and some will remain undeterred whatever the law. The answer to such protests cannot be the introduction of ever more draconian laws undermining the legitimate right to protest. That is why we oppose so much of this Bill: it cannot be right that laws reserved for terrorists and the most serious violence are to be applied to protesters. As the JCHR said:
“The right to peaceful protest plays a crucial role in any healthy democracy. We are concerned that the Government are proposing further sweeping restrictions on peaceful protest … This latest raft of measures is likely to have a chilling effect on the right to protest in England and Wales. They threaten the overall balance struck between respect for the right to protest and protecting other parts of the public from disruption. The Bill also risks damaging the UK’s reputation and encouraging other nations who wish to crack down on peaceful protest.”
I could not have put it better myself. The Bill goes too far in rebalancing the interests of protests and legitimate ways of action: it rebalances that in the interests of the authorities far too much. It deserves real criticism in Committee, and it is going to get it.
Lord Paddick (LD)
My Lords, I remind the House of my experience in public order policing: I was an advanced trained public order senior officer attending specialist pass-fail week-long initial training, table-top exercises over numerous weekends, and two-day practical exercises every six months involving more than 100 officers and petrol-bombing and operating under a hail of missiles. I was also the gold commander for numerous real-life public order events.
Let me say up front, as the noble Lord, Lord Coaker, has said, that our view is that protesters unreasonably blocking ambulances taking patients to hospital, for example, should be arrested and, in particularly serious cases, they can, they should and they have been sent to prison by the courts. This can be done now, and it has been done recently, under existing legislation. As the noble Lord said, damaging artwork is also a criminal offence under existing legislation, for which someone could be sent to prison.
Her Majesty’s Inspectorate of Constabulary, Fire and Rescue Services, which I will shorten to HMIC, as fire and rescue are not relevant to this Bill, conducted an inspection of public order policing at the request of a former Home Secretary—whichever one it was—who wanted evidence to prove that new legislation was necessary to deal with modern-day protests. There were five proposals on which HMIC, the Home Office and some police officers agreed that the law could be changed, four of which have already been enacted through the Police, Crime, Sentencing and Courts Act 2022. The fifth and only outstanding proposal agreed to, with reservations, by HMIC, which the Home Office initially thought was too controversial to include in the Police, Crime, Sentencing and Courts Bill introduced to this House, was increased stop and search powers for the police in relation to protest. I say that HMIC had reservations, but let me quote from its report, which said:
“Throughout the ten forces we inspected, we found that police views on proposed additional powers relating to protest were strikingly different. At one end of the spectrum, an officer we interviewed described the current legislation as providing ‘an arsenal’ of weapons for the police to use, including many appropriate for use in the context of disruptive protests. Consequently, that interviewee, and many others, saw no need for change. Arguing against the proposal for a new stop and search power … another officer stated that ‘a little inconvenience is more acceptable than a police state’. We agree with this sentiment.”
That is HMIC agreeing with that sentiment, although we on these Benches also agree with that sentiment, and I personally, based on my experience, agree with that sentiment.
The other proposed legislative changes in this Bill were not asked for by the police, not considered by HMIC and, together with the new stop and search powers, not initially included in the Police, Crime, Sentencing and Courts Bill. So where did they come from, and what gave the Home Office the courage to introduce the stop and search powers and the other measures as amendments to the PCSC Bill in Committee in your Lordships’ House?
Insulate Britain had engaged in a short but reckless campaign of blocking roads, including motorways, around the time of the 2021 Conservative Party conference. The then Home Secretary made a speech saying she would introduce even more draconian laws in response to the Insulate Britain protests. That is why these measures were added to the already questionable erosion of people’s right to protest in the original Police, Crime, Sentencing and Courts Bill after it had passed through the Commons.
Apart from making those who dangerously blocked roads liable to a sentence of imprisonment, which this House eventually agreed to, the remaining measures, which deliberately target climate protesters, and the new stop and search powers were rejected by this House. Now here they are again, in the Bill before us. We on these Benches, who the current Home Secretary described, along with our Labour colleagues, as
“Guardian reading, tofu-eating wokerati”
believe, following that comment, that this is a culture wars Bill that further erodes people’s right to assembly, free speech and peaceful protest.
The Explanatory Notes for the Bill produced by the Home Office offer an alternative explanation for the measures in it, saying:
“Recent changes in tactics employed by certain protesters have highlighted some gaps in current legislation”—
recent changes in tactics, such as locking-on as practised by the suffragettes, who chained themselves to railings, or tunnelling, as practised by those protesting against the Newbury bypass in 1996. If memory serves me, the noble Lord, Lord Blair of Boughton, was in charge of the policing for that situation, so no doubt we will hear about it in a moment. Then there is obstructing major transport works—like those who protested against the second runway at Birmingham Airport in 1997. To say that this Bill is necessary to fill gaps in legislation because of these so-called recent changes is not only factually inaccurate but laughable.
On the new stop and search powers, HMIC’s inspection report talked about
“the potential ‘chilling effect’ on freedom of assembly and expression in terms of discouraging people from attending protests where they may be stopped and searched”.
Black people, in particular, many of whom feel that those in Parliament do not represent them, and for whom peaceful protest is even more important, are the most likely to be impacted. As HMIC says:
“Such powers could have a disproportionate impact on people from black, Asian and other minority ethnic groups.”
Why does it say that? Because you are seven times more likely to be stopped and searched by the police using “with suspicion” powers, and 19 times more likely to be stopped and searched by the police using “without suspicion” powers, if you are black than if you are white, and both “suspicion-led” and “suspicionless” powers are included in the Bill.
If that is not bad enough, the Bill proposes serious disruption prevention orders, something considered by HMIC and the Home Office and rejected. The HMIC inspection report states that other police officers
“regarded such banning orders as a disproportionate infringement of the right to freedom of expression and peaceful assembly. One senior police officer believed that banning orders would ‘unnecessarily curtail people’s right to protest’. Another commented that a protest banning order is ‘a massive civil liberty infringement’. We also heard a view that ‘the proposal is a severe restriction on a person’s right to protest and in reality, is unworkable’”.
Those are the views of police officers.
The Home Office initially discounted the proposal, saying that it would take away a person’s right to protest and that banning people attending peaceful protests would very likely lead to a legal challenge. It added that it appeared unlikely the measure would work as hoped because a court was unlikely to impose a high penalty on someone who breached such an order if the person was peacefully protesting. HMIC concluded:
“We agree with this view and that shared by many senior police officers”.
We on these Benches also agree with this view. Even if I were sitting on the Cross Benches as a completely independent expert with a wealth of experience in public order policing, instead of, as I do, sitting on the Liberal Democrat Benches as an expert with a wealth of experience in public order policing, I would still oppose the provisions in the Bill—and in almost every case I would be supported by the majority of serving police officers, His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, and many in the Home Office. We should oppose the provisions in the Bill.
Lord Blair of Boughton (CB)
My Lords, I refer to my interests in the register. However, my personal interest in the policing of public order long predates my need to be in the register. The first demonstration I helped to police was a march protesting against the Shah of Iran, which shows both the circularity and the differences of history. As the noble Lord has just said, my last major foray into the policing of protest was as the commander of the long policing operation concerning the construction of the Newbury bypass in the 1990s. It was there, of course, where the figure of Swampy came to public notice, together with the tactic of tunnelling as a form of protest.
I am grateful to the Minister for a briefing on the Bill last week. This will not be a long speech because, as I told the Minister, in contrast to the noble Lords, Lord Coaker and Lord Paddick, I am very much in favour of the Bill’s provisions. There are three reasons for that. First and foremost, the current tactics of locking on and tunnelling are extremely hard to prevent and time-consuming to overcome. The current law is inadequate. Secondly, it is now apparent that many members of the public are becoming extremely irate and beginning to take the law into their own hands, which is almost never a good idea and puts the police in both an invidious position and a very bad light. Thirdly, as a citizen rather than an ex-police officer, I am concerned that this form of protest is so irritating that it will damage the fast-growing consensus over the need for action to tackle climate change.
I will follow the passage of the Bill carefully through your Lordships’ House, but I expect to be most interested in the provisions governing injunctions sought by Secretaries of State, over which I have some concern. I return to the building of the Newbury bypass to underline my concern about the need to protect the operational independence of the police. I am disappointed that the noble Lord, Lord Howard of Lympne, is not in his place; I have told him what I am about to say, as some of it is about him.
The site of the Newbury bypass was eight miles long. From Whitehall, the almost complete disruption caused by protesters at the start of the building operations, which lasted quite a few days, obviously looked like an ideal moment for the use of the newly legislated and excellently drafted offence of criminal trespass, which the noble Lord, then Home Secretary, had recently placed on the statute book. On day two, I was very clearly informed of the noble Lord’s dismay, no doubt expressed with his customary courtesy, that I was refusing to use his legislation. No less august a figure than an assistant inspector of constabulary was sent to convey the message in person. He was a bit less than courteous.
I was glad to find that, on the inspector’s arrival, he changed his mind and agreed with me—otherwise, it would have been an inglorious end to my nascent career. I was forcing the contractors—the builders—much against their will to fence and put security personnel around whatever part of the eight miles they were going to start work on first, instead of selecting different sites simultaneously, and thereby leaving my officers to chase protesters all over many miles of Berkshire and Hampshire countryside. They very reluctantly did so. We then used the legislation and very useful it proved, much to the chagrin of one Swampy.
Policing protest is difficult; policing a banned protest is far more difficult, which is why police so rarely seek to have to do so. I think the provision on injunctions by Secretaries of State needs most careful consideration during Committee, because the distance from Whitehall to the ground where the action is happening can be very far.
The Lord Bishop of St Albans
My Lords, I think many of us in this debate will have a feeling of déjà vu. No matter how many pieces of legislation come through here granting the police additional powers, it seems that they are never enough. It seems we are always one more public order provision away from solving the problem.
Along with other noble Lords, I want to support the police and the rule of law. We are grateful for all the police do; they stand in our place and, very often, have to take very difficult decisions. But we already have the Public Order Act 1986, which grants the police powers to place restrictions on protests and to prohibit those which threaten to cause serious disruption to public order. We already have the Criminal Justice and Public Order Act 1994, which introduced the offence of aggravated trespass. We have the offence of obstruction of a highway and the Protection from Harassment Act 1997, which allows for civil injunctions to prevent protesters demonstrating in a way which causes harm or harassment. As recently as last year, remarkably extensive powers, including on noisy and disruptive protests, were granted in the Police, Crime, Sentencing and Courts Act 2022.
Surely history indicates two things: first, that many protest groups are highly sophisticated and very knowledgeable about their rights and the law around protest, and are better and faster able to adapt than it seems the Home Office is able to legislate; and, secondly, that in attempting to outflank that speed of adaptation, Governments have thrown increasingly and worryingly broadly drawn powers to the police. It is clear, by the very fact that the Government deem this new Bill a necessity, that this is unlikely to succeed. It is hard to see how one more piece of legislation will be any more effective at reducing disruptive protests than the previous many pieces of legislation. It would be very instructive if the Minister could go through those previous powers in some detail to explain to your Lordships’ House how often they are used and what their impact has been.
Certainly, the case for new extensive police powers needs to be carefully constructed given the previous history. It is not a small thing to place such significant powers in the hands of the police. Some of what we are discussing today could see someone who has not been convicted of any protest-related offence—despite all the offences and laws which already exist—nevertheless being subject to electronic monitoring and prevented from attending protests, or even encouraging or enabling protests. What seems to be proposed in these serious disruption prevention orders is an incredible set of restrictions which could be imposed on nothing more than a civil standard of proof. It is our duty to look very closely at each of these proposals as the Bill passes through your Lordships’ House.
I am not here in any way to make the police’s job more difficult. As I have said, I think we all deplore unacceptable demonstrations and the huge amount of money that they have cost the public purse. However, in a democracy—as the noble Lord, Lord Coaker, said—sometimes that is the cost of freedom of speech and expression. It is a huge responsibility to maintain public safety and order and to balance that with the freedoms of expression and association. Not one of us here is under any illusion of the difficulties that we face.
I am sure the Minister will tell us that the powers created here will be rarely used and only in the most limited and exceptional circumstances, but I note what other noble Lords have already said: that many of these powers have not been sought by the police. I am not convinced that a “trust us” approach is sufficiently robust to protect against a possible future Government, or police force, who might on occasion, for other reasons, be tempted to overreach their powers. It is very easy to be complacent over rights and the inherent goodness and propriety of our institutions, and we are fortunate in this country to have been more blessed than almost anywhere else in the world in this regard. But we do not need to look very hard around the world to see rights undermined, slowly at first and then dramatically. Surely it is our responsibility to guard against that possibility. We have concerns about the scope of SDPOs, and I will certainly listen carefully to what others with experience in this area have to say on these provisions.
I briefly mention Clause 9, introduced by amendment NC11 in the other place, on abortion clinic buffer zones. I have serious concerns about this clause as it stands. The term “interferes with” is so broadly defined that it includes seeking to influence, merely expressing an opinion, or attempting
“to inform about abortion services”.
I cannot believe that this is proportionate given the existing powers possessed by the police and local authorities, and I am sure that we on this Bench will wish to look again at this clause.
I will listen with interest to the Minister’s response, but at this stage I express grave reservations on a number of aspects of what is being proposed. I hope that the Minister will provide rather more robust evidence of why the Bill will be effective where all the previous ones have apparently not been.
Baroness Chakrabarti (Lab)
My Lords, I declare my registered interest as a council member of Justice, the all-party UK section of the International Commission of Jurists.
Noble Lords know that we are not here today to examine the tactical blend of persuasion and nuisance that constitutes peaceful dissent for those who do not own media or energy empires or walk red or green carpets. Sadly perhaps, still less are we here to debate the substance of so many burning issues—the future of our planet being the most obvious.
No, we are here to protect the constitutional climate and to scrutinise yet another public order Bill proposed for an overcrowded statute book. Is it effective, transparent, proportionate and even-handed? Is it respectful of the rule of law principles articulated by the late, great, noble and learned Lord, Lord Bingham of Cornhill? We might also reflect on why the Government promote blank-cheque police powers before even beginning to deal with police discipline, found so wanting after Sarah Everard’s murder and in the interim report from the noble Baroness, Lady Casey.
The Bill bears closer resemblance to anti-terror law than measures aimed at addressing moments when peaceful dissent crosses a line into significant public nuisance. I commend to noble Lords Sir Charles Walker’s speech in the other place against the “machismo laws” he described as “unconservative” and designed for a good headline in the Daily Telegraph.
I refer noble Lords first to the concept of thought crime, where otherwise innocent activity is impugned on the basis of imputed intention alone, as in being “equipped for locking on” by carrying a bicycle chain or first aid kit in one’s rucksack. Secondly, I refer to suspicionless stop and search, notoriously ripe for racialised abuses of police power and found in breach of the convention on human rights in Gillan and Quinton v UK, brought by Liberty during my time as its director. Thirdly, I refer to using quasi-civil orders such as the infamous anti-terror control orders, once opposed by noble Lords opposite, and the now proposed protest banning orders—that is what they are—issued on a civil standard of proof including, as we have head, against people never convicted of a crime, creating a personal criminal code with harsh restrictions on the liberty of the individual subject.
This is controversial enough when applied to suspected terrorists. But how even more dangerous is it to play cat and mouse with non-violent dissenters, whether historic suffragettes or contemporary pro-democracy campaigners in Hong Kong, Russia or the United Kingdom? Some noble Lords may find the comparisons uncomfortable—as well we all should. But they should look at the analysis of Justice, Amnesty International and Big Brother Watch, which describe these provisions, rightly previously rejected by your Lordships’ House, as going further than the law in Russia and Belarus. A Hong Kong lawyer now based in the UK described to me the aptness of comparison with her former home in no uncertain terms just last week. The Bill undermines us as champions of the rule of law internationally, but it also sends a terrible signal to our young people here at home.
Yesterday in the Moses Room, Ministers lamented cancel culture in universities. Today, via unfortunate proxies, perhaps on the Benches opposite, the resurrected Home Secretary wages culture war: not no-platforming and hurt feelings but police batons and prison terms. She further proposes a new and unprecedented power for herself: directly to intervene operationally in public order, in a manner previously reserved for the police and criminal courts on the one hand and those directly affected and civil courts on the other. Thus this sensitive area of policing will be more politicised than ever, with tub-thumping Ministers playing to the populist gallery, not just with conference and Commons speeches but in court. The Home Secretary pleads redemption for herself but incarceration for those who plead for the planet, against poverty, and even for free speech itself.
Hypocrisy is not mere tactical error. When it invades our statutes, it threatens the legitimacy layer: that which protects law-based order in which civilised society endures. An unelected House that does not stand for rights and freedoms becomes even and ever harder to defend.
Lord Beith (LD)
My Lords, this legislation is unnecessary, dangerous, largely unwanted, and futile. It is unnecessary because existing powers are so wide- spread—we have been told that so many times by the Home Secretaries who introduced them. It is dangerous because it contains, for example, search powers without reasonable grounds for suspicion which will be used discriminately and will create tension with innocent members of the community. My noble friend argued earlier how widely unwanted this legislation is among those who actually have to carry it out: serving police officers. It is futile because protesters will always look for new ways to get into the media, to get their head- line and to insist to society that something has to be done about what it is that they care about. Today it will be locking on but it will not be tomorrow; something else will be devised and we will be here again, trying to devise inappropriately specific legislation to try to stop protest, which is a natural part of society.
This legislation will be used by authoritarian regimes to validate their own oppressive legislation. From Belarus to North Korea, I can imagine the statements that will emerge. So why do we have it? It is a political gesture designed for headlines, not for effective policing in a free society.
I will look at some specific concerns about it, and here I agree with the noble Lord, Lord Blair, that there is reason to question the advisability of giving the Home Secretary the power and the responsibility to seek injunctions against specific protests, which risks turning a local protest into a national issue and undermining the ability of those on the spot to deal with the situation effectively.
I question the provision of Clause 7(7) which allows the Secretary of State to add to the list of key national infrastructure by statutory instruments. This could create an enormously wide area of scope for the powers in the Bill. I question the powers given to the British Transport Police, a force that is not locally accountable. Clause 16 would allow the transport police to ban a demonstration or even a one-person protest in the station entrance. Even if it was a protest against the closure of the station, the power would be granted to them to do that.
It gets particularly serious when we look at the stop and search powers, which are truly alarming. If you live or work near a site where a protest might take place—note that it does not have to be taking place or to have taken place—do not, whatever you do, carry anything with you, because you may be the subject of a random search which could cover anything the officer believes might be used in pursuit of the process. If you are with a friend to whom this happens, do not, whatever you do, question the police officer about what he is doing, because then you will fall foul of Clause 14 and be regarded as obstructing the police officer. This clause appears to criminalise even the kind of questioning which was encouraged after the dreadful Sarah Everard case, when people were told in such situations to question whether the police officer had the authority to approach the person at all.
Other speakers have referred to the serious disruption orders or protest banning orders reversing the burden of proof. We should not be contemplating that. The legislation contains limited exemptions for actions taken
“in contemplation or furtherance of a trade dispute”,
and there are good reasons for that. The right to strike and regulated picketing are fundamental rights, but if the law is capable of recognising that, why are the same principles not being applied to other equally legitimate protests? We rightly protect the right not to lose one’s job or be paid inadequately, but what about the right to warn that we are destroying the life chances of our descendants by our neglect of climate change and what is happening to the planet? These are major issues which have a similar justification and validity.
I turn to Clause 9, inserted in the Commons. I speak as someone who has always wanted the law to afford a degree of protection to the unborn child—I say that to explain where I am coming from—but I am not a supporter of some of the protest tactics which have taken place around clinics, particularly in the United States, but to some extent in this country. When I look at Clause 9, I see understandable references to intimidation, harassment and threatening behaviour, and I am prepared to consider whether the law needs to be strengthened to prevent those things.
However, I cannot support a clause which criminalises a person who “seeks to influence”, provides information or “expresses opinion.” This is the most profound restriction on free speech I have ever seen in any UK legislation, and I cannot support it if it remains in its present form. Indeed, I think it will be grasped as a precedent by the free-speech deniers, and the words and language will be applied in other areas when other legislation is brought forward. It is clearly incompatible with the European Convention on Human Rights, and the Government cannot certify the Bill in its present form for that reason. A lot else in the Bill appears to be incompatible with the European Convention on Human Rights, and I believe it will give rise to more litigation than improvement in effective policing. Most police officers will tell you that their problem in dealing with these situations is not the state of the law, it is whether there are enough of them on the spot able to deal with it, properly commanded, advised and controlled. It is that which the Government should address, not this futile legislation.
Lord Hope of Craighead (CB)
My Lords, I have to say that I am in two minds about the Bill. One must give credit to the Government for trying to find a solution to some of the most pressing public order issues that they face.
Climate change concerns us all, and there are many people who feel so strongly about it that they wish to join demonstrations to protest at what they see as a lack of action to deal with it. That is their right, as Articles 10 and 11 of the European Convention on Human Rights—that is, the right to freedom of assembly and the right to freedom of association and assembly—make clear. But some of the tactics now being used give rise to real concern as to whether what they are doing interferes too much with the rights of others to do as they wish. We have seen how members of the public are reacting to what is being done, which itself is a cause for concern.
The questions are: has the balance shifted too far? On the other hand, are the offences being created too broadly described? Are there sufficient safeguards against violations of the protesters’ convention rights?
Then there is the problem about abortion, which has just been mentioned: the intimidation that those who wish to obtain an abortion in a clinic or other suitable place are likely to face on their way in because of the increasingly vocal gatherings of those who object to the process. Of course, those who object to the process have the right to enjoy their rights under Articles 10 and 11 too, and the right to freedom of expression, but has the balance moved too far in their case, too? Clause 9, based on the concept of buffer zones within which such conduct is prohibited, could offer a solution, but we need to consider carefully whether the detail in Clause 9 is a proportionate response to the undoubted and serious problems that it seeks to address.
My conclusion is that the way the Government are seeking to deal with the issues in the Bill is open to serious objection and in some ways misconceived. The powerful response by the Joint Committee on Human Rights underlines this point. Its conclusion is that the Bill is an unacceptable threat to the fundamental right to engage in peaceful protest; that must surely be taken very seriously. This is not the occasion to go into detail but it is clear that many of the provisions in Part 1 are in need of amendment before they leave this House; and Part 2, about disruption prevention orders, may need to be removed altogether, as the committee argued. This is on the ground that, given the powers that the police already have—that is, the existing laws—these provisions are disproportionate and amount to an unjustified threat to the right to peaceful protest.
The fact is that we live in a country where we are free to do as we like unless it is prohibited by law and where the police, on whom we depend for preserving law and order, do their job largely by consent. These are freedoms that we interfere with at our peril. The Joint Committee has warned that the new stop and search powers in Clauses 10 and 11 risk exposing peaceful protesters and, indeed, other members of the public to intrusive encounters with the police without sufficient justification. Surely, we do not want to disturb the balance any further than we absolutely have to; nor, I think, do the police. Giving them powers that they do not really need and that are almost certainly wider than can reasonably be justified is not the way to go. Here too, getting the balance right when addressing these issues is so important.
I wonder whether it is sensible for the Government to legislate, as they seek to do in Part 1, by singling out locking on and tunnelling for special attention. I recognise the problems, but there is already a huge range of legislation that confers power on the police to control public protests and assemblies: causing criminal damage, obstructing a police officer, obstructing a highway, endangering road users and so on. These existing offences are defined by the purpose or effect of the activity rather than the method by which it is carried out. Directing attention to the method, as Part 1 does, rather than to its purpose or effect, may be good box office but it requires a high degree of precision if it is not to criminalise activities that have nothing to do with the protests.
There is another problem too, which has already been hinted at. We have to accept that the protesters will not go away. If you close off one method of protesting, they will soon find another that is just as—perhaps even more—damaging or disruptive and more difficult to police. The fact that the other method is not expressly proscribed will encourage them to resort to it until it too is proscribed. Surely it is better to concentrate on purpose and effect, as the existing laws do, when defining public order offences.
Well intentioned the Bill may be, but there are many defects in it. I do hope that the Government will listen very carefully in Committee and accept the corrections that will need to be made. As I suggested, it is a question of striking the right balance in the right place. That is what the public interest requires and what, in its present form, the Bill fails to do.
Baroness Fox of Buckley (Non-Afl)
My Lords, I will be opposing the Bill but I want to make some broader observations first.
Recently, one commentator wrote that it feels like a class war has broken out on the streets of London. Working people, fighting for their right to do their jobs and attend to their daily business, are being hindered in doing so by catastrophising eco-warriors. Each of their nihilistic stunts seems aimed at causing maximum chaos to the public. Hugely infuriating delays and total inconvenience are indeed their tactics.
Then there are their aims, which seem misanthropic, to say the least. They include that society should cease all production of fossil fuel energy in the middle of an energy crisis. While millions are worried that they will not be able to afford to keep the heat on this winter, here is a minority movement demanding that the Government produce less energy. When allies of the protesters warn that they may alienate the public, they miss the point because the whole movement is not interested in the public. The protesters do not care whether they alienate or inconvenience ordinary people. That is the point: to grind us down until we give in to their demands.
I recently engaged with some superglued activists. When I pointed out how desperate the locals were in just wanting to get to work, and pleaded with the activists to let them through, I was told by one activist that it was shocking that so many were driving to work as a single person in an empty car. Another, more generously but patronisingly, explained, “We’re doing this for their good”, but then added, “We tried persuading people. It doesn’t work. They just won’t listen.” That is the problem: these activists are explicitly anti-democratic. Some compare their tactics to those of the suffragettes; they have a bit of a nerve because those heroines did not have the vote. However, these Extinction Rebellion types do but, because they are not winning at the ballot box, they bully instead.
Noble Lords may gather that I have little sympathy for these protesters, but I do not want popular revulsion at their tactic to lead to anti-democratic laws either. When I witness the desecrating vandalism of great works of art—saving the planet by trashing the best of human civilisation—it is tempting to say, “Lock them up and throw away the key”. I certainly find myself cheering when I see London’s citizens dragging protesters off the roads and screaming abuse at the selfish road hoggers, but it is dilemma. I am keen on direct action but, obviously, vigilantism is a result of a collapse in public order, which is a problem.
One clip shows an exasperated workman shouting, “Where’s the police? What are we paying our taxes for—to have our lives inconvenienced by these idiots? This is wrong.” That man is right to be exasperated, and to ask where the police were and what we pay our taxes for. The question we face here is: what has gone wrong that means the authorities are not sorting this problem out? The Minister claims that these protests are taking excessive hours and resources from the police. Well, you could have fooled me. The police seem slow and reticent; as someone said earlier, it is “softly, softly”. As someone pointed out to me, if you want swift, hard-line police intervention, post a gender-critical tweet and they will clamp down on you as a hate criminal before you can draw breath.
The Government said that we need the Bill and these new offences to solve things, but why would it make any difference when the police will not use the laws they already have to solve things? All the complained -about tactics could be dealt with by criminal offences already on the statute book, but they are not being dealt with. Why are those laws not being used effectively? I think we have a broader policing crisis. The Bill is not a “culture wars” Bill, as some have claimed; it is a weak, defensive invasion of the political authority by the Government in tackling this policing crisis.
Instead of action, we get performative legislation that is just as attention-seeking as those dousing London’s finest architecture in orange paint. Both sides are saying, “Look at me, I’m doing something”. It is also a con to tell the public that these laws will be narrowly targeted at nuisance protesters. In fact, they are so broad and all-encompassing that anyone’s right to protest or dissent on any issue is being put in jeopardy. Perhaps you might take at face value those very specific new offences such as locking on or tunnelling, although three years in prison for
“being present in a tunnel”
seems a tad disproportionate.
However, consider the possible uses of Clauses 19 and 20, with their serious disruption orders or protest banning orders. These can be doled out to anyone who has been on more than one protest over the last five-year period—that certainly counts me in. If you are issued with one of these orders, you can be banned from going to a particular place, associating with particular people, encouraging someone else to go on a demo, using the internet in a particular way— that is to say, you can be punished by the state for retweeting an advert for a protest. You can also be issued with an electronic tag for up to 12 months using GPS data technology, allowing the police to monitor your whereabouts for 24 hours a day. That extreme level of surveillance for individuals is aimed at explicitly innocent people who have not committed a crime.
We should not allow these anti-democratic laws to be passed just to allow the Home Office to paper over the cracks of policing failures. This was the point made by Conservative MP Sir Charles Walker, already quoted, in a scorching speech in the other place in Committee. He said that
“the Government’s attraction to SDPOs”—
serious disruption prevention orders—
“demonstrates our own impotence as legislators and the impotence of the police as law enforcers to get to grips with the laws already in place and to enforce them.”—[Official Report, Commons, 18/10/22; col. 581.]
This impotence is now being covered up by creating unnecessary laws, and it seriously threatens reputational damage to the rule of law, which is already fragile.
Finally, no matter how much we despise protesters, we must have consistency in lawmaking. So why have so many on the Opposition Benches been celebrating the Government’s acceptance of amendments banning protests around abortion clinics? As a long-standing pro-choice campaigner, I believe that it is totally vital that women are able to safely access reproductive healthcare services. If they are being obstructed or harassed, we have public order laws to deal with this, and we should deal with them harshly. However, as we have already heard, Clause 9 criminalises and bans seeking to influence, advising or persuading, attempting to advise or persuade, or otherwise expressing an opinion.
Many of us may feel little sympathy with people who are viewed as anti-abortion cranks. However, as Big Brother Watch notes, this sets a precedent that will inevitably lead to attempts to prevent speech, expression, information sharing and assembly in relation to other controversial and unpopular causes. It is also worth noting that at least five councils with PSPO buffer zones around abortion clinics have banned silent prayers. This institutes a law of genuine thought crime and betrays any commitment to religious freedom, and we should totally oppose it.
In conclusion, I support the right to protest for all, not just the protesters I admire but those I despise as well.
Viscount Hailsham (Con)
My Lords, I rise to speak briefly in support of the Bill—briefly because I want to focus on the main purposes of the Bill and on the principles that underpin it.
I acknowledge that there are major concerns that have been expressed by many of your Lordships, as well as in the House of Commons, about the constraints that the Bill undoubtedly imposes on the right of individuals to protest or to express their views. I hope that Ministers will be sensitive to those criticisms when the Bill is considered in Committee and on Report. That said, I do think that the Bill in its essential respects is a proportionate and necessary response to a growing problem.
The truth is that democratic societies have always accepted that there is a balance to be struck between the rights of an individual to protest and the rights of other members of society not to have their lives unreasonably disrupted by such actions. The rights to free expression, assembly and association are important, but they are not absolute in the sense that they can be exercised whatever the consequences for other people. Thus, in the context of free speech, society has long accepted limitations, such as in the law of defamation in civil law. In criminal law, there are many more illustrations: the most recent are the prohibitions on the use of racist language or language likely to cause distress or put minorities at risk. I suspect that many of those who protest in the way that this Bill has sought to address would support those particular restrictions.
Some constraints have also been placed on the right to demonstrate. My noble friend the Minister and the noble Lord, Lord Beith, referred to Clause 9, regarding buffer zones to prevent demonstrations around abortion clinics, which was debated in the House of Commons on 18 October. I agree with the majority in the House of Commons that buffer zones should be created, but I accept that it is undoubtedly a serious restriction on the right to free expression and the right to assembly. My own feeling is that the buffer zones get the balance right and are certainly justified by Articles 10(2) and 11(2) of the convention—but I accept that this is a matter on which there are, reasonably, competing views.
I turn directly to Clauses 1 and 8, which address tactics much favoured by the present generation of protesters, such as locking on, tunnelling, and the obstruction of major transport works and of key national infrastructure. In my view, the restrictions imposed on such activities by the Bill are clearly justified. Locking on, disrupting the highway and interfering with rail travel impede and often prevent fellow citizens going about their daily business—going to work, taking their children to school, shopping, visiting elderly relatives and keeping medical appointments. In such circumstances, the activities of the protesters will frustrate the essential work of the emergency services. These consequences, in my opinion, are a wholly unreasonable interference with the rights of others, and the disruptive consequences are intended. I regard such actions as profoundly selfish and to be roundly condemned.
So too is the promotion of strongly held views by acts designed to impede the normal requirements of an interdependent state, or acts designed to frustrate policy objectives duly approved by properly constituted institutions, often elected. I have in mind, for example, tunnelling to frustrate HS2 or the blocking of fuel supplies to promote specific climate change policies. I regard these actions as an abuse of freedom. In my view, they are wrong in principle. As the noble Lord, Lord Blair, said, they divert police resources from more pressing demands. They often provoke citizens to take the law into their own hands, which undermines the basis of a civil society. They also display a fundamental contempt for democratic and representative government. So I am firmly behind the purpose of the Bill.
Some of the opposition to this Bill relies on historical analogies—on the suffragettes, whom the noble Baroness, Lady Chakrabarti, referred to, on the actions of the ANC in apartheid South Africa, and on the civil disobedience now going on in Iran. Of course, there are many other cases that can be cited, both historical and contemporary. But we should be very careful not to use such examples as justifying similar action in the United Kingdom.
Our democracy is by no means perfect. Many of its defects were identified by my father when he wrote and spoke about the “elective dictatorship”. Incidentally, he would have been deeply shocked by some of the actions and much of the conduct of Mr Johnson—not something that he would have expected from a Conservative Prime Minister. However, we live in a society in which policies can be changed by elections, by a change of Government, through discussion and by the force of public opinion.
Our task in Parliament is surely to identify the correct balance between the right of individuals to protest and the right of others not to be unreasonably interfered with. Many of the critics of this Bill suggest that the constraints on free speech and the right to protest go too far. Although I think that the under- lying purposes of the Bill are correct and should be supported, I hope, as I have said, that the Government will be sensitive to the detailed criticism of the Bill that has been and will continue to be expressed in this place.
There is always a danger, which I accept, that when seeking to address issues of public order Governments will go too far. Powers once given are hard to withdraw. Such powers will often be abused. I agree with the right reverend Prelate the Bishop of St Albans who made precisely that point.
Also, I have to say I treat with great caution recent policies coming out of the Home Office, especially when they were fashioned at a time when Miss Patel was the Home Secretary, although I have to say I treat with equal caution policies that have the authority of the present Home Secretary. I am amazed that, when Attorney-General, Miss Braverman should have advised that the doctrine of necessity justified a breach of recently made treaty obligations with the European Union. Surely it is a case of providing a legal argument, however bad, in order to provide cover for a previously determined policy outcome.
We will need to look carefully at, for example, a whole variety of the provisions contained in the Bill, such as the power to stop and search without suspicion, the power that enables courts to make a serious disruption prevention order in the absence of a conviction, the management content of such orders and the power of the Secretary of State, mentioned by the noble Lord, Lord Blair, to seek injunctions. There are serious criticisms to be addressed, and they may require serious amendments. The Joint Committee on Human Rights has identified a number of issues. However, that said, I believe that the fundamental purpose of the Bill is correct, and I hope that in its essential elements it will receive the consent of this House.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I am pleased to follow the noble Viscount, although, however tempted I am, I am not going to go down the avenue that he opened up. Instead, I want to pay tribute to my noble friend on the Front Bench, who made a brilliant speech in introducing this debate on our side. It was one of the best I have heard from the Opposition Front Bench. I say so not because of my usual sycophancy, but for two real reasons. First, because it is true—it was a powerful, passionate speech, and I agree with every word of it, which makes my approval of it even better—and, secondly, because he was one of those who slightly raised an eyebrow when some of us challenged this Bill at First Reading. We know that it is not usually done. In fact, it is hardly ever, if ever, done to challenge a First Reading, but some of us felt that there are some provisions in the Bill that are so awful that this House should not even consider them. That is why we took that unusual step, and I am sure my noble friend will understand.
I want now to outline, since we are forced by the Government to consider the Bill, some of the reasons for my opposition. In have been in Parliament for about 43 years, a long time, having served in the other place. I believe that one of our core duties here and there is to protect key democratic rights, now being fought for in Ukraine by the brave people there, and we should not undervalue their importance.
One of them is the right to protest. Some noble Lords who have heard me speaking in foreign affairs debates and asking questions will know that I have highlighted before the various human rights abuses which the brave protesters in Belarus continue to endure. My noble friend Lady Chakrabarti and the noble Lord, Lord Beith, raised the issue of Belarus. I am alarmed to note that many of the proposals in this Bill closely mirror protest laws which are currently enforced by the Lukashenko regime in Belarus. Until we expelled Russia, Belarus was the only country in Europe not to be a member of the Council of Europe, because of its awful regime.
For example, in Belarus anyone who has received a fine for organising a protest or a “related crime” is then forbidden from organising further protests for one year following conviction. The SDPOs in this Bill not only enforce a similarly draconian punishment but will go a step further, preventing not just organising but participating in protests for up to two years, with the potential to renew indefinitely. Furthermore, these SDPOs could be imposed on individuals who have not been convicted of any crime, which could result in a dystopian scenario in which innocent members of the public, as has been said by others, are subject to measures usually reserved for criminals, such as electronic tagging.
Another parallel with Belarus are the new stop and search measures included in the Bill, which would give police the power to conduct stop and search without any suspicion whatever, just because someone is in the vicinity of a protest. This distinctly resembles Lukashenko’s law on mass events, which gives Belarusian authorities the power to search any citizen attending a protest and ban them from participating if they refuse to be searched. We should be very wary of adopting these policies of repression. Belarus’s democracy index is the lowest in Europe. Do we want to sink that low?
I am also troubled by the legality of the Bill since, according to Amnesty International and Liberty—well-reputed third sector organisations—the stop and search powers proposed are incompatible with our existing international obligations under, as was said earlier, both Article 11 of the European Convention on Human Rights and Article 21 of the International Covenant on Civil and Political Rights. I am aware that some members of this Government, sadly including the current Home Secretary, have advocated us leaving the European Convention on Human Rights, but surely they cannot also think that we should abandon our commitment to the UN Human Rights Committee.
Let us come to where we are now. I can assume only that the authors of the Bill must believe that the current powers are insufficient. As others have said, that is completely wrong, for in just under 30 days of mildly inconvenient protests by Just Stop Oil there have been more than 600 arrests—54 protesters were arrested on 4 October alone. That does not seem to be a toothless police force.
The police agree with this. As others have said, His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services is on record saying that measures equivalent to the protest ban orders
“would neither be compatible with human rights legislation nor create an effective deterrent”
and that
“a little inconvenience is more acceptable than a police state”.
Surely that is a very powerful argument.
My final issue with the Bill is that, even if it was necessary and the measures were not indicative of the authoritarian creep we have come to expect from this Conservative Government, the vagueness of the wording will target far too broad a range of individuals and behaviours. I imagine most of us agree that carrying a bike lock or some glue in the vicinity of a protest should not be considered a crime. Similarly, criminalising a paramedic who is supervising the safety of a protester seems both dangerous and totally unethical.
This is not a Bill designed to curb the actions of a few disruptive protesters. It goes much further than this and seriously risks harming a liberty that, in this Government’s own words, is unique and precious. These are the worst aspects of the Bill. I believe we should oppose the Bill at every opportunity, and I intend to do so.
Baroness Hamwee (LD)
My Lords, who is this Bill addressed to? I know how I would answer that question, and my noble friend Lord Paddick has already referred to culture wars. I have no doubt that the Government have identified the audience to which they want to appeal, but that audience is not the potential offenders. If the Government are seeking to deter offenders, is this really the way to go about it? Is it not obvious that many lockers-on and serious disruptors seek publicity? Well, they will get it. Portraying oneself as a victim, even as a martyr, is a well-known tactic. Increased media coverage consolidates this; it is a big bonus.
Will these measures be divisive? Will they confirm some people’s views that the measures are an unnecessary sledgehammer; in other words, will the measures mean increased support for the protests and provoke more extreme forms of action? The noble and learned Lord, Lord Hope of Craighead, mentioned unintended consequences.
Some tactics used by some protesters do not appeal to me. I have been inconvenienced and had an immediate reaction—“This is simply not on”—but I have to remember that we are in a country where views can be made known, by the protesters in question and by me, by an accident of history. On one side of my family, I am only three generations away from being geographically in a country where my family would have experienced great brutality—I probably would not have been born—and, on the other, only two generations away from a regime that still exists now. These are extreme examples, but noble Lords will be well aware of contemporary examples too. It is an accident of history for us all that we are in the UK, and how precious—a word that has been used but deserves repetition—it is to be able to make our views known. That was not something I appreciated when growing up, although I went to the same school as the Pankhurst sisters. Suffragettes have been mentioned, and I thought about them because there is such a whiff of cat and mouse in the circularity of some of the measures in the Bill.
I support what has been said and will be said about these precious freedoms, and oppose the Bill on the grounds that have been well described—including that the statute book is hardly silent on the actions the Bill covers—but also because I just do not think it will achieve the objective of deterrence.
Lord Anderson of Ipswich (CB)
My Lords, in the case of Tabernacle v Secretary of State for Defence, the late, lamented Lord Justice Laws said:
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them. Sometimes they are wrong-headed and misconceived. Sometimes they betray a kind of arrogance: an arrogance which assumes that spreading the word is always more important than the mess which, often literally, the exercise leaves behind. In that case, firm but balanced regulation may well be justified.”
That comment, itself both firm and balanced, is the lodestar by which I judge this Bill. The Public Bill Committee in another place heard detailed evidence of the disruption to transport networks and key national infrastructure caused by recent protests, including against projects given clearance to proceed after a prolonged and painstaking democratic process. HS2 said it spent £126 million to the end of March this year in removing protesters, including from a 25-tunnel network under Euston station where the protesters were using lock-on devices underground. National Highways pointed to incidents in which hours of gridlock had been caused by people gluing themselves to lorries, roads or infrastructure—for example, at Dover—and evidence was given of disruption to fuel distribution nationwide and to thousands of air passengers because of attempts to stop a flight from Stansted seeking to deport those whose legal rights had been exhausted.
This sort of organised and highly disruptive behaviour is a breach of the delicate compact, referred to by the noble and learned Lord, Lord Hoffmann, in the case of R v Margaret Jones, by which civil disobedience on conscientious grounds is accommodated by the community for as long as the protesters behave with a sense of proportion and do not cause excessive damage or inconvenience.
If the current arsenal of criminal offences and powers to seek injunctions is not adequate to the task and could be usefully expanded—a question on which the Minister will have to make the Government’s case, and on which I will be interested to hear the vast collective experience in public order policing of the noble Lords, Lord Hogan-Howe, Lord Blair and Lord Paddick, even if their opinions do not coincide on every point—then it seems that we have a duty to do something about that. However, two important elements of the Bill seem, on any view, excessive: the no-suspicion stop and search power in Clause 11 and the serious disruption prevention orders, which it is proposed to entrust to magistrates. Neither power is without precedent in our law but I question whether the precedent of exceptional measures targeted at terrorism, gang violence and sexual harm are appropriate ones to follow here.
On no-suspicion stop and search, the Government rely in their human rights memorandum on the Roberts case on the Section 60 power. I accept that many of the same safeguards that attend this highly unusual power are present in the Bill, but would our courts accept the proportionality of a no-suspicion power to search for bicycle locks and handcuffs as easily as they accepted, in Roberts, the life-saving Section 60 power to search for bladed instruments and other offensive weapons? That seems far from evident.
The characterisation of the proposed SDPOs as protest banning orders is potentially confusing. They do not ban protests, peaceful or otherwise, but they do perpetrate a more subtle mischief. They are expressly unlimited in their content, as in Clause 21(7), and renewable indefinitely—unlike TPIMs, the equivalent restraints on suspected terrorists. They are backed up by the whole sinister apparatus of tags, curfews and reporting requirements. The central estimate of the Government’s own impact assessment is that 400 persons per year will be restrained by such orders, 200 of them otherwise than during sentencing after conviction. If passed into law, they would prevent or inhibit principled, conscientious and even, under Clause 20, wholly law-abiding individuals exercising their fundamental right to participate in lawful protests. Is that the kind of country we want to live in? It would not be Belarus, but I would not want to live there.
I hope we will also look positively on numbers 1 to 11 of the amendments drafted by the Joint Committee on Human Rights in its rather moderate report, which there does not seem to have been much time to debate in the other place or to address in the Government’s brief written response. Perhaps I may end with questions on three issues arising from those proposed amendments.
First, the concept of serious disruption runs through the whole Bill and needs, to quote the evidence in another place of the West Midlands Police,
“as much precision … as possible”.—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 58.]
Why should some definition of it not be given in the Bill? The Joint Committee has made some useful suggestions.
Secondly, a reverse burden of proof has in the past been held to be compatible with the presumption of innocence only if it can be read down, using Section 3 of the Human Rights Act, so as to impose an evidential rather than a legal burden on the accused. Is that how the Government read the various requirements that the Bill places on defendants to prove a reasonable excuse? Will the so-called Bill of Rights, which would remove Section 3, be taken out of cold storage, and what will be the position if it is? What is the objection to reframing those clauses so that the absence of reasonable excuse is an ingredient of the offences themselves?
Thirdly, the Government have shown themselves keen in other contexts to specify matters to which judges should have regard when exercising discretions. Hard-pressed magistrates are given huge responsibilities under the Bill in relation to the public interest defence and, if we pass them into law, prevention orders. Why would we not want to remind those magistrates in the Bill of a factor that is nowhere mentioned in it, and that it will be only too easy for them to overlook: the importance in a democracy of the right of peaceful protest?
Baroness Bennett of Manor Castle (GP)
My Lords, I should perhaps declare an interest as a regular tofu eater. I would be very happy to share some of my recipes with the noble Lord, Lord Coaker.
My noble friend Lady Jones of Moulsecoomb will be leading for the Green group on the Bill. My role here is a supporting one but, since I was listed to speak first, I have to set out a very simple position: protest is not a crime. I note that, as many noble Lords including the noble Lord, Lord Paddick, and the right reverend Prelate the Bishop of St Albans have said, in effect that is what your Lordships’ House already concluded in its strong and effective action on the then Police, Crime, Sentencing and Courts Bill earlier this year. The House then expressed its opinions in the strongest possible terms, yet here we are again.
Listening to today’s debate, it really struck me that there has been a great deal of discussion about locking on. We have heard from a number of noble Lords who have been in a position of policing instances where it has occurred. I am not sure that there are many Members of your Lordships’ House who have been on the other side of this.
I speak here not from first-hand but second-hand experience because, at the Preston New Road fracking site a couple of years back, I acted for a couple of hours as a welfare support for a locked-on protester. This was a young woman who, by the time I was speaking to and supporting her, had been in that position for 17 hours, with her arm locked in a tube outside that fracking site, to stop the lorries getting through. I invite your Lordships to imagine—it may be hard for the House to imagine this—what it is like in the dark and cold, with the fear of scrambling at 1 am or 2 am to lock yourself on in the middle of a path that lorries go down, and to remain there by your own choice for hour after hour because you believe in the principle and the cause. That, of course, was and is the cause of preventing the beginning of a new fossil fuel industry in the UK. It was in defence of a local community vehemently opposed to fracking at the Preston New Road site. Even as I stood there, with the sound and smell of the angle grinders very close to that young woman’s arm while the police cut her out, the overwhelming majority of vehicles going past were tooting their support.
The issue we are talking about, fracking, is of course one on which, just last week in the other place, my honourable friend Caroline Lucas encouraged—and got—the Prime Minister to say that we will keep the fracking ban. It is one case among very many. Many Members of your Lordships’ House have mentioned the suffragettes. So often, people have behaved according to their principles in a way perceived at the time as transgressive. They put their bodies and freedom on the line and, looking back now, we say, “Weren’t they brave? Didn’t they help to deliver us the society that we have today?”.
However, as I said, my role today is very much a supporting one so, for the rest of my speech, I will focus on Clause 9 and speak in very strong terms in support of it. As I am sure most Members of your Lordships’ House already know, its provisions will introduce buffer zones around abortion clinics. The clause was brought into the Bill following a free vote in the Commons of 297 to 110, a majority of 187. That is definitive: we often hear in this House that we are the unelected House and should not go against the Commons. Here, we have a clear expression of a view from the Commons that I hope your Lordships’ House will uphold.
It is clear that we need blanket buffer zones around all abortion clinics. No other approach is workable and existing legislation does not allow what is needed. We are talking about enabling women to access, and healthcare professionals to provide, a lawful and confidential health service without harassment or intimidation. Many noble Lords will have received—I would be delighted to forward it to anyone who has not—the joint briefing backed by the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, the BMA and a number of medical providers, among others.
It is worth thinking about why we are where we are. We are seeing the importing of politics that has caused enormous damage in the United States of America. From what has happened there, it is already evident that ending legal abortions does not stop abortions; it just makes them more dangerous. Making access to abortion more difficult increases the risk of dangerous, even deadly, abortions occurring.
In some of the commentary on this, it is worth saying that this clause restricts the location of where protests happen but does not stop protests. So, if anyone says, “You were just talking about protests against fracking”, I say yes, but this is a different case study. It stops protests from happening in a location where one would cause great distress and harm.
Perhaps not everyone has seen what happens in some of these protests. There are displays of graphic images of foetuses and there are large marches that gather outside clinics, hassling women, patients going into the clinics and members of staff. Indeed, some patients are followed down the street, which is unacceptable. Some patients attending for abortion care are vulnerable, and they may be feeling stigmatised or fearful about losing their privacy. Of course, a significant number are under 18, some have mental health issues, and some are at risk of honour-based or gender-based violence.
Perhaps this issue does not get as much coverage as it might, but 50 clinics and hospitals have been targeted in the last five years. Only five—10%—are now protected with public spaces protection orders, which are only a stopgap. They create a postcode lottery and—I declare my position as a vice-president of the Local Government Association—impose a significant cost on local authorities choosing to bring in such orders, which need to be renewed every three years.
Clause 9 follows leadership in other parts of these islands. The Northern Ireland Assembly passed a Bill for buffer zones in March, and the Scottish Government have expressed support for a Bill to introduce them there. Every year, more than 100,000 patients are treated by a clinic that has been targeted by these groups. In the last five weeks, at least 15 clinics have been targeted, including some based in hospitals, GP surgeries and residential areas. I strongly urge the House to keep Clause 9.
Lord Frost (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady Bennett, particularly today. I fear that we are probably not destined to agree on very much in our debates in this place, but I hope that she will not be too embarrassed to hear that I agree with her on the importance of free debate and protest, even on unpopular causes. It is important to maintain that, and it is a principle through which I look at the Bill.
I support the general principle of the Bill. It seems unarguable that there have been changes in the methodology of protest, from a range of campaigners, that deliberately aim at the disruption of everyday life. We have seen that in many ways, as noble Lords have mentioned. But the Bill includes new and significant powers, of a novel kind in some cases. Noble Lords may remember that I resigned from the Government last year rather than support the then “plan B” measures and restrictions on civil liberties that would have come with a further coronavirus lockdown. From the experience of the pandemic, we have seen just how easy it is to create, expand or distort powers for purposes that were not originally intended. So we have real-life experience of this, and we should keep that in mind—it has not been said much in this discussion so far, but we all lived through it.
So if we are to avoid such problems, it is important to be clear—I think and hope that the Government are—about what we are trying to achieve. I suggest that the correct principle is that the right to protest and persuade is fundamental and must be protected, but intimidation and anything more than incidental disruption of the rights of others to go about their lawful business, particularly with novel and aggressive tactics, ought not to be allowed. We must apply this principle whatever the circumstances, whether it is fracking, an abortion clinic or anything else. My worry about some aspects of the Bill is that this principle may not be fully followed.
I will make three brief points. First, Clauses 1 to 8 of the Bill create a series of specific powers that would certainly stop some of the disruptions that we have seen over the last year or two, such as blocking the Dartford bridge, oil refineries and so on. I am certainly willing and ready to accept the Government’s judgment that extra powers are needed to deal with those situations. However, in line with the principle I set out, it is important, as the Joint Committee on Human Rights notes, to look carefully at the drafting, which may be a bit loose, and to avoid the risk of inadvertent consequences. It is also not clear that the powers would stop some of the things that we have seen, such as blocking roads in central London, throwing paint over paintings and so on. As has been said, existing powers cover those situations, and they should be used with more determination than we have seen so far. Otherwise, the risk—I hope we will not get into this situation—is that next year, we will have another Bill creating specific offences of throwing paint over a painting and so on. We need to avoid that, and the authorities need to be determined to use the powers that they have, with new powers being limited to specific, defined and novel situations.
Secondly, like others, I have concerns about Clause 20, on SDPOs made “otherwise than on conviction”. I think—and, again, our experience in the pandemic is part of this—that it is fundamentally unacceptable in a free society to restrict individuals’ free movement or right to protest, to free speech, to carry particular items and so on, without them having been convicted of an offence in a court of law. I find it particularly problematic that people should have to wear electronic tags without conviction—where people have been caught and convicted, that is a different matter. But Clause 20 is quite widely drawn and carries the risk of making it too easy for the authorities not to worry about actually catching and convicting but simply to use an SDPO. It seems to carry the risk of a slippery slope for the convenience of the Executive. I note that, in their response to the JCHR, the Government do not make a very strong defence of this provision. If there is a defence, I would like to hear it—perhaps the Minister could say more on that at the end.
Thirdly, as the Minister noted, Clause 9, on abortion clinics, was added in the other place and was not part of the Government’s original thinking. I am a little surprised that the Government allowed it to be subject to a free vote, because the issue is clearly not about abortion services themselves but about the right to protest and persuade. Here, the distinction I made between persuasion and intimidation needs to be maintained, and I am not sure that Clause 9 does that. I have no difficulty with subsections (3)(c) or (3)(d), but it cannot be right for this Parliament to make it illegal if someone, for example, “seeks to influence”, “persistently … occupies” or
“informs or attempts to inform”,
in subsections (3)(a), (3)(b) and (3)(f), respectively. That is true whether it is in the vicinity of an abortion clinic or anywhere else.
I sense, from comments made by Ministers here and in the other place, that they feel that they are on uncomfortable ground and are looking for help on this subject. I am sure that there will be amendments in this area and hope that the Government will give them a fair wind.
Finally, the Government themselves note that Clause 9 is incompatible with the ECHR. Many commentators and the JCHR argue that the same is true of other areas of the Bill. I do not know about that. For me, that is interesting but not decisive; I do not base my concerns on that argument. I believe that this Parliament should be able to protect the civil liberties of people in this country without outside help. Its record over the last two to three years has been, shall we say, mixed in this respect. To conclude, I hope that the Government will look carefully at these points of detail of specific concern and make it easier for those who think—as I do—that we should be able to wholeheartedly support a more carefully worked-through and acceptable version of the Bill.
Lord McAvoy (Lab)
My Lords, there seems to be a litany of problems with Clause 9, but I will pick up on just a few. First, I want to make it absolutely clear that I support the view that it is unacceptable for women to face harassment or intimidation of any kind. If people are found to be doing this outside abortion clinics, they should be dealt with swiftly, and support should be provided to victims. It is important to be clear that we already have laws which provide wide-ranging powers for authorities to keep public order and to protect women from harassment and intimidation, including outside abortion clinics. These include police powers to protect women who are harassed and intimidated and to take action where protests result in serious disruption. Indeed, that was the conclusion of the Government themselves: a former Conservative Home Secretary stated in 2018 that
“legislation already exists to restrict protest activities that cause harm to others … and I am adamant that where a crime is committed, the police have the powers to act so that people feel protected.”—[Official Report, Commons, 13/9/18; cols. 37-38WS.]
Although this amendment was added to the Bill in the other place, I know that the Government still reiterated the position that there was enough legal protection for women in that position. The Home Office recently said that
“the Government expects the police and local authorities to use their powers appropriately.”
Therefore, what is the purpose of this clause? The police already have the powers needed to deal with harassment where it occurs. The only discernible difference seems to be that we are now also criminalising those who offer to support women in that position—often very vulnerable women—and criminalising quite a peaceful process.
I need to stress that I quite understand that proponents of Clause 9 are seeking to protect vulnerable women entering abortion clinics. It is absolutely the case that women experiencing crisis pregnancies can often be under a great deal of pressure and are therefore deserving of our support. However, the pressure can also cause many women to feel that they have only one option: to terminate the pregnancy. Volunteers outside abortion clinics recognise this fact and are simply trying to help women to find out what help is available. People like that should not be sentenced to prison for six months—that is what this clause does, according to my reading of it. Are those in support of this clause really in favour of criminalising people who seek to help women with housing, protection from domestic abuse, the provision of clothing or a variety of other financial and legal support?
The Be Here For Me campaign is a testimony to the value that this help can provide. One mother who benefited from this help was quoted as saying:
“You don’t have to disagree with abortion to see that simply offering alternatives should be legally permissible. The day that I turned up to my abortion appointment, a volunteer outside the clinic gave me a leaflet. It offered the help that I had been searching for … there are hundreds of women just like me who have benefited”
from support. That may be only one instance, but it is a clear example of how people can be helped.
We cannot start using blunt instruments such as this clause to criminalise innocent volunteers. If we make it illegal to hand out a leaflet with offers of housing or support, we embark on a slippery slope that could lead to bans on other leaflets with which we disagree. Who among us would condone such a policy being imposed on the Members of the other place during an election? Yet that outcome becomes a possibility if this clause becomes law. Let us strongly oppose Clause 9, and let the Government get the message here from what seems to be all sides of the House, so that they consider how they can protect the ability to offer valuable help to vulnerable women when they need it most.
Baroness Jones of Moulsecoomb (GP)
My Lords, I felt that this debate was moving quite fast, and I realised that this was because many of us have been here before: this is actually a zombie Bill that the Government have dragged out of its grave because they do not like opposition at all. That is the real problem we are facing with the Bill. As we have heard, the powers are there already, and the Government really do not need the sort of repressive powers in the Bill that are worthy of Russia, China or Iran. Noble Lords probably know exactly what I am going to say now.
There is no doubt in my mind that we should vote against this legislation—again—to protect the right to freedom of expression, the right to freedom of assembly and the right to protest, which is what we expect in a free society. Of course protest is inherently disruptive; that is its nature. But do noble Lords know what is more disruptive? The fossil fuel companies and extractive industries that are destroying our planet, and the billionaires who are amassing huge claims over the world’s resources while everyone else worries about how to pay our energy bills this winter. Then there is the plastic and sewage choking up our rivers, coastlines and oceans. BP has made £7 billion profit in three months, yet we will pay the extra cost of coastal defences and higher food prices for the next three decades. Shell makes £9.5 billion profit in a quarter; our arable land will produce half as much value by 2100. They have billions in the bank; we have a country that swings from drought and wildfires to floods of sewage. Every dollar or pound that the oil and gas companies make equals the world becoming a worse place for generations. That is what real disruption means, and we have a Government encouraging it with tax breaks and licences for big business.
We must think ahead to the chaos that will happen when climate change disrupts the global economic system: these current disruptions will be nothing compared to that. The likes of Extinction Rebellion are polite dissenters compared to what is coming in the next few decades. The clampdown on the climate protesters of today is the foolish reaction of a Government in the pockets of the oil and gas industry. Sensible politicians would listen to Just Stop Oil, because its demand is incredibly reasonable and one that noble Lords have heard from the Greens on these Benches before: no new fossil fuel extraction. Quite honestly, it is a warning of what is to come if the Government refuse to change course.
We cannot stand idly by while this destruction and injustice takes place. No one wants to be a protester; we all have better things to do with our time—that is true for all of us. I have been to a lot of protests—I have sometimes even been to protests where I have watched the police from their side—so I have a very clear view of what protests can be. The police actually do their best, but the Government do not help them by giving us laws that are incomprehensible at times. The protesters and I are desperate: while there are more fun things that we could do, we are desperate because of an economic and political system that has proven again and again that it is detrimental to the vast population of the world and to life on earth.
Protest and non-violent direct action are essential parts of a free country, and the disruption caused is part of the pressure; it is what raises something beyond merely complaining on Twitter to having direct real-world consequences that force our leaders to pay attention. Protesters are supported by millions of people. There were several things in the Minister’s opening speech with which I disagreed very strongly, and I actually had to leave the Chamber after the opening speeches so that I did not start shouting across the Chamber. I listened in my office, because I could shout at the screen and not disrupt proceedings here. The Government are creating an attack on nature that people have seen is plain wrong, and they are angry. So please do not say that everybody is against these protests; that is absolutely not the truth.
I have been on protests where it is local people who are protesting and getting out there. One man I stood next to said, “I retired last month and I thought that I would be bird watching, but here I am, standing at the roadside and holding a banner to stop fracking at Preston New Road”. Local people do not like fracking—and they do not like HS2. Yes, there have been a few thousand people on protests, but actually there are millions of people who do not want it. The noble Lord, Lord Anderson, talked about a “long and hard democratic process”, or something, but actually the Government did not listen to any of the advice that said that this was not the section to build first and that we should have built the other, northern section first. It is the Government’s fault that we are losing masses of very beautiful and precious places because of HS2. We cannot replace them; it is something much more precious than a railway line that cuts 20 minutes off the average business person’s journey.
When people locked on to trees that were due to be cut down by Sheffield Council, when they blocked roads and sat on drills to stop fracking or when they ran in front of a horserace to get women the right to vote, these were all acts of heroism. They brought about real political change in the face of obvious injustice. As the Prime Minister said only this week in response to a question from our colleague Caroline Lucas, the anti-frackers were right—and thank goodness that the Government saw sense on that. I shall give them a small round of applause for that. But while this Government dither and delay on insulating Britain and support a whole new generation of fossil fuel extraction, and while they fail to prosecute the climate criminals and ecocidal maniacs destroying our planet, they instead imprison those of us who sound the alarm and respond to mass injustice with minor inconvenience —and even those who carry a bike lock without so-called “reasonable excuse”.
A few other things were said this evening. No artwork was damaged. I cannot remember which noble Lords mentioned that—but no artworks were damaged. They had glass on them, and they were cleaned up; they were not damaged, so please do not repeat that falsehood again. And how dare this Government talk about a shortage of police time or police being used on things they should not be used on? This Government have actually cut tens of thousands of police officers. They have, so please do not argue with that; it is a clear fact. They have also cut thousands of back-office jobs, which of course hindered the police, because then they had to go into the back office and do all the paperwork. So please do not let us hear any more about, “Oh dear, police time”. If this Government had done their job, we would now have a police force that could do its job properly.
The noble Lord, Lord Blair, is not in his place, but he said something like, “These disruptions are irritating”. I am irritated on a daily basis by some of the things said in this Chamber; that is why I went up to my office, so I did not have to hear them. I am irritated, but does that mean that I can call the police and say, “Please don’t do that”? The noble Lord, Lord Bellingham, who is not in his place—and was not on the list for this debate—managed to interrupt the Minister’s opening speech. He irritated me—and what options do I have for that irritation?
We have to vote against the Bill again and again, for as long as it takes to show this Government that it is the wrong thing to do.
Lord Balfe (Con)
My Lords, it is always a pleasure to follow the noble Baroness, Lady Jones. I always agree with some things she says, but generally not with that much. Tonight, I think we edge towards more agreement. This Bill leaves me feeling very worried. First, I would ask whether it is really needed. What problem are we trying to solve with this Bill that is not already able to be solved with the powers that currently exist? The second thing that concerns me is what I see as a reflex action towards authoritarianism whenever a problem arises. That does not leave me very happy at all.
Of course, the public are fed up with what they see as anarchism. There are ways of changing the law in this country. Mention has been made of Swampy—but if you go back in history, even at the end of the Second World War there were movements to occupy unoccupied properties in London. There has always been an undercurrent of people who think that the best way of changing the law is to do it their own way—in other words, without the law necessarily agreeing with them. To go back to the 1940s and the housing movement, undoubtedly what they did drew attention in a very strong way to the failings of post-war society properly to address the need for accommodation. I go back that far because I do not want to get mixed up in today’s debate, beyond saying that, clearly, there are always people who want to solve problems in their own way and somehow, in a democratic society, we need to make enough space for them to do so without bringing down the whole House.
I am speaking tonight because the convention is that you must speak on Second Reading to intervene in the later stages of the debate. I hope that we will have some very careful debate. One of the strengths of this House is that we do not have a guillotine—we look at the clauses and argue them through, and I hope that the Minister will have enough strength in his department to get some concessions. If he does not, I think there will be a few defeats around for the Government.
Someone asked what I would do in this situation. The only thing that I can think of is that, in my youth, which is a long time ago, we used to have a man called Mr Justice Melford Stevenson. He was well known; he was a stipendiary magistrate, and his basic starting point was “Fourteen days in the cells—oh, and what’s the charge?” One of the problems that we have seen, which we saw in Bristol, is that if you have an argument in front of a jury, the jury on occasions listens to the argument and refuses to do what society and the police want. I predict that that will be one of the dangers of the Bill—that, if you eventually get things to court, you may well find that they fall there because of a combination of magistrates who do not really want to go quite that far and juries that most certainly do not want to go quite that far. So we have to look at these things.
I want to mention the Clause 9 controversy. I was thrown out of the Labour Party, I am very pleased to say, but I have not yet been thrown out the Roman Catholic Church; maybe it is a little more dilatory than the Labour Party. I must say that I have always been a supporter of women’s rights and of Catholics for a Free Choice, the Catholic organisation that supports abortion. I have had letters and emails over the last few days, from people signing themselves “The Reverend Father so-and-so”, asking me to vote against “preventing prayer vigils standing outside or near abortion providers”. I have seen some of these prayer vigils—not because I have been on them, but because I was looking at them—and they are not friendly, you know. We have to be very careful. I can see that there is a need to look carefully at this clause, how it is drafted and what it does in the wider sense of civil liberties, but if I were in the House of Commons and I had a free vote, I would be voting for the clause, because something needs to be done.
One thing that needs to be done and it will, eventually, is that the Catholic Church should depart from its principle of always being exactly 50 years behind the times. Abortion is here to stay. It is not a pleasant thing. I have known a number of ladies who have had abortions. I have never known anyone trot happily down and think, “Oh, this is a solution”. It is a very stressful and often sad time. We should realise that that we should respect the rights of women to choose—frankly, it is for women to choose, not elderly priests.
I have a couple of final points as we are getting towards the deadline. I am concerned about injunctions by the Secretary of State. What does that mean? Does it mean an injunction by the Daily Mail? I recall a Labour Minister—I shall leave him nameless for the moment—who turned down a very reasonable policy that I brought over when I was a Member of the European Parliament. He said, “I’m sorry, Richard, we can’t do that, the Daily Mail won’t accept it”. That was a Labour Minister. I am always chary about putting powers in the hands of politicians, because there is a tendency for them to be leaned on and to make a more authoritarian decision. One thing we are still unravelling, of course, is the indeterminate sentence business, which is a blot on our landscape.
Let me say finally that we have to be very careful in the United Kingdom to preserve freedoms. I see in a lot of the proposed trade union legislation a reflex action—“Don’t let’s understand, don’t let’s talk, don’t let’s get things together, let’s just pass a law and make it illegal”, whatever “it” happens to be. This is not the way to run a consensual society. The strength of Britain has always been that it is a consensual society, so I ask the Minister to go away after tonight and think very carefully about the clauses in the Bill. Many of them go much further, I would say, then we should go in a civilised and democratic society.
Lord Hogan-Howe (CB)
My Lords, the Bill presents a dilemma that we have faced over many years, as many have said. In a democracy that allows the right to protest, when, if at all, does that protest become unreasonable to the point of causing harm which triggers the intervention of the civil or criminal law? We usually return to the debate when the numbers involved in protest, or their tactics, have started to disrupt people’s right to enjoy a good life or a business’s ability to trade freely. Presently, the numbers involved in protest do not constitute a mass movement, but I believe they represent a majority opinion in this country that we need to deal with our climate emergency. Ironically, all political parties, including the governing party, agree with the aim of our eco-protesters, but they seem to disagree about how quickly we should address the issue and, in the end, who should pay.
It is against that backdrop that the police service is attempting to find a reasonable line of intervention and enforcement. The police generally do not want to get involved in political matters. They certainly do not want to appear to be preventing people demonstrating for a purpose that has the majority of the country’s support. However, the police are asked to intervene when people complain that they cannot exercise their rights because the protesters are exercising their right to protest. Then, there will always be a challenge and the police have to make a decision. Since around 2009, the police have generally taken a relatively passive approach, I would argue, to intervening in public protests. Following the unlawful killing by the police of Ian Tomlinson, a man not attending a protest but caught up in it, the police have followed the general line outlined in the HMI report of the time, Adapting to Protest, supported by the Prime Minister at the time, Gordon Brown, and the Government, that the police should police by consent and facilitate protest rather than confront it.
This was further amplified very recently by the Supreme Court decision in 2021, which has not been mentioned today, as far as I am aware, in the Ziegler case. Following protests in 2017 at the ExCel Centre in London, more than 100 protesters were arrested for obstructing the highway and convicted. The Court of Appeal supported that decision but the Supreme Court overturned it. In essence, it said that deliberative or obstructive protests, where there is a real impact on other road users, can still be protected by convention rights and can be a lawful excuse for the purposes of a charge of wilful obstruction of the highway. It goes on to state that when considering whether someone is guilty of breaking Section l37 of the Highways Act, courts should take into consideration a whole range of factors, including how big an obstruction was caused, for how long and what else was happening around them. Crucially, it means that protesting in a way that obstructs road users is not automatically a criminal offence.
That came as a bit of a surprise to the police because obstructing the highway has always been a simple offence—an absolute offence. No intent is required: if somebody obstructs the highway, they get arrested. If they choose not to obstruct the highway, they can walk away. There has never been a need to show intent or recklessness. What this now means is that the police have to assess the whole context of an incident. Intellectually, this position is strong, and over the last year we have seen the police become more adept at carrying out quicker assessments for planned events. The problem arises when, as with many of the protests we are seeing now, there is no notice of the protest. Therefore, the first officers on the scene are not public order specialists. They do their best but they have to make some pretty complex judgments at a time when they are not in possession of all the facts.
We have now moved away from the 2009 criticism of the police, which was that they were doing too much, to the present position that they are doing too little. This really matters. If members of the public are angry about the lack of police action, they may decide, as we have seen, to take their own direct action. While protesters may not always support the way the police carry out their operations, I believe that this is always better than groups of the public coming into conflict. As a result of this context, the police are now arguing for clarity, in whatever direction Parliament gives it, through this legislation.
In particular, the police want clarity to understand the meaning of “serious disruption”. The noble Lord, Lord Anderson, referred to this and I agree. This will require either a definition or some guiding principles. Some people argue that eventually the courts will decide what is reasonable. That is always the case but it can take years. Officers on the ground need support now. The very reason this legislation is being considered is that there is confusion about where the law stands, so I argue that it is vital to provide better support now in the legislation.
A further reason officers do not really want to get involved is that most of the people on these protests usually have no previous criminal convictions. On most days of the year, they would be supportive of the police and they do not want to come into conflict with them. A really good reason for policing by consent is to make sure that they do not come into conflict just because of confusion about the law.
The second area the police service has concerns about is becoming involved in providing private security to large organisations, particularly commercial ones, which it does not want to do. That is not a matter of principle but one of resources. There are insufficient resources for the service to carry out its primary duty of preventing and detecting crime, not least fraud and cybercrime. If the police are to become involved in policing private space, their resources will be even more stretched. I really think this has to be considered.
I accept that there will be debate on the contentious area of no-cause stop and search. As the noble Lord, Lord Anderson, referred to, Section 60 of the Criminal Justice and Public Order Act 1994 already provides for stop and search without cause in certain defined circumstances. Whether you like it or not, it exists. One area that applies to Section 60 should apply to this power if it is brought in; most people need to know whether they are in an area where this power applies. They need to know whether they are in a Section 60 area or an area of protest where this stop and search power would apply. At the moment, nothing shows that—neither a sign on the street nor anything electronic that might indicate they are in such an area. That could lead to confusion for officers and the public. In both cases, if this power is put in, there ought to be some attempt to find a way of warning the public that they are in an area affected by it—not least, if it is supposed to be a preventive power, as presumably they need to know that they are entering the area and that this power will apply.
Finally, I will touch on a couple of things that have come up in the debate. The police have not taken a position on the issue of abortion protests, but I support the policy. I would only argue whether 150 metres is sufficient. In my view, trying to prey on people at their most vulnerable, when they are about to take a huge decision and have often been receiving medical treatment—I do not think they are in the best position to receive any advice—can be regarded as intimidation. Therefore, I would certainly support some preventive power being put in to prevent gathering around abortion clinics. Why can that advice be given only at abortion clinics? If people feel so strongly, there are other places. It is not good for people to be intimidated at that point.
I do not envy the Government the task of setting the line of intervention. It is a difficult balancing point to find. However, I believe it is the right time for debate. When ambulances are being stopped from their work, airports are unable to function and national infrastructure is threatened, the Government have no choice. They have a fundamental duty to keep the public safe. We should support them in that duty while being careful not to leave a legislative legacy that could be abused by an authoritarian successor.
Lord Hendy (Lab)
My Lords, given the tide of elegant criticism of the Bill this afternoon on principle and in detail, with most of which I agree, I feel somewhat pedestrian in raising a couple of points in a rather narrow compass.
I express my gratitude to the Government in that, if they persist with the offences in Clauses 7 and 8, they will have at least allowed a trade dispute defence. It is quite clear that the offences in Clauses 7 and 8 would be used against trade unionists in a trade dispute, which is defined by the Trade Union and Labour Relations (Consolidation) Act as a dispute about pay, terms and conditions, dismissals and so forth. Clause 7,
“Interference with use or operation of key national infrastructure”,
applies to infrastructure in road, rail, air, harbour, oil, gas, electricity and newspaper printing. It is quite clear that disputes in those industries would be caught were it not for a trade dispute defence. The same is true under Clause 8, which deals with key national infrastructure.
However, I suggest that the defence does not go far enough. It should not be an offence at all for trade unionists to carry out the activities of picketing or demonstrating in pursuance—or “in contemplation or furtherance”, to use the proper phrase—of a trade dispute. The point goes a little further. The trade dispute defence is not available against the powers given to the Secretary of State to bring proceedings under Clause 17 or in relation to Clause 18, which gives the Secretary of State power to obtain injunctions for causing a nuisance or annoyance. The defence should be available in relation to those powers.
Furthermore, the trade dispute defence is not available against serious disruption prevention orders which do not follow a conviction, under Clause 20. Much has been said about this, in particular by the noble Lord, Lord Anderson. Under Clause 20, serious disruption prevention orders can be imposed on a person by a magistrate if that person has on at least two occasions in the relevant period—five years—done a number of possible things, which are all alternatives. Among them are:
“(iii) carried out activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”
and
“(v) caused or contributed to the carrying out by any other person”
of such activities related to such a protest.
It does not need a lawyer to elucidate that every general secretary and every member of every national executive committee which has authorised picketing that has caused disruption to an organisation, such as Network Rail or a train operating company, could be caught by these provisions and have a serious disruption prevention order made against them, unless there is a trade dispute defence. The Government need to think very carefully about the extension of protection to trade unionists carrying out legitimate trade union activities, in compliance with all the rules and regulations under the 1992 Act, to prevent them being caught by these provisions.
Finally, this does not detract from the force of a protection of trade unionists, but the noble Lord, Lord Beith, pointed out that if acting in contemplation or furtherance of a trade dispute is a legitimate protection against these provisions, why is there not a legitimate protection for others pursuing equally legitimate and justifiable causes, such as those identified by the noble Baroness, Lady Jones?
Lord Horam (Con)
My Lords, I do not normally speak in debates on police Bills and bring no particular knowledge or background to this debate. However, I want to say a few words because I am aware, as someone who lives in London, of the sheer irritation—at times, fury—of ordinary people at some of the matters we are discussing. The noble Lord, Lord Hogan-Howe, just now and the noble Lord, Lord Blair of Boughton, earlier made the point that people are so annoyed that there is a danger that they will take matters into their own hands—indeed, they have done so on a number of occasions. Noble Lords will be aware of such instances.
On the whole, I speak on behalf of the proverbial man or woman on the Clapham omnibus. I live in south Fulham, so I am very aware of the views of such people, as the 295 goes past the end of my street. In sum, they are in favour of action on climate change. Although the noble Baroness, Lady Jones, has left her seat, I see that the noble Baroness, Lady Bennett, is still there; I strongly agree with many of the points they have made in the House over the last few months. I was particularly pleased that there was an immediate reversal by the new Prime Minister of the position on fracking. That is entirely sensible and I entirely support it. It is ridiculous to do fracking in a small country such as this, however sensible it may be in the vastness of America.
I think that people broadly support the concerns about climate change which protesters are trying to bring to our attention, but they are also furious at the unreasonable way in which they are protesting. To see if my view was correct, I googled the opinion polls and found that, indeed, 66% of people supported action on climate change or were worried about it, but only 13% supported the methods being deployed by Extinction Rebellion and Just Stop Oil, and 54% opposed those methods either strongly or less strongly. I think that roughly summarises public opinion. Therefore, it is sensible for the Government to respond to that concern and fury from ordinary people with a Bill which, after all, has very narrow, specifically defined powers and is, in a way, an appendix to the larger Bill we discussed previously. In a way, the noble Lord, Lord Hogan-Howe, is right that the Government really have no alternative, when public safety is an issue, to respond in the way they are trying to.
So, why is there opposition to the Bill? First, some say—as the noble Lord, Lord Coaker, and the noble Baroness, Lady Chakrabarti, argued—that there are already sufficient powers to deal with this matter. However, that does not seem to be entirely satisfactory; why else are we having this endless display of problems in London? It was said that there were 30 consecutive days of action on these issues in London alone. It cannot be the case that the police are so bad that they are simply not prosecuting people using the powers they already have; in other words, there is dissatisfaction with the law, and, as has already been said, some aspects of it need to be more clearly defined to help the police. They may be small, incremental changes to existing laws, but none the less, clarity in this area is essential.
The second—and perhaps major—point was put to us all by the lobby group Justice, which circulated a paper that said
“the Bill would serve to give the police carte blanche to target protesters—similar laws can be found in Russia and Belarus.”
That is a little over the top, frankly. A comparison with Belarus and Russia is somewhat beyond the pale, particularly at a time such as this. The briefing went on to be specific, saying that the Bill would apply to community festivals, Pride marches, vigils and pickets. Incidentally, I take the point made by the noble Lord, Lord Hendy, and I certainly would not want the Bill to apply to picketing in the way he described. I would be concerned if the Bill were ever to be used in that way, or in what I would call the normal arena of protest—demonstrations, marches and all the rest of it—which we are used to and is part of the traditional British way of life.
However, while people have made that comparison with those countries, I think it is simply not true to argue that that British way of life is extensively compromised by this particularly narrow Bill. First, the people we are talking about are very few in number. There are a small number of people who specifically design disruptive actions of a particular kind. Secondly, they usually give no warning for their activities. By contrast, if you have a march or a demonstration, you have a large number of people and usually have sufficient warning so that the police can understand and police it properly. Those are all distinctions between what we are talking about here and the normal process of demonstration and marching. While it is true that an individual could be banned under the Bill, it is certainly not the case that a whole area of activity—a protest group, march or demonstration—could be banned. That does not follow from the provisions of the Bill.
So, I am concerned about some of the remarks made by the noble Lord, Lord Coaker—who is always worried, rightly, about these things, which I praise and commend him for; it is good that someone is worried about them—and equally by the thoughtful speech of my noble friend Lord Balfe, which I followed with great interest. We should be concerned and watch this with great care. None the less, I think that the common-sense approach here is to respond, as the Government have done, to a specific set of disruptive and damaging actions which, in my view, are counterproductive and do not really bring forward the case they are trying to argue. I not only believe but would forecast that, despite the Bill, Britain will remain a beacon of liberty in the world.
Baroness Blower (Lab)
My Lords, I am pleased to follow the noble Lord, Lord Horam. I have not heard him speak in this House before, and I am sure he has not heard me speak. I think the issue about Belarus is not that the Bill, were it to pass, would immediately transform the UK into Belarus. That is clearly not the case, but if we look at the specifics of some of the provisions in the Bill, we can find a direct parallel with some of the provisions in the legal code in Belarus. I suggest that my noble friend Lady Chakrabarti, the noble Lord opposite and I sit down, have a cup of tea and look at what Justice is saying in this context.
I listened with very close attention to the Minister’s opening remarks, and I have listened to all noble Lords who have contributed. Nothing I have heard yet has changed my view that the Bill poses a direct threat to the right to protest and, as such, I oppose it. I declare myself—as did my noble friend on the Front Bench—to be a serial protester, and that I have in the very great number of protests I have attended managed, either through good fortune or by good judgment, not to have been arrested. However, if the Bill were to pass, there is every chance that I could find myself in a rather different position.
I was very grateful previously, and I am grateful now, to have received the briefings from Big Brother Watch, Justice and Amnesty International. While varying in detail and emphasis, these briefings have in common a profound concern that, if passed, the Bill would seriously curtail human rights in this country, not only introducing unprecedented restrictions on civil liberties but severely damaging the UK’s reputation internationally. Unnecessary suppression or criminalisation of dissent, which the Bill would clearly do, goes against the very best democratic traditions of the UK. Given that the UK Government have publicly declared a commitment to promote open societies in other jurisdictions and criticised states that curtail the right to protest, the UK’s reputation would clearly be damaged by the passage of the Bill.
Criticism of the provisions in the Bill is not confined to Big Brother Watch, Liberty or Amnesty. Many members of the public, even those who may sometimes find protests uncomfortable, annoying or even irritating, recognise that, as the Government noted in December 2021:
“Freedom of expression is a unique and precious liberty on which the UK has historically placed great emphasis in our traditions of Parliamentary privilege, freedom of the press and free speech.”
Members of the public do not, in general, want protest suppressed and criminalised. They want to live in a free and democratic society—the hallmark of which is the right to protest.
On significant issues such as the climate crisis, the public are clearly in favour of the right to protest to protect the planet, all the more so because this Bill, as I believe we heard from the Minister himself, is unlikely to be compliant with the European Convention on Human Rights, in particular Articles 10 and 11 covering freedom of expression and freedom of assembly. It came therefore as no surprise that His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services found the measures as previously proposed to be incompatible with human rights legislation. Liberty considers that the Bill would pose a significant threat to the UK’s adherence to its domestic and international human rights obligations, while noting that, given the existing legislation already on the statute book, these proposals lack an evidential base to justify their introduction.
The provisions in the Bill relating to serious disruption prevention orders—which Justice, as we have heard from many speakers, has dubbed protest banning orders—and those in relation to locking on and the offence of being equipped for locking on are examples of measures which seem neither necessary nor proportionate. A body of law already exists to give the police powers to arrest individuals who obstruct public highways, obstruct emergency vehicles or breach the peace.
We are only too well aware that public confidence in the police has been damaged in recent times, particularly in the capital. It is clearly important in Britain that we rebuild the relationship between the police and communities. Policing by consent is important. So when Big Brother Watch reports that junior police officers, whom we all hope will remain in the service and have a lifelong career, do not wish to criminalise protest action through the creation of a specific offence of locking on, we should listen to those concerns.
I turn briefly to the expansion of stop and search powers. The noble Lord, Lord Paddick, is not in his place, but he expanded on this in this debate and previously with absolute clarity and deep concern. Justice has profound concerns about the expansion of stop and search on the basis that the existing powers are already problematic; they can be seen as discriminatory on the basis of race and can have counterproductive consequences in fostering mistrust between communities and the police who purport to serve them. Surely that is a significant concern for all. Given that the Home Office has stated that stop and search is ineffective in tackling, for example, knife crime, the Government’s claim that extended powers are needed in the context of peaceful protest and lawful acts simply lacks credibility.
In conclusion, I wish to mention the creation in Clause 14 of an offence of intentionally obstructing a constable in the exercise of the constable’s powers. Liberty notes that the consequences of such interference —imprisonment of up to 51 weeks, a fine or both—are severe and potentially ruinous. Noble Lords will easily recall to mind that in the aftermath of the brutal attack on and murder of Sarah Everard by a serving Metropolitan Police officer, advice was issued that when a sole plainclothes police officer approaches a person, particularly, but not exclusively, a woman, “some very searching questions” should be asked of the officer and that it is
“entirely reasonable … to seek further reassurance of that officer’s identity and intentions”.
It is alas all too easy to imagine that asking such questions could be viewed as obstruction, with the dire consequences that that could unleash.
This is a bad Bill, which we should oppose in order to safeguard civil liberties in the UK.
Baroness O'Loan (CB)
My Lords, there is no doubt that there has been a growing incidence of public order situations recently. We even had a demonstration in Central Lobby a week or so ago. What I have observed is that no quarter has been given by the protesters, even to those seeking access to hospitals, those trying to pick up their children from school, those trying to go to work to earn the money that keeps this country afloat, those trying to provide services to those who need care to stay in their own homes, and so many others.
Extensive criminal damage has been caused. Just a couple of weeks ago, we saw the spray-painting of the famous sign at New Scotland Yard. The clear message, in attacking this iconic sign at the headquarters of the Metropolitan Police, was that they can do what they like and there will be no real consequences. We have also seen attacks in art galleries and desperate members of the public trying to clear roads as police officers stand by. We have seen protesters jumping on to the roof of police vehicles as police officers stand by.
Such behaviour by protesters is in breach of existing legal provision on many occasions. As has been said, the organisation Justice helpfully provided a list of relevant statutes. The Police, Crime, Sentencing and Courts Act 2022, for example, creates a statutory offence of public nuisance and allows the police to impose conditions on processions and assemblies which are too noisy. The Criminal Damage Act 1971 created offences of unlawfully destroying or damaging property belonging to another intentionally or recklessly, being reckless as to whether any such property would be destroyed or damaged, intending to endanger the life of another or being reckless as to whether the life of another would be thereby endangered. The maximum penalty for conviction on indictment is a term not exceeding 10 years. The Police Act 1996 provides an offence of assaulting a constable
“in the execution of his duty”,
an offence carrying, on summary conviction, a penalty of up to six months in prison or a fine. The Highways Act 1980 provides that:
“If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to imprisonment for a term not exceeding 51 weeks.”
The Road Traffic Act provides further offences.
These are just a few of the options available to deal with behaviour such as that which we have seen recently. The Joint Committee on Human Rights observed in its June 2022 report that:
“The criminal law and the powers of the police already allow for action to be taken against violent protest and disruptive non-violent protest. We are unconvinced that additional offences are necessary or appropriate.”
Why create new offences which would add significantly to the burden of police services in providing training and guidance to officers in how and when to exercise these powers or initiate and manage necessary investigations with a view to prosecution? Why add to the range of offences which may be committed in public order situations in a way which may, as noble Lords have said, be in contravention of the rights which citizens have under Article 9 to freedom of religion, thought and conscience, under Article 10 to freedom of expression and under Article 11 to the right of assembly and association?
All these rights are ensured to us in the Human Rights Act. They are not absolute rights. We accept that there are circumstances in which the exercise of those rights may be limited, but they are rights which all our people have. In circumstances in which we are seeing the limitation of rights in Hong Kong, the US, China and Russia, it is profoundly important that we, as a democracy, protect those rights which are part of our ancient heritage.
The Equality and Human Rights Commission has published its views on some of the proposed offences. Referring to the creation of the new offences of locking on and being equipped for locking on and the obstruction of major transport works, the introduction of new serious disruption prevention orders, the extension of stop and search powers with and without suspicion, and the granting to the Secretary of State of new powers to seek protest-related civil injunctions, the EHRC has said that it considers these offences to be “inconsistent” with the right to protest, noting that the Supreme Court recently determined that this type of protest was protected by Article 11 and that there should be
“a certain degree of tolerance to disruption to ordinary life, including disruption to traffic, caused by the exercise of the right to freedom of expression or freedom of assembly”.
The JCHR has said that the locking-on offences
“risk criminalising actions that fall within the protections of Article 10 and 11 ECHR and contain inadequate safeguards against this”,
and that these clauses would allow the police to take pre-emptive action against people planning to engage in lawful protest, which it says would undermine the right to protest. It says that the provisions are
“broad enough to interfere with Article 8 right to privacy and Article 14 rights to freedom from discrimination.”
Clauses 17 and 18, which give the Secretary of State the power to bring proceedings and apply for injunctions could, the JCHR says,
“have a chilling effect on the right to protest”,
creating a significant risk that large numbers of protesters could be criminalised.
Finally, I will say a word about Clause 9, a late amendment to the Bill in the other place which seeks to create an “Offence of interference with access to or provision of abortion services” and would introduce 150 metre-wide “buffer zones”—also known as “censorship” or “safe” zones—around abortion providers. When “protests” take place, they are typically quiet prayer groups which occasionally display signs or placards. However, participants do not cajole or harass women. There is no interference with access to or the provision of abortion services. Approximately 90% of all clinics and hospitals have not reported either activity as ever having occurred, according to the findings of the 2018 Home Office review. A blanket ban around abortion clinics would be disproportionate, a denial of the right to freedom of expression, it is unnecessary, and it could even be harmful.
The reality is that many of those taking part in these vigils often provide help to vulnerable women. Historically, as a result of expressions of prayer and offers of help, women have been able to avail themselves of practical, emotional and other forms of support of which they may previously have been unaware or were unable to access. Some women, who may be uncertain but feel forced to terminate a pregnancy because of their fears that they cannot cope, and who might be reassured by what they might hear before they get into the clinic, will inevitably suffer if a disproportionate ban is enforced. Some of these women have never had the opportunity to receive impartial counsel and support as they consider their options.
On 24 October the Minister said that the Bill is generally compatible with convention rights. I regret that I do not agree with him on that point. However, I agree with his comment on Clause 9:
“I am unable, but only because of clause 9, to make a statement that, in my view, the provisions of the Bill are presently compatible with Convention rights”.
He was saying that Clause 9 is not compatible with the convention rights.
Current laws already provide wide-ranging powers for authorities to keep public order and protect women and the public from genuine harassment and intimidation, including outside abortion clinics. The Ealing PSPO shows that a nationwide ban is unnecessary and that further measures to ban peaceful demonstrations can have the unintended consequence of harming individuals seeking to express their views. Clause 9 is poorly drafted. It is so broadly worded that it could be used to criminalise people who merely express opinion outside an abortion facility.
In 2018, the Home Office concluded there was no need to introduce buffer zones. The then Home Secretary, Sajid Javid, said that:
“introducing national buffer zones would not be a proportionate response, considering the experiences of the majority of hospitals and clinics, and considering that the majority of activities are more passive in nature.”
This position has been consistently reaffirmed by the Government since then, most recently on 27 September 2022.
A June 2021 poll undertaken by Savanta ComRes shows that only 21% of the population support introducing buffer zones around abortion clinics nationwide. A majority support either having no restrictions on speaking about the issue of abortion outside abortion clinics or restrictions in line with current legislation.
Clause 9 is not only not convention-compatible but disproportionate, as police officers already have the powers to intervene. If a vigil is causing harassment or harm, they can intervene under the Public Order Act, the Protection from Harassment Act, and the civil provisions of a public spaces protection order under the Anti-social Behaviour, Crime and Policing Act 2014.
A person guilty of these new offences would be liable, in the first instance, to imprisonment of up to six months and/or an unlimited fine, and in further instances up to two years’ imprisonment and/or an unlimited fine. The offences vary from “seeking to influence”, advising, persuading and informing, to “persistently, continuously or repeatedly” occupying the area within the proposed buffer zone. We value and believe in free speech—
Lord Davies of Gower (Con)
I realise that the nine-minute time limit is advisory but can I ask the noble Baroness to bring her speech to an end, please?
Baroness O’Loan (CB)
Yes; I will do so shortly. Surely we do not think it appropriate to criminalise those who seek to exercise their rights to free speech by advising, persuading or informing or even by simply being present, quietly and unobtrusively? This is what happens in places such as Hong Kong, China and Russia, not the UK.
Such a penalty would be imposed in our country on those who seek only to pray and to offer help to women who may be in a desperate situation, and for whom help can be provided. I have met some of these women and their babies. I have seen their joy in the presence of their little ones. This is not an argument about access to abortion or preventing access—that right exists in law. Clause 9 would deprive people from offering help and support to women, for whom such help could be the difference between the choice to terminate the life of their unborn child and the ability to bring that child into the world in a safe place.
The Bill also reverses the traditional burden of proof which lies on the prosecution to prove any criminal offence beyond a reasonable doubt—
Lord Davies of Gower (Con)
I must ask the noble Baroness to bring her speech to an end, please.
Baroness O’Loan (CB)
I will—I have very little to say. I ask noble Lords to bear with me; this is an important point. That clause is inconsistent with the common-law presumption of innocence and the protections under Article 6.
In conclusion, the Bill, while well intentioned, and probably reflecting a desire by the Government to try to show that they are strong, will deprive people of their historic and indeed ancient rights to protest. This is not what we as a country should be doing. We must not place an additional and unnecessary burden on our police. We need at this perilous time in the world to protect the rights of people to protest peacefully, and to utilise existing laws to deal with those who commit some of the many criminal offences which we have witnessed. We can do this, but the Bill is disproportionate in its effect and would be very damaging to those freedoms and constitutional rights which we have cherished as a people across the centuries.
Lord Farmer (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady O’Loan. I agree with much of what she said and will be speaking similarly in many respects.
I am largely supportive of the Bill inasmuch as it plugs gaps in legislation to stop serious and dangerous disruption. The country is trying to get back on its feet after a once-in-a-century pandemic, and protesters are constantly refining their tactics to cause as much disturbance as possible.
My main concern with the Bill is the ideologically inspired Clause 9, which has just been spoken about, introduced as an opposition party amendment in the other place. Of those who voted, all Labour MPs registered their support for the right to protest disruptively by voting against the Bill at Second Reading, and all voted for pro-life protesters’ rights to be withdrawn. This is not just hypocritical; it exposes the cultural authoritarianism behind those who claim to want freedom to protest.
Clause 9 is now the most restrictive part of the whole Bill, allegedly to protect women from harassment. Yet it goes significantly beyond banning “harassment” or even preventing “serious disruption”, as is the stated intention of the Bill. It bans “protest” for those who hold certain beliefs, and their right to “inform”, “persuade”, “advise” or even express opinion on the public street.
Martin Luther King once said:
“Every man of humane convictions must decide on the protest that best suits his convictions, but we must all protest.”
However, for some, the right to protest depends entirely on what one’s convictions are. Pro-life convictions are deemed so abhorrent as to require a blanket ban and withdrawal of rights within certain spaces.
Furthermore, the Bill reduces the threshold of criminality to standards lower than ever before and, as currently drafted, would likely catch a parent, teacher or social worker giving, at the request of a young or vulnerable person, rounded advice to help them make one of life’s most difficult decisions.
Instructively, five local councils have instituted buffer zones already. Bournemouth Council has prohibited even the act of crossing oneself in the vicinity, treating even peaceful presence as intimidation. All five councils have banned prayer—even silent prayer, in the case of Ealing—flagrantly violating religious freedom. If prayer is considered a form of “influence”, then Clause 9 puts the UK’s first “thought crime” into statute.
Such sweeping criminalisation is out of all proportion to action which may, of course, be required to deal with inappropriate behaviour near abortion facilities. Where harassment and intimidation occur, the police already have several different legislative mechanisms to choose from, including the Police, Crime, Sentencing and Courts Act 2022. This empowers police officers to disperse or otherwise prevent those pro-life vigils which risk causing alarm or distress to persons in the vicinity.
A thorough Home Office review in 2018 found that police intervention into pro-life activity is very infrequently necessary and instances of harassment outside abortion facilities are rare. Volunteers are engaged mainly in silent prayer or handing out leaflets offering charitable support to women who would like to be able to continue their pregnancy but feel powerless to do so without financial or practical help. A 2022 BBC poll found that 15% of women were coerced into having an abortion by partners or family members. One of my close relatives became pregnant while still living in her parents’ home and was forced to go down that route.
As a society, we are rightly concerned about coercion in relationships and value the role of the voluntary sector in helping to identify cases. Yet, at present, there is active disdain for pro-life charities’ role in helping women step away from the people and pressures that are pushing them down the abortion route. One might say that there is cultural coercion: an underlying assumption that abortion is the only plausible route for a pregnant woman in certain circumstances to go down. Where there is potential or actual disability, the medical profession can actively seek to influence a woman in that direction. Is a genuinely pro-choice approach to abortion really served by Clause 9?
My honourable friend in the other place, Sir Bernard Jenkin, supported it on the grounds that women have already agonised about their decision and considered every alternative by the time they arrive at the clinic. I respectfully disagree with this: in a pro-abortion culture soaked in rights rhetoric, many will have discounted the very possibility of going through with the pregnancy. There are plenty of examples from organisations such as Be Here For Me of women who accepted an uncoercive offer of help to continue their pregnancy and have subsequently spoken out in favour of keeping this option open to other women.
The Home Secretary concluded in 2018 that buffer zones would be a disproportionate response. So what has changed? Perhaps it is simply the United States Supreme Court decision to make abortion law the preserve of individual states.
If passed into law, Clause 9 would mark the single most significant shift away from English law’s presumption of individual liberty and freedom of expression in the interest of ruthlessly censoring pro-life views. Yes, these fly in the face of our current cultural norms and may be held only by a minority, but that is exactly what our fundamental freedoms of expression are designed to protect.
Where will this end? Banning people from public areas near abortion facilities based purely on their beliefs could lead to any organisation dealing with contentious matters staking a claim for a buffer zone around its premises. A gender dysphoria clinic could seek a buffer zone excluding those voicing concerns about puberty blockers, or a foreign embassy could request a buffer zone near its premises to prevent people speaking out against the regime. What would become criminal is whatever dissent a group wants to prosecute.
The great protests of history show that choosing the time, place and manner of assembly matters deeply. Crowds gathered at Clapham Common for the Sarah Everard vigil last year, as we have heard, to make the point that this must never happen again. In July, a brave Catholic priest launched a three-day protest outside a Hong Kong maximum security prison to demand the release of activists and politicians. Could the message of either of these protests really have been effectively communicated elsewhere?
Blanket bans on fundamental rights rarely meet the requirements of proportionality in rights legislation; hence, as we have heard, the Minister not being able to sign off the Bill as rights-compliant. Clause 9 disproportionately interferes not only with protest but with freedom of speech, assembly and religion. Presented as a small and necessary step to protect women outside abortion centres, it is in fact a giant and unnecessary leap away from our hard-fought civil liberties.
Finally, I understand that this was subject to a conscience vote in the other place. Why? I would challenge the designation as an issue of conscience. This is not about whether or not abortions should take place. This culturally authoritarian clause criminalises someone praying silently with their eyes closed. It is both deeply absurd and deeply dangerous. It should not stand part of the Bill.
Baroness Barker (LD)
My Lords, I speak on this Bill solely on the issue of Clause 9 and, in the course of my speech, I will rebut many of the arguments made by the noble Lords, Lord McAvoy and Lord Farmer, and the noble Baroness, Lady O’Loan—this will come as no surprise to her because we have, over the years, exchanged completely opposing views on the subject of abortion.
This is not actually about the subject of abortion; it is about the right of women to access a service to which they are legally entitled and the extent to which other people can frustrate them in doing that. Let us be very clear. Clause 9 is very simple. It would introduce a buffer zone 150 metres around abortion clinics where activities such as harassment, intimidation, the use of loudspeakers, the display of graphic images and handing out leaflets of false medical education when for use for the purpose of influencing a decision to access or provide abortion care are banned. That is it—none of the wild extrapolations that other speakers have made.
I disagree entirely with the Minister’s interpretation. He says that this contravenes the human rights of protesters. No, Articles 9, 10 and 11 are qualified rights: they can be limited to protect the rights of others. Let us be clear, the clause does not ban protest. You can hold the views which the noble Baroness, Lady O’Loan and the noble Lords, Lord McAvoy and Lord Farmer, do, and you can pursue them in any manner you like—just not within 150 metres of where people are trying to access a service. You can carry on with your campaigns, as you always do, your disinformation and all of that. You are entitled to do that, just not there. Similar laws are already in place in Canada, Australia and Spain, and they have been upheld as being lawful in superior courts around the world.
The second argument is that the police or councils already have the powers to do this. Well, no they do not. Not even in places where the council and the local policing authorities have sought to implement the law as it stands in England have they been able to do that. What we have ended up with is a patchwork of protection for some people but not for others, with lots of challenges, including local authorities being resistant in times of economic hardship in their budgets to find themselves up in court. All we have got is a point where women have undergone and experienced harm in order for protections to be brought in, and I think that is wrong.
The third false claim is that we are seeking to punish people for something as benignly innocent as silent prayer. Well, no—this clause talks quite clearly about seeking to influence or inform people, of persistently occupying places, and of people trying to prevent people accessing legal services. So let us see what has actually been happening outside the clinics under those headings. We have had people handing out leaflets saying, “The abortion was harder to get over than the rape”. We have had people leaving baby clothes in hedges outside clinics, filming women, holding posters saying, “Babies are murdered in here”. In one instance, a monk went into a clinic with a camera under his cassock, accompanied by a lady. He was screaming at the clinic staff, using words that I—and most certainly the bishop—would never use, using a loudspeaker to proclaim that a girl who ran past with her hoodie down over her face because she was so frightened was a “baby killer”—leaving her mother to take her to another facility 60 miles away.
That is all the stuff that goes on day in and day out, and the experience that has led the staff to draft this in the way it has been drafted; it is a world away from benign prayer, it really is. I have no problem at all with people who have deeply religious conviction who wish to pursue what they believe to be right and do so in ways that I may disagree with—but I draw a line at them doing it at that point in time, with one specific intention: to frustrate women from accessing a legal service.
We have had absolute years of this, and it has been getting worse. People have been watching all that American stuff, and all those right-wing American foundations that are always going on about culture wars and being silenced. We know that they are funding activity like this across Europe. The time has come to say “Stop”, and for us to agree with the House of Commons that we need to take a very specific measure to protect women in a very specific space and circumstance. Let us do that. Let us leave those who disagree to pursue their views elsewhere—but let us give those women the protection they deserve.
Baroness Gohir (CB)
My Lords, I too am a protester. In fact, I attended a protest on Saturday. It was a March for Mummies, about rising childcare costs, which are now more than rent and mortgages. We went to march past Downing Street and ended up outside Parliament. We were loud and we were noisy.
My concern is that, because of its broad powers and broad language, the Bill would criminalise a wide range of behaviours. Depending on the whim of whoever is in power, its powers could be applied to protests such as the one on Saturday if they are regarded as “disruptive”—and who knows what could be regarded as disruptive in five, 10 or 20 years’ time? The Government may say that they would not use the powers for those protests; they would be used only for those using extreme tactics. But how do we know that that will happen? We have politicians who break the law, break the rules and think it is acceptable, so how can we trust them? If they are given too much power, I shudder to think what would happen.
If the intention of the Bill were that precise, the language would have been narrower and more focused. For example, it speaks about locking on to any land or object; that could curb protests outside billion-pound organisations, which have resources to deal with protesters using civil action. Why should the police act as security services outside businesses? The noble Lord, Lord Hogan-Howe, raised this as well. Something that has been mentioned time and again today is that the police already have powers to deal with those situations. The noble Lord, Lord Coaker, gave a whole list of examples of where this has been done successfully.
It feels to me as though this Government are using the disruptive tactics of a tiny minority of protesters to target and control dissent from the wider public; to stop them from calling out bad government policies. The law will be used by Governments to target people and causes with which they disagree.
One of the basic tenets of a democratic society is the right to protest. We must think about why people are protesting; it is because they are not being heard. Very different broad groups will be targeted by these powers; minority ethnic groups or women’s groups, for example. As women become poorer and their rights come under attack, including sex-based rights, we are likely to see more women marching. We have seen women demonised, lose their jobs or be attacked because they speak about their human rights. Who knows what will happen in the future? Depending on which politicians are in power, those protests could be regarded as disruptive. As we know, not all politicians or even political parties are on the side of women’s human rights.
I worry about search powers—suspicionless search powers—which we already know target minority ethnic groups disproportionately. That situation will get worse. I worry about how women will be targeted. For example, police officers may use such powers to sexually harass and target women protesters. Noble Lords may think that far-fetched, but we need only look at the number of police officers who have been involved in rape, sexual assault, misogyny and sexism to see that it is not unreasonable for me to suggest that. Some police officers may deliberately misuse these powers to humiliate women and then justify it using the law. Women would find it very difficult to challenge that. The Minister mentioned the code of conduct and bodycams at the beginning, but they would be useless in those situations.
I am also deeply concerned about the “unlimited fines” mentioned in the Bill. This means protesting will be for the privileged few who can afford high fines. Yet again, the Government are targeting the poor, making it harder for them to complain publicly about policies that affect them. I am troubled by the wide range of activities that could be criminalised because they have contributed to a protest regarded as disruptive. It could be selling something online that has been used to make placards. It could be transporting protesters to a location; transport companies and taxi drivers could be caught up in this. It could be donating online, or just being in the vicinity.
With such broad powers, what moral right do we have to criticise other countries and how they deal with their protests? We may think that we are not like them; we are different. That is why, in our context, this Bill is unacceptable. We will end up with prisons filled with protesters—or perhaps I should say “political prisoners”; after all, protesting is political. Do the Government think this will stop protesters protesting? I think it will probably have the opposite effect. When people are not heard and their right to protest is curbed, they will use more extreme tactics and protest more because they will feel that they have to fight harder to be heard.
Many people have mentioned the suffragettes, but I will mention them again. They locked on to the railings outside 10 Downing Street to be heard, and how we celebrate them now. We Baronesses would not be in this place were it not for the suffragettes.
I conclude by saying that, if this Bill goes ahead, it will stifle legitimate protest, and that is a sign of a failing democracy, not a thriving democracy. The proposed powers are not compatible with a free society.
Lord Sandhurst (Con)
My Lords, in this country, we accept the principle of peaceful assembly in public places as a foundation of our system of participatory governance based on democracy, human rights, the rule of law and the arguing of ideas with which others do not agree. But that is a balance. It requires give and take. Our society acknowledges that such assembly may annoy or cause offence to others who oppose the ideas that a particular protest seeks to promote. As noble Lords have observed, in a democratic society based on the rule of law, political ideas that challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression.
However, well-established law in this country protects only the right to peaceful assembly. Peaceful events often cause real but relatively modest disruption. We tolerate and permit that. On the other hand, seriously disruptive protests and invasions of private property do not deserve protection. The courts have rightly held that public authorities are entitled to interfere with protest where there is a legitimate purpose, such as the prevention of disorder and, importantly, the protection of the rights and freedoms of others.
What we are talking about with this Bill is a balance for society as a whole. The right to protest in a public place is not unfettered. It must be balanced against the rights of the rest of society, and those have been held to include the right to move freely on public roads without restriction. So there is an important balancing act to be conducted for us as members of society as a whole.
We therefore have laws that regulate protests and give the police existing powers both to control assemblies and processions and to avoid serious—I emphasise “serious”—disruption to daily life. In this context, hitherto well established in this country, peaceful protests and demonstrations take place. They do so on notice to the relevant authorities. In London, we are told when there are to be major demonstrations and roads will be closed. The public and the emergency services can plan accordingly. There will of course be resulting disruption, but it is on notice and we can take steps to mitigate it. It is, as I said, a matter of necessary give and take.
When that happens, those of us who are protesting and participating in a demonstration, which may be a very large demonstration—some will be surprised to hear that I have marched on a demonstration—make our point. We receive the public attention that we have sought. The rest of London, or wherever it is, suffers a degree of inconvenience, but it is usually manageable and no serious harm is done. That is what is involved in living in a healthy, vibrant democracy.
However, in recent years, certain groups have gone beyond the norm. What they have done has been all take and no give. It is not about the subject matter. Of course climate change is very important, and of course people must have the right to demonstrate about it—we must all think carefully about how we are going to go forward and what will happen to our children and grandchildren after we have gone—but when protesters sit in the road and block and prevent all passage, they stop fellow members of society going about their lawful business and conducting their lives.
Importantly, such demonstrations, at which this Bill is aimed, are not done on notice. They are done unannounced and secretly. They are deliberately disruptive of society and where they go is far beyond what is acceptable. So what are we seeing? Fellow citizens are now taking matters into their own hands. That risks disorder, as the Metropolitan Police has said. Something has to be done. The difficult question is whether this Bill—all parts of it—provides the right answers. It is plain that we are going to have to look at that very carefully in Committee.
Let me address a few of the clauses. For my part, I do not see a problem with the essence of Clause 1. It is needed. The Bill focuses on what causes “serious disruption” to individuals or organisations. That is reasonable. It is not in accordance with the tradition of protest and demonstrations in our society. A business or organisation that has been invaded should get the protection that is proposed. That is why we have a police force; we are not back in the 18th century. Individually targeted businesses should not have to resort to their own private expense of injunctions and so on to justify themselves. In this democratic society, we rely on a proper police force to intervene so that we do not take matters into our own hands.
There is a place for the provisions related to tunnelling and the other provisions in Clauses 3 to 8, but Clause 9 is a difficult and delicate clause. Health workers and their patients should be spared intrusion of the sort that they suffer. They must be left in peace. The objective is sound. In Committee, we can look to see whether the drafting is as good as it may be.
I have serious reservations about Clauses 11 to 14, on stop and search without suspicion. Powers to stop and search have had an unhappy history in the magistrates’ courts—what used to be called the police courts—of this country. They have historically been misused. They alienate sections of society. People are picked on because they are the wrong colour or the police do not like the cut of their jib. We do not want to go back to that. I will look at those provisions with great care and will take some persuading that Clauses 11 to 14 are appropriate and necessary. Moving forward, I, like the noble Lord, Lord Hogan-Howe, am concerned about the wisdom of the injunctive powers in Clause 18.
I shall finish here. As I said, of course people should be free to demonstrate on climate change or anything else of significance, but this must be within bounds. It is not protests and marches in the form we all understand that are targeted by this Bill; it is what is done in the name of protests and how protests are conducted. Notwithstanding my concerns about some of the details of this Bill—and, indeed, the specific provisions to which I have drawn attention, all of which are important—there is a need for new powers to deal with specific types of aggressive protest that really are new to us. The Bill is needed, but it will need careful attention in Committee to consider which provisions are necessary and which should be revised or omitted.
Lord Skidelsky (CB)
My Lords, it is very cold in this House; I wonder what has happened to the heating. It certainly has a chilling effect on debate.
I am not a lawyer like the noble Lord, Lord Sandhurst, nor a policeman like the noble Lord, Lord Paddick. I am driven to take part in the debate because I have become increasingly concerned at the wide powers of surveillance and control being claimed by Governments in the name of public order and national security—powers that, in their structure though not yet in the scale of their implementation, resemble those in countries such as Russia and China.
I recall that George Orwell wrote in 1939 about
“whether the ordinary people in countries like England grasp the difference between democracy and despotism well enough to want to defend their liberties. One can’t tell until they see themselves menaced in some quite unmistakeable manner.”
People feel menaced in different ways; I myself have been woken up by one such menacing experience. I hope also to bring some historical perspective to the topic we are discussing.
The traditional aim of public order Acts, starting in 1936, was to prevent violent clashes on the streets. A famous common-law precedent was Wise v Dunning in 1902. Wise, a rabid anti-Papist, whose habit of speaking and dressing in a manner offensive to Catholics in Liverpool had led to fights at previous meetings, was bound over to keep the peace. The principle was clear enough: freedom of speech, procession and assembly must not be carried to the point where it caused violence on the streets.
As most noble Lords have pointed out, we already have plenty of Acts designed to prevent disruptive behaviour. Why do we need more? As the noble Lord, Lord Paddick, said, it is not because many of these measures have been demanded by the police. The noble Baroness, Lady Chakrabarti, suggested an answer that I find extremely convincing. This Bill brings peaceful, if inconvenient, protest and incitement to violence and terrorism into the same legal framework, implying in principle that the first is as culpable as the second. This argument is used to extend the powers of the state in dangerous ways, which have been charted only in despotic systems. That is why I talk about an Orwellian creep and cited George Orwell at the beginning.
I take up just two matters from Parts 2 and 3 of the Bill, consequential on this false identification between peaceful protest and violence and terrorism. The first, which other noble Lords have alluded to, is the extension of the police’s stop and search powers. In the past, stop and search powers have been used to prevent only the most serious offending, such as serious violence or reasonable suspicion of terrorism—for example, if people were suspected of carrying knives, guns or explosives. This was seriously open to racial discrimination and was highly controversial, but I can see a justification for the power itself. However, the Bill would extend the same powers of stop and search to the protest context. Someone can be stopped and searched for being suspected of being linked, however peripherally, to non-violent purposes or conduct. To stop and search someone suspected of carrying a bomb is one thing; to stop and search someone suspected of carrying a bicycle lock seems to me, to put it mildly, disproportionate—and, in fact, mad.
This leads me to my second point, to which I can hardly do justice in a short speech, namely the extremely worrying spread of arrest and detention where there is no reasonable suspicion that the person may be involved in proscribed behaviour, or where there is merely a balance of probabilities—I want to come back to that term—that they might be.
Clause 11 creates a new suspicion-less stop and search power, whereby the police will have the power to specify that, in a particular locality and for a particular period of time, they do not need to have reasonable suspicion—in other words, an objective basis for suspicion based on evidence—that a protest-related offence will be committed, before stopping and searching people for a prohibited object. This is similar to powers contained in anti-terrorist legislation. Let me quote from the public information leaflet issued to explain Schedule 3 of the Counter-Terrorism and Border Security Act 2019:
“Unlike most police powers, the power to stop, question, search and, if necessary detain persons does not require any suspicion … The purpose is to determine whether a person appears to be, or to have been, engaged in Hostile … activity.”
Leave to one side the draconian powers being asserted here; it is surely fantastic to apply the same reasoning and powers to someone who might or might not be carrying a paintbrush.
Almost as bad as suspicion-less stop and search is Clause 20, which authorises serious disruption prevention orders. Many noble Lords have talked about these. They allow a court to ban a person from attending demonstrations and protests for up to two years, not on conviction of any offence but on a balance of probabilities that, on at least two occasions in the previous five years, they have carried out activities related to a protest or caused or contributed to someone else carrying out a protest. Failure to comply with SDPO conditions is a criminal offence, subject to 51 weeks’ imprisonment.
The balance of probabilities means that the court must think that it is 51% likely that the person concerned has carried out such activities. If it thinks that it is only 49% likely, they get off free. What sort of evidence is needed to make that kind of calculation? I would be grateful if that could be explained. The essential point is that Clause 20 allows standards of proof appropriate in civil cases to be used for imposing criminal sanctions, such as electronic tagging, on individuals convicted of no criminal offence.
Any serious analyst of these measures would need to trace not only the growth of novel forms of protest, which is acknowledged, but the way that concepts such as dangerousness and mens rea—guilty mind—have penetrated into the heart of our criminal justice system, creating a large and growing area of law in which you do not have to have done anything criminal to have been deprived of large chunks of your liberty.
It would be very difficult to amend the Bill to make it compliant with the European Convention on Human Rights. I therefore agree with those noble Lords who want to reject Parts 2 and 3 and seriously amend Part 1.
The Earl of Lytton (CB)
My Lords, I believe that it is the duty of the person finishing off the speeches by the many Back-Benchers who have spoken to somehow entertain. I fear that I am going to disappoint. However, I will admit to the fact that Lady Constance Lytton was the younger sister of one of my ancestors—my grandfather—and that, in another part of the family, my great-grandfather Wilfrid Scawen Blunt was imprisoned in Ireland for daring to have the temerity to defend the Irish tenantry against the eviction by their landlords. He went to Kilmainham Gaol, which was a tough old place. I therefore stand before you as tainted goods. I am bound to say that it follows that my sympathy tends towards the last resorts of protest and demonstration, irritating and disruptive though those actions may be.
I can understand what it is like to not be heard or to feel you are not, and even to be consciously ignored or confronted with what might be described as a pitifully limited outcome—targets, policy objectives, pious words, but precious little action. That lies behind some of what we are dealing with in our democratic processes, because it is almost as if that particular process and forum is passing a sector of society by. They do not feel that they have a voice in that, and that is our problem.
My email briefing suggests that the voices particularly of young, worried and committed citizens are not being heard—or, at any rate, not resulting in any appropriate resolve. This might suggest that the current arrangements need to be adjusted to accommodate additional platforms for dialogue and concomitant response, rather than seeking to aggregate powers to the Executive at the price of reduced freedoms for the people. If, as I am told, there are growing barriers of mistrust and disenchantment with party politics, then we have a duty to be more open-minded and take a more positive stance.
It is not as if climate concern demonstrators, for instance, are not amply reinforced by report after report from national and international climate change expert committees, especially if the 1.5 degree global warming target is a train about to leave the station. Even something as basic as the immediate banning of non-recyclable plastics seems beyond our wits to implement, and regulators have not prevented raw sewage discharges into inland and coastal waters. So where are the protections? That is the question that is being asked.
There is a dialogue to be entered into here, and if the place for that dialogue is not to be this Parliament or some other effective platform then the inevitable outcome is demonstration and direct action. Noble Lords posed the question about the degree to which clamping down would result in deteriorating outcomes. I associate myself with that point: better engagement is key.
I accept that the right to demonstrate must be exercised reasonably, but I do not see where the overriding need is for these additional measures. Are they proportionate and will they be effective? As far as I am aware, there has been little or no post-legislative evaluation of the measures we already have in law, particularly those most recently passed under the Police, Crime, Sentencing and Courts Act. If they are now muddled and confused then we need consolidation and clarification, not to extend things on to the statute book.
The police, with due respect to noble Lords who have that background, may well be happy to have additional powers: what organisation vested with statutory authority and a sense of its own noble purpose would not—but will then doubtless follow it up with a demand for additional resources? But essential need is the test here, not a desire for further aggregation of power. That said, our police forces generally have a very good track record of dealing with demonstrators, and particularly of distinguishing the violent anarchist from the vocal activist. My sense, reinforced by what I have heard in the House today, is that we have enough laws to enable them to do their work and to distinguish legitimate protest from the subversive undermining of society. Adding the measures in this Bill could risk alienating police and people, and indeed dividing society in ways that I suggest are more associated with authoritarian regimes elsewhere around the globe.
I want to be sure that this is not some attempt to snuff out legitimate questioning of government policies, or the Government insulating themselves from difficult questions, but some of the processes in the Bill—the dilution and reversal of the burdens of proof, the blanket application of certain measures and woolly definitions—seem a bit Orwellian in scope and intent. Some of the details and definitions are incredibly vague and open to arbitrary interpretation. The provisions for stop and search without reasonable suspicion are extremely troubling. I am not an expert in this field but my instincts are to reject these provisions, because increasingly oppressive tactics in the name of the state merely engender a similar response from elements of society. I want to break that link.
There is one last thing. Other noble Lords have mentioned that this country has a long tradition of tolerating dissent and responding to justified demonstrations, and an international reputation for freedom of speech, fair lawmaking and justice via an independent judiciary. Perceptions matter. We need to operate proportionately. We speak as a nation in support of basic democratic rights in places such as Hong Kong, for justice in the face of oppression in Myanmar, for women who suffer discrimination in Iran, in support of Black Lives Matter in the United States, and against religious, sectarian and racial oppression everywhere. Yet here, in 2022, we are come to what I can only describe as this disproportionately framed Bill. I simply ask myself: what compels the Government to propose these measures at the expense of trust, long-established custom, and our nation’s reputation and credibility on such slender justification?
Baroness Sugg (Con)
My Lords, speaking in the gap, I will be brief and limit my comments to the inclusion of buffer zones in the Bill, which I strongly support. As we have heard, this had a majority of more than 180 in the other place following a cross-party amendment. That included a majority from seven parties voting, including the Conservative Party. The introduction of buffer zones will enable women to access a lawful, confidential health service without harassment and intimidation.
There has been debate about whether tactics have changed over the years. They certainly have around abortion since the 2018 Home Office report that many noble Lords cited. We have seen training sessions and literature provided by American extremist groups, and the protesters’ presence is indeed spreading. Like my noble friend Lord Balfe, I have seen these protests, and they are far from friendly, quiet or impartial. We have heard some examples of the so-called peaceful protest that women are subject to. I would add to that forcing pamphlets on patients containing not charitable support but wholly incorrect medical information, including false claims that abortions cause breast cancer, alcohol or drug abuse, or suicide. They offer extremely unsafe so-called abortion “reversal” pills. I am happy to share these leaflets with noble Lords ahead of Committee.
Existing powers are evidently not enough. Current legislative tools designed to deal with persistent harassment are insufficient. They take too long and cost too much, and putting in a local buffer zone often just pushes protesters to another clinic without one. The powers do not work and women are being intimidated on a regular basis. Things need to change.
I have three questions for my noble friend the Minister. Given the overwhelming majority from the other place, can he confirm that the Government are committed to delivering buffer zones in this Bill? Some noble Lords raised concerns around the breadth of Clause 9, though it would only be an offence to seek to influence or interfere in
“any person’s decision to access, provide, or facilitate the provision of abortion services”,
rather than more broadly or for any other clinic. But I agree that the definitions may need to be revisited in Committee, as long as the clause continues to deliver the legitimate aim of preventing the harassment of women accessing medical care. Can my noble friend confirm that work is ongoing in the Home Office to ensure that any final iteration of Clause 9 is proportionate and compatible with convention rights? Finally, can he agree to meet me and other interested Peers in the coming days so that we can make progress on this issue ahead of Committee?
Baroness Ludford (LD)
My Lords, my noble friend Lord Paddick said in November last year when broadly similar powers were introduced into the police Bill:
“With the greatest respect to the Government, this is yet another example of ‘What wizard ideas can we think up in line with the Home Secretary telling the Tory party conference she was going to get tough on protesters?’”—[Official Report, 24/11/21; col. 982.]
Here we are with a sense of déjà vu, again.
We have had a very interesting and useful debate this evening, with almost no unqualified support for the Bill. In a debate on this Bill in the other place, the Conservative MP Sir Charles Walker called the proposed serious disruption prevention orders
“absolutely appalling because there are plenty of existing laws that can be utilised to deal with people who specialise in making other people’s lives miserable.”
Sir Charles went on to read out a list of public order laws that already exist to tackle disruptive protests. This list bears repeating:
“obstructing a police officer, Police Act 1996; obstructing a highway, Highways Act 1980; obstruction of an engine, Malicious Damage Act 1861 … endangering road users, Road Traffic Act 1988; aggravated trespass, Criminal Justice and Public Order Act 1994; criminal damage, Criminal Damage Act 1971 … public nuisance, the Police, Crime, Sentencing and Courts Act 2022”
and
“the Public Order Act 1986 that allows police officers to ban or place conditions on protest.”—[Official Report, Commons, 18/10/22; col. 580.]
The noble Earl, Lord Lytton, sensibly suggested a degree of consolidation to provide clarity and assessment of the existing laws. That seems a wise idea.
My friend in the other place, Wendy Chamberlain MP, a former police officer, said on Report that
“the police do not need this Bill to respond when protests cross the line.”
She also noted:
“Policing by consent is one of the greatest attributes of our country, and it is something that I am passionate about. The Bill undermines that.”—[Official Report, Commons, 18/10/22; cols. 590-92.]
So when the Minister says that the Bill gives the police the tools they need, which I think he said in his opening speech, we on these Benches do not agree. We certainly do not need these broad, unclear, illiberal measures. My noble friend Lady Hamwee said how precious our freedoms are and the noble Baroness, Lady Bennett of Manor Castle, said that protest is not a crime.
I am not saying that all those we have witnessed protesting in recent years, months and days are angels. Those who obstruct an ambulance or commit criminal damage do the protest cause no favours and should, if appropriate, be arrested and prosecuted. The noble Baroness, Lady Jones of Moulsecoomb, referred to the tomato soup on the Van Gogh painting. When I saw that, I did not know the painting was covered by glass and I do not know whether the protesters knew it was covered by glass.
Baroness Ludford (LD)
Okay, that is fair enough, but what I did not like was the tweet from Just Stop Oil saying, in effect—I cannot remember the exact words—who cares about art when the planet is in danger? That struck a very harsh note with me; many of us do care about art. What I support are peaceful protests which avoid both violence and deliberate damage.
The noble Viscount, Lord Hailsham, made a powerful speech, but I am afraid it failed to convince me that the existing powers are inadequate. I normally agree to a very large degree with the noble Viscount, but not really on this occasion. As my noble friend Lord Beith said in last November’s debate on the police Bill:
“It seems to me that political considerations have taken precedence over all considerations relating to making good law and, indeed, policing protest satisfactorily and effectively.”—[Official Report, 24/11/21; col. 985.]
He wisely warned both then, and again today, against getting into trouble by trying to turn into general law attempts to deal with very specific cases. The noble Lord, Lord Frost, and the noble and learned Lord, Lord Hope of Craighead, made similar warnings that next time it will be some other inventive method and we will have to legislate for that.
The noble Lord, Lord Blair of Boughton, said that climate protesters risked damaging their cause, and I have felt that on various occasions recently. Indeed, it is so but that is a public relations matter, not a criminal issue. I hope that will make some of them reflect on the value of what they are doing. If they are alienating some of their potential audience, the message is not effective.
Getting the Balance Right?, the March 2021 inspection report from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on how effectively the police deal with protest, which has already been referred to, not least by my noble friend, wisely said that
“legislative reform will not be a panacea for the problem of disruptive protest”.
My noble friend Lord Paddick explained how HMIC had rejected many of the proposals now in the Bill. In fact, as in so much of what the Home Office supervises, the challenge is not so much new laws but sufficient, well-trained operational capacity. Perhaps that will be a theme of what was to be the dinner break business on asylum processing. HMIC also called for
“a greater understanding of human rights law among the police”.
That might have come in useful during the anti-monarchist protests in the run-up to the Queen’s funeral, when there was a heavy-handed response at times. Certainly, some were in very bad taste but whether they were a breach of the law is another matter entirely.
The HMIC report emphasises the value of working with protest organisers, commenting that most collaborate with the police to make sure that protests are safe. It notes:
“Courts have repeatedly emphasised that a degree of temporary interference with the rights of others is acceptable in order to uphold freedoms of expression and assembly”.
The police are ahead of the Government here. HMIC reported on the value of police liaison team officers in reaching agreement on an acceptable level of disruption. This should not be underrated.
In regard to the expansion of stop and search, including without suspicion, the Home Office itself acknowledges in its equality impact assessment on the Bill that the expansion of stop and search
“would risk having a negative effect on a part of the community where trust and confidence levels are relatively low.”
We know that this is talking about young people and especially young black men. That is a very serious matter if it is going to create a more negative relationship with the police.
The noble Lord, Lord Anderson of Ipswich, applauded the JCHR’s suggestion that serious disruption be defined and I think the noble Lord, Lord Hogan-Howe, agreed with him. The noble Lord, Lord Anderson, also wanted careful examination of the proposed reversal of the burden of proof requiring the defendant to show that they had a reasonable excuse for, for instance, locking on. This seems in strange contrast to an offence such as obstruction of the highway, where it is for the prosecution to prove that the defendant did not have lawful authority or excuse for their actions. Perhaps the Minister could explain this reversal of proof.
The noble Baroness, Lady Chakrabarti, my noble friend Lord Beith, the noble Lords, Lord Balfe and Lord Sandhurst, and others warned particularly against politicising policing through government injunctions under, I think, Clause 20. That was a particular concern that ran throughout the debate.
The Minister said in his opening remarks that serious disruption prevention orders have an appropriately high threshold. Other speakers, such as the right reverend Prelate the Bishop of St Albans, did not agree that the balance of probabilities was an appropriately high threshold. Some obstructive activity has to be tolerated in a free society. In its report on the Bill, the Joint Committee on Human Rights recalled:
“The European Court of Human Rights has recognised that public demonstrations ‘may cause some disruption to ordinary life’ but that ‘it is important to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed in Article 11 of the Convention is not to be deprived of its substance.”
The Government have provided no compelling justification for the introduction of the new expansive powers in the Bill, criminalising ordinary, peaceful, if disruptive, behaviour. The JCHR also stresses—it has been another theme in this debate—that:
“The UK is rightly proud of its history of respect for political protest and is critical of other nations who fail to show the same degree of respect for the crucial importance played by protest in a democratic society. Introducing our own oppressive measures could damage the UK’s international standing and our credibility when criticising other nations for cracking down on peaceful protest.”
The noble Lord, Lord Foulkes, pithily summed this up as “authoritarian creep” and the noble Lord, Lord Balfe, reminded us that sometimes protest tactics that make us uncomfortable change opinion and get the law changed. I hope the new Government will show concern about their international image and reputation and be persuaded that the Bill is unnecessary and unjustified. As the right reverend Prelate the Bishop of St Albans said, we need evidence of how this Bill can succeed when its predecessors have self-evidently failed if the Government want this new Bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the noble Baroness, Lady Ludford, opened by pointing out that there has been no unqualified support for this Bill and, in fact, the vast majority of speakers have expressed their strong opposition to it. Looking at recent examples of protest, we have seen problematic actions such as protesters pouring milk out on to super- market floors during a cost of living crisis, leaving the mess for cleaners to sort out, but we have to balance that against the bravery of girls and women protesting in Iran for access to basic rights and fundamental change in their society.
I believe we need to see this debate in the round. Protest covers a range of behaviour. We need to get the balance right between the democratic right to protest and the ability of vital services to run, and we do not believe the Bill does that. We do not believe the Bill will be effective at what the Government claim to want to achieve. It includes powers that range from vague to extremely problematic.
On existing law, throwing a tin of soup at a publicly accessible work of art is already an offence—those demonstrators were charged with criminal damage—so how is the Bill relevant to that behaviour? In what way will it impact or deter it? The answer to managing protests surely cannot be to continuously introduce ever more draconian layers of laws on top of each other. Surely it is to use existing law well and to ensure proper training and support for police forces, which have to tackle genuinely problematic and illegal behaviour.
I ask the Government to provide, on the record, clear details of existing protest laws, what activity is already criminal and what existing powers the police have. It would be helpful for the Government to provide a complete list and make this available to the whole House. I was attracted by the view from the noble Earl, Lord Lytton, and the noble Baroness, Lady Ludford, that maybe the Government should move to some consolidation of all these existing powers.
The Government claim that one of the aims of the Bill is as a deterrent, but is there not a risk that the people who worry about it will be local campaign groups wanting to use their voice against, say, a local library closure or the cutting down of local woods? They are the people who may be deterred, but it will not deter, for example, the Just Stop Oil protesters. As we heard from the Minister, there were 650 arrests in October alone, but of course they are seeking to get arrested as part of their campaign. They are knowingly breaking the law. In what way will the provisions in the Bill change that behaviour?
Another concern is an overreach of powers. Key concerns are the suspicionless stop and search powers and the serious violence reduction orders. Suspicionless stop and search equates peaceful protest with powers currently used for terrorism and serious violent crime. It targets peaceful protesters and passers-by. If a protest is occurring in a town centre, the Bill gives the police the right to stop and search any member of the British public, without any grounds for doing so, as they walk through their local town centre. Hard cases make bad law. The Bill is not confined to the actions of a small number of protesters. It impacts on basic rights of the British people, and these are powers that should be taken out of the Bill.
Many of the powers in the Bill are vaguely drafted, with low thresholds. Again, hard cases are not an excuse to pass bad laws and hope that they will be well interpreted. This House will carefully scrutinise the language and the thresholds in the Bill and will expect powers to be clearly defined and necessary. We do not believe the Bill currently meets this test.
I turn to abortion buffer zones. In a free vote, the Commons voted on a cross-party basis to add Clause 9 to the Bill. As the noble Baroness, Lady Sugg, pointed out, this included a majority in the governing party. The aim is to prevent the kind of behaviour we have seen where both patients and staff have been subjected to harassment and intimidation when they access medical care or go to work. I pay tribute to colleagues on all sides who have worked on this issue for years. I understand that the Government are raising some concerns about the drafting of the clause. On the Labour Front Bench we look forward to working with the Minister on a cross-party basis to support Clause 9 and ensure that it delivers the protections intended.
I return to stop and search. There are various powers to stop and search a person where you have a reasonable suspicion that they are carrying prohibited items: offensive weapons, fireworks, drugs and other items. There are also specific stop and search powers related to terrorism. We have heard about the 1994 Act Section 60 stop and search without suspicion, which is related to terrorism. We have heard a number of noble Lords equating this power with the new powers sought in the Bill. The extension of stop and search in the Bill equates peaceful protest with measures currently used against violent crime and terrorism. We believe this is problematic, and we will oppose suspicionless stop and search as the Bill gets to later stages of its consideration by this House.
I was interested in what the noble Lord, Lord Hogan- Howe, said about making sure that people are properly informed when they are in an area where there is likely to be suspicionless stop and search. That was an interesting point that we may well seek to take forward. A number of noble Lords—the noble Lord, Lord Skidelsky, the noble Baroness, Lady Ludford, and my noble friend Lady Chakrabarti—pointed out the racial inequality likely to result from further stop and search powers. I thought that was a powerful point too.
I turn to tunnelling. These powers are new in the Bill, in that they were not considered by the House in the PCSC Bill, and we will want to look at them carefully. I understand the points made by the noble Lord, Lord Blair, about the difficulty of tunnelling.
Further, the Labour team in the House of Commons raised the issue of injunctions, as the Government may be seeking injunctions and politicising making them on certain individuals. It was interesting that the noble Lord, Lord Sandhurst, raised this as a possible problem. It seems to me undesirable for politicians to get involved in this sort of decision-making, which should rightly rest with the police.
We believe the Government have a responsibility to protect our historic rights to peaceful protest and to safeguard our national infrastructure, including our NHS, from dangerous and seriously disruptive protests. This Bill fails on both counts. It is too widely drawn and targets peaceful protesters and passers-by. It also fails to include the sensible measures that councils, the police, businesses and the NHS need to prevent dangerous and seriously disruptive protests. The Labour Party is clear that in a democracy freedom of speech, freedom of assembly and the historic rights to protest run alongside the rights of people to go about their daily lives. It is in this spirit that we look forward to scrutinising the Bill.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for their contributions throughout this debate. I will endeavour to respond to the points that have been made. For the record, I refute the assertion that this is some sort of battle in the culture war, not least because I am fond of tofu.
The noble Lord, Lord Ponsonby, has just asked for a list of the various Bills. I commit to write on that, and will obviously study Hansard carefully. If I miss the specific questions of any other noble Lord, I will also write on those, but I will endeavour to get to all of them.
A number of noble Lords, including the noble Lords, Lord Coaker, Lord Paddick and Lord Beith, and the noble Baronesses, Lady Chakrabarti, Lady Jones and Lady Blower, have argued that the Bill will have a chilling effect and cause peaceful protesters and bystanders at protests to be criminalised. I respectfully disagree and say that that is not the case. The right to protest peacefully, as my noble friend Lord Sandhurst just noted, is a fundamental part of democracy and that will never change. Protesters can continue to have their voices heard but, as my noble friend Lord Hailsham noted, they will not be allowed to wreak havoc on the lives of others while doing so.
At this point I would like to quote the chief constable for Essex Police, Mr Harrington, who said recently that
“concerns about the climate—however real—cannot justify actions that seriously disrupt and endanger the lives of others”.
I would agree with that, much though I share the concerns of those climate protesters. I think most of the House shares those concerns and the Government, as has been argued on many occasions in this Chamber, are doing a lot of work on the subject.
A number of noble Lords brought up the fact that they believe the Bill to be incompatible with the European Convention on Human Rights. We have been clear that we believe the measures in the Bill are compatible with the ECHR in the main, with the exception of Clause 9; namely the rights to freedom of expression, assembly and association. However, these rights are not absolute. They do not extend to wreaking havoc on the lives of others.
Several noble Lords, including the right reverend Prelate the Bishop of St Albans, the noble and learned Lord, Lord Hope, the noble Lords, Lord Paddick and Lord McAvoy, and my noble friend Lord Frost have argued that there are existing powers for the police to use and that the Bill is therefore unnecessary. I respectfully say that recent events demonstrate that this is not the case. As helpfully explained by the noble Lord, Lord Hogan-Howe, we have seen instances where the current legal measures are insufficient to prevent serious disruption or to hold disruptive protesters to account, even in cases where disruption has incurred unjustifiable costs of over £10 million.
In response to the point made by the noble Lord, Lord Paddick, about new and evolving tactics by protesters I will this time quote chief constable Chris Noble from the NPCC, who said:
“There have been some very novel … and highly disruptive tactics; that is reflected on the contents page of the Bill”.
He subsequently said that protesters
“are very aware of some of the legal gaps, inadequacies and shortcomings”.—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 5.]
It is worth pointing out that Chris Noble leads at the NPCC on protests.
I turn to the arguments made by noble Lords including the noble Lords, Lord Coaker and Lord Paddick, the noble Baroness, Lady Chakrabarti, and the noble Lords, Lord Beith and Lord Anderson, regarding the stop and search powers contained in the Bill. Stop and search powers will enable the police to proactively tackle highly disruptive protest offences by searching for and seizing items which are made, adapted or intended to be used in connection with protest-related offences, such as glue, chains and locks. Stop and search can also act as a deterrent by preventing offenders carrying items for protest-related offences in the first place, because of the increased chance of being caught.
Concerning the suspicionless powers, we believe these are necessary and reflect the operational reality of policing these protests. In the fast-paced context of a protest, it can be challenging to assert the appropriate level of suspicion needed for a suspicion-led search. In addition, the use of suspicionless stop and search is not inconsistent with the right to engage in peaceful protest, as it would be targeted only at preventing the guerrilla tactics employed by some. HMICFRS has also recognised the need for the police to be granted suspicionless powers to stop and search for articles connected with protest-related offences and, at the Bill’s oral evidence session, HM Inspector Matt Parr reaffirmed his support for these measures.
I also seek to assure noble Lords that existing safeguards for the stop and search powers that are already in place, such as body-worn video and PACE codes of practice, will continue to apply to stop and search powers provided for in the Bill. It is worth pointing out that the Home Office publishes extensive data on the police’s use of stop and search, in the interests of accountability, and will expand this publication to the use of the new powers provided for in this Bill.
I turn to the concerns about the serious disruption prevention orders raised by noble Lords, including the noble Lords, Lord Beith, Lord Coaker, Lord Paddick, Lord Foulkes, Lord Anderson, Lord Hendy and Lord Skidelsky, the noble and learned Lord, Lord Hope, the noble Baroness, Lady Chakrabarti, and my noble friend Lord Frost. Noble Lords have raised particular concerns about the orders made “otherwise than on conviction”. Serious disruption prevention orders are a proportionate way of dealing with those who cause serious disruption and misery to others. I assure the House that they cannot be arbitrarily imposed on innocent individuals.
SDPOs are used only where there is evidence of two or more instances where the individual has been convicted of a protest-related offence, breached a protest-related injunction or committed, caused or contributed to another specified protest-related activity. Importantly, it is for our independent judiciary to decide whether to impose an SDPO. They are to be used only where the courts find clear evidence that an SDPO is absolutely necessary to prevent an individual engaging in prohibited activity. The threshold for the imposition of these orders is therefore appropriately high, and I trust our police and courts to impose them only where necessary.
I turn to the arguments made by the noble Lords, Lord Anderson and Lord Hogan-Howe, regarding the inclusion of a definition of “serious disruption” in the Bill. As noble Lords will be aware, no two protests are ever the same and being too prescriptive risks the ability of the police to respond to fast-evolving protest tactics, while also risking the exploitation of loopholes by those intent on causing as much disruption as possible. The notion that courts and the police interpret terms in English and Welsh law is a principle that we have long relied on to ensure that those who enforce the law are not limited by instances that a definition will not be able to capture. Nevertheless, I recognise that a clear definition could bring benefits and I recognise the strength of feeling expressed on this issue today, so I will reflect further on it. I will write to the noble Lord, Lord Anderson, on his other two questions, if that is acceptable.
Throughout this debate, many views have been expressed by noble Lords regarding the insertion of Clause 9 by the other place. As the Minister there said, Clause 9 is a “blunt instrument”, and the Government believe that it would not be proportionate in its current form. However, I note that the proponent of the clause, the Member for Walthamstow, accepted that it would need to be refined in this place. I therefore stress that this measure will not prevent people expressing their views; it will prevent protesters doing so only near women accessing abortion services.
Furthermore, as noble Lords will be aware, Clause 9 meant that the Government were unable to issue a statement of compatibility with the European Convention on Human Rights upon the Bill’s introduction to this House. However, the Government accept the view of the other place that the existing powers are inadequate to deal with the problem—but we cannot accept Clause 9 in its current form. However, I am happy to say yes on all three of the specific concerns of the noble Baroness, Lady Sugg, about this. I invite interested noble Lords to engage and work with us on this to deliver a workable solution.
As I expected, this has been a lively and thought-provoking debate. This is clearly an issue of significant interest and importance. But the fact is that we have a responsibility to act and update our laws to reflect changing tactics. The Government will not stand by while decent hard-working people have their lives and livelihoods disrupted; we will put the law-abiding majority first. I commend the Bill to the House.
Public Order Bill
Wednesday 16th November 2022
(2 years ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 61-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (16 Nov 2022)
Baroness Chakrabarti
Member's explanatory statement
This amendment makes the lack of a reasonable excuse a component part of the offence of locking on, thus placing the burden of proof upon the prosecution.
Baroness Chakrabarti (Lab)
My Lords, I will rise slowly to allow the mass exodus from the Chamber of noble Lords who are fascinated by the civil liberty implications of this terrible draft legislation. The exodus is nearly, if not quite, complete.
I have the unhappy duty of opening the first detailed debate on this Bill, which has so many problems. One of them is that it criminalises innocent, legitimate activity in a way that is so vague and broad it risks a great deal of potential injustice. It is really not appropriate for legislators in either place to allow this kind of shoddy work to pass, risking the liberties of our people, many years into the future.
Lord Foulkes of Cumnock (Lab Co-op)
I am sorry to interrupt at such an early stage. My noble friend rightly said that she has the unhappy duty to move this amendment. It is astonishing that we are considering the Bill and these amendments today. My noble friend has been very much involved in the detailed discussions in relation to the Bill. In view of the outright opposition, right across the country, to some of the provisions in the Bill, have the Government given my noble friend any indication that they propose not to proceed with the Bill? It is outrageous that we continue to consider these details and amendments, and I am sure that my noble friend would agree with me. Surely the Government have had second thoughts on this by now.
Baroness Chakrabarti (Lab)
I am grateful, as always, to my noble friend, who has been a parliamentarian of distinction in both Houses, over many years, and who cares a great deal about our constitutional climate and integrity in this country. I regret to inform him that I have heard no such cause for comfort or indication of any reflection on the part of the Government in relation to the Bill. I agree with my noble friend that that is a matter of enormous regret. As it happens, I have not heard even a hint of potential listening or movement around the Bill’s detail, let alone what my noble friend and I would prefer, which is that this terrible attack on British liberty is dumped by a Government who have seen reason.
A case in point is the new proposed criminal offence of locking on. As noble Lords will remember, a person commits this offence if they
“attach themselves to another person, to an object or to land … attach a person to another person, to an object or to land, or … attach an object to another object or to land”.
That is very vague and broad. The Bill also says that a person commits this offence if
“that act causes, or is capable of causing, serious disruption”—
it does not define this—
“to … two or more individuals, or … an organisation”,
and if they “intend” the act to have that disruptive consequence or
“are reckless as to whether it will have such a consequence.”
By the way, noble Lords in the Committee will remember the rather colourful and entertaining speech of my noble friend Lord Coaker when these provisions came this way the first time, before the current reheated version. It was either my noble friend Lord Coaker or my noble friend Lord Kennedy who talked about two people linking arms as they went down the road together. It was a rather colourful example of the two of them linking arms and going down the road together, which caused some amusement on all Benches in your Lordships’ House—they would perhaps take up a bit of space, if I can put it like that. But the idea that that simple, innocent act would potentially be impugned by an offence of the breadth that I have just set out is not a laughing matter, despite the amusing example.
The only crumb of comfort that the draftsmen and policymakers in the Home Department have offered is a defence—not part of the criminal offence itself—if the person charged proves that they had a “reasonable excuse” for this attachment, be it human to human, bicycle to railings or whatever. So the burden is put upon the accused person, rather than residing where it should in our criminal law: with the prosecution.
This is a terrible offence. The principle of burden flipping—reversing the burden of proof—is in relation to the new proposed offence of “locking on”, but it is present elsewhere with other offences. I object per se to reverse burdens; they are inherently very dangerous. They are sometimes necessary, but, when they are necessary, the actual conduct being impugned must be very tightly limited. It would be one thing to have an offensive weapon without a “reasonable excuse”—because you can license the holding of offensive weapons; that would make sense to me—but it does not make sense to include attaching yourself “to another person” or to property, linking arms with your chum, attaching your bicycle to railings, et cetera. These are all examples of conduct which can be potentially impugned by this criminal offence, and for which one could go to prison for nearly a year. This is totally outrageous and unacceptable.
Lord Paddick (LD)
My Lords, I have added my name to the other amendments in this group. If noble Lords will indulge me, as is usual with the first group of amendments, I will remind them why we have arrived at this point. The Government had already included draconian anti-protest measures in the Police, Crime, Sentencing and Courts Bill—including giving the police power to place restrictions on meetings and marches if they might be too noisy, including one-person protests—when, just before the Conservative Party conference in 2020, Insulate Britain began a series of protests, including dangerously and recklessly blocking motorways. Allowing a sentence of imprisonment for highway obstruction was proposed and agreed by this House, and now many Stop Oil protestors have been either sent to prison or remanded in custody pending trial.
However, the then Home Secretary felt that she had to say something to appease Tory supporters at the Conservative Party conference: that she would introduce even more draconian anti-protest measures. Despite the PCSC Bill having already passed through the Commons, the Government introduced these even more draconian anti-protest measures, those we have before us today, as amendments in Committee of the PCSC Bill in this House. Apart from custodial sentences for highway obstruction, this House rejected all these measures on Report of the PCSC Bill.
Apart from the new stop and search powers, which some police officers and His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services suggested the Government might introduce, but which the Home Office left out of the original PCSC Bill, none of the measures that we are being asked to agree to today in this Bill was requested by the police, none of the measures was supported by HMICFRS, and some that were considered, such as serious disruption prevention orders, were rejected as contrary to human rights, unworkable and likely to be ineffective.
I have Amendments 8, 29, 40, 55 and 60 in this group, which all relate to reasonable excuse. We saw, with the arrest and detention by the police of a journalist who was reporting on recent protests, the potential danger of only allowing a reasonable excuse defence to be deployed once charged, as the Government propose in this Bill. In other legislation, a person does not commit an offence if they have a reasonable excuse, and therefore cannot be lawfully arrested and detained. I might not go as far as the noble Baroness, Lady Chakrabarti, in saying that it should be for the prosecution to prove that the protestor did not have a reasonable excuse. I am reminded of the wording of Section 1 of the Prevention of Crime Act 1953, where
“Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence”.
If the Government are looking for compromise, as they should in the face of the opposition already expressed to these measures in this House in its consideration of the PCSC Bill and in the views expressed on this Bill at Second Reading, maybe this should be an option that they consider.
This is even more important than the offensive weapon example, in that these are basic human rights under Articles 10 and 11 of the European Convention on Human Rights—the rights of expression and assembly. To allow people who are exercising their human rights, who have a reasonable excuse for what they are doing, to be deprived of those rights by being arrested and detained, as the Government propose, but where the reasonable excuse for exercising their rights can only be considered once they have been charged, cannot be right.
In Clause 3(2), for example, the proposed legislation says, in relation to tunnelling,
“It is a defence … to prove that they had a reasonable excuse for creating, or participating in the creation of, the tunnel.”
Clause 3(3) says,
“a person is to be treated as having a reasonable excuse … if the creation of the tunnel was authorised by a person with an interest in land which entitled them to authorise its creation.”
I am sure that the Minister will correct me if I have this wrong but, say a landowner instructs workers to build a tunnel on her land, which she owns, before it is subject to a compulsory purchase order to facilitate a development, in order to disrupt the development, which she objects to, she and her workers can be arrested, detained and charged, and only then can they deploy the reasonable excuse defence that the Government provide for in the Bill. How can that be right?
In relation to the obstruction of major transport works, the Bill provides specifically, in Clause 6(2)(b), that if the action
“was done wholly or mainly in contemplation or furtherance of a trade dispute”,
the person has a reasonable excuse, but Clause 6(2) says that
“It is a defence for a person charged with an offence”.
Again, the Minister will correct me if I am wrong, but does that mean that lawful pickets, on a picket line, can be arrested by the police, detained, and charged and can deploy the reasonable excuse defence only once charged? The Minister may say that the police would not arrest those engaged in lawful picketing—even though the proposed legislation would allow it—but, presumably, the Minister also believes that a mainstream journalist, with an accredited press pass, reporting on a protest, would not be arrested and detained for five hours by the police, and would also deny that. Similar arguments apply in relation to Amendment 60 to Clause 7.
We have seen from the arrest of the journalist that the police cannot always be trusted in every circumstance to use their judgment and not use the powers given to them in legislation. If someone has a reasonable excuse for their actions—we will come to a discussion of what amounts to a reasonable excuse in the next group—such as an accredited press card holder reporting on a protest, they should not have a defence once arrested, detained and charged, but the police should not be allowed to arrest and detain them in the first place. That is the desired effect of the amendments in this group and we strongly support them.
Lord Anderson of Ipswich (CB)
My Lords, I put my name to Amendments 1 and 7 in the name of the noble Baroness, Lady Chakrabarti, and I support to similar effect Amendment 8 in the name of the noble Lord, Lord Paddick, which coincides with that proposed by the Joint Committee on Human Rights. They relate, of course, to the locking-on offence in Clause 1, which, as the noble Baroness said, is an offence for which the actus reus is extraordinarily broad. You do not have to attach yourself to railings to commit it; it is enough to “attach an object”—any object—
“to another object or to land.”
Nor is there any requirement that serious disruption be caused; it is enough that the act
“is capable of causing, serious disruption”,
a term undefined, at least so far, and that you are “reckless” as to whether it does so.
When I raised this point at Second Reading, the Minister was good enough to say that he would write to me on it, and I thank him for doing so. He makes the point in his letter that the defendant has personal knowledge of the facts, making it reasonable for him to have to establish them. I agree with that: no one, I understand, objects to the evidential burden resting on the defendant, and I apprehend that that is what the noble Lord, Lord Paddick, was just saying, but it is clear from the letter that the Government’s intention is to go further and to place the legal burden on the defendant of proving lawful excuse.
The letter explains that there are times when the evidential and legal burden of proof may legitimately fall on the defendant, notwithstanding the presumption of innocence. One of those times, as the Minister said, is when you are carrying a bladed article in a public place. You may then be expected to prove that you had good reason to avoid conviction under Section 139(4) of the Criminal Justice Act 1988. But as the court said in the relevant case, L v DPP:
“There is a strong interest in bladed articles not being carried in public without good reason”.
The public interest in objects not being attached to other objects is less strong, to put it mildly, particularly against the background of the fundamental right to protest.
As Lord Bingham went on to say in Sheldrake, now the leading case on reverse burdens, security concerns do not absolve the state from its duty to observe basic standards of fairness. There are cases not referred to in the Minister’s letter, such as DPP v Wright, a Hunting Act prosecution, in which it was held to be oppressive, disproportionate, unfair and unnecessary to impose a legal burden on the defendant. Then there is the point well made by the Joint Committee on Human Rights: if the reasonable excuse is an afterthought, rather than an ingredient of the offence, protesters will be liable to be arrested whether they had a reasonable excuse or not. It is undesirable in principle for the possible defence to arise for consideration only after arrest or charge.
The curious thing about this debate, it seems to me, is that it is unlikely to affect the ease of conviction one way or the other. Once it is accepted that a protester may legitimately be asked to bear the evidential burden, then the legal burden, whatever the legal significance of the point, will rarely matter much in practice. The court will take its own view on whether the excuse is reasonable or not and not usually spend much time on the technical issue of burden of proof. Indeed, that was another point made by Lord Justice Pill in the L v DPP case, on which the Government relied in the Minister’s letter to me. In other cases where the Government have overstepped the mark by putting a legal burden on the defendant when they should not have done so, Section 3 of the Human Rights Act has come to their rescue, by enabling the reverse burden to be interpreted as a merely evidential burden that does not get in the way of the presumption of innocence. That emergency cord will not be available to the Government if the courts rule against them on reverse burden after the Bill of Rights has removed Section 3, as appears to be their intention.
I approach this issue in a spirit not so much of crusading zeal as of some bafflement that the Government would take such a legally risky course for so little practical advantage. I suggest that the orthodox approach to these offences is also the fairer approach for members of the public, and the safer approach for police, prosecutors and the Government. The prosecution should simply have to prove its case in the normal way.
Lord Skidelsky (CB)
My Lords, I am happy to add my name to the group of amendments in the name of the noble Baroness, Lady Chakrabarti, in perhaps a more crusading spirit than the noble Lord, Lord Anderson.
If asked, most people would say that the most important principle in our legal system is that a person is presumed innocent until proven guilty. They would be surprised, and should be alarmed, by the extent to which this principle has been steadily eroded in our legal practice, of which this clause is a good example. As the clause stands, a defendant would have to prove in court that they had a reasonable excuse for committing the offence specified in Clause 1(1)(a).
Our amendment is designed to ensure that the police must prove in court that the defendant had no reasonable excuse for committing the offence. In other words, the police would need to prove that A and B, charged with walking down a street linking arms, had no reasonable excuse for doing so. As the burden of proof will fall on the police, they are less likely to arrest and charge people indiscriminately without a reasonable cause for doing so.
It is a very important point. The effect of this amendment will be to diminish the number of people detained and arrested for no offence. If we can achieve that, it will be an important thing to have done.
Baroness Blower (Lab)
My Lords, my noble friend Lord Hendy has added his name to Amendment 60. In his unavoidable absence, I will speak to that amendment in words which are largely his, although I support and endorse all the amendments in this group.
The purpose of Amendment 60 is simple: to make more effective the protection the Government intend to provide for those with a reasonable excuse or those engaged in a trade dispute in the current version of Clause 7. I will focus specifically on trade disputes, with which I have some affinity.
By way of preliminary, it should be noted that the phrase
“in contemplation or furtherance of a trade dispute”
originated in the Trade Disputes Act 1906. It is now found in the Trade Union and Labour Relations (Consolidation) Act 1992, where is also found the definition of a trade dispute. For the purposes of today’s debate, it is sufficient to say that trade disputes encompass disputes over terms and conditions of employment and certain other industrial relations matters.
As drafted, Clause 6 recognises that obstruction or interference, which constitute the offence in subsection (1), may well be applicable to those picketing in the course of a trade dispute. Clause 6(2) seeks to exclude pickets from being found guilty of the subsection (1) offence. However, the way the subsection is drafted means that a person in such a situation, as we have heard, may be arrested, charged and brought before the court. It is only when presenting their defence that the trade dispute defence will achieve the protection afforded by the Bill.
Those who have signed this amendment and the rest of us who support it hope that, if someone is acting in contemplation or furtherance of a trade dispute, they will not be liable, as we have heard from the noble Lord, Lord Paddick, to be arrested, charged or brought to court for a subsection (1) offence. The defence should kick in before that point.
It is important to bear in mind three points. First, the right to picket in contemplation or furtherance of a trade dispute is a statutory right, now set out in Section 220 of the consolidation Act of 1992 but with its origins in the Conspiracy, and Protection of Property Act 1875. The price of the right to picket was that no protection was given for the offences created by the 1875 Act, such as “watching and besetting”, fascinatingly; nor has it been given for the array of other potential offences such as obstructing a public highway or an officer in the exercise of his duty, or more serious offences.
Since 1875, the right to picket has been regulated and restricted by many amendments to the relevant law, the latest being several requirements imposed by the Trade Union Act 2016, now found in Section 220A of the Trade Union and Labour Relations (Consolidation) Act 1992. This leads to the second point: the amendment seeks only to strengthen the protection against this specific offence; all other potential offences which might occur in the course of a trade dispute remain open to charge. The amendment does not seek to enlarge the right to picket.
The final point is this: a picket in the course of a dispute is not a secret activity; it is not one of which local police will be unaware. The very purpose of a picket—and I can attest to this from having stood on many of them myself—in the words of Section 220 of the 1992 Act is that of
“peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”
To this end, pickets draw attention to themselves, to their union, and to the dispute they seek to further in the hope of persuading others not to cross the picket line. Your Lordships will be familiar with images of picket lines, and over the last few months, perhaps even familiar with actual pickets. The police will have no difficulty in recognising those acting in contemplation or furtherance of a trade dispute long before they, no doubt vociferously, proclaim it.
More than that, under Section 220A, a picket supervisor must be appointed by the union. She or he must be familiar with the very extensive Code of Practice on Picketing, and, most importantly for our purposes, she or he must take reasonable steps to tell the police his or her name, where the picketing will take place, and how he or she may be contacted. The section also requires that the picket supervisor must be in attendance on the picket or able to attend at short notice. She or he must be in possession of a letter of authority from the union which must be produced on demand; significantly hedged about, therefore.
It is right that in the creation of this new offence the Government have not sought to encroach on the protection of the right to picket in industrial disputes, a right which is also protected by Article 11 of the European Convention on Human Rights, and hence the Human Rights Act 1998. This amendment is exceedingly modest: it asks that the protection be made effective by preventing a picket from being charged with a new offence.
Lord Balfe (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady Blower, and even more of a pleasure to reflect on the words of our good friend, the noble Lord, Lord Hendy. Before he came into this House, I do not think that we had quite the same level of wisdom and knowledge about the details of trade union legislation.
I too rise to ask that the Minister gives serious consideration to accepting Amendment 60; all it does is make it quite clear that a person, picket or trade union does not commit an offence under the clause by removing the words:
“It is a defence for a person charged with”—
they should not ever be “charged with”. This is a perfectly legitimate action undertaken by people in pursuance of a trade dispute, and quite reasonable. So I ask the Minister to look very carefully at Amendment 60, and when it comes back, to see whether this amendment cannot be accepted, because it is a very sensible amendment.
One could make virtually the same speech on many of the clauses in the Bill. I do wonder: what are we trying to achieve? Most of the things in the Bill are already offences. If we have a problem, it is that the police do not seem to think that it is worth prosecuting them—of course, we saw in the last few days that glorious picture of 11 rather bewildered policemen standing in the middle of the M25, gazing at a gantry.
This is not a sensible way to make laws; I am not sure that it appeals even to the Daily Mail. A lot of the Bill is reflex action stuff. It is man-in-the-pub stuff: “Oh, we don’t like this”—of course we do not want people to stick themselves to the pavement, but the law already exists. Between now and Report, I ask the Minister to have a very careful look at what we are trying to achieve, whether the Bill achieves it and, in particular, Amendment 60 and the Bill’s effect on the trade union movement—I probably should have declared that I am the president of a TUC-affiliated trade union —and its many voluntary workers who spend their leisure time trying to improve the lives of their colleagues. Please can the Minister have another look?
Lord Carlile of Berriew (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Balfe. I absolutely agree with his fundamental point that here we are trying to create offences which are not necessary because there are already adequate offences to deal with these situations. I do not understand why the police have not used those existing offences in entirely appropriate situations.
I apologise for not having been able to speak at Second Reading, and I will try to be very brief now as a result. We have a situation here in which we are responding to someone else saying to us, “Something has to be done.” There are often situations in which, when we hear those words, the answer should be, “No, it doesn’t; we just need to do the things we have rather better”, and not produce a load of speciality legislation that will barely be used.
Sitting just behind me is a former Director of Public Prosecutions, my noble friend Lord Macdonald of River Glaven. I have heard him, very recently in fact, talk in another setting of the discretion not to prosecute that is vested in prosecutors. I apprehend that in many of the cases we are thinking of here, the police will NFA—no further action—a lot of them. If they do get to the Crown Prosecution Service because the police have not NFAd them, Crown prosecutors will NFA them using the second part of the CPS code test; namely, the public interest. It is very important, is it not, for us and the authorities which we invest with these powers to be proportionate in their use of them?
I absolutely agree with the noble Baroness, Lady Chakrabarti, and others who have said that it is much better in principle for the whole burden and standard of proof to fall on the prosecution. However, I agree with my noble friend Lord Anderson that there is a bit of dancing on pins about that; it does not really make much difference in the end.
We should not be creating offences where, if they are summary offences, lay magistrates are going to find it very difficult to square their consciences with convicting people charged with them, and where—this is the worst possible scenario—if they are triable by jury, the jury may refuse to convict when there is overwhelming evidence that the offence was committed. Juries have done that recently, not least in relation to the Colston statue case in Bristol.
If your Lordships will allow me one quotation, I return in the end to some of the very wise words of Dr Martin Luther King, who said:
“One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”
That does not mean that a member of Just Stop Oil has the right to block the M25; the just or unjust law they would be dealing with is not the Government’s policies on oil but whether it should be a crime to obstruct the highway, so it will not actually help them very much in those cases. What I really want to say is that I think we will spend many hours today talking about issues that we really should not be troubling ourselves with at all.
Lord Horam (Con)
My Lords, I shall follow up on precisely the point that the noble Lord, Lord Carlile, has just made about whether we are wasting our time on something which we should not really be discussing because the offence is already there. As a non-lawyer, I tread with some trepidation in this area, as the Committee will understand, but I would like to have clarified the extent to which the law to deal with this problem already exists. This has concerned me.
I took part at Second Reading and I was very interested in the comments made by the noble Lord, Lord Hogan-Howe, who has operational experience in dealing with problems similar to this, if not this particular problem. No doubt there were similar efforts of a similar kind before this business of locking on to block roads. In his remarks, he said that until recently,
“obstructing the highway has always been a simple offence—an absolute offence. No intent required”.
That had been the position, apparently. However, I gather from his speech that subsequently the Court of Appeal was overruled by the Supreme Court, which said that, if a protest is obstructive, the circumstances of that protest should be taken into account. The noble Lord also said:
“Crucially, it means that protesting in a way that obstructs road users is not automatically a criminal offence.”—[Official Report, 1/11/22; col. 174.]
Therefore, as a lay man, it seems to me that some doubt has been bought into the question of whether an ordinary police officer, acting as he thinks sensible, has the right to stop someone obstructing the highway, even if he thinks the cause is just. There seems to be some doubt, so I hope that when he comes to wind up my noble friend can clear this up. If there is no doubt here, why are we discussing all this? If there is some doubt, there is every reason to have the Bill and this clause. It seems to me that in that situation we need clarity.
Lord Carlile of Berriew (CB)
If I am to be corrected, I am, but may I just offer a view? It is an offence to wilfully obstruct the highway. Of course, if you obstruct it because a person in your car is having a heart attack and needs attention, there will probably be a reasonable excuse for the obstruction and that is a defence. However, it is a summary offence to obstruct the highway, punishable by imprisonment.
Lord Paddick (LD)
Before the noble Lord continues, I ask him to point to the provisions in this Bill that make up for the problem relating to highway obstruction that the noble Lord, Lord Hogan-Howe, identified. Having read this in detail, my understanding is that nothing in the Bill addresses the noble Lord’s concern. Therefore, the question remains: why are we discussing this?
Lord Horam (Con)
The Bill addresses this point, but we could spend for ever on that. None the less, I understand that the Bill is designed to bring clarity to the issue of whether a police officer is within his rights to deal with an obstruction, for whatever cause that obstruction may occur. To answer the point made by the noble Lord, Lord Carlile; clearly, in the situation he outlined, the police officer would exercise his common sense and would not arrest the person in question. Therefore, it seems to me that, if we seek clarity, the more we add bits and pieces to the legislation that put down reasons why people may have a right to protest—for some reason which they bring forward—we simply fudge the whole issue and deduct from the clarity that we need. At the end of the day, people really do want this clarified: they want to know what the rights and duties of the police officer are, and that they are accordingly following those thoroughly.
Lord Macdonald of River Glaven (CB)
My Lords, the extent to which there are gaps in our current legislation that require filling by this legislation is a substantial question. I, for one, will listen very carefully to what the Minister has to say about this, because it seems to me that it is incumbent on the Government to point out what those gaps and loopholes are, and where those gaps and loopholes are being exploited. If the reality is that we have sufficient legislation in place but it is simply not being rigorously applied, that is no argument at all for new legislation: it is an argument for the current legislation to be properly applied. I am absolutely confident that we have legislation to deal with people who climb up on to motorway gantries and cause 50,000 or 60,000 cars to be blocked from travelling around the M25. With respect, I defy the Government to argue with any persuasive force that we do not have legislation to deal with that.
So far as the point made by the noble Lord on the recent Supreme Court judgment in Ziegler is concerned, that reasoning would of course apply to every clause in this legislation. All that the court was saying was that when individuals are arrested for an offence in circumstances where they are exercising their Article 10 free expression rights, a proportionate examination has to be undertaken by the court as to whether the inconvenience, for example, that they are causing is so minimal that it is overwhelmed by their Article 10 rights to protest and that they should therefore be allowed to do so. Of course that is right and it would apply to every clause in the Bill. If the disruption is significant, it will almost always, in my judgment, overcome any Article 10 defence. But I ask, particularly in respect of the offence of locking on: where are the gaps that the Government say exist that need filling by this clause and subsequent clauses in the Bill?
Lord Ponsonby of Shulbrede (Lab)
My Lords, I shall open by thanking the noble Lord, Lord Paddick, for setting the scene and the background to this group of amendments. I agree with the way that he set out the history of this group of amendments. I also thank my noble friend Lady Chakrabarti for the way she set out her amendments and commented on the other amendments. I agree with her assessment that the Bill, as drafted, is vague and broad—and that it is vague and broad in a dangerous way. I agree with those central points.
Throughout the Bill, a number of clauses state that it is a defence for a person charged with an offence under the clause to
“prove that they had a reasonable excuse”
for their actions. As we have heard, the JCHR flagged this as a reverse of the burden of proof, so that rather than the prosecution having to prove that a person’s actions were done without a reasonable excuse and so were unlawful, it is for the defendant to prove, after they have been charged, that they had a reasonable excuse for their actions. This is in contrast to an offence such as obstruction of the highway, which we have just heard about, where the prosecution must prove that the defendant did not have lawful authority or excuse for their actions. For the new locking-on offence, the burden of proof would be on the defendant to show that he or she had a reasonable excuse.
Such a reverse burden of proof may be inconsistent not only with Articles 10 and 11 but with the presumption of innocence—a central principle of criminal justice and an aspect of Article 6 of the ECHR and the right to a fair trial. This is because requiring the defendant to prove something, even on the balance of probabilities, may result in a conviction despite there being an element of doubt, and it is hard to see why a reverse burden is necessary or appropriate in this case. The noble Lord, Lord Anderson, gave the example of a bladed article and the reverse burden of proof in that context. It is of course a defence I am very familiar with as a sitting magistrate in London. It is of course right that the court will take its own view on whether the reverse burden of proof is reasonable in these circumstances.
I agree with the point made by my noble friend Lady Chakrabarti that the better situation is that a police officer, when considering whether to charge, at that point takes into account whether there is a reasonable excuse, rather than it being subsequently resolved in a court case—although I also acknowledge the legal point made by the noble Lords, Lord Carlile and Lord Anderson, that it is not always simple to distinguish between the two. Nevertheless, the point is that the police officer should take into account a potential reasonable excuse defence before deciding whether to charge.
To summarise this debate, two noble Lords made points that I thought were particularly resonant. The noble Lord, Lord Carlile, asked whether this was speciality legislation for ever more exotic offences that can be extremely annoying to the general public. As many noble Lords have said in this debate, there is existing legislation to deal with those offences, and there is scepticism that the police are feeling able to use the legislation that is already within their power. The noble Lord, Lord McDonald, challenged the Minister to give examples of the gaps in the existing laws: in fact, he defied the Minister to go ahead and give those examples.
I also want to comment briefly on my noble friend Lady Blower’s speech on Amendment 60, which of course I agreed with. I also agreed with the point made by the noble Lord, Lord Balfe, that in the case of industrial action it should not be a reasonable excuse. The offences should never be charged in the first place. It is the same point, in a sense, that the potential use of a reasonable excuse should be taken into account right at the beginning of the process rather than once you get to a court case.
Although the amendments focus on particular detailed provisions in this Bill, I think a challenge has been laid down to the Minister to give examples and to say why this is necessary when we have a plethora of laws which are being used. The demonstrators on the M25 have moved on partly because of the sentences that have been given to them, so what is the necessity of pursuing this legislation?
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords who have spoken in this debate, to which I have listened carefully. Before I turn to the specific amendments in the group, I shall start by setting out the case for Clauses 1 to 8 and why I disagree with the general thrust of many of the amendments that we are going to discuss today that seek to make these offences less effective.
Before I do that, I shall go on to a couple of general points. The noble Lord, Lord Paddick, said that this House had already rejected these measures, but one of the main criticisms that noble Lords made during the passage of the Police, Crime, Sentencing and Courts Bill was that the measures had not been debated in the House of Commons. The elected House has now had an opportunity to scrutinise this legislation and vote on the Government’s proposals and has supported its move into the House of Lords.
A number of noble Lords mentioned compatibility with the ECHR. I reaffirm that it is the Government’s view that the measures in this Bill are compatible with the ECHR, namely the rights to freedom of expression, assembly and association. However, these rights are not absolute. They do not extend to wreaking havoc on the lives of others. Of course, however, as with all existing public order powers, the police will absolutely need to act compatibly with the human rights of protesters when using those powers.
Lord Foulkes of Cumnock (Lab Co-op)
It appears from his general introduction that the Minister is going to proceed with this Bill. Surely, in the light of the overwhelming view on both sides of the House that existing legislation is entirely adequate—with one slight hesitation from the noble Lord, Lord Horam—it is a waste of the Minister’s valuable time and this House’s time to proceed with this. Will he now quickly have a rethink and withdraw this Bill?
Lord Sharpe of Epsom (Con)
Well, I thank the noble Lord for that, and the answer is, of course, no.
Lord Foulkes of Cumnock (Lab Co-op)
That is a very clear answer. I wonder whether the Minister could give, perhaps, a sentence or two of explanation as to why he does not think that it would be a wise move to withdraw this Bill, since all its aspects are already covered by existing legislation.
Lord Sharpe of Epsom (Con)
My Lords, it is reasonable to say at this point that we are about to have two days of quite detailed explanation on that, so I am afraid that that is as far as I can go on this.
Returning to the more general points that have been made so far in this debate, particularly as to why the police need these powers, what existing powers they have, and so on and so forth, we will be returning to this in a much later group, and I intend to speak in much more detail on it. From a general point of view, recent protests were clear that they had as their aim the intent of causing as much disruption as possible through the use of what can only be described as guerrilla tactics. These measures give the police the proactive powers necessary to respond to these dangerous and disruptive tactics quickly. We are going to work closely with our partners in the police to ensure that they have the support and resources in place that they need to use these powers.
Again, as my noble friend Lord Horam remarked, too often we have seen protesters acquitted on grounds of technicalities or get penalties that do not reflect the harm that they have caused to others. We want simple, stand-alone offences that ensure that those who cause this level of disruption and misery can be convicted and receive a penalty proportionate to the harm that they have caused. I will return more specifically to the legislation in a later group; I hope that will be acceptable.
To give one example of this type of behaviour, just two Just Stop Oil activists climbed the suspension cables of the Queen Elizabeth II bridge in the early hours of 17 October this year. They caused its closure for more than 36 hours. Once discovered, the Essex Police attended and closed the carriageway so that officers could safely leave their vehicles in an attempt to engage with the activists. It was later advised by National Highways to keep the road closed for the safety of the protesters, road users and responding partners. The closure of the carriageway meant that the entirety of the clockwise traffic from Essex to Kent that usually utilises the QE2 bridge had to be diverted through the east bore of the Dartford Tunnel, halving the usual counter-clockwise Kent-Essex traffic capacity that would normally use all the tunnels at the Dartford crossing. This had a number of knock-on impacts in terms of the emergency services and local communities and businesses. I am sure that we are all familiar with what those were.
The noble Lord, Lord Paddick, raised a hypothetical example of a landowner in respect of a tunnel.
Lord Paddick (LD)
Before the Minister continues, can he point to which part of this Bill would be deployed against the two Just Stop Oil activists who climbed on the QE2 bridge?
Lord Sharpe of Epsom (Con)
Well, we are about to go into a good deal of discussion about things such as serious disruption, key national infrastructure and so on, which form essential parts of this Bill. I am not a policeman, but I imagine that the police are perfectly capable of utilising those aspects of the Bill.
I come to the hypothetical example of the landowner that the noble Lord raised earlier. It is worth pointing out, in relation to the entire Bill, that the threshold is “serious disruption”. In the case that the noble Lord outlined, that is clearly not the case, so there would be no case.
I move on to the measures in Clauses 1 to 8. As well as the measures we will discuss next week, the police will have the proactive powers necessary to respond quickly to these dangerous and disruptive tactics.
I turn to the specific amendments in the group. Amendments 1, 7, 8, 24, 28, 29, 35, 39, 40, 55 and 59, in the names of the noble Lords, Lord Paddick, Lord Anderson of Ipswich, Lord Skidelsky and Lord Coaker, and the noble Baroness, Lady Chakrabarti, seek to move the burden of proof for a reasonable excuse from the defendant to the prosecution, making it a key element of the offence. We will debate the subjects that the noble Baroness, Lady Blower, raised with regard to trade disputes in the fourth group today, so I will defer specific answers to those questions until the debate on that group.
Whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, so we see it as entirely appropriate that the defendant, who has committed the offence in the first place and has personal knowledge of these facts, is required to prove them. It is also the case that the burden of proof resting on the individual is not a novel concept. There are multiple offences where this is the case, including—as the noble Lord, Lord Anderson, pointed out—the defence of good reason for possessing a bladed article in a public place under Section 139 of the Criminal Justice Act 1988.
The noble Baroness, Lady Chakrabarti, raised the example of linking arms. Of course linking arms itself is not an offence; it is an offence and applicable only if the act
“causes, or is capable of causing, serious disruption to … two or more individuals, or … an organisation”.
Groups of protesters linking arms and obstructing roads or buildings can cause just as much disruption as those who use other equipment to lock on. For example, it is not right that groups of people who glue themselves to roads may fall under this offence but those who link arms and cause just as much disruption do not.
On the question from the noble Lord, Lord Anderson, on why the burden of proof being on the defendant is in the public interest, we have seen people cause so much serious disruption and then continue to burden the prosecution with more and more requirements to prove things. Surely it is right that, where people have caused this kind of disruption, they should demonstrate that they had a reasonable excuse.
With these offences, the prosecution will still need to prove all the elements of the offence to the criminal standard of proof, including that the act
“causes, or is capable of causing, serious disruption”,
as I just explained, and that the defendant intended or was reckless as to serious harm disruption. For those reasons, I respectfully disagree with the amendments.
Lord Sharpe of Epsom (Con)
Again, we will come back to that in some detail in the debate on a later group. The amendments have been grouped thematically today so there will be a bit of overlap, for which I apologise. For now, I respectfully disagree with these amendments and ask that they not be pressed.
Lord Carlile of Berriew (CB)
Will the Minister at some point explain to us why Section 78 of the Police, Crime, Sentencing and Courts Act 2022, introduced by this Government, does not meet exactly the requirements discussed in this Bill? It is not an ancient Act of Parliament but a new one, and it seems to me to fit the bill proportionately.
Lord Sharpe of Epsom (Con)
I commit to doing that in the debate on a later group.
Lord Paddick (LD)
Can the Minister address the issue of people being arrested and detained, and being allowed to deploy a reasonable excuse defence only once charged, as opposed to someone not committing an offence if they have a reasonable excuse, which is the normal process with most legislation?
Lord Sharpe of Epsom (Con)
My Lords, I think I have gone into reasonable detail on the reasonable excuse situation, so I will rest my comments there for now.
Lord Paddick (LD)
I am sorry to disagree with the Minister, but he addressed the issue of whether the burden of proof was on the prosecution or on the defence. He did not address, in any shape or form, police being allowed to arrest and detain people and their being allowed to deploy the reasonable excuse defence only once charged.
Baroness Hamwee (LD)
If the Minister is going to come back to my noble friend, could he do so in this Chamber? That question is absolutely fundamental to the discussion on the Bill. To have the answer in writing, available in the Library if one goes to look for it, is in our view not adequate.
Lord Paddick (LD)
This is Committee, so we are allowed this sort of debate. I want to reinforce what the noble Lord, Lord Carlile, said about Section 78 of the Police, Crime, Sentencing and Courts Act. It says:
“A person commits an offence if … the person … does an act, or … omits to do an act that they are required to do by any enactment or rule of law … the person’s act or omission … obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and … the person intends that their act or omission will have a consequence mentioned in paragraph (b)”.
That covers, completely and perfectly, the people on the gantry of the QEII Bridge. The maximum sentence for that activity is up to 10 years in prison. None of the provisions in this Bill goes anywhere near 10 years in prison. Why do the Government not rely on existing legislation rather than creating all these other offences?
Lord Sharpe of Epsom (Con)
My Lords, I think I have already gone into that. As I say, the Bill creates another set of offences designed to deal with evolving protests, but I will come back on the specific point about the PCSC Act.
Baroness Chakrabarti (Lab)
My Lords, I am almost speechless. I do not blame the Minister, but those briefing him really need to consider what we have been discussing today; we are talking about the rights and freedoms of people in this country, and it is a very serious issue.
I thank all noble Lords who have participated in this debate on the first group. I particularly thank the noble Lord, Lord Paddick, for, as always, bringing his policing expertise as well as his parliamentary skills to the debate. I also thank him for mentioning Charlotte Lynch, the LBC journalist who was arrested last week beside the M25 with a valid press card and with a microphone that was clearly branded with the name of her broadcaster. She offered her press card to the police, who then slapped handcuffs on her. They took her mobile phone from her and started scrolling to see who she might have been speaking to. Perhaps she had been tipped off about the protest by protesters; that is what journalists do in a free society. She was subjected to a body search and taken to Stevenage police station. She was detained in the police station in a cell with an open toilet and a simple bed for five hours, and was eventually let go without a police interview. Records show that they arrested her for the offence of “conspiracy to cause a public nuisance”. That happened under the existing law.
Now, without addressing concerns about incidents of that kind, and in the wake of what happened to Sarah Everard and all the crises there have been in public trust in policing in this country, the Government are proposing this suite of new offences—yet the Minister has not been able to identify the gap that those offences are supposed to address. That is a matter of considerable concern—a concern which was mentioned by almost every speaker in this debate, with the exception of the noble Lord, Lord Horam, and the Minister himself. The noble Lord, Lord Horam, called for clarity in the law, but I am afraid I was not totally clear which provisions or amendments he was addressing.
The noble Lord, Lord Anderson of Ipswich, gave a master class on issues of burdens of proof and reverse burdens, which are sometimes used in law. However, I remind the Minister that, when they are used in law, it is in relation to very tight offences that are problematic per se, such as carrying a blade or point in a public place. Most members of the public understand that that is not innocent activity; it is incumbent on somebody to explain why they needed to be carrying that knife in the street. That is not the case with carrying a bicycle chain or linking arms with a friend. That is innocent activity per se that is rendered criminal in certain circumstances, and so it is particularly dangerous to flip the burden of proof. Further, on the point made by the noble Lord, Lord Paddick, it is essential that the person should be able to say to the police officer before they are arrested—not seven hours later, in Stevenage police station—that they have a legitimate reason for what they have done. I ask the Minister to think about Charlotte Lynch when he reflects on the powers that he is being asked to justify by others in this Chamber.
Lord Balfe (Con)
I suggest to my noble friend that it also leads to juries being less and less likely to convict because they see these offences as being very spurious.
Baroness Chakrabarti (Lab)
I could not agree more with the noble Lord, Lord Balfe. Again, it echoes something that the noble Lord, Lord Carlile of Berriew, said. He will forgive me if I summarise his excellent contributions: let us not bring the law into disrepute—not in this place. We are not an elected House, but we are a scrutinising Chamber; we have the time and expertise to make sure that we do not bring our statute book into disrepute. That is where we agree, across the Benches and across this Committee.
I totally agree with the noble Lord, Lord Macdonald of River Glaven, that having proportionality in our law is not a problem; it is a benefit. Ministers should not work so hard to squeeze out the judgment and proportionality that must be employed by decision-makers, including police officers and courts.
I will stop there, save to say once more to the Minister that he has not been well served in some of his briefing. Respectfully, it is perfectly legitimate for Members in this Committee to begin by asking the Government to justify why they are legislating and where there is a gap in the existing law, because that central point has not been addressed in this hour of debate. If we do not address it, there will be more cases like that of Charlotte Lynch, and others who are not journalists—in some cases they are bystanders and in some cases they are peaceful dissenters. There is plenty of police power on the statute book and some of it has been abused. There are plenty of criminal offences and some of them have not been used when perhaps they might. It really is for the Government to justify interfering further with the spirit of British liberty. With that, I will—for now only—beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, before calling Amendment 2, I must advise the Committee that if it is agreed to I will not be able to call Amendment 3 due to pre-emption.
Amendment 2
Lord Paddick
Member's explanatory statement
This would limit the offence to an act that causes serious disruption.
Lord Paddick (LD)
My Lords, in moving Amendment 2 in my name I will speak to the other 12 amendments in this group. Amendment 2, supported by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Chakrabarti, is related to the offence of locking on. I remind noble Lords that the Government’s Explanatory Notes suggest that
“Recent changes in the tactics employed by … protesters have highlighted some gaps in … legislation”,
of which this is one. Suffragettes chained themselves to railings, so to suggest that this is a gap in legislation as a result of recent changes in tactics employed by protesters is nonsense. I expect the Minister will challenge such an assertion, but we can debate that when he responds.
This amendment would narrow the offence of locking on where such actions—attaching themselves or someone else to another person, an object or the road, for example, to cause serious disruption—by removing the wider offence of an act that
“is capable of causing, serious disruption”.
Can the Minister explain what “capable of causing” actually means? If someone locks on in a minor side road or at the entrance to a cul-de-sac, causing little or no disruption, but had similar action been taken on a busy major road it would have been capable of causing serious disruption, would they commit an offence in such circumstances? If they block a busy major road at 3 am when there is no traffic, whereas had it been 10 am they would have caused major disruption, does that amount to it being capable of causing serious disruption in another place and time? Amendment 2 seeks to restrict the offence of locking on to incidents where serious disruption is actually caused to probe what “capable of causing” means and how widely the offence would be applied.
Amendment 25 in my name would again remove “is capable of causing” in relation to the offence of tunnelling, for similar reasons. Can the Minister explain what sort of tunnel might be capable of causing serious disruption but does not actually do so? Why, in that case, does it need to be criminalised? Similarly, Amendment 36 in my name, supported by the noble Baronesses, Lady Chakrabarti and Lady Fox of Buckley, seeks to remove “is capable of causing” in relation to the offence of being present in a tunnel. Again, can the Minister explain how someone’s presence in a tunnel might be capable of causing serious disruption without actually doing so?
Amendment 3, in the name of the noble Lord, Lord Coaker, which we support and is signed by my noble friend Lady Ludford, similarly seeks to limit the scope of the offence by removing the reference to causing serious disruption to two or more people and replacing it with
“serious disruption to the life of the community”,
as suggested by the Joint Committee on Human Rights. We support this amendment.
Amendment 4, in my name and supported by the noble Lords, Lord Coaker and Lord Skidelsky, seeks to restrict the offence to cases where there is an intent to cause serious disruption—not merely, as currently drafted in Clause 1(1)(c), being
“reckless as to whether it will have such a consequence”.
Can the Minister give an example of when someone who does not intend to cause serious disruption should be guilty of the offence—in this case, of locking on —when they are simply exercising their right to protest?
Amendment 26, in my name, similarly seeks to narrow the tunnelling offence to cases where there is an intent to cause serious disruption, rather than where someone is merely “reckless” as to whether their tunnel might cause serious disruption. Can the Minister give an example of reckless tunnelling that might fall within the scope of the offence as drafted?
Similarly, Amendment 37, in my name and supported by the noble Baroness, Lady Fox of Buckley, seeks to narrow the definition of the offence of being present in a tunnel to cases where there is an intention to cause serious disruption. Would a journalist who goes to interview protestors in a tunnel be guilty of an offence of being reckless as to whether her presence in the tunnel might cause serious disruption, for example? Can the Minister provide any reassurance?
Amendment 6, in the name of the noble and learned Lord, Lord Hope of Craighead, and Amendment 23, in the name of the noble Baroness, Lady Chakrabarti, supported by the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Boycott, quite rightly attempt to place a definition of serious disruption on the face of the Bill, rather than asking us to sign a blank cheque where such a definition is decided by the Secretary of State subsequently by statutory instrument.
Similarly, in relation to the tunnelling offence and the being present in a tunnel offence, Amendments 27 and 38 in the name of the noble and learned Lord, Lord Hope of Craighead, seek to provide a definition on the face of the Bill of serious disruption in relation to tunnelling.
Amendment 17, in the name of the noble Lord, Lord Coaker, and supported by my noble friend Lady Ludford and the noble Lord, Lord Anderson, seeks to define
“serious disruption to the life of the community”
in Amendment 3.
Finally in this group, Amendment 54, in the names of the noble Lord, Lord Coaker, and my noble friend Lady Ludford, to which we give qualified support—subject to what the noble Lord, Lord Ponsonby of Shulbrede, will say in explaining the amendment—seeks to provide a definition of serious disruption to major transport works, as suggested by the Joint Committee on Human Rights. However, we have concerns over the inclusion of “reckless” in this definition, for reasons I have previously explained.
I think noble Lords will see the complexity of this Bill and the problem we have in trying to cram so many amendments into one group. If the Minister is able to respond to each and every remark I have made, I will be astonished. I beg to move.
Lord Hope of Craighead (CB)
My Lords, my name is to Amendments 6, 27 and 38, which have been mentioned by the noble Lord, Lord Paddick. They answer a question which was posed by the noble Lord, Lord Skidelsky, who asked if there is a definition of “serious disruption” in the Bill. There is not, and my amendments seek to provide a definition. I am concerned about the meaning of words, which is always crucial in Bills of this kind.
I am a member of the Constitution Committee and in our scrutiny of the Bill we noted that the clauses which use the phrase “serious disruption” create offences which could result in severe penalties. Most of them may be taken summarily before a magistrate, but then they lead on to other things. They could, in due course, lead to a serious disruption prevention order and all that that involves. The committee took the view that a definition should be provided.
We looked at Section 78 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Lord, Lord Carlile, referred, but, in our view, if one has to go down the line of designing a new offence, that definition was not tailored to the offences that we are talking about in the Bill. Therefore, the committee’s recommendation was that the meaning of “serious disruption” should be clarified proportionately in relation to each of the offences where the phrase arises.
In regard to locking on, I seek to say that “serious disruption” means
“a prolonged disruption of access to places where the individuals or the organisation live or carry on business or to which for urgent reasons they wish to travel”—
a hospital appointment, for example—
“or a significant delay in the delivery of time sensitive products or essential goods and services.”
So I have tried to design something that is very specific to the locking-on offence described in Clause 1.
Baroness Jones of Moulsecoomb (GP)
I cannot sit still any more. I am starting to feel sorry for the Minister, who is on a very sticky wicket because this is clearly rubbish legislation. I do not understand how it got through or who directed the civil servants to write it. It is absolute rubbish. We have heard all of the arguments about how it is so broadly written and will criminalise too many people—many more than the peaceful protesters whom the Government are trying to target. I just wonder where the idea came from. This is so right-wing; it is not an appropriate Bill for a democracy.
The noble Lord, Lord Paddick, has beautifully laid out the lack of a definition of “serious disruption”, and I cannot better that. But, for example, what about arresting the Government for serious disruption to the NHS over the last 12 years? I would support that. But we would obviously have to know exactly what “serious disruption” meant.
The criminal courts in this country are crumbling and cannot cope with the number of cases that they have at the moment. Yet here the Government will insist on more cases, sometimes on very specious grounds, which will clog up the courts even more and make life even more difficult for people who care about justice and law. I beg the Minister to meet with some of the more learned noble Lords here and perhaps start either to clarify the Bill or to scrap it altogether.
Lord Carlile of Berriew (CB)
My Lords, I will make a very serious request of the Minister, who is dealing with this difficult Bill with great courtesy and who is very amenable to comment, even if he disagrees. I ask him to take the trouble, before he replies to this debate, to read Section 78 of the Police, Crime, Sentencing and Courts Act 2022—it is only one page, and I will lend him my iPad if he needs it. In this country, we have training for magistrates and judges, which is provided by the Judicial College— certainly for judges; indeed, I see the noble Lord, Lord Ponsonby, nodding that this is the case for magistrates as well. One of the reasons why this training is provided is to ensure consistency between courts around the country.
If there are two sets of legislation—this Bill and Section 78 of the 2022 Act—the Government cannot control who charges whom with what. It is quite likely that, in “Lonechester”, the police will charge someone who glued themselves to the passageway of the cathedral with this new law, while in “Scuddersfield” they will charge them with Section 78 of the 2022 Act. They are quite different: the Bill is basically a summary trial on these offences and has very low sentencing powers, but the 2022 Act, which we have already passed, has a maximum sentence of 10 years’ imprisonment, as the noble Lord, Lord Paddick, said. We cannot expect police officers to know these differences when they are busily rushing around trying to save the public from being stuck on the M25 for seven hours. But they can expect the law to make life easier for them by ensuring that it has that consistency. At the moment, we are breaking the rules which we generally set ourselves to scrutinise legislation so that we do not create ambiguity and inconsistency. In the context of what we are discussing now, nothing in the Bill is not covered under Section 78 of the 2022 Act, which has already had the scrutiny of your Lordships’ House.
The Lord Bishop of Southwell and Nottingham
My Lords, in the absence of my right reverend friend the Bishop of St Albans, who is a signatory to Amendment 17 but unable to be present in the Chamber this afternoon, I am pleased to speak in its support, as it provides much- needed clarity to the law. I am also very grateful to the noble Lord, Lord Paddick, for explaining the amendments with such clarity at the beginning of this group.
I will make two main points. First, the Bill, in its present form, fails to provide a definition of what constitutes “serious disruption” to the “community”. I strongly support providing a strict statutory definition of this; it will give clearer guidelines to the police as to what is acceptable, as well as to those wishing to engage in lawful protest, and will provide much-needed democratic oversight to the Bill. Under the current law and the Bill as drafted, there is no clear definition of what disruption to the community means, and it would be subject to the discretion of the police themselves. A lack of clarity is not helpful to either the police or the community. As reported in evidence to the Bill Committee in the other place, many police officers have expressed a desire for clearer statutory guidance, and many are concerned that they will be asked to make decisions on matters which they do not have the confidence to make. If we are to reflect on the consequences of the amendment, we can see that it would mean that protesters would rightly be prevented from disruption to essential services—schools, hospitals or places of worship—but the right to reasonable democratic protest would still be protected.
Secondly, it is important that proposed new paragraph (c) in the amendment upholds the access to “a place of worship” as an essential service. I am very pleased that this amendment would enshrine freedom of religion or belief as a central part of the Bill. As we have been reminded over the pandemic, churches and other religious buildings offer essential services for their local community. Access to these buildings and the pastoral work of the clergy and other faith leaders should not be unreasonably hindered.
Churches are not unfamiliar with protests. Indeed, they have sometimes been a catalyst for good and even forthright protest inspired by principles of faith in the interest of the common good. The example of Jesus is a challenge and, I believe, an inspiration in this regard. Sadly, there have also been times when churches have been the focus of reasonable protest, challenging the Church when it and society have failed to exemplify the values that underpin faith. Either way, many protests over the centuries have happened inside or within the vicinity of our buildings. Churches are public buildings, places of sanctuary and refuge, there to serve all in their community. They are therefore to be considered essential places for people to meet, to worship and to nourish their faith, and for all who are seeking spiritual comfort or hope, often in difficult times. The right to attend a place of worship is therefore a vital human right enshrined in law in our country, and it is important that this law makes that clear. I once again express my wholehearted support for this amendment.
Lord Skidelsky (CB)
My Lords, I speak in support of Amendments 2 and 4 in the name of the noble Lord, Lord Paddick, to which I have added my name.
Amendment 2 is designed to raise the threshold required for the committing of the offence of causing a disruption. The clause leaves what is capable of causing disruption to purely subjective judgment, which is not satisfactory. I do not think that I have ever made a speech that insults members of the audience; I hope I never have. But such a speech may be reasonably deemed to be capable of causing a serious disruption—at least maybe in the other place, if not here. In other words, an event has to happen that is provocative in order to make it reasonable for the police to come to that conclusion. Whether it is provocative is the test of whether it is capable of causing disruption. Perhaps I can make a constructive suggestion here: every time the words “capable of causing disruption” appear, why do not the Government put in front of them “It is reasonable to believe that it is”?
On Amendment 4, the purpose is to make the intention to cause serious disruption the test of an offence. I strongly support that. I have become increasingly suspicious of the growing tendency to treat reckless speech—and suspicious, in fact, of the word “reckless” —or action as a criminal offence in itself, regardless of the intention of the speaker or actor. Of course I should consider the consequences of my words and actions—everyone should—but the line between reckless speech and free speech is a delicate one, and I would prefer to err on the side of free speech and peaceful protest.
Lord Hain (Lab)
My Lords, I support most, if not all, of the amendments in this group seeking to circumscribe the new powers over “serious disruption”, especially Amendment 23. I do so not to offer the kind of forensic advice and analysis that many much more eminent noble Lords have already given today, but to offer a general and a more personal view, because I think the Bill takes the state’s power to restrict the right to protest to unprecedented levels. Many of the clauses in the legislation bear a striking resemblance to anti-terror laws. Surely, this is no way to treat those exercising their fundamental rights to dissent in the liberal democracy that the Government claim the UK to be. It is more like a police state Bill, in my view, than a liberal democracy one; more something that Beijing’s autocracy would favour, as opposed to London’s democracy.
Noble Lords need not take my word for it. Please read the recent Financial Times article by the noble Baroness, Lady Cavendish of Little Venice, who elegantly but devastatingly demolishes the case for the Bill and its many clauses, including those we are discussing right now. The noble Baroness is no leftie: she was a policy adviser to Prime Minister David Cameron. Under this Government, the trajectory of public order legislation has slowly chipped away at people’s fundamental rights, weighting the balance of power heavily towards the state and its agencies. These amendments are trying to redress that a bit, but the legislation advances that trajectory, despite the ink barely being dry on the recently passed Police, Crime, Sentencing and Courts Act. It is a constant ratcheting up of restrictions at the expense of our freedoms and the health of our democracy.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have put my name to Amendments 36 and 37 in the name of the noble Lord, Lord Paddick. I could also have backed a number of other amendments. The noble Lord clearly explained lots of problems with the clauses discussed in this group. The only thing that I did not agree with—the noble Lord, Lord Hain, also said this—was when he compared present-day protesters with the suffragettes. The suffragettes were democrats without the vote; Just Stop Oil are anti-democrats with the vote. There is a real distinction there.
Although I have very serious reservations about this Bill and think it is unnecessary, we need to approach the discussion and debate going on outside this House with a little more humility. On the first group, a number of noble Lords raised the point that the country was up in arms about the Bill. I do not recognise that description; actually, many people in the country are up in arms about the Just Stop Oil protesters. They are so frustrated that we have people ruining their daily lives and getting in the way and that not enough is being done about it. My argument with the Government is that this is a crisis of policing, which they will not tackle and instead have introduced a whole new set of laws that we do not need.
As legislators, I understand the need for a definition of “serious disruption”, and the noble and learned Lord, Lord Hope of Craighead, explained the difficulties around defining it. But the people we are talking about who are locking themselves on, tunnelling and so on, boast that they are seriously disrupting things. They say, “What choice have we got? We’re involved in serious disruption.” They do not have a definitional problem; they say, “We’re trying to seriously disrupt the ways of life of everyone until we get our way and until you agree with us”.
So in some ways it is important that the Government do not exploit the fact that we have protesters who say “Our job is to seriously disrupt the lives of ordinary people” and ordinary people who are completed frustrated that nothing is being done about these people seriously disrupting their lives, and say that we need all these laws—because this is not the solution to that problem. It is a con, as I said in my Second Reading speech. An answer should be given to the point made by the noble Lord, Lord Horam, that, if the Government’s argument is that we do not have laws on the statute book that can deal with very specific issues, they have to be very clear about exactly why the laws do not work at present. If it is the Supreme Court, then say that—but at the moment there is a muddle on that question.
On the specific amendments dealing with “serious disruption”, given that we have protesters—I think they are more people who indulge in stunts, rather than protesters—who admit that they intend to cause serious disruption, I am concerned that there should be some intent to cause serious disruption, which is why Amendment 37 is important. The noble Lord, Lord Skidelsky, made a hugely important point about the way that the term “reckless” will be used to clamp down on this; the idea that your intention is read into it as being reckless indifference is one of the great ways that censorship is happening in this country. I am very nervous about having in law a situation where, whatever you intend, the law can decide that you intended something. That is why I support Amendment 37.
Amendment 36 would limit the offence to an act that actually causes serious disruption, rather than one that is capable of causing serious disruption. It seems to me that if something does not cause serious disruption, it is not serious disruption. It seems blatantly ridiculous for a Bill to criminalise something that is not seriously disruptive because it could be seriously disruptive at a different time and a different place.
I rather liked the example of what happened recently in Germany, where people locked on in the Volkswagen museum. They did not cause any serious disruption because the curators turned the lights out, turned the heating off and went home, leaving them there. As it happens, the protestors response to this was to complain that they had been left in the cold and that they could not order in food. Instead of draconian and criminalising bills, perhaps what we need is a bit more of that kind of attitude, both from the police and from institutions, which seem to stand by and do nothing as disruption occurs. However, I do not want the law to compensate for that spinelessness either.
Lord Marlesford (Con)
My Lords, having not spoken at Second Reading, but having listened to the debate, I want to contribute one thought which I think follows rather well from what the noble Baroness, Lady Fox, said. This debate on the definition of the word “serious” is really pretty sterile. Talking about the word “serious” is rather like talking about whether a work of art is good or not good. What we are really talking about is judgment, and the judgment of many different groups: of the demonstrators, of the police, and of the courts and within the courts—juries, magistrates and all the rest of it. All we are striving to do is to get what the people as a whole—who are demanding something better than what is happening at the moment—want: better solutions when things happen. I do not believe that we can be precise in laying down in law what is serious or not serious, but that does not mean that we cannot use the word “serious” as shorthand for the collective judgment of all those interests involved.
Lord Anderson of Ipswich (CB)
My Lords, the noble Lord, Lord Hain, with his proud record of disruption, cautioned us against forensic critiques. I am afraid that he is in for another one, but in my defence, I will make it very short.
The Minister hinted at the end of Second Reading that he would give thought to a definition of “serious disruption”, which I think would be useful. That is certainly what police witnesses suggested in another place, and what some of us, including my noble friend Lord Hogan-Howe, suggested at Second Reading. I am grateful to the Minister for the opportunity to discuss it yesterday.
I put my name to Amendment 17, recommended by the Joint Committee on Human Rights, which is based on part of the definitions in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022. Having now had a chance to review Amendments 6, 27, and 38, in the name of my noble and learned friend Lord Hope, I am minded to jump ship—I hope that does not make me a rat—because I think his amendments may be better adapted to the purposes of the Bill.
The particular merit of my noble and learned friend Lord Hope’s approach is to recognise that the offences in Clause 1 on the one hand and Clauses 3 and 4 on the other are very different in nature. Disruption consequent on locking on is liable to be caused to any individuals or organisation based or carrying on business in the locality, and it is right that the definition should acknowledge this. Equally, it seems right that the threshold should be a very high one: “prolonged disruption of access” to homes, workplaces or other places to which there is an urgent need to travel, or
“significant delay in the delivery of time sensitive products or essential goods and services.”
That latter condition about significant delay appears in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022 but has, for some reason, been omitted from the JCHR definition.
The tunnelling offences are of a different nature. The serious disruption that they seek to address is to “construction or maintenance works” or related activities. Amendments 27 and 38 appropriately reflect that narrower scope.
If the Government are going to come back with a definition, or definitions, of “serious disruption”, I hope they will see the force of doing it in this way. My noble and learned friend Lord Hope modestly suggested that they might be able to manage something more proportionate and carefully phrased than he did—all I can say is, good luck with that.
Lord Macdonald of River Glaven (CB)
My Lords, as a former prosecutor, I commend Amendment 6 to the Minister. I have no doubt at all that a definition along the lines of that pressed by the noble and learned Lord, Lord Hope of Craighead, would be of assistance to the police in judging their response to these sorts of events. A definition would certainly be of assistance to prosecutors in coming to a determination about what the appropriate charge is. It would assist judges in summing up cases to juries, and it would certainly assist juries in coming to fair conclusions by judging the conduct of defendants against an intelligible definition. If we do not have a definition, the danger is that people will be more at sea than they need be.
I have one other point. People who are proposing to go out and demonstrate are entitled to understand and to be able to predict with some confidence whether what they are proposing to do will be lawful or unlawful. This is an important aspect of the rule of law: that the law is predictable and the consequences attendant on the behaviour that demonstrators seek to engage in are predictable. This important aspect of the rule of law is clearly undermined by a lack of certainty in the Bill in the absence of a definition of one of its most important concepts—that of “serious disruption”.
Baroness Blower (Lab)
My Lords, my noble friend Lady Chakrabarti is unable to be in her place for this group, which affords me the opportunity to speak to Amendment 23, which would include in the Bill a definition of “serious disruption”—a single definition, in contradistinction to the ideas proposed by the noble and learned Lord, Lord Hope.
Much turns on this phrase; it appears a grand total of 132 times, acting as a core component to several new and extremely broad criminal offences. As things stand, the consequence of “causing or contributing to” serious disruption of varying kinds could result in a prison sentence, unlimited fines or a variety of conditions imposed through what many are calling protest banning orders, including GPS ankle tagging, bans on internet usage, prohibitions on associating with certain people and, again, imprisonment—yet, as we all now know, nowhere in the Bill is “serious disruption” defined.
The former Minister, Kit Malthouse MP, claimed at Second Reading in the other place that
“the phrase ‘serious disruption to the community’ has been in use in the law since 1986 and is therefore a well-defined term in the courts, which of course is where the test would be applied under the legislation.”—[Official Report, Commons, 23/5/22; col. 106.]
I am afraid that I do not think that explanation suffices. The test to which the former Minister refers is that set out in the Public Order Act 1986, which is now almost four decades old. It relates to the imposition of conditions on public procession, assemblies and one-person protests. This Bill is very much wider, and that framework does not necessarily neatly map on to what is before the House today.
I add that it is surprising that the Government should be content to allow legal uncertainty and let the courts, through lengthy and expensive litigation, rather than through Parliament, set the parameters of what actions they wish to criminalise. The lack of a definition of serious disruption in the Bill is an obvious and, in my view, critical deficiency and one which Members on all sides of this House and those in the other place have identified on several occasions.
The Joint Committee on Human Rights remarked in its report:
“It is unclear who or what would need to be seriously disrupted, what level of disruption is needed before it becomes serious and how these questions are meant to be determined by protesters and police officers on the ground—or even the courts.”
At Second Reading, the noble Lord, Lord Anderson, made apt reference to both the Joint Committee report and the evidence to the other place from West Midlands Police, who called for
“as much precision … as possible”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 58.]
in defining serious disruption. The noble Lord, Lord Hogan-Howe, who has much experience of police operations in response to protests through his time as Metropolitan Police Commissioner echoed this call for clarity. In another place, Sir Charles Walker condemned the overall thrust of the Bill, no doubt worsened by this vague and all-encompassing term, calling it “unconservative”.
Therefore, it was heartening to hear at Second Reading the Minister recognise the House’s “strength of feeling” on this issue and that
“a clear definition could bring benefits”.—[Official Report, 1/11/22; col. 204.]
This amendment would deliver such benefits, giving legal certainty and precision to what are otherwise vague and, frankly, highly draconian offences. It does so by clarifying that before the Bill’s offences are engaged, significant harm must be caused to persons, property or, per the Public Order Act 1986, the life of the community. It sets the bar at an appropriately high level, stating that “significant harm” must be
“more than mere inconvenience, irritation or annoyance”.
The example of people joining arms to walk down the street has already been given, so I will not repeat that. Under the amendment’s proposed definition, these ordinary everyday behaviours would be rendered safe from undue criminalisation. The definition also requires that significant harm must be
“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence, provided for under this Act.”
We have seen the police exercise existing powers inappropriately and disproportionately—I will not go into the case of Charlotte Lynch yet again, but it is one such.
This amendment is designed to prevent the future misuse of any new offences and powers created. Its benefits are threefold, giving guidance to the police in exercising their powers; safety to the public, who should be free to enjoy their right to protest free from prosecution; and clarity to the courts when they must interpret the law.
The criminal law acts as a powerful and coercive tool by which dividing lines are set between conduct Parliament has deemed acceptable or unacceptable. As the former senior Law Lord and eminent jurist, Lord Bingham, posited in the 2003 case, R v H and the Secretary of State for the Home Department, its purpose is
“to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society”.
Clear definitions are therefore indispensable, for without them, how is the public expected to understand what is proscribed, from what they are being deterred or what Parliament has concluded is sufficiently damaging to the interests of society?
I strongly believe that the Bill should be voted down in its entirety. It represents a dangerous and authoritarian boost to the state’s power to curtail the vital right to protest peacefully. However, this amendment’s definition would go some way to remedying one of the Bill’s many critical flaws. I therefore commend it to the House.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak to the amendments in my name and the name of my noble friend Lord Coaker. This debate has been about the threshold for committing an offence, the meaning of the phrase “serious disruption”, which is not defined in the Bill, and the need for the intent of an offence for an offence to be committed. The key overarching issue is the drafting of good law and not broad, poorly defined offences and powers which the police then have to try to navigate.
I turn first to Amendment 3, as drafted and recommended by the JCHR. It would change that threshold to causing serious disruption to the life of the community. This is supported by the National Police Chiefs’ Council, which in its written evidence stated
“In addition, we believe using the definition of ‘serious disruption to the community’ may be preferable to ‘two or more people, or an organisation’, as the former is more widely understood and will allow more effective application consistent with human rights legislation.”
In the Commons Committee stage, the Minister, Kit Malthouse, referenced disruption to the life of the community as the threshold for the offence of locking on. He said that some behaviour
“would not necessarily cause serious disruption to the life of the community, and would therefore not necessarily constitute an offence under the Bill.”—[Official Report, Commons, Public Order Bill Committee, 14/6/22; col. 93.]
So it seems that the Minister already agrees that there may be a more appropriate threshold.
Moving on to Amendment 17, this is a JCHR recommendation that goes hand-in-hand with Amendment 3 to provide a definition of serious disruption to the life of the community in the Bill. I recognise that the noble Lord, Lord Anderson, has jumped ship and is supporting the noble and learned Lord, Lord Hope. I reserve my judgment; I may do the same at a later stage but, for the moment, I will press ahead with Amendment 17. It is one option, as drafted by the JCHR. It replicates the definition eventually added by the Government to the PCSC Act but, as we have heard, this group contains multiple possibilities for how the necessary level of disruption could be appropriately and clearly defined.
Turning again to the evidence submitted by the National Police Chiefs’ Council, it has requested clarity to allow it to respond operationally, saying:
“Within public order legislation ‘serious disorder, serious damage to property and serious disruption to the life of the community or intimidation of others’ is a key phrase. The elements of serious disorder, serious damage and intimidation are accepted and clear. However, the term ‘serious disruption’ has been subject to much discussion and debate. Within any new legislation we would welcome clarity or guidance about the threshold and interpretation of this to allow operational commanders to best apply their operational responses.”
This amendment is about clarity, as well as passing laws that can be easily understood by both the public and the police.
Amendment 23, spoken to very powerfully by my noble friends Lady Blower and Lord Hain, would provide a definition of serious disruption as actions
“causing significant harm to persons, property or the life of the community.”
It specifies that serious harm must mean
“more than mere inconvenience, irritation or annoyance”
and be action
“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence”
provided here. I support that amendment as well.
Amendment 54 is again a JCHR recommendation. It adds, first, a threshold of causing serious disruption, and secondly, a requirement that there was an intent to cause serious disruption to the offence of obstructing major transport works. The JCHR said that
“there is no requirement that the offending conduct could be capable of causing significant disruption and there is no requirement that these actions be carried out with any particular intention of causing obstruction or disruption. This means that inadvertent actions could result in arrest or even a criminal penalty.”
Across this group of amendments, the question of intent is integral to the debates that we have been having. The question of whether it is intended or reckless is really key to these debates. Can the Minister say something more about what recklessness covers? It is a phrase that is used in many other aspects of law, but how will the police be expected to prove that a person has been acting recklessly or not?
Lord Sharpe of Epsom (Con)
My Lords, I once again thank your Lordships for all the contributions made in this debate. We turn to a series of amendments which seek to raise the threshold for the corresponding offences. Amendments 2 and 4 target the lock-on offence; Amendments 25 and 26 target the tunnelling offence; Amendments 36 and 37 target the offence of being present in a tunnel; and Amendment 54 targets the offence of obstruction of major transport works.
Before I deal with some of the questions concerning those amendments, I will just say two things. First, on the subject of the suffragettes, I entirely agree with the distinction the noble Baroness, Lady Fox, made between the protesters we see now and the suffragettes. Secondly, while we are slightly off the subject, I will make a few comments about the journalist who was arrested, who has been referred to twice. Clearly, the arrest of journalists lawfully reporting on events should not have happened—I want to make that very clear. I understand that an independent investigation into the arrests has been commissioned by the relevant police force. However, we do not agree that more powers will lead to further arrests of journalists: the issue lies with the training of journalists—a subject to which we will return.
Lord Sharpe of Epsom (Con)
The training of police— I am sorry.
The scope of the offences is drafted as such to ensure that all kinds of behaviour that protestors engage in to cause misery and disruption can be captured. Amendments 2 and 4 would mean the offence would not account for situations where, for example, a person has locked on to a dangerous structure but is removed by the police before maximum disruption can be inflicted. Amendments 25 and 26 would mean the offence would not account for situations where, for example, a person has started creating a tunnel but is removed before maximum disruption can be caused. Amendments 36 and 37 would not account for situations where, for example, a person is present in a tunnel with the intent to cause serious disruption but is removed by the police before the tunnel can reach the designated area where maximum disruption can be inflicted.
Amendment 54, tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Ludford, seeks to add a threshold of causing “significant disruption” to the offence of interfering with key national infrastructure. I am not sure whether the amendment should say “serious” disruption rather than “significant” disruption, as I note that the JCHR’s own explanatory statement stated the former. That would echo the threshold for other offences in the Bill. If Amendment 54 is intended to add a threshold of serious disruption, I would argue that while we assess that it is right for the lock-on offences and certain other protest-related offences to include serious disruption within their scope, we do not see it as necessary here.
As I have stated already, protestors have been able to cause huge damage to major projects such as HS2. While much attention has been focused on how protest activity across HS2 sites causes massive disruption to the project, protestors have also engaged in many more minor disruptive acts, such as disrupting ecological surveys, damaging construction vehicles or blocking access points to construction sites. While some of these acts may not meet the threshold of serious and/or significant disruption, they still have a significant impact on the project and its costs. The Government view such actions as serious and completely unacceptable criminal activity. The offence as drafted seeks to deter individuals from targeting these projects while giving the police powers that are more sufficient in order to respond.
Before I get onto the amendments dealing with serious disruption, I accepted the invitation of the noble Lord, Lord Carlile, to read Section 78, and I will have a go at answering. Because many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, it has been asked why, in light of that, we need to introduce the measures in the Bill. The fact is that we are not solely interested in the process on the M25: the Bill was conceived before Just Stop Oil protesters were dangling off gantries. There are other unjustifiable protests, such as those targeting HS2, which I have just discussed. The criminal offences in the Bill extend to private land; currently, those who lock on or tunnel are only committing aggravated trespass, which carries a relatively low sentence. As it is a broad offence, I am sure that many here in the Chamber today would not welcome the sentences for aggravated trespass being increased. Finally, the pre-emptive measures in the Bill will improve the response to criminal protest. They were in fact conceived following discussion with the Metropolitan Police Service on what would have improved their response to Extinction Rebellion-style protests.
Amendments 3, 6, 17, 23, 27 and 38, all seek to provide a definition of serious disruption. I thank all noble Lords for these amendments, particularly the noble Lord, Lord Anderson—although I note that he is potentially deserting his—for our constructive engagement so far. I also thank the noble and learned Lord, Lord Hope of Craighead, for his thoughtful contribution to this debate.
I assure the House that I absolutely recognise the benefits that a clear definition of serious disruption could bring. However, we have faced some difficulties when trying to define serious disruption. That is because being too prescriptive in our definition risks creating a loophole which would provide those intent on causing as much disruption as possible an opportunity to evade arrest and prosecution. I would also say that, as drafted, some of these amendments offer a narrower definition of serious disruption than the Police, Crime, Sentencing and Courts Act provides for under
“serious disruption to the life of the community.”
None of that is to say that I dismiss the principle of these amendments. There is a balance to be struck between a definition which is too broad and one which is too prescriptive. We will consider these amendments in detail to ensure that they accurately reflect the disruption that the Government seek to target while providing clarity to the police and others, as many noble Lords have mentioned, and we will continue to work with all interested noble Lords on this important matter.
Lord Hope of Craighead (CB)
Is there a prospect of the Minister coming up with definitions in time for Report, to prevent us having to discuss this all over again? It would be a great help if he could come forward with his definitions, if he is going to proceed along this line.
Lord Sharpe of Epsom (Con)
I will certainly endeavour to—I can make no promises. I am sorry: the noble Lord, Lord Ponsonby, asked me about recklessness, which I forgot to answer. The definition of reckless is to capture those for whom we cannot prove that they intended to cause disruption but who were clearly happy to cause it. I hope that clarifies the matter to some extent. For now, I ask the noble Lord to withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this debate. The noble and learned Lord, Lord Hope of Craighead, made some very important points. He is a member of the Constitution Committee. He said that convictions for these offences could lead to more serious consequences such as serious disruption prevention orders and that some of the conditions that could be imposed under those orders are quite draconian, such as 12 months of electronic tagging. He made the important point that because the offences are very different in nature, there should perhaps be a tailored definition of serious disruption depending on what offence we are talking about.
The noble Lord, Lord Carlile of Berriew, made a very important point about creating ambiguity between the provisions in this Bill and Section 78 of the Police, Crime, Sentencing and Courts Act 2022. The Minister’s attempt to explain why Section 78 could not be relied on does not hold water. He started talking about offences of aggravated trespass and having low sentences, but Section 78 has a far more serious penalty than any of the offences contained in the provisions here, so I do not understand why we need new offences that have serious sentences attached to them when Section 78 can provide much stiffer penalties than any offence in this Bill. That does not seem to make any sense.
The right reverend Prelate the Bishop of Southwell and Nottingham made an important point about places of worship. The noble Lord, Lord Hain, made an important point too. I greatly respect the role that he played in overturning apartheid in South Africa, but I am not sure he can say with confidence that what he did amounted to serious disruption when we do not have a definition of serious disruption in the Bill. The noble Baroness, Lady Fox, supported by the Minister, talked about suffragettes and how they were very different from the protesters at this time, but that was not the point I was making. My point was that suffragettes locked on and the Government are saying that this new offence of locking on is a response to new tactics employed by protesters. Well, that is what the suffragettes did. That is the only point I was trying to make.
As for nothing being done, the police have been arresting stop oil protesters even before they have caused serious disruption. They have been arresting them for conspiracy to cause public nuisance. Whether it is for causing public nuisance under the famous Section 78 or highway obstruction, for which they can now be sent to prison, protesters are being remanded in custody by courts which are not confident that they would not go on to repeat the offences for which they have been arrested. Some of them have been sentenced to prison for highway obstruction. So I do not think it is the case that the police are not doing anything, or that existing legislation cannot be used effectively by the police.
The noble Lord, Lord Anderson, supported the idea of tailored definitions, hence his wavering, if I can put it that way, in terms of his own amendment. The noble Lord, Lord Macdonald of River Glaven, reinforced the point about clarity and predictability. People need to know whether they are going to break the law if they do something, which is why we need these definitions.
The infamous Section 78 of the Police, Crime, Sentencing and Courts Act talks about serious harm, rather than serious disruption, but it is defined in the Act. So, if the Government can define serious harm in that Act, why can they not define serious disruption in this legislation? The noble Baroness, Lady Blower, talked about what the Minister said in the other place about there being a definition of serious disruption under the Public Order Act 1986. I agree with the noble Baroness that it is out of date and dubiously applicable in the circumstances set out in this Bill. Even the noble Lord, Lord Hogan-Howe, talked at Second Reading about the importance of clarity, and police witnesses at Committee stage in the other place said that as much precision as possible is desirable, yet the Minister seems completely ambiguous about whether the Government are going to define serious disruption in the Bill in response to the question asked by the noble and learned Lord. The noble Lord, Lord Ponsonby of Shulbrede, said that the National Police Chiefs’ Council is in favour of the definition of serious disruption to the life of the community put forward by the Joint Committee on Human Rights, so surely there is at least a lead for the Government to follow.
“(1A) In this section, “attach” means to connect by mechanical means, and does not include circumstances where persons, objects or land are merely touching, holding or being held, or seated or placed upon each other.”Member’s explanatory statement
This amendment probes the definition of “attach” in the Clause 1 offence of locking on, and whether it includes for example holding hands or sitting down.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am not going to describe all the amendments in this group. I am hoping that noble Lords will introduce their own.
I have one point to make about the arrest of Charlotte Lynch. I had the dubious pleasure of sitting on a panel with David Lloyd, the PCC for Hertfordshire, who seemed to suggest that it was the journalist’s fault and that journalists should not report on protests. He believed in a free press, but not always, so I was slightly worried about the Minister’s reaction, but he said that he used the wrong word.
All these offences deserve to be probed because they are so badly drafted, so broadly drafted, that we cannot be sure what they mean. For example, the Bill names the offence of locking on, but the definition is much broader. The Bill talks of a person attaching themselves or an object to another person, another object or land. What does “attach” mean? Does it mean people linking arms or holding hands? What if they were tied together by a ribbon with a loose bow that you could undo? Would that be attached? Exactly what does it mean? If it is easy to remove the attachment, does it count? Is it still criminal? It seems that these offences are absurd. I do not understand where the threshold is for criminal conduct. It makes the whole Bill worthless if we cannot be sure what it means, and certainly the courts are going to have a field day with this. I beg to move.
Lord Beith (LD)
My Lords, the noble Baroness has raised the absurdity of the locking-on offence and the problems that will arise, which are addressed by some of the amendments in this group.
I want to introduce the Minister to an issue he may not be familiar with—perhaps it does not happen in his part of the country. Quite a lot of young couples go about carrying padlocks. Why do they do that? It might not be immediately apparent to a constable that they are wishing to pledge their lifelong devotion to each other. They go to a place such as the High Level Bridge in Newcastle, and they attach the padlock to the bridge; they then throw the key into the water. Explaining that that is what you are about to do might be pretty difficult when your average police constable says that you are carrying a padlock, obviously intending to lock on to somewhere. But they do not lock on to anything—except perhaps each other, and they might be caught by that, as the noble Baroness just pointed out. That is simply one example.
Another obvious example which has been raised by noble Lords before is that of bicycle padlocks. People have to carry them whenever they are going to use their bicycle. Again, these are pretty obvious cases for the locking-on offence as the Government have conceived it.
These are things that just happen in ordinary life. When you compound the offence created in the Bill with the offence of obstruction of a constable, you can see really difficult situations arising, where citizens with no intention of creating serious disruption are nevertheless caught because they are carrying such things in the vicinity of somewhere where serious disruption might be about to arise, or might be known to be about to arise.
I really think that the Government have got to clean up this Bill if they want to proceed with it, and remove from it things that drag ordinary citizens into conflict with the criminal law when they have no criminal intent at all—and do not need to have for the purpose of some of these offences—and are not involved in serious protest. Serious protest is itself, of course, an often justifiable activity, as the courts have demonstrated in some recent cases. Quite apart from the problems faced by those who want to engage in legitimate protest, we should not be passing legislation that simply confuses ordinary citizens as to what they are allowed to do.
Lord Paddick (LD)
My Lords, on Amendment 5, in the name of the noble Baroness, Lady Jones of Moulsecoomb, we agree that there needs to be far more clarity as far as the offence of locking on is concerned.
On Amendment 18, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, to which I have added my name, we agree that the scope of going equipped for a locking-on offence should be limited to where the person intends to use the object for locking on, rather than including an object that may be used for locking on. There is a real danger of innocent people carrying innocuous objects being drawn into this offence, as my noble friend Lord Beith has just illustrated.
If we look at a similar offence in Section 25 of the Theft Act 1968, “Going equipped for stealing, etc.”, we see that the wording is:
“A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat.”
There is no mention of any article that may be used in the course of or in connection with the substantive offence. Can the Minister explain why there is a difference in this case from the Theft Act’s “going equipped” and these “going equipped” offences?
Amendment 19 in my name, supported by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Fox of Buckley, probes what “in connection with” means; in this case, “in connection with” locking on. Can the Minister give an example of where an object can be used in connection with locking on but is not used to actually lock on? Similarly, Amendment 48 in my name, supported by the noble Baroness, Lady Fox of Buckley, seeks to establish what “in connection with” means in relation to offences of going equipped to tunnel. Can the Minister give an example where an object can be used in connection with tunnelling but is not used to actually construct, or even to be present in, a tunnel?
Amendment 20, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, and signed by me, includes the question around the term “in connection with” but extends to whether it should also include items for use by someone else, through the term “by any person”. This is the substance of my Amendment 21, signed by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Fox of Buckley, which would replace “any person” with “them.”
As in the Theft Act example, surely it makes no difference if the person carrying a pair of handcuffs with the intention of committing an offence of locking on is the person who is actually going to chain themselves to the railings. If the thief and his mate go looking to break into cars, but the person carrying the crowbar is not the thief who is actually going to use it, the thief’s mate is still guilty of the offence of going equipped to steal. Why then is it necessary to include “by any person” in this offence when it is not present in the offence under Section 25 of the Theft Act 1968?
Similarly, Amendment 49 in my name, supported by the noble Baroness, Lady Fox of Buckley, seeks to understand why “any person” is included in the offence of going equipped for tunnelling when there appears to be no need for this widening of the offence.
Amendments 51 and 52 in my name, and supported by noble Lord, Lord Coaker, seek to understand what would be caught within the offence of obstructing major transport works by including Clause 6(1)(a)(iii), which includes obstructing someone
“taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works”.
This seems to be extraordinarily wide, to the extent that it is almost impossible to understand what would or would not come within the remit of the offence. For example, if a construction worker working on a major transport works is prevented from filling her car with petrol the day before she is due at work—a car she uses to get to work—is that caught within the remit of this offence? Where is the line drawn? Can the Minister give a clear understanding of what is included in the offence, and if not, how does he expect protestors to know whether they are going to be committing an offence?
Amendment 53 in my name, and supported by the noble Lord, Lord Coaker, seeks to probe why Clause 6(1)(b) is necessary. It refers to interference with apparatus, for example. Can the Minister explain how interfering, moving or removing apparatus relating to the construction or maintenance of any major transport works would not amount to obstructing the construction or maintenance, an offence under Clause 6(1)(a)? If it did not amount to obstructing the construction or maintenance, why should it be a criminal offence?
Amendment 65, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, and signed by me, seeks to narrow the scope of the criminalisation of interference with the use or operation of key national infrastructure to cases where the use or operation of the infrastructure is prevented to “a significant” extent, rather than to “any extent”. In other parts of the Bill, reference is made to serious disruption, so why is there no such caveat in this part of the Bill? Would teenagers involved in horseplay, for example, where one throws the other’s mobile phone on to the train tracks, resulting in staff temporarily halting trains so that the phone can be retrieved, be guilty of an offence under this section as drafted?
Amendments 66 and 67 in my name are intended to probe what Clause 7(5) means. It states that
“infrastructure is prevented from being used or operated for any of its intended purposes … where its use or operation for any of those purposes is significantly delayed.”
That makes sense, and that would be the effect of Amendments 66 and 67. Can the Minister explain how adding “The cases in which” at the beginning of that subsection and “include” in the middle of the subsection extend the offence beyond the specific example of significant delay? What else would count as preventing its use or operation?
We support Amendments 69 and 78 in the name of the noble Baroness, Lady Chakrabarti, to probe whether “broadcasting and telecommunication services”, as well as “newspaper printing infrastructure”, should be included in the definition of “key national infrastructure”.
We also support Amendment 70 from the noble Lord, Lord Coaker, which I have signed, to narrow the definition of “road transport infrastructure” to A roads rather than both A and B roads, as recommended by the Joint Committee on Human Rights. Highway obstruction is already an offence for which a custodial sentence can be given, and the enhanced penalties for this offence should be limited to key roads such as motorways and A roads.
We support Amendments 71 and 72 in the name of the noble Lord, Lord Coaker, which I have also signed, recommended by the JCHR, to probe the extent of “rail infrastructure” and “air transport infrastructure”. Does “rail infrastructure” include, for example, the Romney, Hythe and Dymchurch railway, a narrow-gauge steam service used solely for tourism purposes? Does “air transport infrastructure” include small, private airfields or airstrips with little or no air traffic? In what way are they part of “key national infrastructure”?
We also support Amendments 73 to 76 in the name of the noble Lord, Lord Coaker, which I have signed, to probe what facilities would be considered as being used “in connection with” infrastructure, in relation to
“harbour infrastructure … downstream oil infrastructure … downstream gas infrastructure … onshore oil and gas exploration and production infrastructure … onshore electricity generation infrastructure”.
Finally in this group, my Amendment 79 seeks to probe whether all periodicals and magazines should be included in the definition of “newspaper”. Noble Lords will be able to think of several disreputable or trivial titles that should not be considered part of “key national infrastructure”.
Baroness Fox of Buckley (Non-Afl)
My Lords, I put my name to a number of amendments, as the noble Lord, Lord Paddick, read out. He has largely explained my reservations and why I put my name to, in this instance, Amendments 19 to 21. This is the focus on what equipment is “intended” to be used for.
I think it extraordinary that the Bill would criminalise somebody holding equipment that “may be used” for something. Completely innocent objects can be interpreted in the most malign way, and it seems far too speculative. Everyone should remember that, while we have in our minds locking on and Just Stop Oil, this piece of legislation does not mention Just Stop Oil. Therefore, anything that speculates about what people might be about to do with an object could be used to criminalise any range of behaviours. That is one of my concerns. It feels as though, rather than being proactive policing, as the Minister discussed earlier, it allows people to be scooped up just in case they use any object in a particular way.
Amendments 48 and 49 focus on the offence of “being equipped for tunnelling” and the requirement for the object to be used not specifically by the person with the item but by “any person”. My concern is that this puts into law a kind of guilt by association. Somebody has not committed a crime and there is no indication that they have, but somebody else has used an item that they had and then committed a crime. It reminds me of the worst of the joint enterprise laws that led to so many injustices for all involved. I would really like to see that go. In fact, I would like the whole thing to go—but if we are going to have it, et cetera.
Finally on Amendment 65, which focuses on key national infrastructure, this is one of the things that the public most worry about—that key national infrastructure will be targeted by these kinds of stunt protesters. Somebody described it as guerrilla warfare, and it sometimes feels like that. We all know how important key national infrastructure projects are to any country. That is why Russia targets them in Ukraine. You know that the maximum number of people will suffer if you attack the things that keep any country going at any given time. So I am very keen that we protect them, but it is about the wording on the extent to which they are attacked and the illustrations that the noble Lord, Lord Paddick, gave. Again, it is not only Just Stop Oil. We have to keep getting that out of our minds, because this affects anyone who does anything to possibly disrupt a key infrastructure project.
Perhaps I might echo, in a glib way, the comments made earlier by the noble Baroness, Lady Jones of Moulsecoomb, in relation to the NHS. I thought she had a point there. In this instance, when I read about “key national infrastructure”—
“road transport infrastructure … rail infrastructure … air transport infrastructure … oil infrastructure … gas infrastructure”,
et cetera—I thought, “Who needs Just Stop Oil?”. Most of that infrastructure does not work. I spend most of my time not being able to get trains, and the energy system is in total crisis. If noble Lords want to know what is likely to create the greatest threat to most of the national infrastructure projects in the forthcoming months, I can tell them: it is not Just Stop Oil but austerity cuts coming from the Government. Although that is a slightly glib point, it indicates why using these things in the law, if you are not precise about exactly what you describe as “disruption”, can get you into hot water.
Lord Skidelsky (CB)
My Lords, I will speak briefly in support of Amendment 21 from the noble Lord, Lord Paddick, to which I put my name. The principle it seeks to uphold is that the offending person must be the one committing the offence or intending to commit the offence, rather than somebody else connected with that person. That is a very important point, because “in connection with” is another of these vague phrases that have crept into this kind of legislation. It is also there in counterterrorist legislation. How connected? Friend, lover, colleague, co-religionist? What is the nature of the connection? All these things are undefined. What counts as a malicious connection? That is why we want this amendment.
Lord Coaker (Lab)
My Lords, I thank those who have supported the various amendments in my name. I very much supported the comments that the noble Baroness, Lady Jones, made when she opened the group. Similarly, I thank the noble Lord, Lord Paddick, for his support and the arguments he put forward on the various amendments. I also thank the noble Lords, Lord Beith and Lord Skidelsky, and the noble Baroness, Lady Fox. She made some very good comments about “serious disruption” and “key national infrastructure”.
This is the first contribution I have made. The Minister said that the Government had listened to the House of Lords by withdrawing amendments when they came up in the Bill at the beginning of the year, putting them through the Commons and then bringing them to the Lords, that constitutionally that was the right way of doing things, and therefore that the Government had correctly brought the Bill forward to the Lords. I say to him that we as the Lords have a constitutional right to review legislation that comes from the Commons, to say where we think it is wrong, to put forward amendments and to seek clarity where there is none.
That has been the purpose of all the amendments put forward here this afternoon as we go into the evening. Each amendment put forward has sought that clarity of definition—what the Government actually intend and mean—so that as this law goes through and the Bill passes, as it will, it will be a better Bill that delivers what the Government want. That is what we seek to do with all the various amendments.
The key question that will keep coming back to the Government is: why is the Bill necessary? There is no dispute in this Chamber—we all totally and utterly feel that the Just Stop Oil protesters went too far, and that was serious disruption that was unacceptable. It is an Aunt Sally, or whatever the politically correct term is, to say, as the Government sometimes do, that they are in favour of the great British public who object to having their lives disrupted while there is a group of others, in this Chamber or elsewhere, who seek to be on the side of the protesters instead. We are all on the side of the public. We all agree that there is a right to protest but that there should be limits to it, and there will be a debate about where that should come.
The third group deals with the scope of the offences. Again, there is a series of questions for the Government in this group about where we are with the drafting and the scope of the offences. As I say, we keep coming back to the need to draft good law and the need for clarity, not offences so broad that they impinge unreasonably on the British public’s rights and are unenforceable. Other key issues include focusing police resources on where they actually matter, not criminalising lawful behaviour or peaceful protest by members of the British public who are causing minor disruption. Our various amendments seek to probe the Government so that we can consider what to bring forward on Report.
Amendments 18 and 20 deal with being equipped to lock on. Currently, Clause 2 provides that an offence of being equipped for locking on takes place where a person is carrying an item that “may” be used “by any person” in the course of a locking-on offence or “in connection with” such an offence, or which may be used “by any person” in the course of or in connection with a locking-on offence. The amendments that I have tabled and others in the group would narrow that scope so that an offence was committed only where a person was carrying an item with the intention that it “will” be used to commit an offence by the person carrying it. As I say, those amendments are to probe the scope of the offence. Why is the word “may” there, not “will”? Why is the phrase “in connection with” used?
What does “by any person” mean? Any person in the group? Any person standing next to them? Any person who happens to be standing nearby? We heard from my noble friend Lady Armstrong about the difficulties one has where you just imply that someone in the group may be associated with a particular person, and the problems that causes. As my noble friend Lord Ponsonby said to me, there is already a well-used piece of legislation containing the offence of being equipped. He would know, as a magistrate. Why does that legislation not work here? Time and again, the Minister has been asked to say why the current legislation is inadequate to deal with such situations.
Last Friday when Just Stop Oil called off its protest, I heard one of the protesters say on Radio 4—it was the “Today” programme, and the Minister can go back and listen to it—that among the reasons why they did so were the number of people who had been arrested and the number who were in jail or on remand. They said that was having an impact on the ability to carry out protests. Is that not part of the existing legislation dealing with these problems? Maybe it should have been used or enforced quicker but that is a process issue and a policing issue, not a legislative one.
Under current drafting, if an item is not used and absolutely no disruption is caused to anyone, has the person committed a criminal offence because something in their possession may have been used by someone else—not even themselves—to lock on? Is that a criminal offence or not? What does “in connection with” a locking-on offence mean? What activity does that cover?
The classic example that we have all used is a bike lock. We keep coming back to that because it has not been properly addressed. If a person walks through Parliament Square with a bike lock, they could be caught by that clause—is that not the case? Will it be up to that member of the public to prove to a police officer that they have no intent even though it might be used by someone else, not even to commit locking on but for an action that is somehow connected to it? Again, clarity is needed in the law because that police officer will be required to enforce it.
It is worth noting that the clause does not include a reasonable excuse defence. In practice, that is what happens when someone has a reasonable excuse, such as they work close by and own a bike. How is that going to work if there is no reasonable excuse defence available in the clause. Or have I misread it? Asking these questions is, after all, the purpose of Committee.
Amendment 52 concerns the obstruction of major transport works. Clause 6 makes it an offence to obstruct any actions that are
“reasonably necessary … in connection with”
constructing or maintaining transport works. The amendment would remove “in connection with”. Again, this is to probe what actions that may cover. Clause 6 currently provides that it is an offence to obstruct a person
“taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works”.
What does “in connection with” mean? Imagine the list of activities that could be considered as any step that was reasonably necessary in connection with maintaining a transport work. If a local protest prevents a person from painting a railway generator for a few hours, is that now a criminal offence? As the JCHR said:
“For example, the offence would be committed by moving any apparatus that ‘relates to’ construction or maintenance of major transport works (such as a shovel, a broom or a traffic cone) or, indeed, moving any apparatus (even if unrelated to the works) that belongs to a person acting under the authority of the person in charge of the works.”
Is the JCHR wrong to have used those examples? As I say, poor, open-ended drafting will make these offences unusable, casting the net so wide that it means that in no way is the Bill focused on the small number of highly disruptive protesters who are purposefully breaking the law.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have taken part in this shortish debate. I have already spoken about the damage and disruption that these offences can cause. Narrowing the scope of these offences, as the amendments in this group seek to do, would restrict the ability of the police to stop individuals from causing unjustifiable amounts of disruption and harm.
Before I get on to the amendments, I agree entirely with the noble Lord, Lord Coaker, about the scrutiny that this Bill deserves in this Chamber. I was merely clarifying an earlier point when I referred to its passage through the other place.
Amendment 5 provides a definition for the term “attached” in reference to the locking-on offence. We are fundamentally interested here in the disruption caused. The range of equipment used for locking on is extensive and ever changing. So, aside from bike locks, chains, cable ties and glue, police have also seen sophisticated devices that have been deliberately designed to be difficult and time-consuming to remove. Arm tubes involve protesters putting their arms through pipes containing concrete, steel or other materials that can either be released by the protester at will or require the police to use machinery to cut them free. Sometimes, such devices are designed to inflict harm on anyone who tries to remove them, placing the police in harm’s way. These devices are constantly evolving and designed to waste as much police time as possible. Given this, equipment that could be used in the course of, or in connection with, a locking-on offence is in scope. This could include locks and chains and large objects used to lock on, such as the bamboo structures that have featured in many protests. Specific equipment is not listed in the legislation as protesters can easily create new methods of locking on. Instead, referring to the act of locking on, and the serious disruption it causes, ensures this clause will remain relevant going forward.
Amendments 18, 19, 20, 48, 49, 51, 52, 53, 73, 74, 75, 76 and 77 seek to remove those acts which are taken “in connection” with these offences. I recognise the sentiment behind these amendments, but it is our view that it is vital that the full range of disruptive tactics that can be, and frequently are, deployed are captured to ensure our major transport works are protected.
With respect to the tunnelling offence, removing “in connection” would mean that those who carry items that are not strictly necessary for the construction or occupation of a tunnel are not in scope of this offence. The aim of the tunnellers is to cause disruption by delaying their removal for as long as possible. To achieve that, they will often create obstructions that will include, for example, coils of wire mesh and even nooses attached to the tunnel’s door to tie around their own necks. Items to make these are not themselves necessary for the commission of the other tunnelling offences, but I am certain that many in the House would agree that anyone carrying these items for these purposes should be in scope of the offence.
To use the obstruction of major transport works as an example, as I have already said, while many noble Lords will be familiar with the larger-scale protester action, many will be less familiar with the more minor acts of disruption that can start before construction even begins. Whether that is disrupting ecological surveys, removing or interfering with apparatus that is needed for construction, or blocking access to construction sites, all have a significant impact and can cause significant delays and additional costs to these works. For that reason, the scope of the offence is drafted as such to ensure all highly disruptive action are included in the scope.
Amendment 65, tabled by the noble Lords, Lord Coaker and Lord Paddick, and the noble Baroness, Lady Fox, seeks to narrow the scope of the offence of interfering with key national infrastructure to include only those who interfere to a “significant” extent rather than “any extent”. Again, I understand the core sentiment behind this amendment, but I would like to remind noble Lords that the types of infrastructure regarded as key national infrastructure are those that this Government have identified as playing a vital role for the nation. This is also the infrastructure that is being targeted by protest groups who are intent on causing disruption of any kind. As such, it is important that key national infrastructure is protected using the existing threshold of the Bill.
In a similar vein, Amendments 66 and 67 seek to narrow the scope of what it means to prevent the use of, or operation of, key national infrastructure, so that it only refers to instances where significant delay is caused for the use or operation of the targeted infrastructure. As I have touched on already, there are many circumstances beyond significant delay that should be captured within this offence. For example, should protesters successfully reduce the output of oil from an oil terminal but not delay its delivery, we could still see heating switched off as supplies dry up. We therefore see it as wholly necessary that the full range of disruptive behaviours and acts are captured.
Amendment 68 and 78, tabled by the noble Baroness, Lady Chakrabarti, would replace “newspaper printing infrastructure” with the term “communications” in the list of key national infrastructure on the face of the Bill. The list of key national infrastructure is based on sites that protesters have or are likely to target through their current tactics. Therefore, we do not believe it is necessary to add “communications”, as defined by the noble Baroness, into the list of key national infrastructure at present. However, as the noble Baroness will know—and we will definitely come to consider this in group six—the Bill does contain a delegated power that will allow us to amend this list as tactics and infrastructure evolve.
Amendments 70, 71, 72 and 79 seek to narrow the scope of the interference with key national infrastructure offence by altering the definitions provided for in Clause 8, including by removing B roads from the list of infrastructure in scope or by narrowing the definition of “printing presses”. The scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8. Some B roads are lifelines for small towns and villages, and we see it as entirely right they should be included. Printing presses have been included to protect the distribution of print media and news. There are many publications which serve that purpose which are not newspapers.
Finally, I would probe noble Lords on what they deem as “essential” and “inessential” elements of infrastructure. Many elements that some deem inessential, such as signs along railways and roads, provide important information to train and car drivers and may be necessary to ensure the high standards of safety we expect in this country.
For those reasons, I disagree with these amendments and ask that they be withdrawn.
Lord Beith (LD)
Can the Minister help the Committee by saying how he would answer this question, and if he has asked himself this question? If he were one of the people carrying something that a constable challenged him for—maybe the padlock that I talked about earlier that a young couple were going to put on a bridge, or maybe a packet of cable ties—what would his answer be to the constable who challenged him? Does he think it would result in him not being charged?
Lord Sharpe of Epsom (Con)
My Lords, these things are judged on a case-by-case basis. It would depend entirely on where I was, what I was doing and also the intention as described in Clause 2 of the Bill.
Lord Harris of Haringey (Lab)
My Lords, I listened with great interest to the Minister’s reply to the Committee’s discussion on this. Could he explain why, rather than trying to define all these activities—this happening, that happening and this piece of equipment and so on—has he not sought to do it in terms of intent, and a requirement that before an offence is committed intent to cause disruption is demonstrated?
Lord Sharpe of Epsom (Con)
That is captured. As I say,
“A person commits an offence if they have an object with them in a place other than a dwelling with the intention that it may be used in the course of or in connection with the commission by any person of an offence under section 1”.
Lord Coaker (Lab)
On this issue of intent, Clause 6 creates a criminal offence of obstructing “major transport works” but the Constitution Committee notes that unlike Clause 1, 3, 4 and 7, intent or recklessness are not required for an act to constitute an offence under Clause. Can the Minister explain why?
Lord Sharpe of Epsom (Con)
Not at this point, I will have to write to the noble Lord.
Lord Paddick (LD)
Bearing in mind the number of amendments, I worked out that the Minister spent 17 seconds per amendment in his response. I gave the example of a mobile phone that ended up on railway tracks interrupting national infrastructure and whether that was within the scope of the Bill. Does the Minister feel that his response has been comprehensive enough, on the very detailed questions he’s been asked?
Baroness Jones of Moulsecoomb (GP)
I thank all noble Lords who have contributed to this debate. I have really enjoyed it and I think we are expecting some better answers in the future. The Minister said something about probing us on what we thought, but it is our job to probe him about what this legislation means. So far, it is not coming out very well.
Personally, I hope it gets thrown in the rubbish bin because, quite honestly, we are spending an awful lot of time and energy debating it when we know it is awful. It is not as if we can see a glimmer of hope that it might solve some problems. The Minister talked about the damage and disruption that these protesters are doing. In fact, the Government have done more damage and disruption to our social fabric than XR, Insulate Britain or Just Stop Oil could ever do. They have had 12 years and made the most horrendous mess.
Getting back to the Bill, the Minister did not answer my question about “attach”. I still do not know what “attach” means. I am happy to wait and hear a longer answer, if he has one, on another occasion.
“(2A) It is a defence for a person charged with an offence under subsection (1) that their actions were likely to avoid greater disruption or were otherwise in the public interest.”Member's explanatory statement
This amendment creates a defence for actions that are in the public interest or which avoid greater disruption.
Baroness Jones of Moulsecoomb (GP)
Again, I will just talk to my two amendments. The noble and learned Lord, Lord Hope, and I are probing the Government from both ends with our amendments. I am probing on the basis that the offences are so broadly drawn that they require equally broad defences to protect innocent people from being criminalised. I imagine that the noble and learned Lord is being rather more forgiving on the drafting of the offence, and therefore trying to ensure that it works by not making the defences overly lenient. I am happy to be corrected, but both perspectives can be true. That is why the drafting is so bad. These issues will not just detain us here—she says, bitterly—but will create hours, days and weeks of legal arguments in the courts, which is very much to be avoided.
There is an opportunity in this legislation which I might explore later: that fossil fuel companies and other environmentally destructive actors could be prosecuted and convicted for locking on. For example, if a fracking company attaches a drilling rig to land, that potentially causes serious disruption to two or more individuals. It could leak or cause earthquakes; it could contribute to climate change, or two people might have wanted to walk through that field but now there is a rig in the way. Local people could be seriously inconvenienced by having to protest against the fracking rig, rather than pursuing their hobbies such as birdwatching.
The Government probably do not mean to criminalise fracking and other oil and gas extraction, but this is a logical consequence of such broadly drafted offences. I rather suspect that people such as those at Greenpeace or the Good Law Project might enjoy some time in court with private prosecutions of that kind. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I shall speak to my Amendments 11, 30, 34, 41, 57 and 63. That may seem a bit of a mouthful but they are all in exactly the same terms. They refer to the reasonable excuse defence in Clauses 1, 3, 4, 6 and 7. Perhaps I should preface my remarks, particularly in the light of the comments made by the noble Baroness, Lady Jones of Moulsecoomb, by saying that I very much subscribe to the view that these measures are not needed at all. These are laws we do not need and they may cause confusion, but I have to take the Bill as it is. I am making my remarks with reference to the Bill as we find it, not as I would like it to be.
The Constitution Committee examined the phrase “reasonable excuse” and its implications, and said that it is
“constitutionally unsatisfactory to leave to the courts the task of determining what might be a ‘reasonable excuse’ without Parliament indicating what it intends the defence to cover”.
There are two points in particular: first, it invites argument over whether certain, but not other, political motivations might constitute an excuse—how serious they are and their consequences, and so forth; secondly, and perhaps even more important, is whether the defence of reasonable excuse should be available at all in cases where serious disruption has been caused. This is exactly the other side of the argument that the noble Baroness put forward a moment ago. The committee’s recommendation was that unless a precise definition of reasonable excuse is provided, the defence should be removed from Clauses 1, 3, 4 and 7 altogether.
The point is really this: if the wording remains in the Bill as it is, it opens the door to arguments that bodies such as Extinction Rebellion and Just Stop Oil use to justify their actions. I recall the lady who was sitting up on a gantry when she was interviewed on television. With tears in her eyes, she said, “I know I’m causing terrible disruption to many people”—you could see all the cars stuck behind the police cordon—“but I’ve got no alternative. Look at the serious disruption that climate change is giving rise to; that’s my case. We’ve got to do something about it, so I don’t mind how much disruption I cause to however many people because I’ve got to get that message across.” The problem with the reasonable excuse defence is that it opens up that kind of argument.
The committee’s recommendation was, as I say, that unless a precise definition is provided it should be removed. My amendments propose that the question
“is to be determined with reference to the immediate interests or intentions of the individual, not any public interest which that person may seek to invoke”.
The immediate interest point would cover the case of the journalist Charlotte Lynch, who was arrested by the police. In her position, she could obviously say that as a journalist she was doing her job. That would undoubtedly be a reasonable excuse if she was having to defend a charge in this situation, and one could think of many other examples, so the opening words of my amendment are designed to deal with people of that kind. But they are intended to meet the very point on which the noble Baroness, Lady Jones, focused on so clearly: the position of protesters who are protesting because of climate change, for example, or other big public interests that people feel it necessary to protest about.
There are various problems with leaving the words as they are. The offences described in Clauses 1 and 6 are to be tried summarily before magistrates. I am conscious that the noble Lord, Lord Ponsonby, is here with his experience but I suggest that leaving it to magistrates to decide whether a particular public interest excuse is reasonable, without any guidance from Parliament, is not satisfactory. There is a risk of inconsistent decisions between one bench of magistrates and another but there is another problem, too. These arguments, if they are to be raised in a magistrates’ court, may take up a great deal of time. I have heard at second hand of a case where one of these issues was raised in a magistrates’ court and it took hours and hours as people deployed their arguments. The magistrates’ courts are not equipped for that kind of interference in their ordinary business, so one has to have regard to the consequences of leaving it to them to decide issues of this kind. That important factor needs to be borne in mind.
Lord Beith (LD)
Could the noble and learned Lord explain whether he thinks that phrasing the clause in this way dispenses with the proportionality issue, which was so important in the Supreme Court judgment in the Colston statue case?
Lord Hope of Craighead (CB)
I am grateful to the noble Lord because I am coming on to deal with exactly that. Indeed, it leads me into the next paragraph in my notes. I am just making the point that one has to consider the practical consequences for prosecutors and the police of leaving this expression as wide as it is and without qualification of some kind. Of course, I am pointing to a particular qualification that needs to be made.
The Supreme Court, in a well-known case called Ziegler in 2021, held that protesters had been rightly acquitted of obstructing a highway when protesting about an armament fair. That is not an easy judgment to read or understand, not helped by the fact that there were two dissents in a court of five, but it has been thought to support the view that invoking the public interest defence in that context is acceptable. However, a series of decisions in the Court of Appeal have narrowed the window that Ziegler left open. The point is that we are dealing now, in the offences that we are considering in the Bill, with offences that require proof of serious disruption. The Court of Appeal’s point is that that changes the balance between what is proportionate and what is not, which is at the heart of this issue. The proof of serious disruption was not a necessary element of the offence of obstructing the highway considered in Ziegler, but it is important to notice that in our offences it is a vital and essential element.
The Colston case was the subject of the most recent Court of Appeal decision, which is Attorney-General’s reference no. 1 of 2022. The court was asked to rule on what principles judges should apply when determining whether the convention rights are engaged by a potential conviction for acts of damage during a protest, and when the issue of proportionality should be withdrawn from the jury. The court held that the convention did not provide protection to those who cause criminal damage during a protest that is violent, not peaceful. That was the Colston case.
However, it went on to say that a conviction for causing significant damage to property, even if inflicted in a way that could be called peaceful, could not be held to be disproportionate either. The prosecution in the Colston case was correct, both because the toppling of the statue in that case was violent and, as a separate issue, because the damage to the statue was significant. The words “serious disruption”, which appear in these offences, seem to fall into the same category. In other words, a person who engages in criminal conduct that causes serious disruption cannot take advantage of this defence.
It has been pointed out that a case raising this issue is expected to be heard by the Supreme Court before Christmas. I think there are problems with that. The judgment is not likely to be given until well into next year because the court takes a considerable time to consider all the issues. I think one would be fortunate if the judgment were out before the early summer. This is a problem that needs to be solved now, and I will come back to the question of the magistrates’ court and the problems that could arise there.
I stress again that the offences we are dealing with here all require proof of serious disruption. That is why the reasonable grounds defence should be removed altogether or qualified in the way I am suggesting, to confine it to circumstances that affect the position of the individual on the ground at the time he or she is causing the disruption. That qualification would be welcome, and undoubtedly useful, in many cases. Without it, I suggest that the whole defence be removed.
Lord Judge (CB)
My Lords, I am very sorry that I was not able to speak at Second Reading. I shall be very brief. I share the various arguments presented to the Committee about the vagueness of this legislation and the ineptitude of the drafting that leaves so many criminal offences so vaguely described. I support the basic premise of the noble and learned Lord, Lord Hope. We are about to legislate in a situation where there is a decision of the Supreme Court, with two dissenting judgments out of five; further decisions of the Court of Appeal are rowing back from the majority decision in Ziegler; we have the Colston decision, which will have to be reconciled with Ziegler; and we know that the Supreme Court is looking at the issue again.
What on earth are we supposed to do when we have the opportunity to make it clear what the answer is to these problems, revealed by the number of cases to which I have referred? We have the opportunity, and we should take it. We really should not just say, “You carry on sorting it out”. How many more times does the issue have to be examined in higher courts? If the issues are being examined in magistrates’ courts, there will inevitably be references to cases stated and so on. If we do not accept the amendment of the noble and learned Lord, Lord Hope, or at least the thrust behind it, we are sending a slightly chaotic situation back to the courts when we could clear it up.
Lord Paddick (LD)
My Lords, I hesitate, as a non- lawyer, or even as someone who has never been a judge or magistrate, to enter this debate. I have amendments 34, 56 and 62 in this group.
Amendment 34 seeks to ensure that only those people present in tunnels created under Clause 3 are criminalised—in other words, illegal tunnels, or tunnels dug by protesters—rather than those present in tunnels such as the London Underground tunnels. The drafting of the offence appears to capture people causing serious disruption in the London Underground tunnels, which I am sure was not the intention. In meetings with Ministers before today’s debate, there was an undertaking to recognise that and address it. I would be grateful to hear from the Minister what conclusions the Government have come to, bearing in mind that they have been given prior notice.
Amendments 56 and 62 reflect the recommendations from the Joint Committee on Human Rights that particular regard must be had to the right to peaceful protest under Articles 10 and 11 of the European Convention on Human Rights when deciding whether someone has a reasonable excuse for their actions that would otherwise be an offence of obstructing major transport works and interference with the use or operation of key national infrastructure.
On the other amendments, I admire the ingenuity of the noble Baroness, Lady Jones of Moulsecoomb, in her Amendment 9. I shall leave it at that.
With regard to the noble and learned Lord, Lord Hope of Craighead, the reasonable excuse defence is clearly very difficult. One can understand and sympathise with Extinction Rebellion or the Just Stop Oil people who say, “You’re destroying the planet by giving out more licences for oil and gas exploration”. What more reasonable excuse could you think of for causing this sort of disruption? My only concern is that the Government will take the noble and learned Lord’s first option of doing away with the reasonable excuse defence altogether in these offences, rather than adopting the approach that the noble and learned Lord has suggested.
In the case of the journalist who was arrested, the alternative suggestion in the noble and learned Lord’s detailed amendments would clearly be something that she could use in her defence. I hesitate to say what would happen to her if there were no reasonable excuse for these offences. As the noble and learned Lord said—and with no disrespect to the noble Lord who is a serving magistrate—these are very difficult decisions. If the Court of Appeal and the Supreme Court disagree, and if you have two judges even on the Supreme Court dissenting, how can a Bench of lay magistrates grapple with these difficult issues around reasonable excuse? So there certainly needs to be clarification and clarity around reasonable excuse, and I hope that the Minister can help us with these issues.
Lord Coaker (Lab)
My Lords, this is an interesting group of amendments. I will come to the amendments of the noble and learned Lord, Lord Hope, but I will deal with my Amendment 42 first, because it deals with an important specific ask of the Government. I will then come on to the more general point about the reasonable excuse defence.
My Amendment 42, for which I am grateful for the support of the noble Lord, Lord Paddick, would insert a defence for a person who is present in a tunnel or is undertaking acts
“wholly or mainly in contemplation or furtherance of a trade dispute.”
The amendment probes situations where all or part of a person’s workplace is within a tunnel, such as the London Underground.
Currently, other clauses, such as Clause 6 on obstruction of transport works, include a reasonable excuse defence for people causing disruption as part of a trade dispute, and I think we all welcome the Government’s inclusion of that. But have they considered whether that defence needs to be replicated for the new offence of being present in a tunnel? What is covered in the definition of a “tunnel” under the Bill? Does it include the London Underground or the Channel Tunnel, for example? Under the Bill, the definition of a “tunnel” is simply
“an excavation that extends beneath land”.
So some clarification of that would be helpful, and I would be grateful for answers on my Amendment 42.
Aside from that amendment, we have had an interesting, almost philosophical, debate. The noble and learned Lord, Lord Hope, is right to say that you cannot just leave this to others to debate. There is a very real debate here: how far is protest justified by people who say, “My reasonable excuse is that there’s such a climate emergency and, if only people realised it, they would realise that we’re the people who are being sensible and reasonable”? This is a very difficult debate and discussion, but the noble and learned Lord, Lord Hope, has challenged Parliament to have it. The Government may need to think about this and come back on Report with something that seeks to explore the whole issue.
This example is not the same, for obvious reasons, but the Chartists would have been regarded in their time as unreasonable extremists. Many of the suffragettes were imprisoned and force-fed. You can say that this is different and we are in a different time, but you see the point that the noble and learned Lord, Lord Hope, is getting at: what is a reasonable protest, and how far should someone go? In other words, where is the balance in a protest that will inevitably cause some disruption? I have been on protests and demonstrations that have caused disruption. But where is the balance and where do you draw the line? We never debate or discuss this—
Lord Hope of Craighead (CB)
The crucial point that I was trying to make is that we are dealing here with serious disruption. I have been trying to get a definition of what that really means. These two points meet: you have to identify what you mean by “serious disruption”, and you reach a point where the proportionality tips against the person who is causing the disruption. That is what we need to get at and why the language in the Bill needs to be more precise to enable that to be determined.
Lord Coaker (Lab)
I could not agree more; the issue of proportionality is exactly right. But this is difficult. I have been on demonstrations that caused serious disruption that we regarded as perfectly reasonable, but I am not sure that everybody else would have thought they were perfectly reasonable.
So I support what the noble and learned Lord’s amendments seek to do, which is to get the Government to justify where they think that line should be and say—I am not a lawyer, but I often hear the lawyers here say this—that it should not be left to the courts to determine and try to guess what the Government’s view was and what Parliament was seeking to do. It is Parliament’s responsibility to try to define and clarify what the law seeks to achieve. The courts then interpret that, which is right in a democracy. But we abrogate our responsibility if we do not even seek to discuss this.
The noble and learned Lord, Lord Hope, is exactly right, but my question to him is: where does it tip? One person’s view of what is proportionate may be regarded by someone else as weak and not strong or determined enough to challenge the system. The system might need more challenge, not less, to bring about the change that is needed.
So the debate is necessary, but quite where that takes us and how you put forward an amendment, other than the interesting amendment of the noble and learned Lord, Lord Hope, is really important, as is how the Government respond to it. This important point should not be lost. It is almost a philosophical debate, but its practical implications for protest in our society are immense.
Speaking as an individual, I would put up with some disruption because I recognise the need for people to protest. When I drive into London and sometimes cannot get into Parliament, I remind myself that I have done similar things to people in other circumstances—
Lord Coaker (Lab)
And worse. Well, not quite worse, but I have done similar things, and that is the price you pay for democracy. Where you draw the line —before anyone takes me on, I suggest that the Just Stop Oil protesters have acted disproportionately—is an interesting debate and discussion to have, and the noble and learned Lord has done the Chamber great credit by bring it forward.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
I thank all noble Lords for their contributions to this very interesting debate on this set of amendments. Before I begin, I will respond to the noble Lord, Lord Paddick, and the noble Baroness, Lady Chakrabarti, who is not present in her place, in respect of the comments made at the end of group 1, particularly those relating to the reasonable excuse defence being available before arrest and the recent specific case of the arrest of the journalist Charlotte Lynch. I repeat the words of my noble friend Lord Sharpe: this was clearly wrong and should not have happened. Hertfordshire Constabulary has confirmed that additional measures are now in place to ensure that legitimate media are able to do their jobs.
More generally, I make clear that, to arrest someone, the police need to have reasonable grounds to suspect that they have committed or are about to commit a crime. Of course, we would expect the police to consider the likelihood of someone having a reasonable excuse when making arrest decisions. But the police must be able to intervene early to deal with serious disruption, without having to go through bureaucratic hurdles.
Turning to the group at hand, we have already discussed the reasonable excuse defence at some length today, and I will not detain noble Lords for too much longer. Specifically in relation to Amendments 9 and 10, I thank the noble Baroness, Lady Jones, for giving me the opportunity to make it clear that trampling on the rights of the public in the name of environmental activism is not by default a reasonable excuse for locking on; nor does legitimate activity by the highly regulated energy sector constitute a criminal offence.
Turning to perhaps the most interesting part of the recent debate—regarding Amendments 11, 30, 41, 57 and 63—I particularly thank the noble and learned Lord, Lord Hope of Craighead, for his amendments, which seek to ensure that the reasonable excuse defence is assessed by the courts with reference to an individual’s direct intentions, rather than with reference to any type of public interest they claim to be pursuing through an offence. This would prevent someone using an argument of public interest as a reasonable excuse for committing an offence. I also thank him for his excellent contribution to the debate.
Baroness Blower (Lab)
Before the arrival of the Minister in the Chamber, the noble Lord, Lord Sharpe, said that he would return to my point about picketing in the response to this group of amendments. Clearly this is what is happening now. However, I am afraid I did not really understand what the Minister was putting to us about other things in the Bill. Could he recap a little on what is intended by
“furtherance of a trade dispute”
in that context? I am sure it is entirely my own fault, but I just did not understand this.
Lord Murray of Blidworth (Con)
Certainly, and I thank the noble Baroness for her question. It is important that we have clarity because this is clearly a very important point. In the Bill, the pursuit of lawful and legitimate industrial action constitutes a lawful exercise of that right and is not criminalised. However, that provision in the Bill does not read across, if you like, to all the other offences, and in particular is not found in any tunnelling offence. That is the point where I differ from the speech the noble Lord, Lord Coaker, gave moments ago. The reason for that—
Lord Paddick (LD)
I am very grateful to the Minister for giving way. He just said that, in other parts of the Bill, somebody engaged in a trade dispute is not criminalised by the offences contained in this Bill. However, we had a discussion in the Minister’s absence about the fact that it was a reasonable excuse defence once charged. In other words, somebody engaged in a trade dispute could be arrested, detained and charged by the police, which I would describe as being treated as a criminal, and it is only at the point after a charge and an appearance at a court that this defence is available. I guess that the Minister is technically right, in that somebody is not criminalised until they are convicted by a court, but we are really arguing semantics here. So the way that the Minister expressed himself—saying that, effectively, somebody involved in a trade dispute would not be in danger from the provisions of the Bill—is not actually accurate.
Lord Murray of Blidworth (Con)
In Clause 7, “Interference with use or operation of key national infrastructure”, one can see that, in subsection (2), “a defence” is provided
“for a person charged with an offence under subsection (1) to prove that … (b) the act mentioned in paragraph (a) of that subsection was done wholly or mainly in contemplation or furtherance of a trade dispute.”
I am sure the noble Lord can see how the protection for the right to be involved in a trade dispute is protected by that drafting—and that is certainly the clear intention of the Government.
Lord Coaker (Lab)
Is the Minister saying that you cannot lock on in the furtherance of a trade dispute but you can picket in the furtherance of a trade dispute?
Lord Murray of Blidworth (Con)
Clearly, the provisions of the locking-on offence do not expressly contain the same provision. Therefore, it is correct to say that the Bill envisages a defence for the involvement in industrial disputes in relation to key national infrastructure, but there is no need for such a like provision in respect of locking on. I will obviously clarify that with my officials and respond to the noble Lord in on that.
Baroness Blower (Lab)
I just seek some clarification. In response to the speech I made earlier about picketing, and since there is no intention in Amendment 60 to expand picketing, or any rights in relation to picketing, is the Minister therefore saying that, on everything that has been permitted by law in terms of picketing—which is already hedged with quite a lot of regulation and requirements—there is no intention in this Bill to make any alteration to the lawful carrying out of picketing in furtherance of a trade dispute? I believe that is what I am hearing the Minister say, and I hope that is the case.
Lord Murray of Blidworth (Con)
Can I confirm with my officials and write to the noble Baroness in respect of that point? My understanding is that that is so, but I want to check that before I confirm.
Lord Judge (CB)
While the Minister is conferring with his officials, can he suggest to them that they look at Clause1(1) and put in some new words? After
“A person commits an offence if”,
he should add “without reasonable excuse”, if (a) they do this, (b) they do that and (c) they do the other. Then he should get rid of subsection (2).
Lord Murray of Blidworth (Con)
I hear what the noble and learned Lord says, and I will certainly ask them.
I think that I had reached Amendment 61. It similarly seeks to strengthen the defences available. As I have said already, whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, and we see it as entirely appropriate that the defendant, who committed the offence in the first place and has personal knowledge of those facts, is required to prove them.
I turn lastly to Amendments 56 and 62, which seek to make it an explicit requirement for the police and courts to pay regard to Articles 10 and 11 of the ECHR when determining whether someone has a reasonable excuse for the offences of obstructing major transport works and interference with key national infrastructure. Although I understand the sentiment behind the amendment from the noble Lord, Lord Paddick, I do not see it as being necessary. It is of course right that the courts and other public bodies are already obliged to act compatibly with the ECHR by reason of the provisions of Sections 6 and 7 of the Human Rights Act 1998. Therefore, there is already legislative protection for the consideration of such rights, and it is not necessary to repeat that in this Bill.
Lord Paddick (LD)
Can I just seek clarification on what the Minister said earlier about tunnels not constructed by protesters and people causing serious disruption in those tunnels? My understanding is that the Minister is saying, “Don’t worry, trust the police.” I know that that is what the legislation says about someone causing serious disruption in a London Underground tunnel, maybe London Underground workers operating a picket line in a tunnel constructed by London Underground: “Don’t worry about it, the police are reasonable people; they wouldn’t use the law in that way and, at the end of the day, the courts wouldn’t convict.” However, as the journalist who was trying to report on a protest found—the case that the Minister started his remarks with—we are still faced with the possibility of being arrested and detained for five hours by the police and of the police being unreasonable; that is by their own admission now. It seems an onerous experience for a completely innocent person to go through that, and to have to rely on the fact that, at the end of the day, the courts will not convict them, when they have been completely innocent from the start.
Lord Murray of Blidworth (Con)
I thank the noble Lord for his intervention. The short answer is that these cases are always going to be fact-specific. If there was a serious disruption in a London Underground tunnel, I suspect that there would potentially be many offences being committed other than those under this Bill. As my noble friend Lord Sharpe has already said, this situation will be considered and we will come back to the noble Lord. I invite the noble Baroness to withdraw her amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, I thank all noble Lords who have contributed. I enjoyed the critique of reasonable defence from the noble and learned Lord, Lord Hope, and I was delighted that the noble and learned Lord, Lord Judge, has come into the debate. However, I ask both of them not to be helpful to the Government—I just want to vote against everything in this Bill and they are making it difficult.
Public Order Bill
Wednesday 16th November 2022
(2 years ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 61-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (16 Nov 2022)
The Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
My Lords, I must inform the Committee that if Amendment 12 is agreed, I will not be able to call Amendment 13 by reason of pre-emption.
Amendment 12
Baroness Chakrabarti
Member's explanatory statement
This amendment, with others in the name of Baroness Chakrabarti, reduces the maximum sentence for the proposed new offence of “locking on” to a fine.
Baroness Chakrabarti (Lab)
My Lords, I now get the opportunity to congratulate and welcome the Minister —the noble Lord, Lord Murray—to this Committee. I have had the opportunity to welcome him in other ways before, but it is important to be engaged in detailed scrutiny of the Bill for the first time.
This group is about sentencing. Notwithstanding everything that I have said so far—and no doubt will say again, and make the Minister’s ears bleed with my position on the Bill as a whole and specific offences—it is also important to engage with the specific issues of appropriate and proportionate sentencing, how the sentencing framework and different offences in that framework fit together, and whether we in this country should be incarcerating more and more people, including for what may well be peaceful dissent. It is very difficult to separate the issue of sentencing from the other formulation of the offence. When I was young, I was a lawyer in the Minister’s department, and one of the things that we were responsible for at that time in the Home Office was looking at the overall sentencing framework. That may now belong in the Ministry of Justice, but none the less the point was that whenever a new offence was proposed by any government department, it needed to pass some gatekeepers in a little unit in the Home Office who wanted to be clear about the formulation of the offence—mens rea, actus reus, et cetera—but also about the sentence, because in government people look for levers for change and everyone has a new big idea about a new offence.
In particular, in this group, with my first and some other amendments, including those of other noble Lords, I am really probing whether the new proposed offence of locking on—the Minister’s colleague, the noble Lord, Lord Sharpe, who is about to arrive in his place, was discussing that earlier—could even include people who, in a disruptive way, link arms. The noble Lord, Lord Sharpe, made the argument that sometimes linking arms in big enough groups would be just as disruptive as gluing your hands to the road. Are we really suggesting incarceration for up to 51 weeks for an offence that could be perpetrated by people singing “Kumbaya” and linking arms? It is a probe, but it is important that there should be some probes about the sentences for these offences, and not just their intention and formulation. I think that it is very important that we consider how many people we are incarcerating in this country, the trajectory that we are on with imprisonment in this country, and whether we have a criminal statute book—including a sentencing statute book—that is proportionate and coherent to meet the needs of a very troubled and polarised society at the moment. With that, I beg to move.
Lord Paddick (LD)
I look around in vain for anyone else who wants to speak. I agree with the principles that the noble Baroness, Lady Chakrabarti, has just spoken about. Amendment 13, in my name, is based on a recommendation from the Joint Committee on Human Rights. In its report on the Bill, the committee points out that the offence of locking on under Clause 1 is punishable with—as she just said—
“up to 51 weeks in prison.”
The committee states that:
“This sanction is significantly harsher than the maximum penalties that, until recently, applied to existing ‘protest-related’ non-violent offences such as obstructing the highway (level 3 fine) or aggravated trespass (3 months imprisonment).”
The committee notes that there is likely to be a low hurdle for prosecution—again, as the noble Baroness, Lady Chakrabarti, just said. The amendment therefore questions whether the length of potential imprisonment —51 weeks—is proportionate to the offence that is committed. Amendment 13 suggests that this should be reduced to a three-month maximum sentence.
The remaining amendments in my name in this group relate to the level of fine that can be issued to a person who commits an offence under Clauses 1 to 7. They are similar to amendments that I tabled to the corresponding clauses of the Police, Crime, Sentencing and Courts Bill—now an Act—when it was previously debated in this House. However, given the nature of the debate at that stage—in particular, in Committee, we started discussing those clauses at 11.45 pm—I believe that there is merit in discussing this issue again in this Committee.
Under Clauses 1 to 7, a person convicted of an offence may be liable to “a fine”. However, the Bill does not specify what the maximum level of such a fine should be. For each of these new offences, our amendments ask the simple question: is an unlimited fine proportionate for such an offence? In particular, is it proportionate that a person convicted of the offence of being equipped for locking on, for example, should be subjected to an unlimited fine? The Minister may argue that the level of fine suggested in our amendments is too low. At this point, they are simply probing amendments designed to make the principled point that an unlimited fine may be disproportionate for a number of the offences contained in the Bill. Finally, it would also be of benefit to the Committee if the Minister could set out how they intend fines to be applied consistently for these offences, if there is no upper limit as to the fine that can be imposed.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will be extremely brief. I want to reiterate the final two points that the noble Lord, Lord Paddick, made. I speak as a sitting magistrate in London. I occasionally have to deal with unlimited fines, but it is far more straightforward as a magistrate, when you have a level set and an example of what the maximum fine might be for whatever offence one is dealing with at the time. For most offences that we deal with, levels are indeed set; we are given the parameters, if you like, of what would be appropriate. I was going to make the same point as the noble Lord, Lord Paddick: if one wants some form of consistency across the country for these types of offences, it would be useful to have some level of guidance, perhaps setting a level of fine that may be appropriate.
The other point I want to make, which is slightly outside the scope of these amendments, is about the power of the court to set compensation. I have been in a case dealing with relatively minor offences, but the level of potential compensation was absolutely astronomical when we were talking about disrupting train services and things such as that. The level of compensation is a judicial decision but, certainly in my experience, the level of compensation can potentially eclipse the maximum level of any fine the court may give. I do not know whether the Minister is able to say something more about appropriate levels of fines—and appropriate levels of compensation.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I thank noble Lords for that short debate, and I particularly thank the noble Baroness, Lady Chakrabarti, for her warm welcome to this Committee. It has been a fascinating exercise to conduct my first Committee stage.
The general intention of this group of amendments is to reduce the maximum fines and the maximum sentences listed in Clauses 1 to 8. The maximum fines and sentences attached to these offences reflect, in the view of the Government, the serious harm and disruption that can be caused by these actions. It may be helpful if I set out just one example of that harm for the Committee. During the targeted and reckless activity by Just Stop Oil in August 2022, protesters dug two tunnels in an attempt to disrupt access to an oil terminal in Essex. This particularly dangerous protest tactic not only disrupted the operation of the terminal but had a knock-on impact on many others. First, it led to full and partial road closures impacting the public, local and private businesses and the council. Secondly, it resulted in ambulances and fire and rescue services being on standby due to the risk of collapse in the tunnel, thereby impacting on availability of those emergency services. Thirdly, it consumed a huge amount of police resources in responding to the operation, impacting on the police as well as the public, as officers had to be diverted from other duties.
Given this example and countless others, the maximum sentences and fines set out in the Bill are not only proportionate to the harm and disruption caused but necessary. It is worth saying that these are maximum sentences and it is plainly not the case that every person convicted under these offences will be given these sentences and penalties. Indeed, it is right to say that the maximum penalties are used only in the most egregious cases. The courts will consider the appropriate penalty in each case and, in response to the point made by the noble Lord, Lord Paddick, they will be considered on a case-by-case basis. For these fundamental reasons, I therefore respectfully disagree with these amendments and ask that Amendment 12 be withdrawn.
Lord Paddick (LD)
Will the Minister address the issue that the noble Lord, Lord Ponsonby of Shulbrede, and I raised about how consistency in the levels of fines being imposed, particularly by lay magistrates’ Benches, will be achieved when there is absolutely no guidance in the legislation on the level of fine that should be imposed?
Lord Murray of Blidworth (Con)
It is, of course, frequently the case in legislation that there is no guidance on the face of the Bill as to the likely sentences that are imposed. It is very common for there to be sentencing guidelines formulated in the usual way by the judiciary. No doubt that is what will happen in relation to these offences. As I am sure the noble Lord, Lord Ponsonby, will agree, these are the guidelines to which prosecutors routinely refer the court before the court passes sentence.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to all noble Lords who have participated in this all-too-sparse and short, but very important, debate about maximum sentences for new offences that are incredibly controversial. To address the Minister’s response directly, I am concerned that a briefing pattern is developing in the course of this Committee, where the Minister is given an example of something that protesters did that caused a lot of disruption and harm and so on, but we have yet to really understand why existing criminal law is not capable of addressing that. What is not being offered to the Committee—and perhaps not being advised to Ministers—is where the need is, given the scale of the public order statute book as it is. Within that, specific to this group, we are not being given a picture of where these offences sit in the hierarchy of criminal offences and criminal sentences.
Instead, we are being given a story about something outrageous that some protesters did and told that this is why the whole Bill is justified. We really need to get into a bit more specificity when we are playing with the criminal statute book and potentially sending people to prison or bankrupting them and so on. That is no disrespect to the Minister, his noble friend, his colleagues, or even his advisers. What is more traditional—certainly in this place—is that when offences are offered, and sentences to go with them, we are given a picture of where they sit within the current ecosystem of the criminal law; then we can really drill down into both the formulation of the offence and the sentence. People who disagree with me and, perhaps, welcome the offences, can nonetheless improve them and make sure that they are proportionate in their formulation and sentencing.
That has not happened in this debate, and it really must happen for us to do our duty as a Committee. That really must start to happen during the passage of this Bill, and it certainly will have to happen on Report. Concerns about incarceration, bankruptcy and maximum sentences, as well as fundamental concerns about the formulation of the offences themselves and even prior concerns about the need for them, are going to keep coming, group after group, in this Committee, and they will come again as we go down the road of consideration. I hope, therefore, that Ministers will take that in good part. For the time being, I beg leave to withdraw.
Baroness Chakrabarti (Lab)
I apologise in advance to the Ministers for making their ears bleed. A lot of what I have just said is relevant to this group as well. In previous hours in this Committee, noble Lord after noble Lord from around this Committee—from the Benches opposite, the Cross Benches, lawyers, lay people, people concerned with the balance between peaceful dissent and other rights and freedoms for the rest of the community—has been really concerned about these new offences and the justification for them. There was a real consensus that it is for the Government of the day, and those who propose new restrictions of whatever kind on liberty, to make the case. Particularly when we are talking about coercive police powers at a time when there has been a bit of a crisis of trust in the police, which is not what we want, it is really important that the justification for new offences, new police powers and so on be made before we sign these blank cheques. It is no disrespect to the police. Every day that I come into this place, I am grateful to our wonderful police, who stand out there and protect us all as legislators. I am so grateful to them. Of course, it crosses my mind that I am criticising expansive police powers and so on, but I still feel that is my duty.
I will not take up too much time, but the case for these new offences has not been made by the Government. I tried to make my point in response to the debate on the previous group. We need a statement from Ministers about the existing public order statute book, what these existing offences and powers do and do not do, and what the gaps are thought to be, so that noble Lords in this Committee, including the noble Lord, Lord Carlile of Berriew, who knows a little about the criminal law—he and I have debated it over many years; sometimes we have agreed and sometimes we have disagreed—can bring their minds to this schedule, which hopefully the Government will provide, and ask, “Is there really a gap?”
That has not been done to date, despite the fact that these measures are largely defrosted and reheated from a previous Bill and have been through the elected House. That forensic case, that examination of the existing statute book and where the gaps are, has not been made. I do not vote on people’s liberties to protest, whether I agree or disagree with them, unless I see the case being made. That is why I have taken the step of opposing so many of the clauses—and I apologise if that seems rude in any way.
Make no mistake: I would be doing this if it was my party in government or whoever’s party in government. Sometimes, when it comes to civil liberties, whoever you vote for, the Government get in. As legislators we have duties to be a little more careful and forensic before adding to the very expansive public order statute book, with people concerned for their basic protection—yes, from each other, but also from abuses of power. With that, I do not have to say anything more.
Lord Carlile of Berriew (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti, and in the widest sense I agree with her—but I come at it from a rather different angle. I am concerned about the integrity of the legal process.
I do not want to repeat what I said earlier. The Minister heard me referring to a very recent statute that came into force in August, I think from memory, which in my view covers all the conduct we are considering here. One has to consider the effect on the legal process of having different provisions, with very different consequences, which are not alternatives to one another; they have to be charged separately. It is not like wounding with intent under Section 18 of the Offences against the Person Act, where Section 20, unlawful wounding, is always an available alternative. These are quite separate offences, in totally separate Acts of Parliament, separated by a little time—though oddly, in this case, if the Bill is enacted, both introduced in the same year by the same Government.
We have to think about the way the process operates. The biggest Crown Court in London has a backlog, partly because of Covid, of nearly 4,000 cases, and we should consider the case management that is placed on the judges there. I have a particular interest in that Crown Court, which I place on the record. My interest in that court leads me to the view that the judges, the prosecutors and probably the defenders there are unlikely to be aware of the alternatives. However, as I suggested earlier, in another Crown Court another charge might be brought under the other Act of Parliament, and the judges there would know about the offences with the lower imprisonment maximum but would not know about the other statute. We will end up with a crowded calendar, with the Court of Appeal eventually having to say, “Why do we have two Acts of Parliament that deal with the same conduct but have totally different consequences?” I am sure that the noble Lord, Lord Ponsonby, who is an experienced, busy and highly regarded lay magistrate, has similar experience of backlogs in the courts in which he sits in London, and the same is true in all the cities around the UK.
Lord Paddick (LD)
My Lords, I have the greatest respect for the noble Lord, Lord Carlile of Berriew, and completely agree with him that the Government have not made the case for any of the provisions in the Bill.
I agree with many of the points that other noble Lords have already made in this debate on all sides of the House. The Government should take note of the strength of feeling, particularly among the influential Members of the Cross Benches, who are opposing the provisions in the Bill and are likely to persuade their colleagues to vote with them against it on Report if we do not have sufficient clarity and answers to the proper questions that many Members of the House have put to the Ministers but to which they have not received answers today.
I will not repeat what I have already said, particularly in relation to the first group. I am grateful to Liberty for its briefing on the Bill. Based on that briefing, I say that case law confirms that we have a right to choose how we protest, and the diversity of protest tactics throughout history demonstrates the deeply interconnected nature of free expression, creativity and dissent. The offence of locking on under Clause 1 not only defies those principles but criminalises an innumerable list of activities—not only what we would typically understand as lock-on protest, where people lock themselves to one another via a lock-on device or chain themselves to Parliament, but any activities involving people attaching themselves to other people or to an object or land, or attaching objects to other objects and land.
The Government claim that the wording of this offence is sufficiently precise to be foreseeable and that the provisions are in accordance with the law. As noble Lords will have noted from discussions on previous groups, I disagree. I am concerned that the offence under Clause 1 risks disproportionately interfering with individuals’ rights under Articles 10 and 11 of the European Convention on Human Rights.
As the noble Baroness, Lady Jones of Moulsecoomb, said on a previous group, the broad and vague nature of “attach”, which is not defined in the Bill, means that this offence could catch people engaged in activities such as linking arms with one another, or locking their wheelchairs to traffic lights. The recurring themes throughout our debates today have been the risk of disproportionality and the risk of uncertainty.
As I have stated before, this proposal is not supported by the police. When consulted on a similar proposal by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, police respondents said:
“most interviewees [junior police officers] did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”
Even the police are against it.
Turning to the new offence of being equipped for locking on, I reiterate my concerns that the vague and potentially unlimited list of activities covered by this offence are exacerbated by the ambiguity of the drafting of Clause 2. I note that the object in the offence of locking on does not have to be related to protest at all. It must simply be established that a person intended it to be used in a certain way. Nor does the object have to be used by the person who had it in their possession. The offence refers to
“the commission by any person of an offence”.
The phrase
“in the course of or in connection with”
casts an extremely wide net as to what activities might be criminalised under the offence. So wide is the net cast by this clause that effectively any person walking around with a bike lock, a packet of glue, a roll of tape or any number of other everyday objects could be at risk of being found to have committed this offence. As we have heard, the possibilities are endless. It is also significant that, unlike the substantive offence of locking on, there is no reasonable excuse defence in the wording of this offence, which means that individuals will find it even more difficult to challenge.
The Just Stop Oil movement has called off its protests because too many of its members are behind bars under existing legislation—particularly the favourite of the noble Lord, Lord Carlile of Berriew, Section 79 of the Police, Crime, Sentencing and Courts Act 2022. If current legislation has effectively put a stop to the disruptive Just Stop Oil protests, why on earth do we need this Bill?
Baroness Hamwee (LD)
My Lords, as we now have both Ministers on the Front Bench, I will repeat the point I made earlier about explanations being made in the Chamber. I will add a sentence to what I said before about explanations being given in writing, by letters to individual Members of the House, generally copied to other interested Members: they kind of float though and one loses a grip on how much has been answered. Explanations that are part of the justification for a piece of legislation are not easily available to those who need to know them. We have a parliamentary website with a webpage for each piece of legislation. That is where people will go to see what the debate has been on particular amendments and how amendments have changed as a Bill has progressed. That is where they should be able to see the answers that Ministers were not able to give at the time when a matter was raised. Either through Hansard or some other mechanism, these answers should be lodged on the public record, and they have to be given in the Chamber in order to progress. This is immensely important, and I am making the point here because it is on the point of principle that other noble Lords have spoken about on this group.
Lord Coaker (Lab)
My Lords, my noble friend Lady Chakrabarti has allowed us to have a very important short debate. Again, I was interested in the remarks of the noble Lords, Lord Paddick and Lord Carlile. The whole point, which I repeat as it is really important, is that the constitutional position of the House of Lords is to review and improve legislation, and sometimes to say to the House of Commons—which, as the elected body, in the end has the constitutional right to have its way—that we think, in this instance, they may have got it wrong. That is a perfectly reasonable thing for this House to do.
All the way through the first day of this Committee, the Government have been asked to justify the Bill. Why is it necessary? What evidence do the Government have to show that this legislation is required? As I said, there is no difference between the vast majority of us in this House in deploring the tactics of Just Stop Oil, and believing that it went far too far in the pursuit of its agenda and beliefs. That is not the point; the point is how we deal with protests in this country.
Many of us are asking: why was existing legislation not used as quickly as it might have been? Why was existing legislation shown to be inadequate? As the noble Lord, Lord Paddick, has just reminded us—I reminded the Minister of this earlier on—on the Radio 4 “Today” programme last week, a Just Stop Oil protest organiser said that one of the reasons it called off its protests was because of the number of arrests that had been made. It was the number of its members who, as organisers, would have been out on the M25 or wherever but were in prison or on remand. That was not done with the Public Order Bill; it was done with existing legislation. I think it was last week when the Minister told me that, in the month of October, 677 arrests had been made of Just Stop Oil protestors under existing legislation.
It is not good enough for the Government simply to say, “We think that this needs to be done”. What is the evidence and who is demanding this? The Minister has been reminded time and time again during debate that the police themselves have not asked for it. Regarding Clause 5 on being equipped for tunnelling, the National Police Chiefs’ Council said in its evidence:
“There is current legislation, such as that contained in the Criminal Damage Act 1971, that creates offences of damaging property and having article to damage property. With the associated powers of search these allow the Police to find articles or equipment intended to cause damage.”
That is what the police are telling the Government with specific reference to tunnelling. Yet the Government turn round and say, “We need a new offence because the police do not have enough power to do the things we say they need to do.” The police have turned that around and said that they have. They cannot both be right. Is the evidence that the police have given about tunnelling wrong?
The police raised another concern, on which it would be interesting to hear the Minister’s response. They have another significant concern
“that any specific offence relating to tunnelling would apply to private land. This again could place a significant responsibility on policing.”
They have asked why the Government decided to apply it to private as well as public land; that was a specific request.
The demand from noble Lord after noble Lord has been: can the Government point to how the existing legislation has or has not been used, and where are the specific gaps in legislation that meant the Government have been unable to deal with the protests that we have seen and which the Bill we are debating seeks to fill? As yet, we have had no answer.
In regard to the stand part debate on Clause 1, which deals with locking on and being equipped to do so, locking on is not a new phenomenon. I pointed out to the Minister last week or the week before that there was guidance on police action with respect to locking on between 2008 and 2010. It had pictures of people being locked on to various fences, buildings or whatever.
It looks to me as though the Government have panicked in the face of what is happening. They think, “We have to be seen to be doing something; we can’t have a situation where we seem powerless”. In fact, what is needed is for the Government to get a grip, sit down and talk to the police and magistrates about how to resolve this situation in a way that is consistent with the democratic values of our country but does not allow a reckless minority to overstep the mark and put the majority through unnecessary disruption.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, once again, I thank all noble Lords for their contributions to the debate this evening. It has been a very lively and thoughtful discussion generally. I look forward—I think—to continuing to discuss these important issues next week. I first reassure the noble Baroness, Lady Chakrabarti, that I do not think she is rude. I may not agree, but I think the position she is coming from is highly principled. I also say to the noble Lord, Lord Coaker, that I do not think we have failed when it comes to definitions. We have committed to take that matter away and it is ongoing work.
The amendments in this final group take issue with the some of the offences listed in Clauses 1 to 8. Clause 1 is a key part of the Government’s plan to protect the public from the dangerous and disruptive protest tactic of locking on. Recent protests have seen selfish individuals seek to cause maximum disruption by locking themselves to roads, buildings, objects and other people. This has seen traffic disrupted, public transport delayed and the transport of fuel from terminals grind to a halt—to name just a few examples. Such tactics cause misery to the public, with people unable to access their place of work or their schools, or to attend vital hospital appointments.
I turn next to Clause 2, which is inextricably linked to Clause 1. During fast-moving protest situations, the police must be able to take necessary proactive action to prevent lock-ons occurring. Along with the associated stop and search powers, which the Committee will scrutinise later, this new offence will allow the police to prevent lock-ons before they occur and deter others from considering doing so.
Lastly, Clause 5, along with Clauses 3 and 4, is designed to make clear that the protest tactic of building tunnels to disrupt legitimate activity will not be tolerated. I am afraid there is a degree of repetition here, but projects such as HS2 have been targeted on multiple occasions by tunnels which have contributed to an enormous cost of £146 million to the project. Aside from the cost, these tactics are enormously reckless, putting not just protesters themselves at risk but those called upon to remove them and repair the damage inflicted.
There is one further amendment in this group: Amendment 69, in the name of the noble Baroness, Lady Chakrabarti, which seeks to remove the delegated power for the Secretary of State to amend, add or remove the list of infrastructure in the legal definition of “key national infrastructure”. Throughout the debate, we have heard about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power that will allow us to respond effectively to emerging threats. But I reassure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.
Before concluding tonight’s debate, I will respond to speeches made by many noble Lords, but specifically the noble Lords, Lord Paddick, Lord Coaker and Lord Carlile of Berriew, and the noble Baroness, Lady Chakrabarti, about the necessity of the powers taken in the Bill. I have spoken about the three key general differences between the Bill and existing public order offences and legislation. First, it is about sentencing lengths; secondly, it is about offences that take place on private land; and, thirdly, it is about introducing more pre-emptive powers, providing the police with the ability to stop serious disruption before it happens.
It would be appropriate to acknowledge at this point that some of the commentary from the police is a little contradictory. Chief Constable Chris Noble, the National Police Chiefs’ Council lead on protests, said:
“There have been some very novel—without giving them any credit—and highly disruptive tactics; that is reflected on the contents page of the Bill. If we look across the breadth of protest organisations and groups, we see that they are very aware of some of the legal gaps, inadequacies and shortcomings; that is very clear from their engagement with police, as well as their tactics.”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 5.]
Of course we work with the police, and we will obviously continue to do so.
I will try to address some of the key existing offences that have been mentioned and talk about how the Bill differs and builds on these important offences. I turn first to Sections 12, 14 and 14ZA of the Public Order Act 1986, as amended by the Police, Crime, Sentencing and Courts Act 2022, which allows the police to place necessary and proportionate conditions on public assemblies and processions to prevent certain harms occurring—namely, serious disruption to the life of the community. These powers are for the safe management of large protests where many people assemble or march. They do not provide the police with the means to tackle non-violent direct action of the sort that Just Stop Oil engages in.
I turn now to public nuisance and obstruction of the highway offences. We are pleased to have put the public nuisance offence on to a statutory footing, and noble Lords are quite right that it can be used to deal with some of the highly disruptive protests that we have seen recently. As the noble Lord, Lord Coaker, indicated, both these and other criminal offences are currently being used to arrest and charge Just Stop Oil protesters.
But we have to remember that there are offences that can cause serious disruption but do not meet the threshold for the public nuisance offence, which is extremely high. At the moment, such protesters manage to find loopholes to get acquitted or are subject to low penalties. These new offences are therefore essential to give the police the powers that they need to deal with these offenders. Although many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, these offences do not necessarily apply to tactics such as those that have targeted HS2 Ltd. Therefore, new criminal offences covering tunnelling and locking on are necessary.
I turn to the offence of aggravated trespass, which criminalises intentionally obstructing, disrupting or intimidating others carrying out lawful activities on private land. The maximum penalty is three months’ imprisonment or a £2,500 fine, or both. This broad offence captures many activities that trespassers, protesters or others may engage in. The maximum penalty is not proportionate to the seriousness of some of the tactics used by protesters, which can put lives at risk. This is a broad offence that covers many non-protest behaviours, and it would not be appropriate to increase the maximum sentence for it. Therefore, new criminal offences that apply to private land are needed: locking-on, tunnelling and infrastructure-related offences.
I turn to stop and search. Section 1 of the Police and Criminal Evidence Act 1984 allows a constable to search individuals whom they reasonably believe are carrying something that could be used to commit specific criminal offences, including criminal damage. Furthermore, the police can search individuals after having arrested them. For example, after arresting Just Stop Oil protesters for conspiracy to commit public nuisance, the police searched their car and seized items suspected to be used in the course of the offence.
Finally, the noble Lord, Lord Paddick, queried the necessity of the measures given that HS2—which has experienced significant protest action at huge cost, as we have discussed many times—was able to secure a nationwide injunction. We agree that injunctions can be helpful for preventing the types of serious disruption we have seen, which is why we have introduced our own measure which provides a specific mechanism for a Secretary of State to seek an injunction against protest activity where it is in the public interest to do so. However, this is only one piece of the puzzle and we have seen from the M25 protests that injunctions do not necessarily stop people breaking the law.
I have tried to set out how the measures in the Bill will bolster the police powers to respond more effectively to disruptive and dangerous protests, to protect our key national infrastructure and major transport works from interference, and to better balance the rights of protesters with the right of the general public to go about their lives free from serious disruption and harm. For those reasons, I respectfully ask noble Lords not to press their amendments.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords for sticking it out and will try to be brief, given the hour. I am also particularly grateful to the Minister for reminding me that I did not speak to my Amendment 69, which, as he rightly said, would remove the ability to change the criminal offence of interfering with national infrastructure by adding further infrastructure. I stand by my concern that this kind of thing should not be done by way of secondary legislation, because it has such a profound effect on the rights and freedoms of people in this country to dissent peacefully. It would be very easy to abuse that power and it is not appropriate for secondary legislation. We will no doubt return to issues of powers of that kind at a later stage.
Once more, I must thank the noble Lord, Lord Carlile of Berriew, for pointing out what the courts are having to grapple with: a burgeoning statute book with more and more offences, which police forces must deal with too. This menu of potential powers and offences just gets bigger by the year. The idea that, every time there is an innovative or novel protest, something must be done and there will be a new offering of legislation is not a coherent way to operate the rule of law in a constitutional democracy. Lots of dangers will come from this.
I take the point about the police service not speaking as one on any of these issues, and maybe it should not. I was particularly grateful to the noble Lord, Lord Paddick, for pointing out, as a former police officer, that there is quite a strength of police opinion and scepticism about the powers in the Bill. I was also grateful to him for reminding me that the offence of going equipped for locking on is, in a way, even worse than the offence of locking on. Locking on is incredibly broad, as I think the Minister accepted in some of his earlier responses. Yes, linking arms is sometimes terribly disruptive too, but going equipped for locking on is a proper thought crime and one of the reasons I am particularly concerned about that offence. It is a thought crime that is supportive of a crime that is, in itself, incredibly broad and will, theoretically, capture some activities that some people think are just natural to humans and innocent.
I was grateful to the noble Baroness, Lady Hamwee, for addressing a very important process point. I totally understand the need for Ministers to write to noble Lords later, particularly in answer to the Questions we have each day. However, writing later should not be a central tactic of defending and promoting a Bill that has been some time in gestation. I was grateful to the Minister and his colleagues for coming up with a little more about the existing statute book in the latter part of this evening, but that will require a lot more examination. I know that noble Lords in Committee will be reading Hansard very carefully tomorrow and there will be more to discuss about that.
Ultimately, there are some protesters who, rightly or wrongly, care so much about the climate catastrophe, race equality, Brexit or whichever other issue that they are prepared to go to prison. There are some in that category for whom there is no new offence that will prevent their actions. So be it; that is life.
What I am concerned about, with the ever expanding public order statute book, are the people who are not in that category and who will get caught up in this kind of thing, as happened last week to the journalist who was detained for, in total, about seven hours, with five in a police cell, just for reporting on the protests. When you keep adding to police powers, adding to the public order statute book and catching more and more innocent activity, more injustice will follow. It will not be about catching the people who we all agree are going too far sometimes—and who are prepared to go too far for their cause; that is their conscience. There will be more and more innocent bystanders—journalists, people from racial minorities—who get caught up in this very broad blank cheque that noble Lords and Ministers are proposing to hand to the police. The police are from us; they are a part of our community and are imperfect as we are. It is not fair to hand this blank cheque to them and, when it goes wrong, to blame them. We have that on our conscience if we pass these powers.
Public Order Bill
Tuesday 22nd November 2022
(2 years ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 61-II(a) Amendment for Committee (Supplementary to the Second Marshalled List) - (21 Nov 2022)
Baroness Fox of Buckley
Member's explanatory statement
This amendment provides for a defence where the person has a reasonable excuse for being within a buffer zone and has access to that defence prior to charge.
Baroness Fox of Buckley (Non-Afl)
My Lords, I shall speak to a range of amendments associated with Clause 9: Amendments 80, 81, 82, 83, 86, 89, 92 and 94. I have also put my name to Amendments 88 and 90 in the name of the noble Lord, Lord Beith, and have some sympathy with Amendments 98 and 99 in the names of the noble Lord, Lord Farmer, and the right reverend Prelate the Bishop of St Albans.
Clause 9 creates a new criminal offence of interfering with
“any person’s decision to access, provide or facilitate the provision of abortion services”
in a designated buffer zone. The most contentious aspects of the clause centre on the definition of “interfering with”, which criminalises a wide range of activities usually associated with free speech and the right to assemble.
However, Clause 9 also makes any gathering outside an abortion clinic or a hospital providing abortions the subject of criminal law. Currently, where there have been problems outside a building facilitating abortion services, the mechanism for dealing with them has been locally decided and designed through public space protection orders—PSPOs. Police and local authorities have the ability to set up zones in response to complaints over gatherings around specific abortion providing facilities. Clause 9, in contrast, introduces a catch-all blanket ban across all service providers, regardless of whether there are problem protest activities taking place. This seems to me to be totally disproportionate.
Although I am no fan of PSPOs per se—councils carving ever more public space away from public use is not a positive trend—none the less, the aim of my Amendments 88, 89 and 90 is to repose the solution in relation to abortion protests as localised PSPOs based on consultation and reviewed annually, so as not to normalise prohibitions.
Because Clause 9 focuses on the issue of abortion, which we know is an emotional and morally challenging issue, it is worth taking a step back. The Government’s reason for bringing forward the Bill overall is to deal with the new protest tactics of Extinction Rebellion and its offshoots. Many of us have noted in previous debates that we do not support these anti-social tactics and some of us have even been clear that we have no sympathy with the nihilistic, catastrophising philosophy behind the eco-guerrilla warfare that activists have been waging against the British public.
Despite that, there have been widespread concerns across the House querying whether these new laws are necessary or proportionate, and noting that we already have laws on the statute book to deal with aggravated disruption, even if these laws are not being used effectively by the police, which is a different problem. There has also been widespread unease, which your Lordships have illustrated in myriad ways, about how various clauses in the Bill might have unintended draconian consequences for the general right to protest, far beyond Just Stop Oil activists or our attitudes to them.
For me, the same concerns are absolutely true of Clause 9. However, the difference is that many opposing the Government on the rest of the Bill are supportive of this clause. Seemingly, this is because noble Lords want to be unconditionally supportive of every woman’s right to access abortion facilities without hassle or hostility. As a passionate advocate of women’s reproductive rights and bodily autonomy, I am very sympathetic to this view. However, this is not the key prism that should inform our approach to Clause 9. I urge your Lordships to scrutinise Clause 9 with similar dispassionate and impartial eyes as have assessed the rest of the Bill in relation to Just Stop Oil—that is, beyond our attitudes to abortion.
Stella Creasy, the MP who effectively authored this clause, was quite right when she said in the other place that this new clause is not about the abortion debate. However, she argues that it is about ensuring safe access to abortion healthcare, and this is where the dispute starts. All the evidence indicates that the activity happening outside clinics, while undoubtedly unsavoury, does not threaten safe access. What is more, if there are any instances of women’s safe access being obstructed, which is totally unacceptable, many pieces of legislation already exist to protect women if they face intimidation or harassment, as Home Office Minister Kit Malthouse pointed out in the Public Bill Committee debate in June. For example, the Public Order Act 1986 prohibits causing harassment, alarm or distress, and includes a specific power to impose conditions on assemblies that seek to intimidate others not to do an act they have a right to do.
As with other parts of the Bill, the police have the powers to target specific instances of behaviour or activity if they constitute blocking safe access to abortion facilities. In 2018, the then Home Secretary, after concluding an in-depth review of the abortion clinic buffer zones, stated that he was
“adamant that where a crime is committed, the police have the powers to act so that people feel protected.”—[Official Report, Commons, 13/9/18; cols. 37-38WS.]
Given the importance of the rights at stake here, it seems particularly important that the police use their resources and their existing powers appropriately, to protect staff at abortion facilities and service users alike —but for that to happen, none of this requires Clause 9.
Do not get me wrong; I have very little sympathy for those who think that it is appropriate to gather outside abortion clinics. It is wholly unpleasant to target any individual woman going into hospital to access a legal termination. Waving gruesome images of dismembered foetuses, following women and medical staff doing their jobs, calling out, “your baby loves you” or “murderers”, hanging clothes around clinic entrances—this is crass insensitivity rather than compassion.
However, to be balanced, pro-life activists who attend these vigils will dispute these anecdotes and claim to be simply offering crisis pregnancy support, giving women choices by offering help financially, in raising a child, et cetera. There are, I concede, two competing narratives. I am conscious of the 2018 Home Office review, which found that those gatherings largely comprise passive activities such as prayers, leafleting, placards, singing hymns and so on. Regardless of which narrative you buy, it is wholly insensitive and intrusive to try to engage individual women at such a time, effectively demanding that they account for their personal moral decisions to strangers at a rally. I have no doubt that this would upset most women. It would upset me.
But whether it is upsetting is not what we should be talking about. The key question is whether it should be illegal and whether it constitutes a threat to safe access. My problem with Clause 9 is that it does not distinguish between activities causing actual objective harm and harassment, which threaten safe access, and activities with which we may disagree or which we might find disagreeable. Therefore, we must resist the temptation to create a law that criminalises otherwise legal activities based on a distaste for those activities. How the Bill defines “interferes with” will make an extraordinary range of activities in a particular area punishable by lengthy stints in prison or unlimited fines.
Some of the most egregious and censorious parts that my Amendments 88 to 90 seek to strike out are,
“seeks to influence … advises or persuades, attempts to advise or persuade or otherwise expresses opinion … informs or attempts to inform about abortion services by any means, including, without limitation, graphic, physical, verbal or written means”.
In other words, Clause 9 outlaws leafleting, holding placards, expressing opinions, persuading and informing. Some will say, “Don’t worry; this is only to be used in very specific instances of access to abortion, and it is only confined to designated areas”. But as Big Brother Watch points out, creating prohibitions on protest on an issue-by-issue basis is not an appropriate way to make law. It sets a precedent that will inevitably lead to attempts to prevent speech, expression, information sharing, assembly or the holding of protected beliefs around other sites or in relation to other controversial or unpopular causes.
Baroness Sugg (Con)
My Lords, Amendment 80A is in my name. I will also speak to the other amendments in this group. I welcome the Government’s commitment at Second Reading to introduce zones around all clinics in England and Wales to ensure that women are able to access their legal right to abortion without harassment or intimidation. As the noble Baroness, Lady Fox, said, this clause was added in the other place by a majority of Members across seven political parties.
This clause will protect the women who have made the decision to have an abortion and now wish to access the service in peace and privacy without somebody trying to tell them to rethink what is often a very painful, personal and difficult decision. My amendments are supported by the noble Baronesses, Lady Barker and Lady Watkins, and by the noble Lord, Lord Ponsonby. They have been tabled in response to the debate at Second Reading to provide clarity around the description of these zones and to tighten the definition of what constitutes interference.
Amendments 80A, 82A and 82B would change the term used in this clause from “buffer” zones to “safe access” zones. This terminology better reflects the purpose of the zones—to ensure that women can safely access care. It would also bring the description of the zones into line with that used in the law in Northern Ireland and in the proposals in Scotland, as well as around the world, including in Australia and Canada. Amendment 84 would clarify the intent behind the drafting so that sites such as multiple-use buildings and hospital grounds which contain an abortion clinic are also included in these zones.
Amendments 87 and 93 would tighten the description of banned activities, so that they very clearly apply only to people interfering with abortion services and not to any other protests, such as some of those referred to by the noble Baroness, Lady Fox. Following concerns raised at Second Reading about the breadth of these banned activities, Amendment 91 would remove “or otherwise expresses opinion” from the list.
Amendments 95, 96 and 97 would add exclusions to the safe access zones. Amendment 95 covers everybody attending a clinic with a service user with their consent. This is often a friend or a loved one—someone who anti-abortion literature sadly and inexplicably refers to as “an accomplice”. Amendment 96 would exempt any activities taking place,
“inside a dwelling where the person affected is also inside that or another dwelling.”
Amendment 97 would exempt activities taking place inside a church or other,
“place of worship where the person affected is also inside that”
place of worship. I hope that noble Lords and the Government will agree that, taken together, these amendments address many of the concerns raised at Second Reading and provide clarity and a tightening of the definitions in the clause.
I turn to other amendments in this group. I am afraid that I do not agree that there needs to be a “reasonable excuse” defence in the clause. This is about harassment and intimidation, not protest. I do not believe there is a reasonable excuse for the harassment or intimidation of women seeking to access their legal right to medical care. They are often in a vulnerable situation, having made a difficult decision—a decision which is theirs to take.
Amendments 81, 83 and 86 concern the universal application of the zones. Universality was debated in detail and agreed in the other place. It is a core requirement of this clause. Removing it would undermine its very point, which is about protecting women before harm occurs.
A method already exists to apply for locally based public space protection orders, or PSPOs, but their nature means that evidence about impact has to be gathered locally and for a prolonged period. They require women to be subjected to abuse and intimidation for months—even years—before they can be introduced. They place a burden of proof on these women, who are in a vulnerable situation. They are expensive and complicated. The process also requires significant time and resources from providers and local councils, which often do not have resources to spare. This is why, despite regular protests at clinics across the country, we have so few PSPOs—only five, despite regular protests at more than 50 clinics. This creates a patchwork of protection, so that women across the country face a postcode lottery as to whether they will face harassment when they go to a clinic. Once a clinic is successful in getting a PSPO, groups simply move to another site and the whole process begins again.
The introduction of “intentionally or recklessly” by Amendment 82 would likely make it harder to implement and enforce the clause. It would increase the likelihood that this measure would not be adequate to deliver on its aim.
Amendments 88, 89 and 90 relate to the list of banned activities that the previous amendments in my name seek to clarify and narrow. They would leave intact the other essential aspects of advising and persuading. “Seeking to influence” is at the core of the amendment inserted by the House of Commons. It is needed to cover the activities we are seeing outside abortion clinics around the country. The list in Clause 9 is based on these reported activities and their impact, which many women accessing care at these clinics report as being the most distressing.
Finally, Amendments 98 and 99 would remove Clause 9 entirely and instead require the Home Office to undertake another review into activities around abortion clinics. A review would undermine the vote in the other place to support the immediate addition of Clause 9, disagreeing with the clearly settled will of elected Members. Another review would delay stopping the harassment of women around abortion clinics.
Since the last review four years ago, protests have evidentially increased. BPAS’s database of abortion clinic activity currently includes nearly 3,000 accounts of service users, those accompanying them and clinical staff. Half of those have been received since the Home Office’s last consultation closed, and this is in no way an exhaustive list. Understandably, only a small proportion of women affected are willing and able to share their experiences when asked.
Since the review, the number of hospitals and clinics in England and Wales that have been targeted has increased by 20%. Just today, an abortion clinic in Doncaster has reported having people outside for the first time in years. We have seen an increase in co-ordinated activities. Tactics have evolved, groups are actively recruiting and are very well funded, often by American groups emboldened by Roe v Wade, which are now looking to sow division on our shores. Largely American-funded campaign groups with deep pockets are opposing our local councils when they seek to bring legal orders to protect women from harassment.
It is not right that this influence impacts the right to access healthcare in this country. As the former Home Office Minister, Victoria Atkins, said in the other place, new, immediate law is needed because of the failure of existing legislation to address the problem. Some 100,000 women a year in England and Wales have to attend an abortion clinic that is targeted by anti-abortion groups, which cause harassment, alarm, and distress to these women. Some 50 sites have been targeted in the last three years. It is clear that the existing law is not enough and this piece of legislation is needed. We must safeguard a woman’s right to access healthcare.
Lord Farmer (Con)
My Lords, I will speak to Amendments 98 and 99, to which my noble friend Lady Sugg just referred. We need to stand back. Our constitutional responsibility in this House is to scrutinise, amend and, where necessary, push back on legislation that is unwise or uncompliant. We have particular leeway to do this about an issue not included in the Government’s election manifesto.
Clause 9, which makes it an offence to interfere with
“any person’s decision to access, provide, or facilitate the provision of abortion services”
is fundamentally flawed and should never have been added to the Bill. It is quite simply not about public order. It chillingly polices access to the idea contrary to pro-abortion orthodoxy that there are other ways to approach this most difficult of decisions.
Those pushing the clause took advantage of parliamentary maelstrom at a time referred to, to me, by one very seasoned, senior MP in the other place as “discombobulating daily turmoil”. The imposition of nationwide buffer zones would have been whipped against when it came up previously in the passage of the Police, Crime, Sentencing and Courts Bill. However, this time the whipping confusion was exploited and it was made the subject of a conscience vote—the first in relation to public order in 203 conscience votes since 1979.
We need to be clear-eyed about the significant majority for this new clause, which was accepted in the other place. Many MPs spoke and then acted on their unwillingness to let women seeking health services be harassed and intimidated, but the very many abstentions indicate that this was not straightforward. The law already protects women’s rights to access abortion facilities without hindrance, harassment and intimidation.
More fundamentally, the inaccurate assumption that harassment and intimidation are the hallmarks of vigils undermines the arithmetic of the other end. Hence my Amendment 98 calls for a review of current law and practice outside abortion clinics before making a major incursion into civil liberties. The 2018 Home Office review, which we have heard much about, found that people on vigils, not protests, are typically there to offer information and support, including but not exclusively if women want to continue with their pregnancy.
Viscount Hailsham (Con)
Would the noble Lord address the point that regulations are unamendable?
Lord Farmer (Con)
I thank the noble Viscount for the intervention. I would have thought that regulations are amendable by a debate in this House.
Lord Farmer (Con)
These regulations would allow for sunset and review provisions to be included, so the legislation can cease to have effect if appropriate, as I said.
I was talking about how regulations that require consultation with key stakeholders and need approval by both Houses improve on the current public spaces protection order system, which allows a local authority to impose buffer zones with scant transparency. The decision to introduce PSPOs is often initiated, drafted and implemented by one person or a group of council officials, with very little scrutiny and awareness of what factors they have taken into account.
I will speak briefly to other amendments. Those tabled by the noble Baronesses, Lady Fox and Lady Hoey, engage with the civil liberties and rights issues. However, they accept that interference with a decision can be disallowed, which would be a first in criminal law and very hard for the individual to defend themself against. A woman could simply claim that a choice made in the privacy of her mind had in some way been influenced by a message or person.
However, the tidying-up changes that my noble friend Lady Sugg proposes do not speak to the disproportionality of Clause 9, and in some ways worsen it. For example, Amendment 84 would ensure that a buffer zone also applies where an abortion clinic is embedded within a hospital or GP surgery, as we heard. This would vastly increase the footprint affected by buffer zones. Even if only all 373 abortion clinics were included, this would leap from the current 225 square metres to 26 square kilometres, and it would single out the issue of abortion for wildly disproportionate restrictions in comparison with other health areas. A person providing false information on a leaflet about any other medical issue would be free to do so, but someone providing accurate information on abortion would be criminalised.
I could say a lot more, but this is a big group with many speakers, and I know at least one noble Lord who was dissuaded from speaking because time is not limitless. As my noble friend the Minister will know from his many conversations, there is strength of conviction on both sides of this argument. I urge him to adopt the evidence-based policy route. There is again clamour for reform of this House, but the importance of our scrutiny and revising role is not clearly understood. We would be lax in our duty if we merely rubber-stamped or gently tweaked this inadequate and ideologically inspired clause.
Lord McAvoy (Lab)
My Lords, I will speak to Amendment 98 in the name of Lord Farmer, and Amendments 88 and 90 in the names of the noble Lord, Lord Beith, the noble Baronesses, Lady Fox and Lady Hoey, and the right reverend Prelate the Bishop of St Albans.
Amendment 98 would correct one of the most egregious aspects of the addition of Clause 9, which was originally added to the Bill in the other place. Amendment 98 would review why this law change is needed. This policy was reviewed just four years ago, and the then Home Secretary’s conclusion was that
“national buffer zones would not be a proportionate response”.
Those who support this clause have not demonstrated what has changed since that review.
I looked through the Home Office review from 2018, and it is interesting to note how little evidence is provided there that these buffer zones are needed. The review also sets out why the policy is unworkable, stating:
“There have been several cases where particular buffer zones have been successfully challenged on the basis they disproportionately infringe on civil liberties and freedom of speech ... buffer zone legislation has not always delivered exactly what service providers and pro-choice activists had hoped for.”
At the very least, before any law change is taken forward, we should understand what is alleged to have changed and why current laws are not sufficient. At present, the proponents of Clause 9 have not met that threshold so I support Amendment 98, which seeks to address this.
I turn to Amendments 88 and 90, which would arguably take out the most pernicious aspects of Clause 9. Amendment 88 would stop the proposed buffer zone, including criminalising a person who “seeks to influence”. This wording is sinister, impossible to enforce and an assault on our most basic freedom of speech. The same is true of Amendment 90, which would remove from the clause the provision to criminalise a person who
“advises or persuades, attempts to advise or persuade, or otherwise expresses opinion”.
Noble Lords and colleagues from the other place who support this clause tell us that they do so to protect women from harassment and intimidating behaviour. I again place on record my declaration that any harassment or intimidation should be subject to the law; something should be done about it. The sentiment is both worthy and correct in terms of its intent but that is a wholly different intention from seeking to stop people expressing opinions or attempting to persuade. Free societies are built on expressing opinions and attempting to persuade. Some might say that this should not take place at an abortion clinic but the Home Office review I mentioned earlier
“pointed out that the Chief Executive of BPAS”—
the abortion provider—
“had stated that 15% of patients change their minds about having an abortion at the BPAS clinics.”
I think noble Lords from across the Chamber would argue that it is plainly a decision for those women about how to proceed in those circumstances, so to deny them advice and explicitly block the expressing of opinions would rob those women of making an informed choice.
I add my support to the other amendments tabled to this clause, namely Amendments 80 to 83, 86, 89, 92 and 94. I hope that the Minister will recognise that there is concern from across this House for the consequences of Clause 9 and that he will allow a pause to think about it in more detail, avoiding a rushed change to the law that will have profound consequences for both women and freedom of speech in this country.
Lord McColl of Dulwich (Con)
My Lords, I understand that the Minister has already concluded that freedoms will be curtailed by an over-emphasis on the problems surrounding abortion clinics. Before we embark on legislation, it is essential to have accurate information about what people are complaining about. Clearly, people attending abortion clinics should not be harassed or intimidated in any way. However, as the noble Baroness, Lady Fox, mentioned, there already exists sufficient legislation to ensure this, such as the Public Order Act 1986, which, as has already been mentioned, stipulates that it is an offence to display images or words that may cause “harassment, alarm or distress”. New legislation is required only if we are absolutely convinced that the current legislation is failing. We do not have sufficient evidence that this is the case.
As has been mentioned, a detailed review was conducted in 2018 on this issue. The Home Secretary at the time concluded that
“introducing national buffer zones would not be a proportionate response, considering the experiences of the majority of hospitals and clinics, and considering that the majority of activities are more passive in nature.”—[Official Report, Commons, 13/9/18; col. 37WS.]
The review also found:
“The vast majority of the pro-life activities reported through the call for evidence do not meet the threshold of being classed as criminal.”
Lord Beith (LD)
My Lords, I speak to my Amendments 85, 88 and 90 to this clause. I make it clear that, although I have regularly voted to secure more protection for the unborn child under abortion law, I am opposed to the kind of protest outside clinics and hospitals to which Clause 9 is directed. I am deeply troubled by the extent to which this clause restricts free speech, indeed abolishes it within 150 metres of a clinic or hospital. I cannot vote to write into English law a clause which, as presently worded, makes it a criminal offence to seek to influence, persuade or even to express an opinion. I note that the noble Baroness, Lady Sugg, has an amendment which deals with the complaint I made at Second Reading in respect of the last of those words but not the others.
This clause as it stands is clearly inconsistent with the European Convention on Human Rights and imports into our law the dangerous concept that to express an opinion can constitute interfering. Once that concept has found its way into our law, such language would be welcomed by the anti-free speech brigade and we would find it sought after in other areas of legislative restriction. Those who advance the so-called right not to be offended in student union politics would latch on to such wording with enthusiasm.
I turn first to Amendment 85, which has the support of the right reverend Prelate the Bishop of St Albans. It seeks to protect the normal activities of a church, chapel, mosque or temple that finds that it is within the 150-metre zone of a clinic providing abortion services. I will come on later to how wide a range of areas that could be. In such a church, mosque or temple, what if a debate is organised on the arguments for and against abortion in the light of the religious convictions of those who worship there? What if a poster is put up outside the church to state that such a debate is to take place on a particular date with a brief indication of the points of view of the different speakers? What if a campaign meeting designed to enable the church to play a greater part in the public debate on this issue takes place there? These are normal activities of churches.
Let us remember that these churches and mosques have been sitting in these places for many years and, all of a sudden, the area they are in is determined to be one in which they cannot do what they did previously. They cannot have the kind of discussions and conversations which are normal to them. That is a point that the noble Baroness, Lady Sugg, also sought to cover in her Amendment 95 and I appreciate that.
I turn to my Amendments 88 and 90, which take out some of the words in this clause, to which I have referred, but they do not affect the provisions covering intimidation and harassment, which none of us favours at all. Amendment 88 takes out the ban on a person who “seeks to influence” within the 150-metre zone, while Amendment 90 removes the words
“advises or persuades, attempts to advise or persuade, or otherwise expresses opinion”.
I am astonished that that wording could ever have got into the draft of the clause. That there could be any part of the United Kingdom in which it is a criminal offence to express an opinion is, to me, quite extraordinary. This cannot be made consistent with the ECHR or historic rights of free speech. I hope that by Report the Government will be able to bring forward a significant redraft of this clause.
The noble Baroness, Lady Sugg, made some helpful suggestions but they are not enough. Amendment 95 relates to “persons accompanying”. I am glad that she has included that amendment, because it deals with a situation in which somebody is accompanying someone to an abortion clinic, and they are having a discussion about whether she should or should not go through with it—the pros and cons. That would be a criminal offence under the legislation, unless her amendment is accepted. It illustrates what dangerous territory we are in and how close we are to the cliff edge of losing our free speech.
I shall look at some other instances. What if a member of staff, perhaps a whistleblower, questioned some aspect of the policy or practice of the clinic and sought to get it changed, potentially affecting and limiting the provision of abortion services? What if that discussion was taking place, and the person thought that they could rely on a conscience clause, because in a certain case they thought that the wrong decision had been taken or a practice was dangerous? Is that person going to be guilty of a criminal offence for doing so? I find that extremely worrying. What about a picket in an industrial dispute, such as a nurses’ strike, which interrupted abortion services or access to some extent? That would appear to be covered by these provisions.
Amendment 84 from the noble Baroness, Lady Sugg, and Amendment 93A from my noble friend Lady Hamwee, also worry me, because they would extend the term “clinic” to any
“place where advice or counselling relating to abortions is provided”.
That is every doctor’s surgery in the land—a huge extension of the potential scope of this legislation. The free speech restrictions that it imports would seem inexplicable to somebody simply walking along the street in the vicinity of a doctor’s surgery, having a conversation about the rights and wrongs of abortion, who is overheard by somebody who reports them. Before long, a police officer is pursuing the case.
As to the amendments proposed by the noble Lord, Lord Farmer, I am very sympathetic to Amendment 98, which seeks to make the review the basis for action, which seems quite logical, but I am afraid I am not sympathetic to his Amendment 99. As he conceded, the amendment passes over to statutory instruments and delegated legislation the whole substance of this legislation. As the noble Viscount indicated in an intervention, that would deny the possibility of amendment of whatever was put forward. Those are very serious issues. I think on all sides we can agree that what the scope of the criminal law should be in this area is fundamental. It should be decided by primary legislation and, although I appreciate the reasons that the noble Lord, Lord Farmer, has felt obliged to use this mechanism, it is not the right one for such fundamental issues.
I hope that colleagues on all sides of the Committee, whatever their views on abortion, will address this issue so as to ensure that the criminal law is not so extended that historic rights of free speech are damaged and legitimate action by innocent people is neither prevented nor made the subject of criminal offences and prosecutions. I hope Ministers will look very carefully at my amendments and others and produce some workable and practicable redraft on Report, which we will also want to look at with the greatest of care.
The Lord Bishop of Manchester
I rise to address Amendments 85 to 88, 90 and 92, to which my right reverend friend the Bishop of St Albans has added his name. He regrets that he is unable to be in his place today. I also have sympathy with a number of other amendments in this group.
It is a heated and emotive debate on this clause, and it was heated and emotive when it was added in the other place. The danger is that we get dragged into debates about whether abortion is morally right or wrong. Indeed, I have had plenty of emails over the past few days, as I am sure other noble Lords have, tending in that direction. As it happens, I take the view that the present law on abortion strikes a reasonable balance; in particular, it respects the consciences of women faced, sometimes with very little support, with making deeply difficult decisions.
Moreover, history teaches us that the alternative to legal abortion is not no abortion but illegal abortion, with all the evils that brings in its train. Others, including people of my own and other faiths, may disagree with me on either side but that is not the focus of your Lordships’ deliberations this afternoon. Rather, as the noble Baroness, Lady Fox, reminded us, we are seeking to weigh the rights of women to access legal health services alongside the rights of others to seek peacefully to engage, persuade or simply pray.
However much we may disagree with the causes and tactics of those protesting, we need to remember that in a democracy not everything that is unpleasant should in consequence be made illegal. Harassment and abuse of the kinds to which the noble Baronesses, Lady Fox and Lady Sugg, and others have alluded must be condemned in the strongest possible terms. The use of legislation, including on harassment, to confront inappropriate behaviour is absolutely legitimate, but it already exists. If such behaviour is becoming more widespread, let us see the police and local authorities use those current powers more extensively so that they can create a safe and respectful atmosphere for vulnerable women.
I understand that no one has ever demonstrated that widespread abuse is prevalent or that new powers are necessary. At the least, we need clear research, as the noble Lord, Lord Farmer, proposes, to underpin such extensive new measures. In line with other provisions of this Bill, many of which we have already discussed, there is a need for the Government and police to take proportionate action while maintaining the strongest possible safeguards for freedom of speech, expression and assembly. Those are at the core of our nationhood. I do not think that Clause 9, as drafted, takes that proportionate approach.
I respect the views of those noble Lords who take a harder line against abortion and the many who reject the position from a more liberal standpoint. However, I cannot accept that it is desirable to legislate against expression of opinion on the matter or providing advice and guidance, even if one is in one’s own home or a place of worship. I cannot believe or accept that seeking to provide information could be met with a six-month prison sentence. I believe Amendments 88, 89 and 90 would help set a better balance on these provisions around freedom of speech. They would leave those things that are genuinely egregious in the clause and extract those things that are not.
Amendment 85 clarifies that Clause 9 cannot apply within an area
“wholly occupied by a building which is in regular use as a place of worship”.
Again, I do not expect or demand that religious positions on abortion are respected any more than others, but I worry that a minister of a religion holding views that are mainstream within his or her faith tradition—and are demonstrably legal to hold—could be barred under this legislation from expressing that view within their own place of worship.
Viscount Hailsham (Con)
I have some difficulty in understanding the thinking behind this amendment. If a sermon was being preached in a church or mosque, which is what we are being asked to contemplate, that sermon would not in any way impact on the person visiting the abortion clinic some distance away.
The Lord Bishop of Manchester
I thank the noble Viscount for his intervention. As the noble Lord, Lord Beith, said a few minutes ago, you might have a poster outside the church, mosque or temple saying that you are having a particular event on a particular day. It appears that would be caught by this legislation, but let us have the matter clarified by Ministers.
I thank the noble Baroness, Lady Fox, and others for their principled note that good powers must protect those who hold views with which you disagree or even find deplorable. Abortion is contested and emotive. I do not dispute that, as a result, there may on occasion be actions and levels of disruption that fail the test of Christian or any other charity. I deplore it when that happens.
However, there is a point of principle here going far beyond matters of abortion. Clause 9 is so broad and non-discriminate in its approach that it sets unfortunate precedents. I have real concerns that if we pass this clause into law in anything like its present wide form, we will see demands arise for exclusion zones, buffer zones or whatever they may be called in all manner of other locations and for all manner of purposes. I will listen with care to the rest of this debate, but I urge further concern in the approach to this part of the Bill. I hope Ministers will reflect on this and bring back some revised wording at a later stage.
Baroness Watkins of Tavistock (CB)
My Lords, I rise to support many of the people who have spoken today but in particular the amendments, which I have co-signed, in the name of the noble Baronesses, Lady Sugg and Lady Barker. However, having listened to the debate very thoroughly, and being a believer in free speech, I have become increasingly of the opinion that we need to find a good resolution as a result of this debate, rather than a fast and rapid one.
Baroness Eaton (Con)
My Lords, I am in agreement with the Clause 9 amendments put forward by the noble Baroness, Lady Fox of Buckley, and the noble Lords, Lord Farmer and Lord Beith. As these amendments highlight, there are several severe problems with Clause 9, and it will take more than mere window dressing to resolve them. I would like to concentrate my remarks on Amendment 86, in the name of the noble Baronesses, Lady Fox of Buckley and Lady Hoey, because it introduces crucial changes that seek to make Clause 9 more proportionate.
It should be noted that the regime created under new subsections (2A) through to (2D) is not new, this is entirely consistent with Part 3 of the Police, Crime, Sentencing and Courts Act 2022 and the consultation process set out for the public spaces protection orders it creates under Section 72B of the Anti-social Behaviour, Crime and Policing Act 2014. Amendment 86 ensures that buffer zones can be established where and when necessary, according to the unique local circumstances and the evidence. This amendment addresses the fact that Clause 9, in its current form, is not proportionate because it creates a mandatory regime that discounts these factors.
The clause as it stands is a catch-all approach which will inevitably sweep up behaviour which is not criminal. Indeed, this is what the Home Office found when it reviewed the situation in 2018, finding that
“The vast majority of the pro-life activities reported through the call for evidence do not meet the threshold of being classed as criminal.”
The needs of an abortion clinic in Ealing may diverge dramatically from those of a clinic in Birmingham, for example. Given that the Home Office review found that
“Pro-life activity is reported as taking place outside a relatively small number of abortion facilities (36/406)”—
Baroness Sugg (Con)
My Lords, a lot of reference has been made to the 2018 Home Office review. Does my noble friend not recognise this 20% increase in clinics that have been targeted, or that over 50% of women have to attend clinics that have been targeted? I am not sure how many more women need to be affected before we take action. I am happy to share that evidence with my noble friend.
Baroness Thornton (Lab)
Does the noble Baroness think that these women are lying about how they feel about the approaches they get outside those clinics?
Baroness Eaton (Con)
No I am not, but it is a different thing than finding people guilty of allegedly interfering and charging them with criminal activity.
Amendment 86 is particularly important in light of the available evidence, which shows that buffer zones are not needed outside every abortion clinic. The 2018 review commissioned by the Government found that protest activities were the exception, not the norm. Rather, anti-abortion activities were
“predominantly more passive in nature”
and included
“praying, displaying banners and handing out leaflets”,
with a low number of reports of the use of more aggressive tactics involving approaching staff and patients”. How do noble Lords who support this clause feel about the antics of the Just Stop Oil protestors who continue to bring traffic on the M25 to a halt? I am thinking particularly of some of the Members opposite who oppose the whole of the Public Order Bill yet support this clause.
Proposed new subsections (2A) through (2D) create a flexible approach uniquely tailored to the specific needs of each abortion clinic, while carefully balancing the rights and freedoms of those who wish to pray or hand out leaflets—which, I must stress, are lawful activities in this country. We cannot cherry pick which causes enjoy fundamental rights according to our personal preferences. It is an abuse of the criminal law to use criminal force to ban activities we find distasteful. As the noble Baroness, Lady Fox of Buckley, noted at Second Reading, the right to protest peacefully includes both the protestors we admire and also those that we despise. To say otherwise, and to let this clause stand, betrays the English democratic traditions of liberty and the rule of law.
Baroness Hoey (Non-Afl)
My Lords, I rise to support the amendments standing in the name of my noble friend Lady Fox of Buckley and particularly the amendments that I have added my name to. These amendments go to the root of the problem with Clause 9—it is a very blunt instrument, which I think everyone in this House would accept. The amendments tighten up, very importantly, the definition of the phrase “interferes with” in Clause 9, so that it will conform to the principle of legal certainty, and the dictates of freedom of expression. It is very important that, at the moment, it does not distinguish between activities causing harm and activities with which people may disagree —and even disagree very strongly.
These amendments will remedy the obvious problems with how Clause 9 defines “interferes with”. As it currently stands, the definition, I believe, is so broadly worded that it can mean anything to anyone. Not only does that language make the law vague and ambiguous, but it also makes it practically impossible for the police to enforce the law. Phrases such as “seek to influence”, as has been mentioned, “advises”, “persuades” or “informs” can have as many meanings as there are people in the world; these phrases do not draw clear lines of criminality. The wording is so broad that individuals cannot know if their actions cross the threshold of criminal behaviour. With so many interpretations available, how can the police know when the threshold of criminality has been crossed? More to the point, is not the very purpose of freedom of expression and protest to “influence”, “advise”, “persuade” or “inform”?
We must not permit lofty aspirations to interfere with the basic freedoms safeguarded by the right to freedom of expression, nor must we allow a law to be so broad that it encompasses basic activities of everyday life. These amendments will help to properly restrain Clause 9, if it is going ahead in its entirety, so that it achieves its intended aims without running roughshod over the fundamental rights of ordinary citizens.
I emphasise that the Bill, as I understand it, is about public order, yet I believe that this clause is about political opportunism at the expense of fundamental freedoms. It is telling that the clause’s sponsor in the other place, Stella Creasy, voted against the whole Bill on the grounds that it went too far in policing legitimate protest but voted for a clause that introduced sweeping limitations on the right of freedom of expression for a select group of individuals, who often—I accept that there are some who will not—engage in peaceful, passive conduct and, predominantly in certain parts of Northern Ireland, in very deep prayer. There is already a law here to deal with those people who behave in a manner that we would all find abhorrent. I urge noble Lords to support the amendments in my name and those in the names of the noble Lord, Lord Beith, and the noble Baroness, Lady Fox, to ensure that Clause 9 goes no further than absolutely necessary.
Briefly, on Amendments 98 and 99 in the name of noble Lord, Lord Farmer, and the right reverend Prelate the Bishop of St Albans, the noble Lord, Lord Farmer, identified well that Clause 9’s fundamental deficiency is that it introduces wide-ranging law changes, which would set significant precedents in other areas of the public realm, without demonstrating evidence that such a change is needed based on empirical evidence. The noble Lord has spoken of stepping back and reviewing, and I think he is right. Surely the only responsible course of action for the Minister and the Government is to properly consult on these proposals before introducing such sweeping and, I believe, reckless changes to the law.
The amendment in the name of the noble Lord, Lord Farmer, would give the Secretary of State powers to introduce buffer zones around clinics only after a thorough consultation process has taken place and determined that there has been a significant change in the nature of protest since the last review, which took place only in 2018. I remind noble Lords that we have had two years of a pandemic and lockdowns since that review. As we have heard from many other noble Lords, at the time of that review the Home Office found that buffer zones would be disproportionate. At the very least, it is incumbent on Ministers to consult on what has changed since 2018 before introducing sweeping changes to the law in the way that Clause 9 will legislate for; that is very similar to what the noble Lord, Lord McAvoy, said.
We do not need this whole Clause 9. However, if we are going to have it, no matter how supportive some Members of this House are of a woman’s right to choose, I believe that this is just not the way to go. In the long term, it will really affect freedom of speech and civil liberties in this country.
Baroness O'Loan (CB)
My Lords, I fully support the amendments tabled by the noble Baroness, Lady Fox of Buckley, and the noble Lords, Lord Farmer and Lord Beith—with the exception of Amendment 99, because this is a matter for primary, not secondary, legislation. Others have addressed various of those amendments, but I will focus on Amendments 98, 92 and 85.
Amendment 98 seems to me a way forward in addressing concerns that do exist about the way in which people exercise their right to freedom of expression in the vicinity of abortion clinics in England and Wales. There has been no review, no consultation and no assessment of the impact of Clause 9, yet it will have a disproportionate effect—as noble Lords have said—by criminalising those who seek to provide in a compassionate manner counsel, support and assistance, including financial assistance, to mothers who fear that they cannot afford to give birth to the baby they are carrying or look after them after birth. Existing laws provide for offences in relation to the harassment of individuals; I spoke of those at Second Reading. We have been provided with no evidence to support the necessity or proportionality of what is proposed in this clause.
Amendment 98 provides for the carrying out of a review. This seems to me a proper manner of contemplating a change in the law, rather than the Bill, which will result in the inability of individuals to bring support to women at a time when they may most need it, in a manner which does not constitute harassment, and which may give a woman the choice and opportunity to give birth to her baby rather than to abort it.
Amendment 92 would maintain the ability to provide information so that women can make informed choices. The use of text and other information about the irreversible step she is about to take is an exercise of the right to freedom of expression. Of course, in the context of abortion, there may be disagreement about the use of some images, but there has been no consideration about how we define what is and is not acceptable. For example, would a leaflet showing a pregnant woman the support she could receive if she continued her pregnancy count as graphic imagery merely because it had a photograph of a baby on it? These are fundamental matters of freedom of expression.
Baroness Sugg (Con)
I agree with the noble Baroness on her point about private dwellings. We have tabled Amendment 96, which will, I hope, deal with that. Will the noble Baroness support that amendment?
Baroness O'Loan (CB)
If I may continue, I have a simple example on private dwellings. A woman leaving her home on her driveway, which is adjacent to a public right of way within the 150-metre buffer zone, with her pregnant friend who is contemplating an abortion but is not quite sure about it, would commit a criminal offence by talking to her about her options.
We believe in freedom of speech. This clause is so completely disproportionate that your Lordships cannot accept it. After all, there has been no prior consultation about this complete restriction on the right to freedom of expression. The 2018 Home Office review—I am sorry; I know noble Lords have said we should not talk about this, but I think that it is important—said:
“There have also been reports of verbal and physical abuse by pro-choice activists against pro-life activists.”
Do noble Lords who support Clause 9 have a view on that and how the clause would address it? The failure to address this is one of the many failings in this debate.
Baroness Barker (LD)
If the noble Baroness were to listen carefully to what the noble Baroness, Lady Sugg, said and to read the amendments that have been tabled, the clause is about any interference—no matter the motivation of it—within that 150-metre zone. It would apply exactly to the point she has just made.
Baroness O'Loan (CB)
I am debating the amendments to which I am speaking.
Clause 9 is unworkable in its current form. That is why I support these amendments and will vote for them should a Division be called.
Lord Cormack (Con)
My Lords, we need a little calm in this situation. I thought that the noble Lord, Lord Beith, made a very wise, temperate speech, and we would all benefit from reflecting upon what he said.
There is an extraordinary irony behind this. As this Bill goes through your Lordships’ House, we are also debating the Higher Education (Freedom of Speech) Bill. Only yesterday I noticed a very interesting account in the Times of what the retiring vice-chancellor of Oxford University had said about free speech. She said that her students—all students—must be able to listen and reflect upon things of which they deeply, instinctively disapproved. She made the point that if they did that, they could strengthen their own views or maybe, on occasions, change them.
This clause is disproportionate. We debated freedom of speech in your Lordships’ House when I raised it many months ago, when there was an attempt to muzzle Members of this House. People were complaining to the commissioner, and the commissioner, very rightly, discounted the claims. The committee led by the noble Baroness, Lady Manningham-Buller, decided that we needed to tighten up the rules in our House to further protect freedom of speech. We must not claim for ourselves that which we would deny to others. It is important that freedom of speech is protected.
There are many laws that deal with those who abuse freedom of speech. One of my reasons for having doubts about the Higher Education (Freedom of Speech) Bill stemmed from the advice I was given by a wise parliamentarian who talked to me when I first came into the other place some 52 years ago. He said: “Before you form an opinion on any Bill, ask yourself if it is necessary.” I am not sure that this clause is, in any form, necessary. What certainly is necessary, however, is that, if the clause is included in the Bill—I hope it will not be, but if it is—it must be in a form amended along the lines advocated by the noble Lord, Lord Beith, in his very wise speech.
There is a danger—some of us are guilty of this occasionally—of indulging in slogans. A slogan is not the same as a principle. A slogan is not something that should drive Members of your Lordships’ House when we are jealous of our reputation of being able to scrutinise with objective care the Bills that are placed before us. In a way, the noble Baroness, Lady Watkins of Tavistock, was making a similar point in her brief speech when she said that we really had to reflect on what was being said. My own suggestion to the Minister, which I hope he might act on, is that he should invite in those who have tabled amendments—I am not seeking an invitation, but I would readily accept one—such as the noble Baroness, Lady Fox of Buckley, who made a very interesting and thoughtful speech in introducing this debate, and see whether there is not some common ground. My own recommendation would be that we remove this clause, have a proper conference on this issue, and see what is necessary to protect the proper freedom of women while not inhibiting freedom of speech, especially of those who have deep religious convictions on this matter.
Baroness Thornton (Lab)
I hesitate to intervene on the noble Lord, who is very wise on these matters, but given that he is a huge champion of the other place, I wondered what his opinion was of the enormous majority that there was in favour of the clause there.
Lord Cormack (Con)
I am delighted to tell the noble Baroness what my opinion is. My opinion is based on real sadness that, since 1997, the other place has progressively ceased to be a House of scrutiny. MPs devoted just two hours to the Report stage of this Bill. What happened in 1997 was that there was an exuberant Conservative who tested the patience of the Labour Government with their great majority. The noble Baroness deserves a proper answer to her question. His name was Eric Forth; he is, sadly, no longer with us. I begged him, and so did my noble friend Lady Shephard of Northwold, because we were shadow Leader and Deputy Leader of the other place, to be a little bit selective, but he was not. Night after night, he kept up the Labour Party, so what did the Labour Party do? In exasperation, it brought in programme Motions, which means that every Bill has a limited amount of time. What did the Conservatives do? They protested, saying, “We won’t allow that to happen when we come back into government.” Of course, it is such a convenience for the Executive that they did allow it to happen when they came back into government. That is why every Bill is subjected to inadequate scrutiny in the other place, so it is incumbent on us to give it the proper scrutiny that our lack of timetable Motions enables us to give it.
Viscount Hailsham (Con)
I agree with what my noble friend is saying about timetables, but in response to the noble Baroness, perhaps he would address this point. The truth is that Members of Parliament voted for Clause 9 in very large numbers. They did so because they were aware of the very considerable concern in their own constituencies about what was going on outside abortion clinics.
Lord Cormack (Con)
They might have voted for all sorts of reasons. We have already heard that Stella Creasy refused vote for the Bill because it had gone wrong as far as she was concerned. Of course I will give way.
Baroness Watkins of Tavistock (CB)
I want to clarify that I am not suggesting that we should not stop problems outside abortion clinics. I am trying to find the best solution so that women are protected, but understanding that not everybody who wants to express an opinion should be guilty of a public order offence. I think that is the difficulty. I would like the noble Lord to comment on that issue of how we find the rational ground, because I believe that the people who voted in the other House are much closer than some of us in this House to constituents who are having these challenges.
Lord Cormack (Con)
I was a constituency MP for 40 years, so I have a bit of knowledge of it. We must make sure we do not inadvertently criminalise large numbers of people. As for the large majority in the other place, I have talked about the scrutiny and that is all entirely accurate. If this House has any point or purpose—and some are suggesting at the moment that it does not, but I believe passionately that it does—then we have to go into things in a little more detail and to have the opportunity to ask the other place to reconsider, to think again. At the end of the day, we must not forget that the other place has the final say, and that is entirely right.
As somebody who believes passionately in both Houses, I recognise that that is the elected House; I do not want us to be replaced by an elected House because then we will build in the sort of conflict that we are seeing across the Atlantic at the moment. I want us to be able to live up to our reputation of being a House of experience and expertise. That may mean that we send certain things back, and I have practised what I preach because I have voted many times against clauses in government Bills, and I am prepared to do so again because I believe that is my duty if I think they are not right. At the end of the day, however, they will have the final say. I have gone on long enough, but I have been slightly provoked; I hope I have answered the interventions that have been made. I hope that we will think again before we pass this clause in its present form. That is our duty.
Lord Shinkwin (Con)
My Lords, it is a pleasure to follow my noble friend and to be educated by him.
I speak in support of the amendment in the name of my noble friend Lord Farmer and those listed on the Marshalled List. I should reiterate at the outset, lest anyone be in any doubt, that I do not take a position on abortion per se. However, as a disabled person I take a position on equality and, I am afraid to say, absolutely object to human beings diagnosed with my condition—brittle bones—being denied their equal right to grow up to be strong women and men on account of their diagnosis. That those who supposedly champion equality can reconcile such a claim with such lethal disability discrimination is something I will never understand.
My reason for speaking in support of Amendment 98 is not dissimilar. For me, as a disabled person in particular, Clause 9 simply does not make any sense. It is perhaps worth remembering that Christians were prepared to be torn limb from limb by lions in defence of their faith, so the idea that some will not see this as an opportunity to take a stand and go to prison for their beliefs, and to bear witness to freedom of conscience, as other noble Lords have mentioned, strikes me as completely unreal. For me to pretend that this is not an inevitable outcome of Clause 9 would be the height of naivety; of course they will do so.
For me, the question is twofold. First, as other noble Lords have touched on, is this really what we want? Do we really want to put the state in the wholly invidious position of locking people up for exercising their freedom of conscience when their only crime would be to bear witness to the serious belief that two hearts beating equates to two lives, interdependent and interconnected but no less individual for that? Since when has that been a crime? I thought it was a medical fact that a beating heart was a giveaway sign of a live human being, and the absence of a human heartbeat, conversely, a clear indication of death. I suggest that the state does not want to go anywhere near Clause 9 and would be much better off conducting a review, as set out in Amendment 98.
Secondly, there is another party in this debate which I suggest has no interest in this clause becoming law: those who support abortion. After all, why risk making martyrs of one’s opponents? We should be in no doubt that, if passed into law, this clause will deserve to be known as the “own goal clause”, because that is precisely what would result: a spectacular own goal. I spent all my career before I came to your Lordships’ House campaigning, much of it in the charity sector, and I would never in a million years have advised any of the organisations for which I worked to pursue such a counterintuitive, counterproductive strategy as Clause 9 encapsulates. No matter how passionately one believes in the clause, giving your opponents both the moral high ground and the oxygen of publicity—because the media will inevitably cover the story of people going to prison for their beliefs—simply does not make sense. It is surely what is known as a lose-lose situation. I wholeheartedly support this pragmatic, common-sense amendment as a way out of the minefield created by Clause 9.
Baroness Hamwee (LD)
My Lords, I have Amendment 93A in this group. In the spirit of scrutiny, I wondered what “an abortion clinic” and “abortion services” actually meant. To me they include professional counselling which puts both sides of an issue and all the options. I say that because it seems as if we have got into a rather binary state where this is just about the abortion procedure.
I am convinced that there is a serious problem for women attending some clinics who are seeking an abortion. I am also aware of how activities can move around geographically. I understand that there is not a problem now with the activities that we have been talking about outside places where abortions do not take place but counselling does. However, as the noble Baroness, Lady Sugg, said, activities have moved to new sites; she mentioned one that has been affected for the first time in many years. My amendment is to raise that issue, bothered that what is a problem now could be displaced and become a problem elsewhere. Obviously it is probing the position, but as we are seeking to tackle this, we should do so comprehensively.
Viscount Hailsham (Con)
My Lords, I am in general opposed to those of the amendments which are designed to reduce the impact of Clause 9. As I said at Second Reading, I support the concept of buffer zones around abortion clinics. Of course I accept the two propositions eloquently expressed by the noble Baroness, Lady Fox: first, that the right to demonstrate and freely express views is of great importance in a democratic society; and secondly, that the provisions of Clause 9, as many of your Lordships have articulated, impose serious restrictions on such abilities. But again, as I said at Second Reading, these rights are not absolute. They have to be balanced with the rights of others, and the correct balance is often not easy to identify and can be the subject of legitimate disagreement—it usually is. However, in the context of abortion clinics, Clause 9 gets the balance about right.
I will identify occasions where the balance falls the other way: in favour of the demonstrator. Some of your Lordships will think that the examples are trivial. I have often hosted meets for our local hunts, both before the ban and after it; after the ban, our local hunt acts fully within the law. The saboteurs come and demonstrate, and they are often very tiresome. However, provided they operate within the law, I would not for one moment seek to ban them. There is another example. Pacifists sometimes demonstrate outside military recruitment offices. I disagree with that and think it is wrong in principle, but again it would never occur to me to seek to prohibit that activity.
The motives of those demonstrators and those who demonstrate outside abortion clinics have something in common. It is not that they are just expressing their own opinions, which of course they are absolutely entitled to do, but they are trying to induce a change of attitude on the part of others. It is when I come to those who protest outside abortion clinics that I am conscious of why the balance tips. Those who attend abortion clinics have come to a very painful and serious decision, and often an anguished one. I think it is very wrong to subject them to what is often intemperate bullying of an extremely nasty kind.
Lord Farmer (Con)
I mentioned at Second Reading that the BBC did a poll which found that 15% of women who went to abortion clinics had been coerced into doing so. We do not have the information as to how many partners have said, “I don’t want this child, go and have an abortion”. We need to establish that by finding the evidence. We hear all the time that the people outside the abortion clinic are against abortions. We do not see the intimate pressure that women are often under in the home—not only from male partners but perhaps from their families—to do with shame and other things. This needs to be looked into before we make a decision on this.
Viscount Hailsham (Con)
Parliament is in a position to make a judgment about these matters. I was in the House of Commons for nearly 30 years—not as long as my noble friend Lord Cormack—and I was well aware of, in many circumstances, from evidence which came from many quarters, the kind of abuse to which women seeking an abortion were subjected by those who demonstrated outside abortion clinics. I strongly suspect that is why the House of Commons voted for Clause 9 in such substantial numbers, because it knew it was happening and that it was wrong. We do not need a further review to establish those basic judgments.
Baroness Fox of Buckley (Non-Afl)
My Lords, my difficulty is this. In interpreting things in the way he is, the noble Viscount is suggesting that he knows why people did something. I have no idea why people in the Commons voted in the numbers they did. The noble Viscount has a view on what might have driven that; others might have another view. Generally speaking, since I have been in this place, the House of Commons has voted in huge numbers for things I have disagreed with, and unless the Opposition is going to go home, what am I supposed to do? I cannot keep saying, “I think they really did it because they were really motivated —we do not know, do we? Will the noble Viscount clarify why he keeps stressing that? Is it relevant to us?
Viscount Hailsham (Con)
It is, because we are being asking what the evidence is. I was telling the noble Baroness that, when I was a Member of the Parliament, for a very long time, I was conscious of some of the abuse that was going on from speaking to people coming to my surgery. In the House of Commons, we get a reflection of the views of Members of Parliament who are encountering the same response from their own constituents.
Baroness O'Loan (CB)
Is the noble Viscount aware of any statistics on the number of people now who are being prosecuted or who have been convicted of harassment of people at abortion clinics? I am completely unaware of that, and none of those who are promoting this clause has produced any such evidence.
Viscount Hailsham (Con)
I am not, but what I am telling the Committee is that those who have a great many dealings with the public, particularly Members of the House of Commons, have passed by a very substantial majority the view that Clause 9 is necessary. That accords with my own personal experience, after 30 years or so in the House of Commons.
Lord Cormack (Con)
May I remind my noble friend that he and I cast many votes during the debates on Brexit, regardless of what the House of Commons was doing, because we thought we were right?
Viscount Hailsham (Con)
I agree with that, but I think my noble friend is overlooking the fact that, in the House of Commons, it was not a whipped vote when they were talking about Clause 9; it was what is sometimes laughingly referred to as a free vote. I personally always took the view that, when I was not a Minister, a vote was a free one, but I am conscious that that was not always the view—perhaps not even of my noble friend. If my noble friend wants to intervene again, of course he can.
I would like to say a word about one or two of the amendments. I start with Amendment 80. The substantive offence is that provided in Clause 9(1). I ask rhetorically what can be the reasonable excuse for an interference? I agree with the view expressed by my noble friend Lady Sugg. I suspect that I know the intended purpose of the amendment: to allow the defendant to introduce the defence of free speech before the courts. However, if Parliament decides that Clause 9 should not have the defence of free speech—and that is what the clause provides—then such a defence should not be available in a court.
On Amendments 81 and 86, in my view the matters are of far too much importance for the designation of zones to be left to local authorities, as advocated, I think, by the noble Baroness, Lady Fox. The abrogation of the right of free speech and the abrogation of the right of association should be left to Parliament and not to local councillors.
The phrase “intentionally or recklessly” in Amendment 82 is wholly unnecessary, with one exception. It seems to me that the concept of intent is incorporated in the definition of interference as contained in Clause 9(3). The exception is the word “impedes” in paragraph (c), because I acknowledge that an act of impeding could perhaps be committed without intent. Ministers should clearly reflect on the criticism that has been expressed as to the scope of what is included in the definition of interference. I agree very much with what my noble friend Lady Sugg said about the expression of opinion. I am sure she is right about that, and it has been supported by others in the Committee.
Amendment 85 is in the names of the right reverend Prelate the Bishop of Manchester and my friend the noble Lord, Lord Beith. I almost always agree with him but on this occasion I am bound to say that I think he is wrong. With the exception of the point he made about the poster outside the church, I have very great difficulty in seeing anything that could be said within the church that could interfere with somebody seeking access to an abortion clinic, save for that which has been addressed by Amendment 97, in the name of my noble friend Lady Sugg.
As to the penalties provided in Clause 9(4), I am much more relaxed and would not seek to argue against some amelioration of the sentences set out in the Bill. In general, I think that Clause 9 is a proportionate response to a very serious mischief, and I hope that we will not water it down substantially.
Baroness Thornton (Lab)
My Lords, I did not expect to say how much I agree with the noble Viscount, Lord Hailsham. It means that I do not need to say an awful lot. I regret that the people moving the amendments which seek to water this down very significantly, starting with Amendment 80, have not addressed the amendments moved by the noble Baroness, Lady Sugg, which seek to turn this into a reasonable working clause.
Lord Beith (LD)
My Lords, I quite openly accepted that the noble Baroness, Lady Sugg, sought in a number of respects—though not in all—to reflect the issues raised at Second Reading. I gave credit for that.
Baroness Thornton (Lab)
I accept that. However, others who support this suite of amendments have been asked about the amendments tabled by the noble Baroness, Lady Sugg, and have clearly not read or addressed them. That is a great shame. I support the noble Baronesses, Lady Sugg, Lady Barker and Lady Watkins, and my noble friend Lord Ponsonby, in seeking to make this clause acceptable. I hope the Minister sees this as a positive step forward for the next stage of the Bill.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I will speak to Amendment 94, lest it be overlooked in considering the broader issues in this debate. I accept that the issue before us in this section of the Bill is a sensitive one that deserves our most earnest consideration.
I agree in principle with the amendments to Clause 9 tabled by the noble Baroness, Lady Fox of Buckley, and the noble Lord, Lord Farmer. Amendment 94 relates to the criminal punishment attached to the proposed criminal offence. Given that the clause potentially criminalises people for praying quietly or offering support and advice to people in a public area, this is no small aspect of the clause. Making it illegal to quietly stand outside an abortion clinic or compassionately express one’s genuinely held belief about the sanctity of human life and the value of an unborn child, as proposed in this Bill, is surely a major step backwards for our country.
The right to enjoy freedom of speech and the right to peaceful protest have been hard fought for and should not easily be given away. Yet, as a result of this clause, anyone who influences, advises or persuades, who attempts to advise or persuade, or who otherwise expresses an opinion outside an abortion clinic, could be liable even in the first instance to a prison sentence. Surely this runs contrary to our basic freedoms. A former Home Office Minister said in March 2021:
“The right to protest is the cornerstone of our democracy and the Government is absolutely committed to maintaining freedom of expression.”
Can the Minister confirm that this new law as drafted would criminalise someone who accompanies a woman having an abortion who says to her, “Are you sure?”, even if the woman seeking the abortion is happy for that to be asked—that they would fall foul of this legislation? If so, what kind of a country are we living in?
I heard a lot of talk about the other place, and like two noble Lords who spoke—
Lord Macdonald of River Glaven (CB)
Does the noble Lord understand that prosecutors, in authorising and not authorising charges, have discretion in whether to prosecute a case? No prosecutor I have met would ever prosecute a case on the facts the noble Lord has just set out.
Lord Paddick (LD)
Is the noble Lord also aware that one of the amendments tabled by the noble Baroness, Lady Sugg, addresses exactly this issue, making somebody voluntarily accompanying a person to a clinic exempt from this clause?
Lord McCrea of Magherafelt and Cookstown (DUP)
The noble Lord, Lord Beith, did say that it went some way in this regard, but that it did not deal with all the issues that he and I expressed concern about.
It has been bandied about in this debate for quite some time that the other place voted by a large majority for this legislation. According to certain interpretations, that could be correct. Like the noble Lord, Lord Cormack, and the noble Viscount, Lord Hailsham, who spoke recently, I was in the other place, for 25 years. There are 650 Members of the Commons. Of those, 297 voted for this legislation—46%—while 110 voted against and 243 abstained, meaning that 54% of the other place did not vote for this clause. So often in this debate it has been said that there was a vast majority in the other place and that we must submit to its will, yet 54% did not vote for this clause. It is good to be factual on percentages and numbers in the other place.
It is a fundamental and widely accepted principle of sentencing that the punishment must fit the crime—that is, if you feel that freedom of expression and peaceful protest are a crime, which I do not. However, the fines envisaged in Clause 9(4) are grossly disproportionate to the types of protest activities that often occur outside abortion clinics. A six-month prison sentence for a first offence, which could be the result of a volunteer offering support to a pregnant woman, surely strikes most people as neither reasonable nor proportionate, and nor does a two-year sentence for someone who offends multiple times.
The Government reviewed this in 2018. People have dismissed the review as if it does not matter today, but mind you, if it had said something different, they would be happy to mention it. It found that the vast majority of these activities are passive in nature; that they involve everyday lawful activities such as silent prayer and handing out leaflets offering help and support to women who may not want an abortion, but who may feel they have no other choice; and that they occur outside a small number of abortion clinics. Inside this buffer zone, to stand in silent prayer could get you six months’ imprisonment. What country are we living in? This is not China, and it is not Iran. It is the United Kingdom. I have heard the Prime Minister and previous Prime Ministers, and Ministers in this House, say at the Dispatch Box that the most persecuted people in the world today are Christians. But to express your Christian opinion, even in silent prayer to God, can be regarded as an offence inside a buffer zone and you could find yourself in prison.
Lord Balfe (Con)
My Lords, this has been a fascinating debate, has it not? We have spent almost as much time debating this clause, which was not, of course, part of the Bill in the first place, as the House of Commons spent debating the entire Bill. I broadly support my noble friend Lord Farmer’s amendment, but I support it because I want the Minister to go back and have a serious look at this clause, which was not a government clause in the first place.
I came into politics in the 1960s, and one of the first things I was involved in was supporting David Steel’s Act, so let there be no doubt as to where I stand on this issue, but I think we are getting two things mixed up. We are mixing up the need to protect people who decide to take advantage of a law that is on the statute book with harassment and other offences. The first question we need to ask is: do we need an extra law? Do we need it at all? Do we need Clause 9? It came in as a private Member’s initiative in the other place. I am not sure we need it. I think that in this past 70 years we have managed reasonably well on policing this.
I also draw attention to the fact that this whole wretched Bill, which we have now lost sight of because of this clause, is actually a fairly fundamental attack on many civil liberties which we cherish and believe in. I reflect that in the past couple of years, during the Covid epidemic, we have accepted restrictions on freedom which, in my view, were unwise, unwelcome, unwanted and unnecessary. We are now in a position where expressing statements—and you have only to look at some of the things online about Covid—is no longer acceptable. We are in a position where we have a very authoritarian undertone in the way in which public discourse in Britain is being conducted, and this is part of it. Unfortunately, these two things have got mixed up together.
I think that we probably do not need this clause at all. If we do need it—this is one of the jobs the Minister has—it needs to be sorted out substantially. I would like to think—and I do not wish to be part of it—that he calls together the various protagonists and tries to get some common sense out of this. I do not hold the other place in quite the same reverence as my good and noble friend Lord Cormack does. I think MPs probably saw something that was a very good press release come along and they voted for it. I think that was probably half the aim.
I hope that after tonight, before we get to the next stage, we will be able to look at this in cool sort of way, and we will then get back to the rest of the Bill, which has some points in it that I find deeply regrettable and is not the sort of Bill that I would like to see passed by this House, but this is not part of it. This was a bit of private initiative written on top of it, and it is fundamentally mixing up two things: the right of the citizen to protest and the right of another citizen to make use of a law that has been there a long time and is working. Of course, we do not want people to be harassed and the like, but we also want to keep a sense of proportionality in all of this, and we need to remember that a calm head is probably a very useful thing to have when you are faced with an emotive issue such as this.
Baroness Bennett of Manor Castle (GP)
My Lords, I am acutely aware of the time and, having spoken extensively in favour of Clause 9 at Second Reading, I rise briefly to express the Green group’s support for the amendment in the names of the noble Baroness, Lady Sugg, and the noble Baroness, Lady Hamwee, who made an important point. I will also speak in opposition to the other amendments in this group and address some points in the debate that I think may have been perhaps rather pointedly aimed in our direction.
There has been some discussion about how other elements of the Bill are aiming to restrict protest and this is seen to be restricting protest, but there is something profoundly different here. There is nothing in Clause 9 that stops people who are opposed to abortion or the provision of abortion services protesting on the high street, outside Parliament or on the M25. They could choose to do that; there is nothing in Clause 9 that would stop that happening. That is calling for system change, that is directed at our politics, at the way our society and our law work, but there is a profoundly different situation where protest is directed at an individual person, a patient who is seeking healthcare or advice about healthcare, to discourage them from receiving that healthcare. One point that has not been raised tonight, that I think really should be, is the fact that there is a risk if someone is driven away by this protest, they then seek to access irregular services, which are now broadly available on the internet, at potentially great cost to their health and well-being.
The noble Baroness, Lady Fox, said that this is a catch-all amendment in that it is seeking to have broad coverage across the country. That is the alternative, as the noble Baroness, Lady Sugg, said, to having a postcode lottery, where some people whose councils can afford to take action have protection and other people, often in poorer areas of the country where councils do not have the money, do not have protection.
The noble Lord, Lord Farmer, was concerned about intimate pressure. Let us look at where pressure for an abortion comes from. The noble Baroness, Lady O’Loan referred to mothers who fear not being able to pay for a baby. It is not just fear; the practical reality is that the greatest pressure for abortion in this country comes from an inadequate benefits system. I note that the right reverend Prelate the Bishop of Durham, has been prominent in campaigning for the end to the two-child limit. I will join him and anyone else who wishes to campaign against this inadequate system.
I have one final point which I think has not been addressed. The noble Lord, Lord Cormack, questioned necessity. A number of noble Lords asked what has changed since 2018. What has changed is this. A huge amount of what we see in the UK has been imported from the United States of America. We have seen an extremely well-funded and emboldened movement coming from the US to the UK. The noble Lord, Lord Cormack, referred to his experience as a constituency MP. That was some time ago. Since then, and certainly since 2018, the levels of funding and pressure have changed. A movement started in the US is aiming to act around the world. I do not say that your Lordships’ House should stand up against this movement if it seeks to campaign to change the law in the UK—personally, I want to see full decriminalisation of abortion. I accept their right to campaign against the law and the system, but I will not accept their right to target individual patients seeking healthcare.
Lord Hope of Craighead (CB)
My Lords, I do not want to prolong this debate, which has been extremely interesting and very rewarding in many ways. I want to make one or two short points, both relating to amendments in the name of the noble Baroness, Lady Fox of Buckley. I agree with one and disagree with the other.
In Amendment 89, the noble Baroness asks the Committee to take out paragraph (b),
“persistently, continuously or repeatedly occupies”.
I have some problems with this paragraph because I am not sure to what the word “occupies” refers. The grammar of this paragraph needs to be looked at very carefully. Unless the territory being referred to as being occupied is clear, this phrase is extremely broad. That is why I support all the amendment proposed by the noble Baronesses, Lady Sugg, Lady Barker and Lady Watkins of Tavistock. These are in line with the Constitution Committee’s report, which said that the phraseology of this clause should be looked at carefully to ensure that it is not any wider than it needs to be. Paragraph (b) should be looked at again because the word “occupies” raises questions which need to be carefully looked at and properly defined.
Amendment 80 in the name of the noble Baroness, Lady Fox, asks us to insert the words “without reasonable excuse”. In a previous debate, I expressed quite a few views on the use of the words “reasonable excuse”. We need to take a decision about this ourselves. The trouble with putting this in as a defence is that it would be passed to the police on the spot to decide whether or not trying to express one’s opinion or what motivates the individual to say or do what they are doing is a reasonable excuse. That is the problem. We need to take a decision and not leave it to the police or the courts.
The Court of Appeal—I beg the pardon of the noble Baroness—has been doing its best to soften the Ziegler case, which we discussed last time, to make it clear that there are certain offences, of which the Colston case is one, where damage is done or the activity is sufficiently serious that make it impossible to sustain a reasonable excuse defence. This is probably one of these cases. With great respect to the noble Baroness, these particular words should not go in. Otherwise, we are just creating more problems than we are trying to solve.
Baroness Fox of Buckley (Non-Afl)
The query about “reasonable excuse” has come up before. It has been suggested that free speech would be used as a “reasonable excuse”. I will try to clarify what I was trying to explain, and perhaps the noble Lord will come back at me. There are many ways in which you could be found to be breaching the criminal law—it is so broad. The noble Lord, Lord Beith, illustrated the variety of things you might be doing that might mean you inadvertently broke the law. I wanted there to be some excuse, such as “I am accompanying someone and having an argument with them”. There are problems with the wording of the clause, and I would be more than happy to be advised how to tighten up my amendment so as to not use this phrase or look as if I am giving the police too much power.
Lord Hope of Craighead (CB)
The noble Baroness is wrestling with the same problem I had in dealing with “reasonable excuse” in relation to locking on. There seemed to be cases where people might have had a genuine reason for locking on because it is so widely defined.
One might say that the “reasonable excuse” defence would be suitable if it were sufficiently qualified so that it did not provide the police and the courts with the problem of having to decide whether or not the pro-life argument was a reasonable excuse. If one looked at the offences, one would say that this kind of argument would not stand up to what this legislation is all about. There are other instances where one might find that there was an excuse for what was done which was quite detached from what this clause is really driving at. If the noble Baroness could find a way of expressing this, I should be delighted. That is what I was trying to do in the earlier debate.
I hope I have made my position clear. As it stands, this would not be acceptable. I think that paragraph (b) raises a very interesting point of definition.
Lord Hogan-Howe (CB)
My Lords, I rise briefly to support Clause 9. During this debate, I found myself challenged by our preference for not regarding this as a surrogate for talking about whether people are for or against abortion. At times I have noticed that there seems to be a link between those who oppose this clause and those who oppose abortion. This will not always been the case, but noble Lords who have spoken have often mentioned it. My heart finds it hard to contemplate abortion, but my head says that it is probably reasonably pragmatic in our society, and we have to accept it.
The reason for this clause seems to be the inconsistent application of police discretion around the country. The resources of each institution affected by the protests mean that they cannot always approach a civil injunction or remedy. As the noble Baroness, Lady Sugg, mentioned, it ends up being a lottery as to whether or not women in different parts of the country are protected. This is not good for anyone.
I support Clause 9 and I will reject the review, not because reflection is inherently a bad thing, as the noble Lord, Lord Cormack, said, but because I take this to be a wrecking amendment rather than something which is intended to develop the proposal. If I am wrong, that is my error, but that is how I felt the argument was being developed.
The basic proposal is about stopping interfering with women as they go to an abortion clinic. I do not understand the argument about needing to offer them advice at the point at which they approach a clinic. If the point is to offer advice on whether there are alternatives or whether they should even be contemplating abortion, this must be the least efficient process that anybody has ever devised. There has to be a better method than standing in the street, potentially shouting—we have seen examples of this—to engage with a woman at the point at which she is very vulnerable, just before she is potentially going to receive treatment, to try to persuade her not to do it. There has to be a better way. If this is the only way in which any protester can think to engage, they are in error. It is not a reasonable approach. It causes the majority of people to think that carrying out this type of protest in this way should be stopped.
People have described it as a conversation. I do not accept that. It is not a conversation—it sounds like a one-way monologue; it usually sounds like intimidation and, certainly, like bullying. For me, it is something that should certainly not be tolerated in a just society. I cannot support that.
There have been examples offered of where the police have intervened when people were merely praying; I think the noble Lord, Lord McCrea, mentioned this. I would be surprised if a police officer did that but, if there are examples, we ought to examine them. Let us get to the bottom of it. That would have required a member of the public to complain and then for the officer to attend. I do not think they would just have turned up of their own volition to intervene in an event around an abortion clinic that someone had not complained about in the first place. I would like to understand more about that, but I do not think this clause is designed to stop people praying. It might be designed to stop people congregating together in such a way that it intimidates people at what may be their most vulnerable time.
The argument about this being an absolute prohibition of protest in just one very small part of the country is a fair argument. I think all of us would say that, if that is going to happen, it should be in a very small part —and perhaps no part—of the country. It is an absolute argument. I could have accepted that, but my reasons for not doing so in this case, and why I believe Clause 9 is a reasonable approach, is that the harassment that is being suffered is gender-specific. Only one half of society will generally be affected by this type of influence or advice: the women of our society. It is also time-specific; it is a point at which women need this advice and at a time when they are in most peril, either personally, by conscience, or physically, and that seems to me to be a time when we should give them most support. Finally, it is at a place about which they have no discretion; they have no discretion about where they will seek support. They have to go to a hospital or a clinic. These places are identified and the women become vulnerable because they are identified as they approach them.
I would generally support an absolute prohibition of stopping protest—but in these places, at these times, for the women of our society, I support this clause. It deserves our support in protecting the women who need it.
Baroness Barker (LD)
My Lords, I made an extensive speech at Second Reading so I shall confine myself to just a few points of reflection on the debate today. First, the rest of the Bill is about protest; this is about the harassment of people seeking a legal health service to which they are entitled, as the right reverend Prelate the Bishop of Manchester reminded us. There are those of us who believe that women have the right to access those services freely and safely. Our amendments try to ensure that this whole clause addresses just that and, indeed, narrows it down. There are those who do not believe that such a service should exist or that people should be able to access it. They have very much exaggerated what this clause is about and its potential implementation. The noble Baroness, Lady Fox of Buckley, said in her introduction that all the evidence is that this activity does not stop access. I have no knowledge of any such evidence, and she did not give us any, but I have to ask: if it is not effective, why do people continue to do it, day after day?
A number of noble Lords rested their cases on the 2018 review. The amendments tabled by the noble Baroness, Lady Sugg, and myself have been informed by the providers of services and the thousands of women who attend those services and report to us that the current system of local PSPOs is not working, and they are continuing to suffer harassment as a result. So we need to be quite clear about the motivation behind the amendments but also their effect.
The noble Baroness, Lady Eaton, was one of the many people who gave a passionate defence of free speech. She said you cannot pick and choose. I say to her that, uniquely among all healthcare services, abortion services are targeted specifically. That is why we have to seek remedies, which we would not otherwise wish to do. The reason we are doing this is that, over the last two years, influenced by America, and influenced and funded by the same organisations that overturned Roe v Wade, there has been a change and an escalation.
I listened carefully to a number of noble Lords who made emotive comments suggesting that we wish to “criminalise prayer”. In the case of a single person in silent prayer, no, we do not; in the case of a church where every member turns up, week in week out, to stand directly in the path of women trying to access a service with the avowed intent of frustrating their access, yes we do.
One amendment that nobody has talked about at all is our Amendment 87, which talks about the definition of interference. I urge noble Lords to go back and look at that. I include the noble and learned Lord, Lord Hope of Craighead, because, when he objects to the phrase about “persistently and repeatedly” occupying something, that again comes from the experience of clinic staff and users. People come day by day to undertake their activities in the doorway of a clinic.
Lord Hope of Craighead (CB)
I am not objecting to the idea behind that clause; all I am saying is that the wording seems to me a bit defective because the word “occupies” does not have a target. I am sure that it could be better expressed; if it were better expressed, I would be content.
Baroness Barker (LD)
I very much welcome the noble and learned Lord’s help in trying to find a suitable wording for what we are seeking to do. I want to inform your Lordships’ House of what is happening: there are individual acts that, one by one, may not be intimidating but, put together in a pattern with a deliberate aim, they are.
I say to the noble Lord, Lord Balfe, that I am glad he was there with my colleague David Steel in 1967, but we are in a very different place now. Back in 1967, clinics were not having to deal with harassment as they are now.
Lord Macdonald of River Glaven (CB)
Does the noble Baroness agree with me that there is clear evidence of a concerted effort by well-funded, extremist United States—sometimes religious—groups to replicate in this country the situation that exists outside abortion clinics in the United States, in which women are routinely abused and threatened for trying to access medical care?
Baroness Barker (LD)
I do not think there is any doubt about that; the evidence is—
Lord Farmer (Con)
On the point about evidence, we are hearing people’s opinions about what the evidence is. Surely this requires a review so that we can involve the police, churches, abortion users—everybody—to get real evidence that is satisfactory to this House. At the moment, it is the kind of evidence where we are saying, “We know about and maybe you don’t.” I have not seen any 100% documentary evidence that these things are going on. I am going on the word of the noble Baroness and others.
Baroness Barker (LD)
The noble Lord, Lord Farmer, raised a question about the intimidation of women in clinics. He knows that clinics are regulated by the Department of Health and Social Care and the CQC and that it is expressly against the terms of their licence to do that; if they were found to be doing that, they would not be able to carry on.
I want to deal with the point raised by the noble Lord, Lord McCrea, about penalties. The penalties provided in Clause 9 are equivalent to those for other cases of harassment in other statutes. Amendment 94 would introduce a penalty at the same level as for skateboarding in the wrong place. I happen to think that the abuse of women is a lot more serious than a skateboarding offence.
Lord McCrea of Magherafelt and Cookstown (DUP)
Accepting that there should be a penalty for harassment, can I ask the noble Baroness whether she really believe that compassionately asking a person “Are you sure?” deserves a six-month, or 12-month or two-year sentence?
Baroness Barker (LD)
I suggest that the noble Lord goes back and reads the clause and the terms of interference. I do not think that what he describes comes under that, which is why the noble Baroness, Lady Sugg, and I are trying to make sure that this law is as explicit and clear as possible. We do not want to do what the amendment in the name of the noble Baroness, Lady Fox of Buckley, does and create loopholes whereby those who are currently harassing people can move around the country and continue to do so in different ways.
The fact is that we need this law because the current patchwork system does not work. It does not protect staff or women at all. It is a proportionate measure which, I accept, can be refined further through the amendments put forward by myself and the noble Baroness, Lady Sugg, and those that may be put forward in a similar spirit.
Baroness Fox of Buckley (Non-Afl)
I have an inquiry about PSPOs which has been raised. When PSPOs were originally advocated by pro-choice people, I was unsure about their use. My colleagues in BPAS, for example, were keen on PSPOs as a good, targeted way of stopping problems outside specific clinics, and they assured me that it was at specific clinics where problems were occurring. Is the argument of Clause 9 that things have got so out of hand that the original arguments in defence of PSPOs are redundant? The noble Baroness would not be against one who was not against PSPOs as a remedy in the past.
Baroness Barker (LD)
The answer is that the situation has moved on, so what was an answer before the existence of PSPOs is no longer relevant.
I have said enough. I think we all know where we are on this and the positions we came from. I would like to work with those Members who want to, and with the Minister, to make sure that we get to where the vast majority of us, and of the public, want to be: women being able access a service legally and safely, and 150 metres down the road you can be as extreme in your opposition as you like.
Lord Paddick (LD)
We on these Benches accept that many people have strong views both on abortion and on this clause, on both sides of the argument, as reflected in our debate. I want to say two things at the outset. First, my understanding is that organisations that provide abortion services, such as the British Pregnancy Advisory Service, talk through the options available in the case of an unwanted pregnancy, including continuing with the pregnancy and arranging adoption or fostering, becoming a parent and ending the pregnancy with an abortion. The second is that it must be one of the most difficult, life-changing decisions anyone has to make.
To be subjected to one-sided opinions by well-meaning, passionate but in some cases fixated individuals at such a vulnerable moment cannot be right, whether outside or inside an abortion clinic. As the noble Baroness, Lady Bennett of Manor Castle, said, this is about targeting an individual seeking medical services. Many noble Lords have talked about free speech. There is a difference between offering advice and support, and forcing advice and support on those who do not want it. By all means, campaign, demonstrate and provide advice, help and support on the internet, for example, but not when someone is on their way to an abortion clinic.
What is said inside an abortion clinic is regulated and controlled; what is said outside by campaigners against abortion is not. There is a series of amendments in the name of the noble Baroness, Fox of Buckley, supported the noble Baroness, Lady Hoey. Amendment 80 brings us back to the debate we had last week about “reasonable excuse”. I am very grateful to the noble and learned Lord, Lord Hope of Craighead, for that debate and for his contribution today.
This brings us back to the potential argument that the more important the issue, the greater the excuse to break the law. Last week, we debated whether anything could be more important than saving the planet from catastrophic climate change and therefore, there could be a “reasonable excuse” to do anything, however unlawful, if saving the planet was the intention. I am sure there are some who feel that nothing is more important, as they see it, than “saving the life of an unborn child”, so any means justify the ends. Such an amendment would render buffer zones ineffective.
Amendments 81 and 86 lead potentially to the whack-a-mole scenario—or, as my noble friend Lady Hamwee more eloquently put it, the displacement of protests from one clinic to another—whereby those wanting to get those wanting an abortion to change their minds at the last minute would travel around the country until every local authority had a buffer zone around every clinic. Either there is a right to abortion without last-minute interference, or there is not. I am not clear from the wording of Amendment 86 whether it would amount to a maximum of a two-year buffer zone, or simply the expensive and bureaucratic process of having to renew the buffer zone every year.
Amendment 82 introduces the concept of “intentionally or recklessly” interfering, which no doubt would result in endless arguments about whether the offering of advice, or whatever form the interaction takes, amounted to interference or not. Amendment 89, also supported by the right reverend Prelate the Bishop of St Albans, would allow “silent witness” by those who persistently, continuously or repeatedly picket abortion clinics. That sounds to me like quite intimidating behaviour, even if it is silent prayer. We cannot support these amendments. Either the Committee supports this clause or it does not; creating uncertainty about whether the interaction is reasonable, which clinics have a buffer zone or what amounts to interference is unhelpful.
On Amendment 94, I can understand why the noble Baroness, Lady Fox of Buckley, has drawn a parallel with Part 3 of the Police, Crime, Sentencing and Courts Act 2022 and public space protection orders, but the latter refers to things like banning the drinking of alcohol in a local park—otherwise innocuous activities that are causing a particular problem in a specific area. This measure is about interfering with a person’s right to choose to access abortion services. They are very similar in terms of protecting public space, but very different in terms of the kind of activity they are trying to prevent.
We support Amendments 80A, 82A, and 82B in the names of the noble Baronesses, Lady Sugg and Lady Watkins of Tavistock, and my noble friend Lady Barker, which would bring the phrase “buffer zones” into line with similar legislation in other jurisdictions. We support the amendments in the name of the noble Baroness, Lady Sugg, supported by the noble Lord, Lord Ponsonby of Shulbrede, and my noble friend Lady Barker.
On Amendment 84, if we are going to have buffer zones, they need to be around every place where abortion services are provided. Amendments 87 and 91 helpfully clarify that the proposed offences apply only in relation to abortion services. Amendments 95, 96 and 97 also usefully exempt anyone invited to go along to the clinic with the person seeking abortion services, and anything said or done when all parties are in someone’s home or a place of worship.
We also support the clarification provided by Amendment 93A in the name of my noble friend Lady Hamwee, supported by my noble friend Lady Barker and the noble Baroness, Lady Sugg: that an “abortion clinic” should include places where advice and counselling related to abortions is provided.
Baroness O'Loan (CB)
Is the noble Lord saying that we should have buffer zones outside every location at which somebody can get, for example, the medical intervention for abortion, such as Boots the chemist, or every facility offering counselling?
Lord Paddick (LD)
My noble friend’s amendment is a probing amendment for the House to consider what sort of premises might be included in buffer zones to ensure that places where women go to get advice are included. The noble Baroness makes an important point, but this is a probing amendment so that the House can consider between Committee and Report whether an amendment in line with the wording that my noble friend has provided is right.
I understand the intention behind Amendment 85 in the name of my noble friend Lord Beith and supported by the right reverend Prelate the Bishop of St Albans, but I think it is now covered by Amendment 96. If someone decides to go into a place of worship on their way to an abortion clinic, that is their decision.
Similarly, I understand the intention behind my noble friend’s Amendments 88 and 90, supported by the right reverend Prelate and the noble Baronesses, Lady Fox of Buckley and Lady Hoey: they want to protect free speech. But freedom of speech is a qualified right, and this restriction of it applies only in this very specific and limited scenario in relation to abortion services and clinics. I am not a lawyer, but my understanding is that the European Convention on Human Rights contains qualified rights, as the noble Viscount said. If a country believes that restrictions need to be placed on a qualified right because there is a justification for it, it is open for it to do so—that is exactly what we are considering here. Whether something is clearly contrary to European Convention on Human Rights, as my noble friend suggested, will be for the courts to decide. I understand—not least following discussions with the Minister and officials—that there is an expectation that, if Clause 9 were passed in its original form, it may be subject to legal challenge. But that is the proper place for a decision to be made on whether the qualified right should be restricted by this clause.
There are other places and other times when those opposed to abortion can make their views known and can seek to influence others. If freedom of speech is to be protected at all times and in all places, why are only noble Lords allowed to speak in this debate? Advise and persuade someone not to have an abortion all you like—for example, by talking to the providers of abortion services to ensure that they include “pro-life” choices in clinics—but do not do so when someone has decided to go to an abortion clinic and is about to enter.
Similar arguments apply to Amendment 92 in the name of the noble Baroness, Lady Fox of Buckley, supported by the noble Baroness, Lady Hoey. Amendments 98 and 99, in the name of the noble Lord, Lord Farmer, and supported by the right reverend Prelate the Bishop of St Albans, helpfully point out the Home Office review conducted in 2018, which many noble Lords have quoted. It concluded that buffer zones would be disproportionate, which is at least helpful in understanding the Government’s reluctance to support this clause, as it might be portrayed as yet another U-turn. The then Home Secretary explained his decision in a Statement about the 2018 review, which a number of noble Lords have selectively quoted from. He actually said:
“The review gathered upsetting examples of harassment and the damaging impact this behaviour has had on individuals. This behaviour can leave patients distressed and has caused some to rebook their appointments and not follow medical advice in order to avoid the protestors. In some of these cases, protest activities can involve handing out model foetuses, displaying graphic images, following people, blocking their paths and even assaulting them. However, what is clear from the evidence we gathered is that these activities are not the norm, and predominantly, anti-abortion activities are more passive in nature. The main activities reported to us that take place during protests include praying, displaying banners and handing out leaflets. There were relatively few reports of the more aggressive activities described above. Nevertheless, I recognise that all anti-abortion activities can have an adverse effect, and I would like to extend my sympathies to those going through this extremely difficult and personal process … Through the review, we also found that anti-abortion demonstrations take place outside a small number of abortion facilities. In 2017, there were 363 hospitals and clinics in England and Wales that carried out abortions. Through the review, we found that 36 hospitals and clinics have experienced anti-abortion demonstrations … Having considered the evidence of the review, I have therefore reached the conclusion that introducing national buffer zones would not be a proportionate response, considering the experiences of the majority of hospitals and clinics, and considering that the majority of activities are more passive in nature.”—[Official Report, Commons, 13/9/18; col. 37WS.]
Even if “passive activities” is not a contradiction in terms, passive activity can leave patients distressed and cause some to rebook their appointments and not to follow medical advice in order to avoid protesters.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a wide-ranging debate that has re-run a lot of the points from Second Reading. I added my name to all the amendments in the name of the noble Baroness, Lady Sugg, who ably introduced that group, which I of course agree with. She opened her speech by talking about the large majority in the other place, which we have heard about, but she made the additional point that each political party had a majority in favour of passing the amendment. She then went on to talk about the argument regarding a “reasonable excuse”, and she did not think that there could be an argument for harassing women seeking a legal service.
We also heard some figures, which the noble Lord, Lord Paddick, has repeated, about there being only five PSPOs currently operating in the country but about 50 targeted clinics where there are regular protests. This creates a patchwork of provision, which a number of noble Lords have spoken about. So tactics have evolved, and there has been an increase in protests.
I want to mention one particular Conservative Minister, Victoria Atkins, who I always think is very perceptive and who has been an active defendant on domestic abuse issues in her previous roles in the Ministry of Justice. She supports this legislation. That has particular significance for me.
I also refer to my noble friend Lady Thornton, who made a central point: the amendments from the noble Baroness, Lady Sugg, try to address in a reasonable way the points raised at Second Reading—that was the spirit in which she put forward that suite of amendments. The vast majority of noble Lords who have spoken against them have not addressed any of the points that she made when she introduced them. I accept that the noble Lord, Lord Beith, is an exception to that, but the vast majority of other speakers did not acknowledge her points.
I turn briefly to the speech by the noble Baroness, Lady Watkins, in which she made the particularly telling point that many of the women going to seek an abortion may have been subject to coercive sex. For that reason, they may be particularly vulnerable to intimidation as they are going to get advice on whether and how to progress with an abortion. This was a perceptive comment, especially as it came from a nurse; it is something I recognise from the courts in London in which I sit as a magistrate. I also acknowledge her point that she wants a good resolution of these issues rather than a fast resolution.
The noble Viscount, Lord Hailsham, gave an absolutely excellent speech; I agreed with every word he said, which is quite unusual from these Benches. Nevertheless, he made a very good point about demonstrators, whom he comes across in other contexts where he would not dream of trying to limit their ability to protest. However, here we are of course talking about an individual, often in a vulnerable state, trying to access a legal service, and that changes the argument about whether demonstrators should be allowed to influence them. As the noble Baroness, Lady Bennett, said, Clause 9 does not prevent anybody protesting against abortion; it only prevents them protesting against abortion within
“150 metres … of an abortion clinic”.
I will now pick up the point made by the noble and learned Lord, Lord Hope, on the argument regarding reasonable excuse. As he said, we have had a debate about reasonable excuse in other contexts—for example, in relation to the protests by Extinction Rebellion and the other protest groups which would use that argument for the types of protest they undertake. My understanding of his argument is that basically it is for Parliament itself to take a decision on this sort of thing, rather than pushing these decisions down to courts, judges and magistrates. That was a powerful argument against Amendment 80.
The other speech which resonated with me was that of the noble Lord, Lord Hogan-Howe, which I am sure came from absolute front-line experience. He said that we are not talking about a discussion on abortion occurring as people—women, of course—try to receive these services; rather, it is a monologue and bullying which is meant to be intimidatory. He was absolutely right in pointing that out.
In conclusion, I will say something that is so obvious that nobody seems to have said it in this debate: the Government agree with, and accepted, Clause 9. I accept that there are debates about the wording, the compliance with the ECHR and all the rest, but clearly the Government believe that the situation has moved on since the 2018 review. They clearly believe that there is an advance in the tactics and the money deployed to intimidate women as they are trying to access these legal services. If the Government believe that, we should pay attention. It is not often from this Dispatch Box that I say that we need to listen to the Government because they have clearly taken a decision, but the response by the Minister will perhaps be the most important speech that we will hear in today’s debate.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for his closing words; as the noble Lord, Lord Paddick, said, “No pressure”. I thank all noble Lords for their impassioned contributions to what has obviously been a very substantive debate.
Clause 9 seeks to establish buffer zones outside abortion clinics in England and Wales to ensure that persons accessing or providing abortion services are free from harassment or intimidation. As the Committee will be aware, this clause was inserted into the Bill on the basis of a free vote in the other place. I will not get involved in second-guessing the motivations of those who voted, but the result was 297 votes in favour to 110 votes against. As I have said before, and I am very happy to say again, the Government respect the will of the House of Commons.
It is obviously clear—today’s debate makes it even clearer—that there are very strong views on both sides of the argument. Many noble Lords want the clause to become law, and many want to alter or to delay it. Amendments 80 to 97—tabled by the noble Baronesses, Lady Hoey, Lady Fox, Lady Watkins, Lady Barker and Lady Hamwee, my noble friend Lady Sugg, the noble Lords, Lord Ponsonby and Lord Beith, and the right reverend Prelate the Bishop of St Albans—all seek to make an array of changes to Clause 9, be that by raising the threshold for the new offence or by seeking to clarify the clause in some way.
Amendments 98 and 99 tabled by the noble Lord, Lord Farmer, seek to introduce buffer zones pending the outcome of
“a consultation … to determine if there has been significant change in”
protests “outside abortion clinics since” the Government’s last review. Amendments 87 to 93 look to ensure that only activities relating to abortion services within a buffer zone constitute an offence, while Amendments 88, 96 and 97 seek to ensure that activities within private dwellings and places of worship are exempt. Amendments 80 to 82 seek to provide a person within a buffer zone with the opportunity to defend their actions and
“to strengthen the burden of proof required to establish an offence.”
As I said before, I thank all noble Lords for their interest and ideas to amend the existing clause in its current form, particularly their well-intentioned attempts to tighten what was described in the other place by the Minister as a “blunt instrument”. It remains the Government’s view, based on legal advice, that this amendment does not meet our obligations under the European Convention on Human Rights and would require a Section 19(1)(b) statement to be provided. That said, after having been brief, I am now even more keen to meet noble Lords in the coming days, and I encourage them to meet me so that we may discuss the next steps for the clause. For now, I invite noble Lords not to press their amendments.
Baroness Sugg (Con)
Does my noble friend the Minister agree that the clause as inserted by the other place calls for universal zones around all clinics in England and Wales?
Lord Sharpe of Epsom (Con)
I say again to my noble friend—I have said it before, and I am happy to say it again—that the Government respect the will of the House of Commons.
Baroness Fox of Buckley (Non-Afl)
My Lords, I thank all Members of the Committee for a wide range of speeches, ensuring that we have covered a lot of ground on this important issue. Contributions have been thoughtful, sometimes tetchy but largely civil; it is important to have these arguments out. I listened to what everybody said, and one thing I noted was that all speakers on all sides have condemned the harassment and intimidation of any woman going into a clinic or a hospital for an abortion. It is important that we note that we have that in common, because sometimes it can be presented as though people who are against Clause 9 are indifferent to the intimidation or harassment of women. Everybody has said that it is wrong; this is a question of how you deal with it.
The dispute is also about exactly what happens outside clinics. We have heard the clash of narratives in the contributions that I referred to, which makes the call for a new review from the noble Lord, Lord Farmer, all the more appealing. Indeed, the noble Baroness, Lady Sugg, herself suggested—backed up by the reply to me from the noble Baroness, Lady Barker—that the situation has got a lot worse since 2018, and particularly very recently. That is disputed by people so, for the clause to have legitimacy, maybe we need a public discussion to get the evidence—that would be important.
Lord Paddick (LD)
My Lords, I intend to oppose the question that Clauses 10 and 11 stand part of the Bill, and I shall speak to the other amendments in this group. It is not particularly helpful to have a clause stand part notice beginning a group rather than an amendment, but there we are.
This group of amendments relates to the new police powers of stop and search in relation to protest. Noble Lords will know the intrusive nature of being stopped and searched by the police, but I respectfully suggest that the full impact on a totally innocent member of the public being detained and searched by a police officer on the street, in full view of passers-by, can only be imagined by those of us who have never been subject to such an experience.
Imagine, then, being black. During a round-table discussion held by the Home Affairs Committee, a black child said that
“we know the police treat Black people differently… it means that we do not feel safe ever.”
Black people are seven times more likely to be stopped and searched than white people, if the stop and search is allegedly based on suspicion. However, according to the latest Home Office data, black people are 14 times more likely to be stopped and searched under powers that require no suspicion.
In relation to tackling knife crime, prohibited objects are limited and obvious, and the consequences of carrying such weapons can be fatal. In relation to these new powers and related offences, the prohibited objects can be almost anything, and the consequences of carrying them can be completely innocuous. What exactly is an item
“made or adapted for use in the course of or in connection with”
highway obstruction, or
“intended by the person having it with them for such use by them or by some other person,”
or an item
“for use in the course of or in connection with”
causing a public nuisance, or
“being present in a tunnel”?
I do not need nor intend to come up with ever more ludicrous suggestions as to what completely innocent objects might be caught up in such an offence. Even if there were noble Lords without much of an imagination, they would still be able to do that for themselves. The noble Baroness, Lady Jones of Moulsecoomb, has a few suggestions in her Amendment 101. I do not know about Amendment 101—this is Room 101.
The Government say that these powers are needed in order to prevent these types of offences, but in recent weeks the police have made arrests prior to offences being committed under existing legislation, based on intelligence and targeted at specific individuals. These powers are disproportionate to the outcomes they seek to achieve. Even if stop and search to combat knife crime were effective in reducing crime, which Home Office research shows, at least above a certain level, it is not, the argument that saving young people’s lives justifies the damage to trust and confidence in the police in some communities caused by badly targeted stop and search does not hold water in relation to peaceful protest. The number of instances where an arrest follows a without-suspicion stop and search is four in every 100, by the way.
Secondly, the right to freedom of expression, assembly and association—the right to protest—is likely to be impacted by such powers, disproportionately affecting those who feel disfranchised and for whom peaceful protest is an important safety valve: not just black and minority ethnic people but, per the letter noble Lords will have received from the Body Shop, young people, who disproportionately take part in protests because they feel that the democratic process does not represent their views.
If you fear the police, not least because of your lived experience, supported by the data which demonstrates that you are likely to be targeted by the police for stop and search—seven or 14 times more likely depending on whether suspicion is required—if you are black, you are likely to be dissuaded from exercising your human right to protest. It is not just me or the usual suspect NGOs saying this; His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services set out in its report on public order policing
“the potential ‘chilling effect’ on freedom of assembly and expression in terms of discouraging people from attending protests where they may be stopped and searched … Such powers could have a disproportionate impact on people from black, Asian or other minority groups.”
I am not claiming that some offences of highway obstruction, locking on, public nuisance, tunnelling, being present in a tunnel or any of the other offences in this Bill might not be prevented by these stop and search powers. I am arguing that, whether with suspicion, which is bad enough, or without suspicion, which is outrageous, to give the police these powers is disproportionate in terms of the harm that is likely to be caused compared with the benefit that is likely to result.
Baroness Jones of Moulsecoomb (GP)
My Lords, I do not know if I am breaking the rules of the House in saying this, but I feel that some of the speakers in the last debate were slightly self-indulgent. I am appalled that we are still only on group 2. Would the Minister and the Whip take that back to the Chief Whip and the Leader of the House and suggest that people show a little more restraint in their agonising over certain bits of the Bill while somehow not agonising over the rest of it, which is plainly very similar to what they were arguing against?
The noble Lord, Lord Paddick, has summed up extremely well. He often says things that I wish I had said. He was absolutely right to raise both the inherent potential racism in these measures and the prison population. We are already one of the most imprisoned nations in the world, even with Iran having corralled 15,000 or 16,000 protesters against its repressive regime. Adding to the prison population will be a complete folly.
I also oppose Clauses 10 and 11. I am very worried about Clauses 10 to 14, because they give the police extensive new powers to stop and search anyone in the vicinity of a protest and confiscate items from them. Under Clause 11, a police inspector can designate a whole area in which the police can stop and search anyone without suspicion. That means people taking part in a protest, people walking past, journalists—anyone in the area. That is ludicrous and repressive. It beggars belief that the Government think this is okay to include. It also includes stopping vehicles and searching them, again without suspicion.
My Amendment 101 exposes some of the risks. With this offence of locking on, any cyclist who has a bike lock in the vicinity of a protest could have it confiscated. This could even include a random person cycling past. Anyone cycling past is likely to have a bike lock on them, because if they are not cycling then the bike lock is likely to be on their bike. This exposes endless innocent cyclists to being stopped, searched and having their bike locks confiscated. There are similar risks for anyone who has glue, Sellotape or presumably anything that police do not like the look of—jam sandwiches or anything.
Like the other protest clauses in this Bill, this one is far too broadly drafted. The Government are so obsessed with fighting climate activists that they will expose anyone to being stopped and searched and having things confiscated. The Government are seeking in this Bill to make protest a crime instead of a right. That simply is not just.
The Lord Bishop of Manchester
My Lords, first, I declare my interest as co-chair of the National Police Ethics Committee for England and Wales, though I am speaking on my own behalf. I want to focus my remarks on the amendment opposing the question that Clause 12 stand part of the Bill, to which I am a signatory, but also on those opposing the questions that Clauses 10, 11, 13 and 14 stand part of the Bill. I am grateful to the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones, for the way they have introduced this debate.
It is deeply concerning that the Bill seeks to extend suspicion-less stop and search powers to the context of protest. If brought forward, such measures would open a Pandora’s box for the further misuse of such powers that have in many contexts caused trauma, both physically and mentally, particularly to those in marginalised communities. The proposers of these clauses may have in mind the current environmental protesters, who appear, somewhat unusually, to include a large proportion of those from white, middle-class backgrounds, notably one of my own clergy. But history tells us that such powers, after a short time, are almost invariably and disproportionately used against minorities, especially ethnic minorities.
I would not be involved with the police in the way that I am if I was not passionate that our forces should gain and hold the confidence and respect of all sections of our society. But I know all too well how fragile that respect and confidence are. Police powers that are not grounded in suspicion create suspicion, and they create suspicion in those parts of society, as the noble Lord, Lord Paddick, has so eloquently indicated, where we can least afford it.
We must note when considering the Bill’s creation of a new stop and search power in relation to specified lists of protest offences that there is—as has been referred to—no agreed position among police forces that such a power is either necessary or wanted. When you add to this the fact that the definition of “prohibited objects” is so broad—the noble Baroness, Lady Jones, has referred to bike locks, but it could be posters, placards, fliers or banners—I am not sure about jam sandwiches, but I suspect it fits in somewhere; all could become suspect. How would the police ascertain that such objects were in fact for use at a protest? There are lots of legitimate reasons why you have household objects with you. The Joint Committee on Human Rights states:
“A suspicion of such an offence, even a reasonable one, in the course of a protest represents an unjustifiably low threshold for a power to require a person to submit to a search.”
There are serious risks here for people’s ability and willingness to exercise rights that are fundamental in a democratic society.
The Bill attempts to address what it refers to as “public nuisance”. But its scope is too broad—arguably, any form of protest risks “public nuisance”. Indeed, in these very halls of Parliament, four suffragettes chained themselves to statues to bring attention to their demands for votes for women; we must ask ourselves whether our contemporary context allows space for similarly important issues to be protested on. As things stand, these clauses risk a disproportionate interference with people’s Article 8, 10 and 11 rights as set out in the Human Rights Act.
This country has long prided itself on being a democracy, this Parliament is at the heart of that, and one of our duties is to ensure that the rights and freedoms necessary to such a system of governance are not undermined. Those rights and freedoms include the right to peaceful protest. Therefore, should these provisions remain at a future stage, I will vote to oppose the questions that Clauses 10 to 14 stand part of the Bill.
Lord Coaker (Lab)
My Lords, I rise to speak to the clause stand part amendments in my name. In doing so, I thank the noble Lord, Lord Paddick, the noble Baroness, Lady Jones, and the right reverend Prelate the Bishop of Manchester for their supportive remarks and the views that they have expressed, which I very much support.
Stop and search can be a frightening experience; it can be intrusive and intimidating. There are real concerns, as the noble Lord, Lord Paddick, outlined, about disproportionality, and a point that nobody has yet made is that it can be used against children, worries which matter so much in any democracy.
I am going to spend a few minutes going through this. The Chamber is not packed, but a lot of noble Lords will read our deliberations in Hansard, and this is one of the most important parts of the debate in Committee that we are going to have, as the right reverend Prelate the Bishop of Manchester outlined.
Despite these concerns, Parliament has given police the power to stop and search with suspicion for items such as offensive weapons, illegal drugs and stolen property. In its recent report, the Joint Committee on Human Rights accepted that stop and search with reasonable suspicion was appropriate in certain circumstances. However, as the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, are arguing through their Clause 10 stand part notice, is it right that these stop and search powers should be extended to peaceful protest? For example, new paragraph (g) inserted by Clause 10—I urge noble Lords to reread that clause—extends stop and search powers to an offence of
“intentionally or recklessly causing public nuisance”,
when we know how wide the scope of “causing public nuisance” can be. Can the Minister explain what, in the Government’s view,
“intentionally or recklessly causing a public nuisance”
actually means? We would be passing this in new paragraph (g).
By creating a risk of causing serious inconvenience or serious annoyance through your actions in the course of a protest, or preparation for or travel to a protest, you would have to submit to a search under the Bill. How would an officer know my intention? Extending the stop and search powers to cover searches for articles connected with protest-related offences risks encounters between the public and the police where there is little or no justification. Does the Minister agree with that? People on their way to protests, marches, rallies or demonstrations are at risk of being searched in case they are equipped to commit one of those offences—or so the police believe.
As the noble Baroness, Lady Jones of Moulsecoomb, has just articulated with reference to her Amendments 100 and 101—this is the purpose of a Committee—what on earth do the Government mean by “prohibited” items? It is incumbent upon us to give some indication of what we consider prohibited items to be. It is easy to scoff when the noble Baroness, Lady Jones, asks if that includes a bicycle lock—but does it? I think it is quite right to ask that question.
This takes us to Clauses 11, 12, 13 and 14. Even if one thinks that stop and search with reasonable suspicion may be appropriate, to stop and search for prohibited items without suspicion, looking for articles with respect to peaceful protest, is not where this country should be going or what this Parliament should be legislating to allow the police to do. The application of suspicionless stop and search powers was previously reserved for use in the most serious circumstances, such as the prevention of serious violence, gun and knife crime, or indeed terrorism. Is this where we want our democracy to go—to use stop and search powers that we have previously said should be used only in relation to the prevention of terrorism or serious violence? We are now saying that they are appropriate to be used to search people going to a peaceful demonstration for prohibited items.
The Minister needs to explain—this is the purpose of my clause stand part notices, even though we are in Committee—why the Government think that is appropriate, whether the Minister agrees that it is appropriate, and why the Government believe it is necessary to give terrorist-related powers to the police to deal with peaceful protest. That is the purpose of my clause stand part notices for Clauses 11, 12, 13 and 14 on the creation of the suspicionless stop and search power in relation to a list of specified protest offences. I am grateful for the support of the noble Lords, Lord Paddick and Lord Anderson—who is not in his place—the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Manchester. I know there are others; the noble Baroness, Lady Jones, has just said that she supports it. My reason for opposing these clauses is to ask the Government to justify such an extension of power to the police in the context of peaceful protest.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for their contributions to this debate. In answer to the question from the noble Baroness, Lady Jones, about the duration of the previous debate, we are of course a self-regulating House.
We believe that stop and search is a vital tool to crack down on crime and protect communities. The Bill extends both suspicion-led and suspicionless stop and search powers, enabling the police to proactively tackle highly disruptive protest offences by searching for and seizing items which are made, adapted or intended to be used in connection with protest-related offences, such as glue, chains and locks. The powers can also act as a deterrent by preventing offenders carrying items for protest-related offences in the first place because of the increased chance of being caught.
The suspicion-led powers in Clause 10 will help the police manage disruptive protests more effectively, as police officers will have the power to stop and search anyone they reasonably suspect is carrying items that could be used for locking-on, obstruction of major transport works, interference with key infrastructure, public nuisance, obstruction of the highway and the tunnelling offences.
The suspicionless powers in Clause 11 build on the Government’s plan to give the police the powers they need to prevent serious disruption at protests from happening in the first place. In high-pressure, fast-paced protest environments, it is not always possible for officers to form reasonable suspicion that individuals may be about to commit an offence. That is where suspicionless powers are important, and reflect the operational reality of policing.
The noble Lord, Lord Coaker, asked about the wording in Clause 10(g). Of course,
“intentionally or recklessly causing public nuisance”
are legally well-understood terms which are found in much other legislation.
The suspicionless stop and search power will be usable only if certain conditions are met, and in cases where a police officer of or above the rank of inspector authorises its use in a specified locality for a specified period. This power uses a similar framework to that found in Section 60 of the Criminal Justice and Public Order Act 1994 to ensure consistency in police powers and safeguards. The rank of inspector aligns with existing stop and search powers to ensure consistency.
In answer to the earlier question of the noble Lord, Lord Coaker, a Section 60 order cannot be extended beyond 48 hours. PACE Code A is also clear that a suspicionless stop and search should be reasonable and no bigger than needed.
In terms of the size of the area that designations would cover, as I said earlier, our intention is to mirror the approach used in Section 60. The geographical extent of a Section 60 order depends on the situation that led to the order being authorised, so it is for the authorising officer to determine. PACE Code A states that the authorising officer should specify a fixed location for the boundary of the search area, whether that is a street name or a divisional boundary, and not make the area wider than is necessary for the purpose of preventing these suspected offences.
Lord Coaker (Lab)
Will the Minister reflect on his remarks about a specified locality and his analogy with Section 60? That deals with terrorism. Suspicionless stop and search may well encompass a huge area, as this Parliament has accepted on the basis that a terrorist may travel hundreds of miles to target people. This is about protest and protesters. Is the Minister saying that the Government see that as analogous? I find that difficult to comprehend.
Lord Sharpe of Epsom (Con)
The fact is that the search area should not be wider than necessary for the purposes of preventing the potential offences. I do not believe it is analogous to terrorism, but that is quite clear.
The noble Lord also asked how the geographical extent of a no reasonable suspicion stop and search order is communicated. It is for police forces to determine how and whether to communicate the geographical extent of such an order under Section 60, and this will be the case for the new suspicionless powers in the Bill. But although forces are no longer required to communicate whether a Section 60 order is in place, many continue to do so where they judge it to be operationally feasible, to help deter criminals and enhance community trust and confidence. It is very common for forces to use their social media channels or websites to communicate the extent of a Section 60 order.
The noble Lord also asked about officers in plain clothes. This power only extends to those in uniform.
Baroness Blower (Lab)
I invite the Minister to comment on the remarks that I and the noble Lord, Lord Beith, made at Second Reading, which my noble friend Lord Coaker referenced.
If a police officer attempts to stop and search a woman who clearly knows that she is not carrying anything unreasonable, given what the police themselves said about how single women walking alone at night might respond to this, there is every chance that a suspicionless stop and search could result in the woman—young or old—obstructing a police officer in the course of his or her duty. I did not hear the Minister respond to that. It is a very significant concern. It would be a concern anyway but it is an aggravated one, given what the Metropolitan Police and other authorities have said in the light of what we know only too well happened previously.
Lord Sharpe of Epsom (Con)
Obviously, I understand where the noble Baroness is coming from, but asking an officer for proof of identity is not in and of itself an obstructive thing to do. That is very clear.
Baroness Blower (Lab)
If I might just press the point: of course, if the young woman has the presence of mind to simply ask for proof of identity, that may very well not be obstruction, but she may be frightened by this and seek to move away or to respond in some other way, but not to assault the police officer. I just see that there is a danger in this situation, and I am not hearing anything that I could tell women who are asking me about what we are doing in the Public Order Bill so that they do not need to have any concern about suspicionless stop and search. We heard before about it being perfectly reasonable to respond in such a way that you can categorically assure yourself that a person is a police officer. Frankly, I have never seen a police identity badge, so I do not know what they look like. The previous Metropolitan Police Commissioner talked about flagging down buses if you are not happy about what is going on. I want to press the Minister on this point, because although I absolutely accept that asking to see a badge is not necessarily chargeable with obstruction, other things could befall.
Baroness Jones of Moulsecoomb (GP)
To add to that, women were also told to consider refusing to get into a police car, and even if you did see the badge, Wayne Couzens was carrying a perfectly legitimate police badge, whether or not you recognise it is beside the point. While I am on my feet, will the Minister answer my point about the prison population already being incredibly high?
Baroness Hayman of Ullock (Lab)
This is so important. I do not think the Minister or the Government appreciate how vulnerable women can feel walking, particularly in the dark or on their own, and it gets dark very early in the winter. This is really serious. I also do not think they realise how much young women, particularly if they are attractive, can get hassled. If you have been hassled a lot, you can snap because you are sick and tired of it. I really do not think this has been thought through.
Lord Paddick (LD)
Before the Minister responds, he may also wish to think very carefully about what he said about these powers not being exercisable by officers in plain clothes. I am prepared to apologise to the Committee for misleading it when I say that these powers alter Section 1 of PACE, which has nothing in it about an officer having to be in uniform to exercise powers of stop and search. So what the Minister said about these powers not being exercisable unless the officer is uniformed is not true.
Lord Sharpe of Epsom (Con)
If I am incorrect I will most certainly correct my statement. That was the information that I was given. If it is incorrect in any way, I will of course come back and apologise. It was inadvertent if that is the case.
I think we are getting slightly off topic, but I say to the noble Baroness that the Minister certainly appreciates that women and girls can feel very vulnerable, particularly at night, and I understand the level of hassle. However, a road where one is likely to be alone is not likely to be subject to the Section 60 power, so we are in the realms of the hypothetical to some extent. I accept and understand the concerns that have been raised, but I reiterate that it is everyone’s right to ask a police officer for identification, and I believe that under the suspicionless basis the officer has to be wearing uniform, but I will confirm that later with the Committee, certainly if I am incorrect. I do not have an answer for the noble Baroness, Lady Jones, so I will have to write to her.
Lord Paddick (LD)
My Lords, I thank all noble Lords who have participated in this debate. The noble Baroness, Lady Jones of Moulsecoomb, questioned the area in which suspicionless stop and search could be operated. Marches that occur in central London traditionally start at Marble Arch, go down Park Lane and sometimes through Oxford Street and Regent Street. The number of people who could be subject to suspicionless stop and search as the result of that sort of demonstration is mind boggling.
In his real-world experience as adviser to the police on these issues, the right reverend Prelate the Bishop of Manchester talked about these powers being invariably used disproportionately. The Minister has said nothing to reassure the Committee that the powers will not be used disproportionately, with the damage that will be caused to the reputation, trust and confidence in the police.
The noble Lord, Lord Coaker, made the valid point that the powers can be used against children. Public nuisance is such a wide offence. I also raised the offence of being present in a tunnel. How can someone go equipped to be present in a tunnel? There was no answer about that.
Before this, there were two elements to suspicionless stop and search. The Minister talked about Section 60 of the Criminal Justice and Public Order Act, which is to do with serious violence. The other was Section 44 of the Terrorism Act, which the Conservative Government repealed because it was being used disproportionately. The Government withdrew suspicionless stop and search in relation to terrorism because they considered that its impact on trust and confidence in the police was disproportionately negative. It does not exist any more in relation to terrorism, but this Government want to introduce it in relation to people exercising their lawful right to protest.
The Minister made no reference to what HMIC said was likely to be a chilling effect on people exercising their human rights under Articles 9, 10 and 11. There was not a word about this, even though HMICFRS raised it. There was nothing about the disproportionate impact on minority communities. Minority communities and young people are more likely to be engaged in protest because they do not feel that the parliamentary process represents their views. As the noble Lord, Lord Coaker, said, we will return to these issues on Report. I am sure we will vote on them.
Lord Sharpe of Epsom (Con)
My Lords, I should like to clarify my remarks about uniforms. Section 60—which is what I was talking about—applies only to officers in uniform. Section 1 powers can apply to all officers.
Lord Paddick (LD)
Can the Minister clarify whether these powers—not Section 60 powers—to stop and search people in relation to protests can be exercised by officers in plain clothes?
Lord Sharpe of Epsom (Con)
As I think I explained, we are basing these powers on Section 60.
Lord Coaker (Lab)
Is the Minister telling this Chamber that a plain clothes officer in the middle of Lambeth, Manchester, Newcastle or Cardiff can stop a car without suspicion, without anybody knowing that there is a suspicionless stop and search operation going on?
Lord Sharpe of Epsom (Con)
Our intention is to mirror the approach used in Section 60. I said that very clearly earlier. I have already explained its geographical extent.
Lord Paddick (LD)
Can the Minister point to the part of the Bill that says that suspicionless stop and search powers are restricted to officers in uniform?
Lord Coaker (Lab)
This is extremely serious. It is exactly the point that the noble Lord, Lord Paddick, is making and what we are trying to clarify. When can a non-uniformed officer use these powers and when can they not?
Lord Sharpe of Epsom (Con)
I apologise to the noble Lords, but I have nothing more to say on the subject. I have tried to explain how this relates to the Section 60 powers. Our intention, I say again, was to mirror that approach.
Baroness Blower (Lab)
This is of very great significance; not just to me, not just to women, but to everyone who is trying to understand the Government’s intention with this legislation and in what position people will find themselves. Does the Minister not agree that, if it is the Government’s intention that only uniformed police officers may exercise these powers—frankly, I do not think that they should do so either—then that should be made explicit in the Bill, as there is clearly the possibility of ambiguity?
Lord Sharpe of Epsom (Con)
I am grateful to my noble friend for pointing out that Clause 11(6) says:
“This section confers on any constable in uniform power … to stop any person and search them or anything carried by them for a prohibited object.”
Lord Davies of Gower
Member's explanatory statement
This amendment and the amendments in the name of Lord Sharpe of Epsom at page 16, line 12, page 17, line 20, page 17, line 35 and page 18, line 4 have the effect that in Clause 16 the amendments to sections 14 and 14A of the Public Order Act 1986 in relation to the British Transport Police apply in relation to Scotland as well as England and Wales.
Lord Davies of Gower (Con)
My Lords, Clause 16 closes a gap in existing powers at Part 2 of the Public Order Act 1986 for policing public processions and assemblies which may result in serious disorder. It does this by harmonising the position between on the one hand the territorial police forces—that is to say those covering a geographical force area—and on the other hand the British Transport Police and Ministry of Defence Police.
The present position is that the territorial forces are able to exercise these powers, but the British Transport Police and Ministry of Defence Police are not. Clause 16 extends to the British Transport Police and Ministry of Defence Police some of the powers at Part 2 of the 1986 Act in relation to their respective jurisdictions, where there is an operational case for doing so.
For example, the power may be used in a situation where a trespassory assembly is planned or is occurring on the railway or on railway property. This could be within a station, outside a station or in a retail area owned by the railway. In this case, the British Transport Police may be the most appropriate force to exercise the power. The railway is a unique and complex environment with specific risks which British Transport Police specialise in managing while minimising disruptive impact on the operation of the rail network.
To be clear, Clause 16 does not create any new powers, nor does it broaden the existing ones. It simply serves to close a potential gap in jurisdiction by extending certain existing powers to those two additional, non-territorial police forces. The powers contain various limitations and safeguards; for example, there is provision that only the most senior of the officers present may exercise the powers and a requirement that the officer must reasonably believe that the assembly may result in certain forms of serious disorder. Clause 16 reads these across, with necessary transpositions for the jurisdiction and functions of the British Transport Police and the Ministry of Defence Police.
While the provisions concerning the Ministry of Defence Police are reserved, as policing and railway are devolved matters, the provisions concerning the British Transport Police have practical application only in England and Wales. Following discussions, the Scottish Government have requested these powers be extended to the British Transport Police in Scotland. We have therefore tabled minor, technical amendments to the clause to facilitate the extension of the powers to Scotland.
Lord Beith (LD)
My Lords, the Government are stretching credulity if they say this creates no new powers; it creates new powers for the British Transport Police and Ministry of Defence Police. It is mostly on the British Transport Police that I want to concentrate.
This police force is not locally accountable. It is the police force of the operators of the railway system. It has its own structures and is essentially a nationally organised force with certain centres of activity. There are many cases where police support is needed, and we certainly see this in Berwick. The local police have to come on the scene some time before British Transport Police can come from 70 miles away to take part in whatever problem there may be. We have to be a bit careful about so readily extending powers to a very different kind of police force, which does not have the chain of local accountability that our civil police forces have.
If anyone thinks that the arrangements are all very smooth and there is not a problem in relations between local police and British Transport Police, they should read the proceedings of the Manchester Arena inquiry. They will discover some pretty uncomfortable things about how co-ordination between British Transport Police and other agencies is meant to work but does not always work in practice. I was slightly surprised that Scottish Ministers decided they wanted to extend the powers included here, but it is with the approval—if the case is in Scotland, it is not to the Secretary of State—of Scottish Ministers.
I will take the Minister back to an incident in the 1960s which he is too young to remember. It shows that these are not new problems requiring drastic new powers. A railway line called the Waverley route between Edinburgh and Carlisle was closed. Before it managed to get itself closed—it has since been partially reopened—people in the village of Newcastleton between Hawick and Carlisle protested vigorously. One night, when the night sleeper was heading towards Carlisle, the minister of the local kirk and some of his congregation and others gathered on the crossing and stopped the train. On the train at the time was Lord Steel of Aikwood, then the young MP for the Borders area. This incident was handled by the police quite smoothly and locally, without any involvement of the British Transport Police—I doubt very much that they ever got there.
Local police are used to dealing with these situations. I fear from the provisions we have now that, given the nature and scope of this Bill, someone proposing to have either a group of people in a station protesting against imminent cuts to the service, or a single protestor in the station building by the ticket office saying “Your service is going to be halved from next week—join me in a protest”, will find themselves subject to the powers of the Public Order Act. There will be an unnecessary level of police involvement by the British Transport Police. Without the powers here, they would be able to deal with it in the normal way, as the local police would. We are in some danger if we get the British Transport Police into the state of mind that they are policing protest. It is really not what they are good at and not what they are supposed to be good at.
Lord Paddick (LD)
My Lords, I support the comments of my noble friend. The only observation I was going to make about the powers being given to the British Transport Police is that it is primarily funded by the rail industry and whoever pays the piper calls the tune. Can the Minister confirm that the BTP is accountable to the British Transport Police Authority, the members of which are appointed by the Secretary of State for Transport? What does the Minister believe to be the consequences, for example, for protests at railway stations, of such funding and accountability mechanisms?
Lord Coaker (Lab)
My Lords, Clause 16 covers the British Transport Police in England and Wales. It is reasonable that, as the Minister explained, the government amendments also cover the BTP in Scotland, since that has been requested by the Scottish Government. We disagree with the premise of the Bill, as was visible in many of the groups, not least the last one, but we understand recognising the specific roles that the MoD and British Transport Police play as part of the wider policing family. Can the Minister confirm—this is part of what the noble Lords, Lord Paddick and Lord Beith, said—that the use of their powers is strictly limited to the areas under their jurisdiction?
Prior to today’s debate, I asked the Minister why the Civil Nuclear Constabulary was not referenced in the clause. Helpfully, he responded. I received a letter that said:
“we have not seen assemblies outside civil nuclear establishments and … the public do not have access to this land, so any assembly outside them … falls under the jurisdiction”
of the usual territorial force. I take that to mean that it is not included because no need has been identified for it to have these powers, which is welcome. It would be handy if the Government had applied that logic elsewhere in the Bill.
Does the Bill allow the Government to extend these powers to the Civil Nuclear Constabulary, should they wish to do so? In other words, we have just seen the Government announce and give the go-ahead to the building of Sizewell C, and the Civil Nuclear Constabulary would presumably be involved in and around that sort of site. Would the Government have to come back to Parliament to get primary legislation through in order to give the Civil Nuclear Constabulary similar powers to those in the Bill? Is some secondary legislation tucked away that would allow them to do that, without us being able to properly scrutinise that to determine whether we believe the Civil Nuclear Constabulary should have these protest-related powers?
Lord Beith (LD)
I remind the noble Lord that the Civil Nuclear Constabulary is armed. It was armed by the late Anthony Wedgwood Benn, when he was Secretary of State for Energy.
Lord Coaker (Lab)
That is a very good point—I was going to make that point and ask whether that made any difference. What makes this even more important is whether, tucked away in the Bill, there is some mechanism by which the Government could extend these protest-related powers to the Civil Nuclear Constabulary. The Government are saying that, at the moment, there is no need for it to have these powers because there have been no protests and it has not been appropriate—that is the information I received. All that I am asking—this is particularly relevant given the point of the noble Lord, Lord Beith, about it being armed—whether the Bill gives the Government the opportunity to do that, should they so wish, or whether they would have to come back and pass primary legislation to do that. It would be useful to find that out.
On Amendment 106 of the noble Lord, Lord Beith, which probes the breadth of the powers, can the Minister give us more clarity on the power to make an order prohibiting specified activities for a specified amount of time? What is the amount of time in scope, and who grants the order?
The clause references assemblies
“on land to which the public has no right of access or only a limited right of access”.
Would that activity therefore be covered under existing trespass offences? I am just asking for clarity on one or two of the specifics with respect to these amendments.
Lord Davies of Gower (Con)
I am grateful to noble Lords for their speeches in this group. I turn to Amendment 106, in the name of the noble Lord, Lord Beith, who explained that it is intended to avoid excessively wide use, at railway stations, of the power for a chief constable to make an order prohibiting a trespassory assembly if certain conditions are met. This is an outcome that we can all support: the Government are clear that public order powers should always be used proportionately and should have appropriate safeguards and limitations. However, I hope I will be able to provide him with assurances that his amendment is not necessary to achieve that outcome and indeed that it would not have the effect of limiting the use of this existing power at or around railway stations.
Lord Beith (LD)
The Minister asked me whether I would be kind enough not to move the amendment. I am not entirely satisfied; he has promised to write on a couple of issues. The evidence that has not been brought forward is any inability of the local police forces to manage these situations if they arise. It does not appear to me that there have been situations where the lack of British Transport Police powers has made it impossible to deal with the situation. My worry is that giving it new powers will lead it to use them in circumstances that are not really envisaged by the Bill. At this stage, I am happy not to press the amendment.
Lord Coaker (Lab)
The Minister said, quite rightly, that he will write to the noble Lord, Lord Beith. For the benefit of the Committee, it would be useful for it to be put in the Library. The letter writing is fine but I sometimes worry about it because it means it is not in Hansard. For those people who read our deliberations, I think that could be a bit of flaw in them being able to understand what is going on. The answers often are in a letter or in the Library and not as widely available as they would be if they were in Hansard. It is a point that has increasingly bothered me, to be frank.
Lord Davies of Gower (Con)
I recognise what the noble Lord says and will make sure that the letter is placed in the Library.
Lord Davies of Gower
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Sharpe of Epsom at page 16, line 3.
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Sharpe of Epsom at page 16, line 3.
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Sharpe of Epsom at page 16, line 3.
Lord Davies of Gower
Member's explanatory statement
This amendment and the amendment in the name of Lord Sharpe of Epsom at page 18, line 10 have the effect that the consent of the Scottish Ministers is required in order for the chief constable of the British Transport Police to make an order under section 14A(4D) of the Public Order Act 1986 prohibiting trespassory assemblies in an area in Scotland.
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Sharpe of Epsom at page 16, line 3.
“(4EA) In subsection (4D) “the relevant national authority” means—(a) in relation to an area in England and Wales, the Secretary of State;(b) in relation to an area in Scotland, the Scottish Ministers.”Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Sharpe of Epsom at page 17, line 42.
Lord Paddick
Member's explanatory statement
This amendment is intended to raise the threshold for the Secretary of State to bring civil proceedings.
Lord Paddick (LD)
My Lords, in moving Amendment 110 in my name, I will speak also to my Amendments 111 to 113 and 116 and the other amendments in this group. These amendments are about a power to be given to the Secretary of State to bring civil proceedings to curtail or prevent protest, including potentially with a power of arrest attached, if the Home Secretary “reasonably believes” that activities are causing or likely to cause disruption to the use or operation of any key national infrastructure or have a seriously adverse effect on public safety in England and Wales.
Amendments 110 to 112 in my name would increase the evidential test to
“has reasonable grounds for suspecting”
to ensure that the Secretary of State has to set out before the court the exact evidential grounds for her application. In meetings with the Minister and officials on the Bill, it was explained that protests could affect a number of different operators or local authorities and that it would be in the public interest to have an overarching injunction in such cases.
The HS2 nationwide injunction seems to prove that such an overarching injunction is available to those concerned without the intervention of the Secretary of State but, in any event, Amendment 113 is designed to ensure that the power is used if, and only if, it is not reasonable or practical for a party directly impacted by the activity to bring civil proceedings, and to ensure that the Secretary of State does not use the power where any party directly impacted does not consider such proceedings to be necessary. My Amendment 116 is designed to ensure that a power of arrest cannot be attached to an injunction simply on the basis that the conduct is merely
“capable of causing nuisance or annoyance”.
This is in Clause 18(2)(a), which the amendment removes from the Bill.
We wholeheartedly support the additional checks and balances proposed by the noble Baroness, Lady Chakrabarti, in her Amendments 114 and 115. I beg to move Amendment 110.
Baroness Chakrabarti (Lab)
My Lords, during Second Reading a number of noble Lords, including those who do not share my views of the Bill more generally, expressed significant scepticism about the new Clause 17 provision for the Home Secretary to bring civil proceedings against protesters, instead of being brought by directly affected oil, gas or transport companies, and so on. I share these concerns at the politicisation of both policing and civil disputes, and therefore oppose Clause 17 standing part of this Public Order Bill.
Not only is it constitutionally dubious for a politician to be standing in the shoes of the police in relation to the criminal law, or of affected companies in relation to the civil law; it also raises questions about this use of considerable sums of taxpayers’ money in expensive litigation that could and should be brought by those who profit from fossil fuel or other carbon-intensive development, and no doubt factor legal fees into their budgeting. The lack of transparency required by the new Clause 17 also brings a risk of corruption, in the event that the relevant firms should choose to donate to or otherwise “promote” a Home Secretary amenable to seeking civil legal proceedings on their behalf.
It should be noted that under Clause 17(5), the Secretary of State must only
“consult such persons (if any) as the Secretary of State considers appropriate, having regard to any persons who may also bring civil proceedings in relation to those activities.”
No transparency in the Secretary of State’s discussions, or non-discussions, with these “persons”—namely, large companies—or consideration of why they should not finance their own legal proceedings, is required. Never has the word “must”, in a provision supposedly creating a duty upon a Secretary of State to consult, constituted such a toothless tiger or illusory protection from the potential abuse of public money and political power.
In addition to supporting the amendments proposed by the noble Lord, Lord Paddick, I propose Amendments 114 and 115, which would create safeguards against corruption and abuse. They require the Secretary of State to publish the reasons for any decision not to consult; the results of any consultation; any representations made to the Secretary of State as to a proposed exercise of the new power; an assessment of why other parties should not finance their own proceedings; and assessments of why any proceedings have been brought by the Secretary of State at public expense, rather than by private companies themselves. Such publication will occur both each time an exercise of the power is considered, and annually on an aggregate basis.
Clause 17 is both unnecessary and undesirable. If it really must stand part, so must the vital safeguards previously referred to, but also those in Amendments 114 and 115, which I commend.
Baroness Jones of Moulsecoomb (GP)
My Lords, Clause 17 is very dubious. It is bad enough when private companies use civil injunctions, which have become quasi-criminal private tools against protesters. I was up at Preston New Road and I saw this in action by fracking companies. The fact is, of course, that the protesters who had injunctions brought against them were proved to have been entirely on the right side of history, yet they were targeted by the fracking companies, very unfairly, because their trying to halt the companies’ damage to the environment was perfectly appropriate. We have seen injunctions used against tree protectors as well. Of course, breach of an injunction is contempt of court, with the risk of fines and imprisonment. It is actually quite onerous, and it is bad enough when a private company chooses to do it, but it is pretty concerning when a Secretary of State decides to do it.
I think we have all agreed that, if not completely overcome by corruption, this Government do at least have filaments of corruption winding their way through the whole body politic. Therefore, we have to be very careful that we do not introduce other ways for corruption to happen within government. Clearly, the Government should review the situation and propose reforms, because this really is not how injunctions are supposed to be.
Baroness Blower (Lab)
My Lords, not being a lawyer, I would never have dreamed of writing amendments of the technical nature of Amendments 114 and 115. None the less, having heard the speech of my noble friend Lady Chakrabarti and having discussed it with her before she made it, it is evident to me that these are vital amendments should Clause 17 stand part—which, of course, it absolutely should not. If there is any sense, as my noble friend Lady Chakrabarti has powerfully persuaded me there is, that Clause 17 is constitutionally dubious, that really should give the Government pause for thought. I genuinely believe that anyone—the person on the Clapham omnibus—who read this and found that the Government can substitute a prosecution for a private company at the public expense would, frankly, be rather appalled and find it very odd legislation.
Clause 17 (5) states:
“the Secretary of State must consult such persons (if any) as the Secretary of State considers appropriate, having regard to any persons who may also bring civil proceedings in relation to those activities.”
That just does not seem appropriate. Surely, the purpose of the law is to make sure that the onus for things lies in the proper place, and the onus for proceedings such as those conceivably envisaged here cannot possibly lie with the Government and the public. Amendments 114 and 115, in the name of my noble friend Lady Chakrabarti, at least tighten up the possibilities here. The Secretary of State would be required to publish a range of things, as she has already said, including
“the reasons for any decision not to consult, the results of any consultation, any representations made to the Secretary of State as to a proposed exercise of the power, an assessment of why other parties should not finance their own proceedings”.
It seems to me that we are allowing the Secretary of State to do something which, if I had just read this myself and come to a view on it, I would have considered to be ultra vires, if that is the correct term, because this is not something we should be spending public money on. Amendments 114 and 115 would go some way towards tightening up Clause 17, but as other noble Lords have said, those of us who have read this in detail and given it some consideration genuinely believe that it should not stand part of the Bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, Amendment 145 in the name of my noble friend Lord Coaker is a probing amendment which would require the Secretary of State to review the use of injunctions for protest-related activity. This is to probe how injunctions are used, what their effects are, how they interact with police powers and responsibilities, and the problems facing their use, such as securing them within a reasonable timescale. The purpose of the amendment is for the Secretary of State to set out a review of injunctions in the widest sense.
We also heard from my noble friend Lady Chakrabarti about her Amendments 114 and 115, which would create safeguards against corruption and abuse. They would require the Secretary of State to publish the reasons for any decision not to consult, the results of any consultation, any representations made to the Secretary of State as to a proposed exercise of the power, an assessment of why other parties should not finance their own proceedings and assessments of why any proceedings have been brought by the Secretary of State at public expense rather than by private companies. Such publication would occur each time an exercise of the power is considered and annually on an aggregate basis so that we can look at the overall effect.
My noble friend Lady Blower, who like me is not a lawyer, expressed incredulity about the situation, which I share. As a layman, it seems to me that the Clause 17 provisions give the Home Secretary powers to bring civil proceedings against protesters at public expense. This is a surprising set of circumstances, and my noble friend’s amendments are trying to get the Government to justify that on a continual basis, which seems entirely reasonable.
Amendments 110, 111 and 112 are also in this group. This clause provides that the Secretary of State can use new injunction powers where they reasonably believe the conditions under the clause are met. These amendments would delete “reasonably believes” and strengthen it to
“has reasonable grounds for suspecting”.
Amendment 113 would provide that the Secretary of State may bring civil proceedings under this clause only if it is not reasonable or practicable for a party directly impacted by the activity to do so.
I move on to Amendment 114. The clause provides that, before bringing proceedings under it, the Secretary of State must consult “such persons (if any)” that they consider appropriate. This amendment would require the Secretary of State to publish the reasons if they do not consult, the outcome of any consultation, representations made to the Secretary of State and a reason why the Secretary of State should bring the proceedings at public expense, rather than another party.
As the Minister has heard, there is substantial scepticism about many aspects of Clause 17. There are a number of amendments here seeking to probe the Government’s intentions, and we may well return to this at a later stage. I look forward to hearing the Minister’s response.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, recently we have seen protestors blocking key national infrastructure, potentially causing delays to the supply of goods and services. Clause 17 provides a Secretary of State with a specific mechanism to apply for an injunction in civil proceedings where it is in the public interest to do so, and where the effect of the activity is to cause serious disruption to key national infrastructure, or to access to essential goods or services, or to have a serious, adverse impact on the public.
Contrary to the speeches that we have heard from noble Lords opposite, there is no constitutional dubiety about such a measure. This provision will support better co-ordination between government, law enforcement, local authorities and private landowners in responding to serious disruptive behaviour. You may say, contrary to that which the noble Baroness, Lady Blower, said earlier, that these provisions mean that the hypothetical man on the Clapham omnibus might actually make it to Clapham, rather than being delayed by roadblocks caused impermissibly by protestors.
The proposal does not affect the right of local authorities or private landowners to apply for an injunction themselves, but gives a Secretary of State an additional route to act—urgently in some cases—where the potential impact is serious and widespread, and where there is a clear public interest to intervene. I seek to reassure noble Lords who have raised concerns regarding this measure that it will ultimately be a matter for the courts and our judges to consider whether or not to grant an injunction application. All that this provision does is simply to allow a Secretary of State to bring a claim and to apply for an injunction; ultimately, the decision on whether or not the injunction is made is one for the judge. As we always would, there would be careful consideration of any such application made by a Secretary of State, and that would involve careful consideration of the evidence provided by the Secretary of State in support of an application for an injunction. This is the ultimate legal safeguard on the use of the powers in Clauses 17 and 18.
As to the point made by the noble Baroness, Lady Blower, I again reiterate that this measure provides an additional mechanism for a Secretary of State to intervene. This device would be most beneficial where protest activity targets multiple sites, and transcends local boundaries and the property of multiple entities. In such circumstances the potential impact would clearly be widespread, and the clear public interest would therefore be that injunctive proceedings are taken by the Secretary of State, rather than a series of separate private entities. It is not in every scenario that the Secretary of State’s power to seek an injunction would be utilised, and there is no doubt that the prevailing situation would remain, and businesses would have a major role to play in obtaining their own injunctions.
Turning to Clause 18, where an injunction has been granted by a court, with a power of arrest attached, the powers will support the police in taking action earlier to respond to those who engage in disruptive and dangerous forms of protest. Enabling the court to attach a power of arrest to such injunctions is key to allowing the police to act more quickly to prevent the disruption escalating. Where there is no ability for a power of arrest to be attached to the injunction, the applicant may be able to apply to the court for an arrest warrant where they believe that the perpetrator has breached the provisions of an injunction, as is the case for injunctions secured by private entities and natural persons. However, this creates an additional step in the process of enforcement which can affect the pace at which disruptive behaviour can be curtailed. As such, the power of arrest provision in Clause 18 can prove to be a highly important tool in the available responses to prevent serious disruption happening in the first place.
Baroness Chakrabarti (Lab)
I am grateful to the Minister for giving way. He made a kind offer to consider this argument; when he is considering it, could he think about transparency versus corruption and the public expense? He has made his arguments about the new co-ordinating role of the Secretary of State, standing in the shoes of a consortium, if you like, of local government, business and central government, but there is still this issue about transparency versus corruption. When he takes this away, will he think about a scenario in which a press baron or an oil baron—whichever noble Baron, or ignoble Baron, it is—says to a Home Secretary, or a putative Home Secretary, “I’m sick of these legal fees, and I think it would be a jolly good idea if the Home Department brought these proceedings against these pesky demonstrators in my shoes”? Will he think about the risks to public trust in the good use of public money that might result if there is not transparency about this new power?
Baroness Jones of Moulsecoomb (GP)
My Lords, before the Minister resumes his speech, may I ask him about a word he used? I do not know if I misheard—and I have quite a good vocabulary—but I think he used the word “dubiety”. Does that mean dubiousness?
Baroness Jones of Moulsecoomb (GP)
Right, I will add that to my vocabulary.
Lord Murray of Blidworth (Con)
I thank both noble Baronesses for their interventions. Turning to the question about transparency, we will certainly engage on that, and I appreciate it. It is always important that government actions are transparent. It is clearly an important public principle, and on that we agree.
As to corruption, in this context, it is really not a terribly likely hypothetical scenario. I say that because, if one were an ignoble baron seeking to pursue an injunction to preclude some sort of serious disruption, it is unlikely that the cost of pursuing an injunction would be sufficiently high to warrant seeking the assistance of the Secretary of State in bringing that injunction. It would be more likely that such costs would be borne by the company or person themselves, given the urgency and the much larger costs incurred by the disruption occurring. While I accept that there is a hypothetical concern, therefore, I find it unlikely in reality that such an envisioned scenario would eventuate.
I thank the noble Lord, Lord Paddick, for tabling Amendment 116. Let me start by saying that I, again, recognise the sentiment in this amendment. It is important that the Government intervene only in matters that are serious and proportionate to the public interest. However, I wish to remind noble Lords that causing nuisance or annoyance to the public can have a far-reaching impact when it occurs on a widespread scale. The recent protests targeting the M25 have shown just that. Furthermore, while a Secretary of State may apply for the power of arrest to be attached to an injunction, it is for the courts to decide whether or not this is an appropriate measure.
Finally, I turn to Amendment 145, tabled by the noble Lord, Lord Coaker. Again, I understand and have considered the need for scrutiny and transparency, as I touched on earlier, and therefore I entirely understand the logic of the tabling of that amendment. None the less, it is the Government’s view that while a review is not needed to ensure that activity relating to these provisions is necessary, it is important that transparency is carefully considered, and I will ensure that that is done.
There are already several clear provisions in the Bill that serve to ensure that the use of these powers by a Secretary of State will be subject to scrutiny and safeguards. As has already been noted, of course, in Clause 17(5) there is a requirement for consultation as may be appropriate ahead of initiating civil proceedings. Moreover, as we have already touched on, civil proceedings can be issued in the interest of the public only when it is considered expedient to do so in the judgment of the judiciary hearing the claim. As I have already committed to the noble Baroness, Lady Chakrabarti, I will nevertheless consider what further clarity could be provided on the circumstances in which a Secretary of State might seek to initiate such proceedings. I therefore invite the noble Lord to withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this debate. If I can try and get the sense of the House, we on this side feel that this is constitutionally dubious, potentially providing opportunities for corruption, and that it is a very serious step to allow the Secretary of State to apply for an injunction to prevent a protest. On the government side, the Minister thinks it is reasonable if lots of people are affected—different organisations, private and public—and that it would be expedient for the Secretary of State to represent all parties and apply for an injunction on their behalf. Therefore, there is a clear difference of opinion as to whether we are satisfied that there are sufficient safeguards, as opposed to the Minister being satisfied that is the case. As the Minister reflects on what the noble Baroness, Lady Chakrabarti, said, we too will reflect on what the Minister has said, and we will no doubt return to this on Report. In the meantime, I beg leave to withdraw Amendment 110.
Public Order Bill
Tuesday 13th December 2022
(1 year, 11 months ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 61-III Third marshalled list for Committee - (9 Dec 2022)
Lord Paddick (LD)
My Lords, with the leave of the Committee, we told the Government Whips that I was going to intervene at this stage.
I wish to put on record the apology I gave in person and in writing to the Minister for suggesting at col. 1345 on 22 November that what he had said about the stop and search powers in the Bill not being exercisable unless an officer is in uniform was not true. I have read the Official Report, and it appears I became somewhat confused—probably after three hours on buffer zones.
The noble Lord, Lord Coaker, expressed concerns about the new offence of obstructing a police officer in the exercise of the new stop and search powers in the Bill, with reference to the Sarah Everard murder and police advice to challenge any officer who detained a lone woman, and whether such advice would amount to an offence under the Bill. In answer, the Minister said the power extends only to police officers in uniform, which I mistakenly took to mean both suspicion-led and suspicionless stop and search powers in the Bill. At that point the Minister was talking about the stop and search power without suspicion, which is restricted to uniformed officers only.
Although I was correct in my assertion that the suspicion-led power could be carried out by officers in plain clothes, the new offence of obstructing an officer applies only when the officer is exercising the proposed new suspicionless power to stop and search, for which he has to be in uniform. Nevertheless, my understanding is that Sarah Everard’s murderer was in police uniform when he detained her, so the concerns that other noble Lords had about a lone woman resisting an officer exercising the new power to stop and search without suspicion, following police advice in the wake of Sarah Everard, remains.
However, I undertook to apologise to the Committee if I had misled noble Lords by suggesting that what the Minister said about officers having to be in uniform to exercise stop and search powers under the Bill was not true. When, in relation to the power the Minister was speaking about at that moment, he said:
“This power only extends to those in uniform”,—[Official Report, 22/11/22; col. 1342.]
it was true. I therefore apologise for unintentionally misleading the Committee.
Amendment 117
Baroness Boycott
“Protection for journalists and others monitoring protestsA constable may not exercise any police power for the principal purpose of preventing a person from observing, recording, or otherwise reporting on the exercise of police powers in relation to—(a) a protest-related offence,(b) a protest-related breach of an injunction, or(c) activities related to a protest.”Member’s explanatory statement
This new Clause would protect journalists, legal observers, academics, and bystanders who monitor or record the police’s use of powers related to protests.
Baroness Boycott (CB)
I am delighted to move Amendment 117 and very grateful to be standing alongside the noble Baronesses, Lady Chakrabarti and Lady Jones of Moulsecoomb, and the noble Lord, Lord Paddick. I will also speak to the revised Amendment 127A in my name and that of the noble Baroness, Lady Chakrabarti. I thank the lawyers at Justice for their technical help with this speech, particularly Tyrone Steele.
These amendments seek to grant fuller protections to all those covering protests and reporting on the exercise of police powers in that context. I am completely confident that all noble Lords recognise the vital importance of journalists, legal observers and indeed the general public in being able to observe, report on and scrutinise what happens at protests and the actions of not only the protesters but, possibly, the police.
As many noble Lords will know, I have deep and vested interests in these amendments. I became a journalist more or less by accident at the age of 19. My first piece was on the left-handed shop in Beak Street for Time Out and was all of 189 words long. It was hardly earth shattering, but it did tell left-handed people where to buy a pair of scissors.
Trying to report stories and find out things that many people do not want known has been the whole obsession of my life. My second and third jobs were on an alternative newspaper and then on Spare Rib. Indeed, my second-ever piece was a report on an anti-Vietnam demonstration in the capital. I can confess quite freely that I was totally terrified to be in the middle of that demonstration, but I was not displeased to be part of it and I was very pleased to be able to go back and write about it. On Spare Rib we both marched and wrote about marching. We protested for equal pay, rights to abortion and rights to childcare, but we reported it; we were allowed to be there and to write about it.
In my long journalistic career, I have edited many magazines and written for more. I have edited three national newspapers and, again, written for many more. I have publicised protests, including many that I vehemently do not agree with, because they are not only important events; they are about people doing something that matters a great deal to them and worth taking to the streets for—or even trying to climb Nelson’s Column. People are on the streets because they do not know what else to do to make their voice heard and they have exhausted such routes as writing letters to MPs, Members of the House of Lords or, indeed, newspapers such as mine.
I have also sent reporters to countries where repressive regimes lock up journalists who are covering protests—think of the Arab spring, Myanmar and Hong Kong. As my friend and mentor, the late war reporter Martha Gellhorn, said, journalism is about bearing witness. We go to bring back the news, whether it is happening on the streets of Cairo or on the M25, to tell all of us, through words, images and sounds, what we have seen, what people are doing and what they care about. Journalists risk life and limb to do so. But, over my half-century in this profession, I have always believed that, at least in this country, we were able to go to a demonstration and then go back to our office and write about it. I also knew that, if a protest got too out of hand, plenty of laws were in place to deal with this—but never was a journalist told that they could not report on a story.
The arrest of Charlotte Lynch, the woman from LBC held for five hours for reporting on a Just Stop Oil protest —more about her later—has been referred to many times in this debate, but her story is extremely important. For me, it was as though one of the pillars of our democratic society had been kicked out from under my feet. She was held in a cell for five hours for reporting on a protest. It was peaceful, however bloody annoying people might find Just Stop Oil. Quite frankly, if a protest does not annoy someone, what is the point of it?
Sadly, I was wrong: this was not the first, and there had been previous attempts to curtail the reporting of protests. At 3.40 am on 30 November 1983, during strikes at the Messenger printers in Warrington, the police demanded that the television crews covering the dispute turned off the lights. After they complied, the police proceeded to charge at the picketers under the cover of darkness. In the words of Colin Bourne, the NUJ’s northern organiser,
“police were running up to them and kicking them and hitting them with their batons”.
It was reported that two police Range Rovers drove into the pickets. Today, with the vast majority of the public possessing smartphones equipped with high-quality cameras, it is thankfully much harder for abuse like that to go uncovered.
Last year, the Department for Digital, Culture, Media and Sport held a call for evidence on journalists’ safety, and there were masses of respondents. One said that the police themselves contributed to threats or abuse towards journalists, which included physically restricting access to spaces and arresting journalists. As I said, many noble Lords have referred to Charlotte Lynch, who was arrested while reporting on Just Stop Oil. But, that very same day, two others, Rich Felgate and Tom Bowles, were also detained. Again, they peacefully asserted their status as journalists—they had press cards—but they were held for 13 hours.
Back in August, another journalist, Peter Macdiarmid, was also arrested and taken in a police van to Redhill police station. He has notably covered several historic, monumental events, such as the Arab spring, refugees fleeing Iraq during the first Gulf War, Black Lives Matter and the London riots. The award-winning reporter told the Evening Standard:
“It’s the first time I’ve been in cuffs in the 35 years I have covered protests.”
Something is fundamentally wrong with our justice system if police feel so empowered, under the vast array of existing legislation, to arrest and detain journalists first and ask the questions—or worse—later, ignoring the fact that they are from the press. Last week, the Minister said that the issue lies with the training of the police. I am afraid that that is an inadequate solution for the current situation, and it is no remedy for what the Government propose, in terms of expanding the powers in the Bill.
The Bill contains a vast array of measures that could severely and detrimentally impact journalists just doing their jobs. The offence of being “equipped for locking on” is so broad in its ingredients that an individual would only have to be carrying an object with the intention that it may be used. Taking a photo of someone who is locking on could inadvertently fall foul of this because the camera could feasibly constitute such an object.
Journalists are no safer with respect to offences covering the obstruction of “key national infrastructure” and “transport works” or
“causing serious disruption by being present in a tunnel”.
On the latter, the BBC has reported from the tunnelling sites and even filmed the equipment and protesters inside the tunnels dug to disrupt the construction of HS2. The offence is engaged if you are “reckless” as to whether your presence will have the consequence of causing serious disruption.
Moreover, there is no explicit exemption for journalists. The only protection is the reasonable excuse. But as the noble Lord, Lord Paddick, said in Committee, since a defence is available only after arrest, journalists
“are still faced with the possibility of being arrested and detained for five hours by the police … It seems an onerous experience for a completely innocent person to go through”—[Official Report, 16/11/22; col. 948.]
The proposed, highly expansive stop and search powers would also offer journalists no relief from obstruction in performing their work. An officer who reasonably believes that an individual is carrying a prohibited object can conduct a suspicionless search. What worries me is the number of things—cameras, clipboards, microphones —that could conceivably constitute a prohibited object for use in connection with a protest. This would stifle the legitimate work of journalists and observers who monitor police powers.
Baroness Chakrabarti (Lab)
The Committee will imagine the daunting privilege of attempting to follow that speech from one of the most senior journalists—and indeed one of the greatest environmentalists—in the Committee and your Lordships’ House. I want to speak briefly to explain why we have Amendments 117 and 127A. The reason is my poor draftsmanship when we conceived Amendment 117, for which I apologise. Amendment 127A is an improvement on Amendment 117 because of a defect that was pointed out to me by the noble Baroness, Lady Boycott. Amendment 117 had protected journalists who were covering the policing of protests only, and, of course, we need to protect journalists who are covering protests as well as the policing thereof.
I would also like to take this opportunity to reassure the Minister that, notwithstanding my fundamental concerns about the Bill as a whole, and significant provisions within it, this journalistic protection in Amendment 127A—I am grateful to the other co-signatories and supporters across the House for understanding this too—notwithstanding our fundamental objections to various provisions that the noble Baroness, Lady Boycott, referred to, would not in any way wreck those provisions, objectionable though they may be for my part. All Amendment 127A would do is protect journalists where any police power, not just the police powers in this Bill but police powers more generally, are being used for the principal purpose of preventing their reporting.
I know that it is very hard in Committee to persuade a Minister to think again, but this is not a request to think again about the Bill in sum or in part; this is requesting a protection for journalists that is required in relation to even the police powers that currently stand. In the case of Charlotte Lynch, and other cases to which the noble Baroness, Lady Boycott, referred, journalists were arrested and detained under public order powers as they currently stand—not even the broader, blank-cheque powers to come.
So I hope that, in this Committee, those in the Box, and noble Lords and Ministers, will take pause for thought and think about whether we need a protection against current public order powers, and any to come, to ensure that the police are not using them to arrest journalists because they think that the reporting of protests per se gives the oxygen of publicity to protest and so on. Day after day, at Question Time in particular, Foreign Office Ministers stand at the Dispatch Box and—rightly and sincerely, in my view—criticise attacks on journalistic freedom across the globe. I think something like Amendment 127A would be a very important statement, putting that sincerity of Foreign Office Ministers into law in the home department.
So, I hope that noble Lords, Ministers, and Members of the whole Committee will really reflect on the noble Baroness’s speech.
Lord Deben (Con)
My Lords, I declare an interest as chair of the Environment and Climate Change Committee. I want to ask the Government to listen very carefully to this discussion. We have a very real issue when really serious matters, which threaten all of us, do not appear to some of us to be properly addressed. That is a very serious matter for any democracy, and those of us who are democrats do have to stand up for the rule of law and do have to say that extreme actions cannot be accepted.
But it has a second effect too, and that is that we have to be extremely careful about the way in which we deal with those extreme actions. I do beg the Government to take very seriously the fact that these extreme actions will continue, because people are more and more worried about the existential threat of climate change. The Climate Change Committee spends a great deal of its time trying to ensure that there is a democratic and sensible programme to reach an end that will protect us from the immediate effects of climate change, which we cannot change, and, in the longer term, begin to turn the tables on what we as human beings have caused.
It is not always easy to do that in the light of others who are desperate that we should move faster and that we should do more; who are desperate because they are seriously frightened and are not sure that those who are in charge have really got the urgency of the situation.
It is very difficult to imagine that we are not going to have to cope with the uprising of real anger on this subject. As a democrat, I want us to cope. As a parliamentarian, I want us to be able to deal with these issues and ensure that the public are not threatened. I echo the Deputy Chancellor of Germany, a Green Member of Parliament, who makes it absolutely clear that the kinds of actions we have seen in this country from Extinction Rebellion and similar things in Germany are not acceptable in a democracy.
The other side of that argument is that we have got to be extremely careful about the way in which we enforce the law and how we deal with this issue. Journalists play the key part in this. They must be there to report on what happens. It is in our interest as democrats that that happens. If they are not there and cannot say what needs to be said without fear or favour, none of us can stand up and deal with the arguments of those who argue that democracy does not work and that somehow they have to impose their will.
I want the Government to recognise the importance of this. In this country, a journalist must have access without fear or favour. The police must not treat them in a way that has happened again and again, and which must stop happening. As the noble Baroness, Lady Chakrabarti, said, it is not happening because of what is in this Bill, which in general I do not have an objection to; it is what happens in any case. The fact that the police could hold a journalist for five hours knowing that they were a journalist is utterly unacceptable. You cannot do that in a democracy—and nor can we talk to other countries about these things if that happens here and we do not do something to enshrine in law the fact that it should not.
Earlier, I had to deal with the question of not opening coal mines in order to be able to stand up in the world and show that we too will carry out what we ask other countries to do. This is another, even more serious, case of that. We cannot talk about repression if we in this country can be shown not to have protected journalists in these circumstances.
It is a terribly simple matter. We must put on the face of the Bill, referring to all actions, that journalists should be in the position that the noble Baroness, Lady Boycott, suggests. It may be that her amendments could be better done; it may be that the Government have a different way of doing it. The only thing that I ask, in order to protect democracy and ourselves—those of us who are moderates and believe in the rule of law—is that we need to have this assertion.
Baroness Jones of Moulsecoomb (GP)
What great speeches; I am almost embarrassed to follow them. I support Amendments 117 and 127A. I wish I had signed Amendment 127A. I speak as the mother of a journalist and as somebody who had misfortune to be on a panel with the PCC for Herts Police—the force that arrested the journalist and the cameraman. His name is David Lloyd. He was saying “Yes, yes, yes, I’m all in favour of free speech, but the media have to be careful that they are not inciting these protests”. I pointed out that that was free speech on his terms, which is not actually free speech.
These amendments are crucial. I take the point made by the noble Baroness, Lady Chakrabarti, that if the Government do not want to accept any of them, they could probably accept Amendment 127A without too much pain. The noble Lord, Lord Deben, said that you cannot do this in a democracy, but actually the police did do it. They thought that perhaps they could get away with it, and that has happened before. So we really have to send out a signal that this must not happen.
It is crucial for people to be able to observe protests and see that the police and protesters are behaving properly and not inciting violence. Legal observers from organisations such as Green and Black Cross document police actions against protesters and provide support during any legal proceedings that follow. That is an incredibly important role. We need statutory protections to prevent police from harassing and arresting journalists, legal observers and others. This is extremely important.
Lord Hope of Craighead (CB)
My Lords, if I had to choose between the two amendments, I would choose Amendment 127A. It is quite important to understand why it is the better version. It is because, as the noble Baroness, Lady Chakrabarti, said, it not only covers the way the police exercise their powers, which is the main target of Amendment 117, but extends to people who are observing the protest itself. That is a very important and significant extension. The way the protest is proceeding is all part of the background against which the other part of the amendment has to be judged, so the broadening in Amendment 127A is rather important.
Another point worth noting is that neither of these amendments uses the word “journalist” in the main text. That is important too: protection is extended to allow other people, for whatever reason, to carry out the exercises referred to. To narrow this down to journalists, which neither amendment seeks to do, would be a mistake. It has to broadened out in the way that both do.
As I have said, however, my main reason for intervening was to explain why I would choose Amendment 127A if I had to choose between the two amendments.
Viscount Colville of Culross (CB)
My Lords, I declare an interest as a series producer making a television series on Ukraine.
I was very moved by the speech of my noble friend Lady Boycott and the dedication to journalism that she has shown. I support both Amendment 117 and Amendment 127A. As a television journalist who has reported on protests across the country and the world, I have experienced protesters being suspicious of journalists for fear that their footage would be used by the police to identify and arrest people at a later date. As a result, I have been attacked by protesters and my cameramen have had their cameras grabbed and attempts made to take the tapes or cards.
In many of these cases, particularly in this country, the police have been there to protect us journalists and allow us to do our work reporting on demonstrations, so I am appalled and surprised to hear from my noble friend Lady Boycott that, in recent years, the police in this country have been arresting journalists for doing their job: filming protests. I thought that ECHR Article 10 on the right to freedom of speech would be incentive enough for the police to leave them alone, but clearly not.
This amendment therefore seems necessary to protect journalists going about their business, reporting on protests and the disruptions that they may cause. The problem is that the powers in Clause 2 on locking on seem to be so broadly drawn. It is one thing to arrest people for locking on, but to arrest someone for carrying an object
“with the intention that it may be used”
in connection with that offence seems to give the police power that cannot be right in a democracy. I fear that the words will give them leeway to stop a journalist who is carrying a camera to film the lock-on. Surely even the threat of this happening cannot be allowed. It will have a chilling effect on free speech.
I understand that the police want to be able to arrest protesters who are locking on and filming themselves while doing it, but the wording in this amendment, that
“A constable may not exercise any police power for the principal purpose of preventing … reporting”,
may be an important protection for camera people and journalists covering protests. It protects bona fide journalists.
Clause 11, allowing
“stop and search without suspicion”
in an area near a protest seems to stand against everything I thought Conservatives represented. I always thought it was a driving force behind Conservatism that they wanted to take the state off the backs of individuals. This clause does the opposite. When I talk to people about the possibility of their being stopped without suspicion just because they unwittingly wandered near to a protest, they are aghast. When this possibility is extended to journalists being stopped for going about their business, the threat against free speech posed by this Bill is compounded.
The Government are usually eager to protect journalists and journalism. I suggest to the Minister that, by accepting this amendment he will be striking an important blow for freedom of speech, which is so sorely missing in much of the Bill.
Baroness Symons of Vernham Dean (Lab)
My Lords, I had no intention of speaking on this amendment, but I feel I must, because my late husband, Philip Bassett, was an industrial journalist who covered many strikes, most significantly, I suppose, given what we are discussing, the miners’ strike, which the whole team of industrial journalists on the Financial Times covered. If this legislation stands the way the Government have drafted it, people like my late husband, and indeed the team with whom he worked, which included the very eminent journalist, John Lloyd, would have been open to prosecution. As it is, for their coverage of the miners’ strike they won journalist of the year.
Baroness Fox of Buckley (Non-Afl)
My Lords, the speech from the noble Baroness, Lady Boycott, really was excellent, and I hope it gets a wide hearing beyond this place and the numbers here.
When I have discussed this, I always hear the argument from people who are opposed to Just Stop Oil that the people we are talking about are not real journalists. There is something about the concentration on Charlotte Lynch from LBC that somehow says that the other people who were arrested on the same day did not really count, and I want to address that briefly.
There is no doubt that, when the protests that we are seeing at the moment are so performative, activists may well film what is going on, often because they want records of what they are doing to put out on social media. It is tempting, therefore, to treat them differently from journalists. However, I would urge against that and have argued against that. In the end, who decides who is the journalist and who is not? As the noble Baroness, Lady Boycott, said, the whole act of bearing witness and truth has nothing to do with views on the protest. Whether you are enthusiastic about the protest or hostile about it is irrelevant to those of us who want to know what has happened on the protest. Sometimes, even activists with a film camera are valuable for truth. The argument that it will incite more protest is misguided, because it treats those who are viewing these films as though they are just automatons who will see them and immediately rush out and protest. You might well see the film intended to illicit your support and think what idiots they are. That is not the point. The truth is what we should be concerned with.
I just say to the Government that I am concerned in particular about the serious disruption prevention orders. I have said throughout the discussions on the Bill that there are so many unintended consequences. I have no doubt that the Government are not intending to use serious disruption prevention orders to stop journalism in its tracks. I think the orders are a terrible blight, by the way, and should be removed from the Bill, but that is not the point I am making. The consequences of them could well be that they thwart journalism. That is the point. I urge the Government to consider that they can support their own Bill and accept these amendments in good faith—I thought the noble Baroness, Lady Chakrabarti, explained this well—because they are trying to ensure that what they do not intend to happen, which is that journalistic freedom is compromised, will not happen and that journalists will not get caught up in this. We know that they will. That is the reality. It is a danger and a threat that the Government should get rid of.
Lord Faulks (Non-Afl)
My Lords, I have been following this Bill carefully but have not been able to take an active part in it so far. It is difficult not to agree with what the noble Baroness, Lady Boycott, said about the importance of journalism, and I am sure the whole House agrees. I declare an interest as the chairman of the Independent Press Standards Organisation.
Of course, a good and accurate record or recording of what takes place at a demonstration is important for all parties, whether they be demonstrators, the police or the public. What concerns me a bit about the amendment is what it actually does, apart from sending a very important message. That may be enough; I do not know. It seems to me that in fact it would not be lawful for a constable to arrest anybody anyway for observing, recording or reporting a protest, and nor would the exercise of police powers in relation to those matters or indeed any other matter, but I will listen carefully to what the Minister says.
I would also be grateful for some clarification of how this might interrelate to the reasonable excuse defence that exists in various parts of the Bill. I know that there is some uncertainty at the moment about its scope, where it features in terms of the definition of the offence and whether simply saying—understandably, as the noble Lord, Lord Deben, said—that this an incredibly serious cause, ie, climate change, and therefore justifies all the potential offences here. This is a fascinating and important amendment, and I seek clarification in due course from the Minister as to its scope.
Lord Paddick (LD)
My Lords, we wholeheartedly support Amendment 117 in the name of the noble Baronesses, Lady Chakrabarti, supported by the noble Baroness, Lady Boycott, and signed by me for the reason so effectively introduced by the noble Baroness, Lady Boycott.
We have seen some very worrying developments. I remember that when I was serving, the police, following criticism, made strenuous efforts to work with journalists, in particular photographers, to ensure that their work was facilitated during protests. A colleague of mine who became chief constable of British Transport Police, Andy Trotter, made great strides in building a good rapport between journalists and the police. Recently, however, there is evidence of disregard for press cards—for example in a briefing from the National Union of Journalists on the arrests of journalists by Hertfordshire Police and other police forces. This seems to be going completely in the opposite direction to the progress made when I was serving.
As others have said, if journalists and photographers are afraid to do their jobs of being at protests and reporting on them, that is very dangerous for our democracy and the right to protest, having a chilling effect, as the noble Baroness, Lady Boycott, put it, on journalism in relation to protests.
As other noble Lords, such as the noble Viscount, Lord Colville of Culross, said, it points to the overly wide offences in the other parts of the Bill, for example,
“being present in a tunnel”.
As the noble Baroness, Lady Boycott, said, journalists have reported from inside these tunnels and could be guilty of those offences. It points not only to the importance of these amendments in protecting journalists but to the overreach of the offences in other parts of the Bill.
As the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hope of Craighead, said, Amendment 127A is an important extension of the original Amendment 117, extending the protections beyond journalists to legal observers, academics and even innocent members of the public watching what is happening and recording it on their smartphones.
However, other noble Lords have not mentioned that it is also damaging to the police. The noble Baroness, Lady Boycott, talked about a dispute where the police asked journalists to turn off their lights and, under cover of the darkness that ensued, engaged in violence towards the protesters. In the situation the police service now faces of ever-diminishing public trust and confidence in it, stories of the police arresting journalists at protests could easily be hijacked and used by anti-police activists further to undermine public trust and confidence in the police.
Lord Coaker (Lab)
My Lords, it is a privilege to speak to these important amendments in the name of the noble Baronesses, Lady Boycott and Lady Jones, my noble friend Lady Chakrabarti and the noble Lord, Lord Paddick. The way they spoke to the amendments, particularly the noble Baroness, Lady Boycott, was not only moving but challenging. I want to say something more generally, as other noble Lords have, about what happened to Charlotte Lynch.
Every now and again, something occurs in our society and our democracy which should act as a wake-up call. We all speak here and say that we are proud of our democracy and of our freedoms and traditions. Of course we are. I do not believe that we live in a totalitarian country, but even in a democracy things occur that are totally unacceptable. Such things require the state to act and respond, require Parliament to take action, and require a Minister of the Crown to look at what has happened, listen to what is being said and respond in the way that the noble Baronesses, Lady Boycott and Lady Jones, my noble friend Lady Chakrabarti and the noble Lords, Lord Deben and Lord Paddick, mentioned.
The Minister’s brief will probably say that the amendments are not necessary, that we have ways of dealing with this and that it is an isolated incident that means that no action is required—we can condemn it and say it should not happen, then move on. It is too serious to do that. You cannot do that with certain things that occur. This is not a weakness; it is a strength when a democracy responds in this way. It is a strength when a democracy shines a light on things that have happened. This is not to blame an individual officer or circumstance; it is to say that, for whatever reason, something happened in our democracy—this was about a journalist—and the police operated unacceptably.
That is what the amendments seek to do. They ask the Government, “If these amendments are not the right way of solving the problem, what are you going to do, other than say warm words, to ensure that it will not happen again?” That is what Parliament wants to hear and what all of us here expect from the Government. We do not want a massive condemnation of the country’s police or a massive assertion that every time you go out on a protest, people are arrested. But Charlotte Lynch, as well as the other two that the noble Baroness, Lady Boycott, mentioned, Felgate and Bowles, were reporting on a protest and were arrested. That is astonishing. It is incredible, quite frankly, when you go through the actual events. Despite producing a card, they were arrested, handcuffed, taken away and detained for hours.
That cannot just be explained away. How on earth did it happen? Where was the senior officer? Where was the very senior officer? Where was even somebody saying, “Hang on a minute. What is actually going on?” That happened in our country in 2022. Let me repeat: nobody is saying to the Minister that we live in a totalitarian state, but you cannot have a situation like that occurring without the Government of our country responding in a way that is appropriate and reflects the seriousness of it. That is why the amendments have been put forward. I do not know whether the noble and learned Lord, Lord Hope, is right that Amendment 127A is better because it talks about observing as well and has a broader scope, or whether the Government’s lawyers could come forward with an amendment, but something needs to be done that addresses something that has really occurred.
We talk about other countries where this happens, and ask why they do not do something about it. Actually, we need to look in the mirror and reverse it on to ourselves and say, “Why don’t we do something about it?” I repeat, because it is so important, that the Government’s defence mechanism—and I have been in government and know what happens—will be: “It’s a very serious matter, but, of course, it’s not the normal state of affairs.”. That is absolutely not the point.
I was rereading the briefing we have had from the NUJ, from Amnesty and from other people. It is just words sometimes, because words and principles matter. Principles that underpin out democracy are important, particularly when it comes to the freedom of the press, freedom of expression and freedom of journalists, broadcasters or whoever to go and do their business and report on demonstrations or protests. The Government’s own statement on 3 November said:
“Media freedom is an essential part of a healthy information ecosystem. The free flow of independently generated and evidence based information is the scaffolding for building democracy.”
That says it all.
Warm words matter, but so does policy and so does government reaction. It was a terrible situation that occurred with Charlotte Lynch. There are other examples where that has happened, and I cannot finish without responding to my noble friend Lady Symons. I played all sorts of roles during the miners’ strike. I was in Nottinghamshire as a local councillor representing and, by and large, working alongside miners who were on strike in a community where the vast majority were working. People know—and the noble Lord, Lord Murray, will also know the situation in Nottinghamshire with his background—the important role that journalists and broadcasters of all sorts played, including by my noble friend’s late husband, in reporting that. That is the strength of democracy. It is a crucial series of amendments, and if the Government are not prepared to accept what the noble Baroness, Lady Boycott, has said, what are they going to do about it?
Before I forget—I just got carried away with my own rhetoric—I want to ask one simple but important question. The Hertfordshire police did an inquiry into what happened in respect of Charlotte Lynch. They published five recommendations on 23 November. Given the importance of this, they made all sorts of recommendations about training and guidance. They also said:
“Hertfordshire Constabulary should consider ensuring that all officers engaged with public order activity complete the NUJ package and identified learning is shared.”
That means shared with other forces across the country. That is really important. If something good can come out of what happened to Charlotte Lynch, surely it is an improvement in police practice. It is also about the Government themselves considering whether something needs to be said in this Public Order Bill that strengthens and underpins the right of journalists to go about their business. Sometimes it is action that is needed as well as warm words.
Lord Paddick (LD)
Before the Minister responds, I have to say that, while I do not often take issue with the noble Lord, Lord Coaker—normally we are on the same side—I am more concerned than he appears to be about what happened in Hertfordshire. That is because, when somebody is arrested and taken to a police station, a sergeant or a custody officer has to satisfy himself or herself that there are grounds to detain that individual. I cannot believe that the journalist did not say to the custody officer, “I’m a journalist”. Yet a sergeant or above—as a custody officer has to be—authorised the detention of that journalist. That does not sound like officers on the front line getting a bit overenthusiastic and not having the right training; that was a sergeant in a controlled environment who was not at the scene of the protest and who authorised the detention of somebody he or she knew to be a journalist. That sounds more like something systemic than something unusual.
Lord Coaker (Lab)
I will respond to the noble Lord. If I, in any way, gave the impression that I underestimated the significance or seriousness of what happened to Charlotte Lynch, that was certainly not my intention. I hope that most noble Lords can see the vehemence with which I support doing something about what happened to Charlotte Lynch and using that—if that is the right way of putting it—as a way of ensuring that the Government respond in a way that protects journalistic freedom across our country, whatever the circumstances.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, before I begin responding to the debate, I start by thanking the noble Lord, Lord Paddick, for his most gracious apology, which I am obviously very happy to accept. I also acknowledge that the debate in question was long, free-ranging and somewhat tortuous.
I thank all noble Lords for their contributions on Amendments 117 and 127A. I completely agree with much of the sentiment that has been expressed when speaking to the amendments, tabled by the noble Baroness, Lady Chakrabarti, and to which the noble Baronesses, Lady Boycott and Lady Jones, and the noble Lord, Lord Paddick, have added their names. As I made clear during the debate on the first day in Committee, I share the concerns about the recent arrest of journalists reporting on the Just Stop Oil protests on the M25. The Government are absolutely clear that the role of members of the press must be respected. It is vital that journalists can do their job freely and without restriction, so I agree completely with the noble Baroness, Lady Boycott, and my noble friend Lord Deben, that it is a vital part of our democracy that journalists must be able to report without fear or favour.
On the specific case of the arrest and detention of the journalists at Just Stop Oil’s M25 protest, I was pleased to see the independent review into the arrest and detention of the journalists that concluded on 23 November. The statement issued by Hertfordshire Constabulary confirmed that the arrests were not justified and that, going forward, changes in training and command would be made. It acknowledged that it was the wake-up call to which the noble Lord, Lord Coaker, referred. The review has proposed a series of recommendations which Hertfordshire Police has confirmed it is acting on. They include:
“A further review to ensure that any Public Order Public Safety officers and commanders who have not yet carried out the College of Policing National Union of Journalists awareness training are identified and do so within 30 days; Directions to ensure that all commanders have immediate access to co-located mentors”,
to the policemen who are logging activity,
“and public order public safety tactical advisors throughout operations”
and:
“An immediate operational assessment of the number and experience of the Constabulary’s cadre of Public Order Public Safety commanders.”
I hope that the noble Baroness was somewhat reassured by that statement and the confirmation from the constabulary that it clearly got it wrong in that case, as well as the mitigations in place to ensure that it does not happen again.
In answer to the noble Lords, Lord Faulks and Lord Coaker, the police make mistakes. We agree that it was wrong, but we do not legislate for instances where it was clearly a false arrest and, therefore, unlawful.
More widely, I seek to assure noble Lords that the police cannot exercise their powers in any circumstance unless they have reasonable grounds to do so. It is highly unlikely that simply recording a protest creates sufficient grounds for the use of powers. The College of Policing’s initial learning curriculum includes a package of content on dealing effectively with the media in a policing context. In addition, the authorised professional practice for public order contains asection on the interaction of the police with members of the media, including the recognition of press identification.
Both the noble Baronesses, Lady Fox and Lady Boycott, referenced SDPOs, to which we will return later. The noble Baroness, Lady Boycott, specifically asked whether attending two or more events might give cause to one. The answer is no, because they would not be causing or contributing to serious disruption. However, as I said, that is a debate to which we will return.
Therefore, I support the sentiment behind the noble Baroness’s amendment, but I do not think that it is necessary and respectfully ask her to withdraw it.
Baroness Chakrabarti (Lab)
Before the Minister sits down, and with my real thanks for the sentiment that he expressed, does he concede that public order powers in general are cast in broad terms? Charlotte Lynch was arrested for the offence of conspiracy to cause a public nuisance—a fairly broad concept—and a number of broad police powers and offences in the Bill are triggered by an undefined concept of serious disruption.
Does the Minister also concede that senior voices in policing have said that journalists who give the oxygen of publicity to protests are part of the problem? By giving publicity, they are feeding the fuel of serious disruption. I know that the Minister disagrees with that proposition but, given that there has been so much performative legislation, and that there is apparently disagreement in the policing world about what is and is not feeding a serious disruption, why would the Government not take this modest step to ensure that no one should be arrested for the primary purpose of preventing their reporting of protest?
As a point of clarification, the difference between Amendments 117 and 127A is not the class of people they cover; it is the class of activity that is being reported on. Amendment 127A is an improvement on my poorer drafting of Amendment 117 because it refers to reporting protests themselves and not just the policing.
Lord Sharpe of Epsom (Con)
I agree with the noble Baroness that I do not agree with the proposition she just outlined from senior police officers. Having said that, I have not read those particular comments and cannot comment on the specifics. I go back to what I was saying earlier: it is not lawful to detain journalists simply there monitoring protests; it is against the law. The police made mistakes in these cases. As I said earlier, we agree it was completely wrong.
Lord Deben (Con)
Before my noble friend sits down, the fact is that what he says is true, but something has happened and therefore we have to react to it. For the Government to say that it is not necessary to do this does not mean that they need not to do it, if noble Lords see what I mean. It does not help for the Government to say that it is all okay because it was illegal. It happened and we know that it has happened on several occasions. It is also true that there appears to be among sections of the police a feeling that journalists make things worse rather than do their job. In those circumstances it is no skin off the Government’s nose just to say, “Right, we will put this in and that will make people feel happier and it will make us able to say to foreigners, ‘Look, we actually got this in the law. Not generally, but particularly, because it happened. Why don’t you do the same thing?’”
I do not understand this Government not taking easy steps that do not harm anybody. Just do it and do not constantly say, “Oh well, it’s all right.” It is not and we should do it.
Lord Sharpe of Epsom (Con)
I have to say to my noble friend: I hope I was not giving the impression that I was saying that it was all right, because it was not. I have acknowledged that it was wrong and the police made mistakes in this particular case. But, to go back to the point I made in response to the noble Lord, Lord Coaker, we do not legislate for instances where it was clearly a false arrest and therefore unlawful.
Lord Paddick (LD)
Will the Minister confirm that neither in his remarks nor apparently from what he said was the response of Hertfordshire police, was there any reference to the unauthorised detention of the journalist at the police station? The first thing that would have happened at the police station is that the journalist would have been asked to turn out their pockets, including their press pass, and yet they were still detained for five hours. What do Hertfordshire police and the Government say about a sergeant not at the scene of the protest authorising the detention?
Lord Sharpe of Epsom (Con)
Obviously, I defer to the noble Lord’s expertise on matters custodial, but—I am flying solo a little bit here—I imagine that, whatever the erroneous reasons given for the arrest, the custodial sergeant or whoever was in that position felt that some investigation was required.
Lord Coaker (Lab)
Does the noble Lord not realise how disappointing his response is in many ways? As the noble Lord, Lord Deben, just said, what happened in Hertfordshire was a real challenge to us to respond to something which seems to threaten journalistic freedom to report on protests. All of us are saying that, for the Government to turn round and say, “Don’t worry: it was a rare occurrence and it won’t happen again—no need to worry” with a shrug of the shoulders is just not the sort of response that one would hope to get from the Government. As I said, I do not believe we live in a totalitarian state, but every now and again a challenge emerges which threatens to undermine aspects of our democracy, and in this case it is journalistic and broadcasting freedom.
I think that we, certainly I, would expect the Government to reflect on what the movers of the amendment said and on some of the many moving speeches, including from my noble friend Lady Symons, and whether there is a need for the Government to act in order to protect one of the cherished freedoms that we have. I think that is what people in this Chamber—if I read again what the noble Lord, Lord Deben, said; the noble Baroness, Lady Boycott, made the point through her amendment; and I have tried to do it through the words that I have said—are expecting from the Minister, rather than simply, “Well, it was just one of those things that happened and it won’t happen again.”
Baroness Jones of Moulsecoomb (GP)
Very briefly, what concerns me about this—well, lots of things concern me—is that the police, including the custody sergeant, should have known it was an illegal arrest, but they must have thought they could get away with it. That really irks me. It is the thought that the police were so high-handed, and that is why it has to be explicit so that they cannot in any sense claim ignorance of the law.
Lord Sharpe of Epsom (Con)
My Lords, in answer to the noble Lord, Lord Coaker, I am getting a strong sense of how disappointing I am being, but it is also very fair to say that I have been completely unequivocal in sharing completely his concerns about the protection of our democracy and institutions. As I said earlier, it is a vital part of democracy, and I would expect and also demand, that protests are reported on fairly and freely. Of course I am sorry that the noble Baroness is irked, but I cannot second-guess what the police were thinking and I will not stray into that territory.
Baroness Boycott (CB)
My Lords, I thank the Minister for his reply to all the wonderful speeches, and I thank many noble Lords for speaking tonight in support of the amendment that the noble Baronesses, Lady Chakrabarti and Lady Jones, and the noble Lord, Lord Paddick, and I put forward.
What I want to say very much reflects what the noble Lord, Lord Coaker, was saying. I would call this the Government’s “bad apple” defence, which at the moment gets deployed all over the shop, whether we are talking about a single police officer who accosts a young woman at night with bad consequences or about a single police station in Hertfordshire. This is not about a bad apple; as the noble Lord, Lord Paddick, said, this is about a systemic situation, and as the noble Lord, Lord Deben, said, this has happened and it is now happening a lot more.
I suspect, although I am quite happy for your Lordships to disagree with me, that this is a lot to do with the climate and the feeling of people in a desperate situation who do not know what else to do. They end up gluing themselves to the road and they are seen as something extreme. That does not matter: it is still a protest, however annoying and nuisance making it is, and we can all debate that—but it is another debate. This is about the right to protest and the right of journalists to go to that protest and report on it. Journalists report on what human beings do. They report on people, what motivates them and what they care about, and what people are prepared to glue themselves to a road for or to padlock themselves to, or to climb Nelson’s column or whatever it happens to be.
The noble and learned Lord, Lord Hope, made the point about monitoring things across the world. We send journalists to monitor whether African countries are having free elections. How can we stand here and say that that is a good idea if, at the same time, someone reporting on a climate protest is chucked in jail? She was in a cell with a tin bucket as a lavatory for five hours. We are not talking about a quick slap on the wrist and “I’ll write you a letter later and send you a 30 quid fine”. This was a serious thing and it happened. We are therefore obliged to do something about it.
I come back to the “bad apple” defence. It is used by this Government over and over. They cannot use it in this instance and hope to hold their heads up high, or for people in this House to let them get away with it—we will not. I, the noble Baroness, Lady Chakrabarti, and others will bring this back on Report. We will work on the amendment, but it will fundamentally be the same. I am very grateful to all noble Lords who supported it. I beg leave to withdraw the amendment.
“Repeal of section 73 of the Police, Crime, Sentencing and Courts Act 2022In the Police, Crime, Sentencing and Courts Act 2022 omit section 73 (imposing conditions on public processions).”Member's explanatory statement
This amendment is intended to remove the noise “trigger” that empowers senior police officers to impose conditions on public processions.
Baroness Jones of Moulsecoomb (GP)
My Lords, I was very excited when I saw this grouping: I thought that I had got my own group to myself. However, I am afraid that others have butted in. I am very grateful for that, obviously.
The noble and learned Lord accused me of trying to waste a lot of time on this—he is not listening—but I promise I will not. My aim here is to highlight the fact that, when we pass all these things in a Bill, is it sometimes very easy to miss their cumulative effect. For me, there is a slippery slope of anti-protest laws under this Government. It will not play very well with the public, or with them when they are out of government.
Each Bill that we pass diminishes our rights, little by little. We tend to see each of these measures in isolation because that is how we deal with them, so it is easy to lose track of the cumulative effect of the Government’s anti-protest agenda. I really hope that the opposition Front Benches can join me in committing to repeal these anti-protest laws when we finally get this Government out of power. I have merely highlighted the parts of the Bill that are the most egregious from the Police, Crime, Sentencing and Courts Act 2022, and I am pointing out that they should not have been in there and we really ought to have struck them out.
Lord Paddick (LD)
My Lords, it is difficult to argue with the point made by the noble Baroness, Lady Jones of Moulsecoomb: if the Government, as they have, bring back those parts of the Police, Crime, Sentencing and Courts Bill that they want to reinstate, why can she not ask this House to remove those parts of Police, Crime, Sentencing and Courts Act 2022 that she does not want retained? The noble Lord, Lord Coaker, has adopted a less provocative approach in his probing amendment, Amendment 127, to establish how often the new noise trigger powers have been used by the police in relation to protests outside buildings—with or without double glazing.
We on these Benches vehemently oppose the provisions in the Police, Crime, Sentencing and Courts Act that the noble Baroness wishes to repeal, although we subsequently and reluctantly accepted the usefulness of Section 80. But that was then, and this is now. I believe that the Committee should perhaps operate on the basis of appeals in criminal trials and ask this: what new evidence is there to persuade Parliament that we should now reverse the decisions that it made a year ago?
Lord Coaker (Lab)
Before I forget, I thank the noble Lord, Lord Paddick, for signing Amendment 127, which deals specifically with noise. I have a lot of sympathy with much of what the noble Baroness, Lady Jones of Moulsecoomb, has said about many of the powers, but I will concentrate specifically on noise, so may disappoint her.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
I thank noble Lords. The public order measures in the Police, Crime, Sentencing and Courts Act 2022 have only just come into force, so, in the Government’s view, it is far too early to consider whether they should be repealed. These measures were debated at length during the passage of the Act, and the police have barely had the opportunity to make use of these new powers to manage public processions, assemblies, single-person protests and protests in the area outside Parliament. I therefore ask the noble Baroness to respect the democratic process and allow these measures to continue to be part of the statute book. It is no doubt clear that, as we have seen, the public continue to be able to protest as before since the commencement of the Police, Crime, Sentencing and Courts Act 2022.
I will not dwell long on the amendment lowering the maximum penalties for wilful obstruction of the highway. This House was clear in its position that the increase in sentences was appropriate, and I doubt that that position has changed in the last six months.
Amendment 123 would repeal the statutory offence of public nuisance and reinstate the common-law offence. In doing so, it would allow courts to place custodial sentences beyond the current 10-year maximum in the statutory offence. This would also have the effect of removing the reasonable excuse defence. I worry that this amendment undermines the benefits of the statutory offence, as recommended by the Law Commission.
I turn to the question asked by the noble Lord, Lord Coaker, on double glazing—I want to say, “for complete transparency”, but perhaps I should not. Parliamentarians asked for practical examples of when the power would and would not be used. This example is in the guidance to illustrate that the threshold is subjective, depending on its impact on people or organisations, which is why there is no decibel threshold.
When debating the measure covered by Amendment 123 during the passage of the PCSC Act, Parliament spoke at length about the meaning of “annoyance”. The Law Commission’s written evidence to the Public Bill Committee on this said:
“Annoyance in the context of nuisance is a legal term of art that does not connote merely feeling annoyed. It requires ‘a real interference with the comfort … of living according to the standards of the average man’”.
In common law, “annoyance” and “inconvenience” were already within the consequence element of the common-law offence.
Amendment 127, tabled by the noble Lord, Lord Coaker, probes the use of the powers to prevent noise from public processions, and presumably assemblies and single-person protests, from causing harm. I am sure that the noble Lord is aware that the Government are legally required to table a report on the operation of these new powers to manage public processions, assemblies and single-person protests by 28 June 2024. In the meantime, I can inform him that I am not aware of the new powers relating to noise being used—but I remind the House that the use of conditions on protests and other gatherings is relatively infrequent. The noble Lord, Lord Coaker, asked about instances of the noise provision being used. As I say, there is no record of the police using this power.
For the reasons I set out, I invite the noble Baroness to withdraw her amendment.
Baroness Jones of Moulsecoomb (GP)
Did the advice’s definition of “discomfort” really use the word “man”, so it does not apply to women? Is that real?
Lord Murray of Blidworth (Con)
I was quoting from the Law Commission’s written evidence, which referred to the
“standards of the average man”.
In that context, as in many legal documents, the word “man” implies “mankind”.
Baroness Jones of Moulsecoomb (GP)
I suggest that legal sources need to brush up on equality these days—that is ridiculous.
With my amendments, I was trying to give the Government the opportunity to see that the legislation they have brought in is extremely unpleasant and repressive. I wish I had done a little more homework, like the noble Lord, Lord Coaker, and highlighted some of the ridiculous things in the Act. He highlighted a real deficit in the Government’s reading of legislation and their concentration on these things, which let such things through. There was a lot of laughter in the Chamber when the noble Lord, Lord Coaker, presented that part of the Bill, as it was. I argue that the drafting of some of these Bills is absolutely appalling, and that highlights it. I will of course withdraw my amendment, but this Government are awful.
Lord Coaker
“Consolidated public order guidance(1) Within three months of the day on which this Act is passed, the College of Policing must, with the approval of the Secretary of State, publish consolidated guidance on public order policing. (2) Guidance under this section must consolidate into a single source—(a) the College of Policing’s authorised professional practice for public order, and(b) the National Police Chiefs’ Council and College of Policing’s operational advice for public order policing.(3) The Secretary of State must require the College of Policing to annually review its guidance under this section.(4) The College of Policing may from time to time revise the whole or part of its guidance under this section.(4) The Secretary of State must lay before Parliament any guidance on public order policing issued by the College of Policing, and any revision of such guidance.(5) Guidance under this section must include—(a) legal guidance on existing public order legislation and relevant human rights legislation;(b) operational guidance on best practice in public order policing, including how best practice should be shared between police forces;(c) specific operational guidance in addressing techniques for locking on;(d) minimum national training standards for both specialist and non-specialist officers deployed to police protest-related activity;(e) guidance on journalistic freedoms and the right of journalists to cover protests without interference.”Member’s explanatory statement
This amendment probes the need for public order policing guidance to be consolidated into one accessible source and regularly updated, as recommended by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. It would require guidance to include minimum training standards, clear information on relevant law, and operational guidance on best practice.
Lord Coaker (Lab)
My Lords, I emphasise my Amendment 126 in this group, which probes the need for public order policing guidance to be consolidated into one accessible source and regularly updated, as recommended by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. It would require guidance to include minimum training standards, clear information on relevant law and operational guidance on best practice.
Throughout the Bill we have argued that this legislation does not answer the actual issues. Rather than layer upon layer of new legislation, we need to use the powers the police already have. Police need clarity, excellent training and robust and up-to-date guidance on how to use the powers they have, what the rights of the British people are and what best practice is out there. Our officers need the support and resources to be confident in what their powers are and to use them effectively and proportionately, not be left to interpret broadly defined new powers every few months. As we have just been debating, we have seen stark examples of what happens when this goes wrong.
My Amendment 126 reflects issues raised by His Majesty’s inspectorate in Matt Parr’s report on public order policing, Getting the Balance Right?, published in March 2021. On guidance, the report found:
“The College of Policing’s ‘authorised professional practice’ … is out of date: it does not include recent relevant case law, or information on certain new and emerging tactical options. The College is planning a review.”
Has this review taken place?
The report welcomed work by the National Police Chiefs’ Council and College of Policing to put together operational guidance for protest policing, but
“found problems with some of its legal explanations, particularly how it sets out the police’s obligations under human rights law.”
This document was being revised in light of the inspectorate’s concerns. Has that taken place?
Crucially, the inspectorate recommended that it would be beneficial to consolidate relevant guidance into one source, as my amendment seeks to do, with arrangements to keep the guidance current and regularly revised as is necessary. My amendment provides for that, as I said, but what action have the Government taken on this with the police?
Noble Lords have experienced how difficult it is to find a comprehensive summary of the existing powers that the police have to manage protests. We have asked the Government whether it would be possible to publish a comprehensive guide to all the powers available to the police so that we can see for ourselves whether there are any gaps.
On training, can the Minister provide information to us on what national training standards are in place for the police on their protest powers? One issue picked up in Matt Parr’s report and reflected in the amendment is the deployment of non-specialist officers to protest sites. The report found
“a wide gap between specialist … officers and non-specialists when it comes to understanding and using existing police powers. Non-specialist officers receive limited training in protest policing, and lack confidence as a result … In every force we inspected, interviewees told us that some of these non-specialist officers do not have a good enough understanding of protest legislation.”
What changes to training will be required as a result of the Bill, when it becomes an Act, or Acts that have preceded it? How many specialist officers are available for deployment and how often are non-specialist officers being deployed out of necessity, with the obvious potential consequences?
Lord Rooker (Lab)
My Lords, for the avoidance of doubt, I say to the Minister that I will not be deviating into policy regarding the Bill. I am going to stick to the 17th and 19th reports of the Delegated Powers and Regulatory Reform Committee. I have served on this fascinating committee since January and I want to test how deeply the Government consider the reports from the committee.
Memory tells me that when I came into the House—it was around 20 years ago; I was Home Office Minister in 2001—being new to the House and the department, I was advised that, in the main though not exclusively, the Government tended to accept the advice of the Delegated Powers Committee. I am not complaining; on this, it is the Government’s choice, but the way they have gone about it is what I want to test.
It is only Clause 30. In the history of this Bill, earlier this year a similar power was in a previous Bill. The 13th Report of Session 2021–22 raised the same points about the power in Clause 30. The report drew this to the attention of the House, repeating the concerns expressed in an earlier report.
Clause 30 is on the power to issue guidance. It gives the courts a very broad discretion to impose on a person—but I will not go over all the detail of that. In its 17th report, at paragraph 10, the committee said:
“As we stated in our 13th Report … we consider that the SDPO”—
the serious disruption prevention order regime—
“places considerable power in the hands of the police—first, any decision of a court as to whether to make an SDPO—and as to the restrictions to be imposed under one—is likely to be heavily influenced by what the police say about whether the conditions for making one are met … second, SDPOs can be applied in a broad range of circumstances: they are not limited to the prevention of criminal conduct but can be imposed for such vague, and rather open-ended, purposes as preventing people from ‘contributing to’ the carrying out by others of activities that ‘are likely to result in’ serious disruption to as few as two people”.
The report went on to say:
“Clause 30 allows the Secretary of State to issue guidance to chief officers of police and chief constables in relation to SDPOs, including, in particular, on—the exercise of their functions in relation to SDPOs; identifying persons in respect of whom it may be appropriate for applications for SDPOs to be made; and providing assistance to prosecutors in connection with applications for SDPOs.”
That is the Secretary of State issuing guidance on what appear to be quite detailed operational functions of the police.
Paragraph 12 of the report said:
“A chief officer of police or a chief constable ‘must have regard to’ such guidance.”
The guidance is not subject to any consultation requirement at all. The Government stated, in a memorandum they supplied with the Bill, that the guidance should be subject to parliamentary procedures only in exceptional circumstances. In other words, Parliament is not really bothered about this. It said the guidance in question merits this,
“given the extensive parliamentary and public debate about the appropriate balance between the rights of protesters to exercise their freedom of speech and assembly”.
The report said this was unchanged from the view expressed by the Government in the memorandum accompanying the power to which the committee drew the attention of the House in its 13th report. The whole point about this is whether the affirmative procedure might or might not be appropriate—which the committee drew to the attention of the House—so that Parliament at least has a role.
Paragraph 17 of the report said that
“we considered that guidance issued by the Secretary of State on the exercise of police functions in relation to serious violence reduction orders should be subject to the affirmative procedure because the exercise of those functions could prove to be highly controversial. We indicated that such scrutiny would benefit the police by whom the functions would be exercised”.
In the second part of paragraph 17, the committee said that
“we considered that proposed revisions to an existing code of practice on the exercise of statutory stop and search powers were sufficiently significant to merit affirmative procedure scrutiny. We noted that the Act governing that code gives Ministers a choice as to whether to make revisions by affirmative procedure regulations”.
At the end of the day, the committee concluded that Clause 30 contains an extreme example of a power to issue guidance on the exercise of statutory functions. It allows the Secretary of State to influence the exercise, by the police, of functions that could prove highly controversial, including identifying persons against whom the courts may make serious disruption prevention orders. The committee then said:
“Accordingly, we consider that guidance under clause 30 is sufficiently significant to merit affirmative procedure scrutiny.”
The point is that, when the Government published the Bill and the delegated powers memorandum, they gave examples of previous cases where such scrutiny was not required. Commenting on the 16 examples, paragraph 20 of the 17th report says
“of the ‘examples’ given … 10 are not comparable as they do not require anyone to ‘have regard to’ the guidance; … a further 2 concern guidance that has a much narrower focus (as to ‘the effect’ of statutory provisions); … another relates to functions (exercisable by a constable) that appear to be much more limited; … 4 concern guidance to which a requirement to consult applies; and … the most recent one we reported to the House. In addition, the ‘examples’ relate to … the prevention of harm that is much more specific”.
So the examples set out in the delegated powers memorandum, published by the Government and given as part of their reason for it, did not apply; the Delegated Powers Committee made it clear that they were not relevant. To be honest, I never expected to be speaking on or tabling amendments to this Bill, because it drifts along, as it were, but the great thing about the delay is that I have the opportunity. Last week, we had the Government’s response to the 17th report, which we published in the 19th report on 5 December—a few days ago.
I do not have the letter with me, and I do not know which Minister signed the response to the Delegated Powers Committee, but I can remember my 52 weeks’ experience at the Home Office like it was yesterday. I had a private office of seven, and my day job was immigration, nationality and asylum. My other job was coming here and doing police, prisons and everything else—of course, we had the 9/11 legislation. I have to say that I cannot conceive of anybody in my then private office suggesting that I ever sign a letter such as that which has become the Government’s response to the 17th report.
The reason is this: in response to our conclusion, the Government said:
“The Government does not agree that clause 30 contains ‘an extreme example of a power to issue guidance’.”
They went on to talk about provisions in other Bills, including domestic abuse protection notices and domestic abuse protection orders, and said:
“As the table below shows, the Committee took a similar position in relation to previous Bills providing for very similar statutory guidance. Given this, we remain of the view that the negative procedure is appropriate in this case.”
My initial reaction to that was, “Blimey, they’ve come up with some new examples of where we got it wrong”. But they did not, because the table of examples supplied by the Government—table 1 in the 19th report of the Delegated Powers Committee—is exactly a repeat of what they said in the delegated powers memorandum. Every single example is repeated, one after the other, which the 17th report said was not relevant.
My question is: did the Minister who signed the letter on the Government’s response realise that the examples they were giving to the committee in justification were the exact same examples—no new ones—that had been given in the delegated powers memorandum, which the 17th report listed in the main as not relevant? How can this happen? Did anybody read the 17th report?
No committee is more important than another, but this House has the Delegated Powers Committee, and the other place does not. It is a very important issue as Ministers accrue powers. In this case, they want the power to give guidance to chief constables on controversial matters without any parliamentary scrutiny or consultation whatever. Therefore, it is just one clause in the Bill that the Delegated Powers Committee drew attention to.
Baroness Meacher (CB)
My Lords, I support Amendment 142A from the noble Lord, Lord Rooker, and his Clause 30 stand part. He has set out the concerns of the Delegated Powers and Regulatory Reform Committee pretty clearly. Noble Lords will be pleased that I will therefore speak briefly, but I will consider Clause 30 in the political context.
Having been a member of the Delegated Powers Committee for a full term, I am acutely conscious of the increasing tendency of the Government to avoid adequate parliamentary scrutiny of powers delegated to Ministers. Clause 30 is of particular concern, because the delegated powers enable Ministers to increase the already unacceptable police powers under SDPOs. I am very interested in this Bill, even though I have not been able to be involved until now.
As has been extensively debated in this House, it is extraordinary that these orders can apply to people who have not been convicted of any offence and who are not considered to be at risk of offending; that orders can last for up to two years and be renewed; and that a breach of any requirement under an SDPO can lead to six months in prison—for somebody who has not been convicted of an offence. As things stand, such powers do not sit comfortably in a democratic state, in my view. But with Ministers able to extend those powers and further interfere with citizens’ liberties, with only minimal parliamentary involvement—and if, as the noble Lord, Lord Rooker, said, they stick with the negative procedure—this Bill feels much more suited to a country such as Iran or China. I have never said such a thing about a piece of legislation in this House before, but this goes way beyond the pale. A few years ago, Clause 30 would not have been included in this Bill; I just do not think it would have happened.
In the DPRRC’s recent report, Democracy Denied?, we express our concern about
“an increase in the number of occasions on which ministers have been given power to supplement primary legislation by what is, in effect, disguised legislation”
—things such as guidance, which is not a delegated power in the normal sense—that is,
“instruments which are legislative in effect but often not subject to parliamentary oversight”,
being, as in this case, subject only to the negative procedure. That is one way of doing things.
Democracy Denied? expresses further concern about guidance where there is a requirement “to have regard” to it, which the noble Lord, Lord Rooker, also referred to. Although there is an element of choice, a requirement to have regard to guidance carries with it an expectation that the guidance will be followed unless there is a cogent reason for not doing so. In the context of this Bill, such guidance is completely unacceptable.
I very much hope that this House will deal with Clause 30 on Report. Our Delegated Powers Committee recommends that the guidance should be subject to the affirmative procedure. It would probably have been ultra vires for the committee to have gone further than that, but speaking personally, and not in the context of being a member of the Delegated Powers Committee, I really hope that the House considers removing Clause 30 from the Bill at the next stage.
Lord Beith (LD)
My Lords, the noble Lord, Lord Rooker, has done a service to the House in focusing such clear attention on the Delegated Powers Committee report, and the issue that it raises. I simply want to pursue one of the points that he mentioned, which is one of the features of the guidance to which this power relates:
“guidance about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.
What does the Secretary of State know that the police do not know about who it would be appropriate to make serious disruption prevention orders about? On what basis does the Secretary of State know what the police do not know and therefore have to be advised about?
The only basis I can think of is not a helpful one for the Government. It is that there is a political reason here and that what the Government want to do is say, “Never mind those people who are protesting about this, go after those people who are protesting about that.” This is the very kind of power which we have always tried to avoid giving, in the form of direction to the police, to anybody, including police and crime commissioners. There has been a very necessary reluctance to have the police directed in a way which could become political, and in which the choice of where to deploy resources was based on whom the authority concerned—in this case, the Government—disliked and wanted to see penalised in some way.
I cannot see any respectable argument for the Secretary of State saying to the police “You do not realise what I realise; this is the guidance I am giving you about identifying appropriate persons.” It is the sort of thing that even the affirmative procedure would not give us a very good chance to deal with, because you cannot amend statutory instruments, even under the affirmative procedure. But to leave it simply to the negative procedure, which is so limited and so inadequate, particularly in the other Chamber, is simply not satisfactory. The Government’s response to the Delegated Powers Committee has been wholly inadequate so far.
Lord Thomas of Cwmgiedd (CB)
My Lords, I wish to make one or two brief observations in respect of the way these amendments tie together. The amendment in the name of the noble Lord, Lord Coaker, which I support, sees a good precedent in what Parliament sometimes does, which is to pass successive pieces of legislation without having in mind all the complexities of the earlier legislation. We saw this most clearly in my experience in relation to search warrants of premises, and I will come back to that in a moment. There is a huge advantage in having up-to-date guidance, and the best people to produce it are those who have practical experience—namely, the police institutions—so I warmly welcome that.
But its importance goes to Clause 30, because the question I ask myself is: why is Clause 30 there? Why can it not be dealt with in two other ways? One is the use of guidance given by independent police to other police, to get uniformity; and secondly, do not forget these are applications to a court, so can we not do what we did in relation to search warrants? That is, to provide in detailed form, through the Criminal Procedure Rule Committee, working closely with the police and other organisations, the information that needs to be put before a court to make the decision on the order. Now, if the Home Secretary feels that there are areas that you need to specify—for example, about the kind of person who should be asked to supervise or do something—why can the detail of what is required, the kinds of considerations, not be put properly and openly through an independent process of rules and forms? This worked for search warrants.
We ought to bear in mind the experience of ASBOs. It is not the time at this hour of night to go back to that rather unhappy chapter, but trying to supplement un-thought-through legislation of this kind with guidance is not the way forward; there are better mechanisms.
It seems to me, when one looks at Clause 30, one asks oneself, “What is it for?” In Clause 30(2)(c), the guidance is about
“providing assistance to prosecutors in connection with applications for serious disruption prevention orders.”
Is the intention that somehow the Home Office believes that the police do not help prosecutors? What guidance do they need? These are independent people and their independence should not be called into question. In most countries, the independence of the prosecution service, as in our country, is critical, and so is the independence of the police.
I do not want to go into the constitutional points under Clause 30, because I entirely agree with what has been said. I think one ought to look at this from a practical experience point of view to say that the clause is completely unnecessary. It should be possible to deal with the practical consequences of these orders in a way that takes into account experience. This is a criticism of the way in which the modern Civil Service is structured. There are probably few people in the Home Office who remember what I have just gone through. I thought a few grey hairs might remind people that there is a better way forward than this constitutional aberration, constituted by Clause 30.
Lord Paddick (LD)
My Lords, we support Amendments 126 and 144 in the name of the noble Lord, Lord Coaker. As recommended by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, consolidated public order guidance should be published, to include minimum training standards, clear information on relevant law and operational best practice. We must ensure that existing law and practice are used effectively and that police can then be held to account against that consolidated guidance.
The noble Lord, Lord Coaker, talked about ensuring that the police had excellent training. I go back again to my own experience: the Metropolitan Police were world leaders in public order policing and the training was extensive and excellent. Other forces used to come to the Metropolitan Police and engage in training with it and in that way good practice was shared.
Does the Minister know what the impact of cuts to police budgets has been on the quality and amount of training in public order policing—the involvement of other forces in training with the Metropolitan Police, for example? My understanding is that special constables, who are part-time volunteers, are now being trained as public order officers. This is a very difficult, sometimes dangerous, skilled area of policing. One would question whether part-time volunteers are the right officers to be used in that sort of situation, requiring knowledge of public order legislation that is getting longer and more complex as we go on.
What has been the impact of the police cuts on the number of public order trained officers? Before the Minister stands up and talks about the uplift in the number of officers, I point out that across 16 constabularies, the number of police officers over the last 12 months has gone down rather than up and the Metropolitan Police has given notice to the Government that it will not reach its target of the uplift of an additional 30,000 officers.
HMICFRS talks in its public order report about the lack of regular officers volunteering to be public order officers because it involves increased weekend working—which is not popular—an increased risk of complaints, and the increased risk of being verbally and physically abused. What steps are the Government taking to mitigate these factors, which are working against having highly trained, highly skilled public order officers in sufficient numbers to be able to handle protests?
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords for the amendments in this group. I turn first to Amendment 126, which would require the College of Policing to publish guidance consolidating the public order authorised professional practice and NPCC and college operational advice for public order policing. The Government would be required to lay the consolidated guidance before Parliament and the guidance would need to be reviewed annually and updated when appropriate.
The noble Lord’s explanatory statement clarifies that this builds on a recommendation from His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to the College of Policing. For the benefit of the House, when giving oral evidence to the Public Bill Committee, His Majesty’s Inspector Matt Parr has said of policing’s response to the report that it was
“the most professional and thorough response”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 55.]
he had seen to a report that he had done.
The college has drafted a new public order public safety authorised professional practice that is in the final stages prior to consultation, which precedes publication. A draft version will be published for consultation by public order practitioners by the end of December and the college plans to publish the final version in early 2023.
To provide further reassurances to all those present who have shown interest in public order guidance, noble Lords will perhaps allow me to detail some of the work that the college has undertaken beyond the authorised professional practice to improve public order training.
On guidance, the college publishes regular bulletins, including on changes to processes, legislation and new training products. Its summary guide to the Police, Crime, Sentencing and Courts Act has been circulated to all forces and widely shared with officers involved in policing public order and protest. This guidance reiterates the need for a balanced approach with a reminder of the recent HMICFRS conclusion that
“the police do not strike the right balance on every occasion. The balance may tip too readily in favour of protesters when – as is often the case – the police do not accurately assess the level of disruption caused, or likely to be caused, by a protest.”
In April, the college drafted the National Police Chiefs’ Council’s Protest Operational Advice Document, which reiterated the need for a rapid response to disruptive disorder. The document aims: first, to support consistency of decision-making and engagement with stakeholders; secondly, to signpost guidance, legislation, key legal decisions, policies and practice which may assist in the policing of protest, thereby promoting public safety, preventing or reducing crime, disorder and/or terrorism to support overall public safety; and, thirdly, to assist decision-makers in achieving outcomes which support the exercise by peaceful protestors of their rights under Articles 8, 9, 10 and 11, while striking the appropriate balance between those rights and the rights of others affected by protest. This is being reviewed by the college, which aims to publish the revised version in February 2023.
On training, over the last six months the college has rolled out significant changes to protestor removal training. This used to be a very niche skill with very few people trained to a high level, but this meant the response was slow. The college has since developed new, quicker training for simpler lock-ons, which has meant a substantial improvement in the speed of the police response to these. I could go on, but I think I have made the point. The college is a professional organisation that is proactive in response to protests to ensure that officers are trained to the highest possible standards. It does not need a legislative stick to make them do so. That is why the Government do not support this amendment.
I thank the noble Lord, Lord Coaker, for specifying that Amendment 144 is a probing amendment to query the demand for, and the capacity of, specialist protest officers across police forces. I presume by “specialist protest officers” the noble Lord is referring to both public order trained officers and officers trained in the removal of protesters who lock on. For the benefit of the House, it is worth clarifying that, for the most part, protests are non-violent and are managed effectively by general patrol officers. When there is a risk of violence, officers with additional specialist public order training are deployed.
On specialist public order trained officers, the NPCC has set a national requirement of 297 police support units across England and Wales, alongside 75 in London. A police support unit consists of one inspector, three sergeants and 18 constables as well as three drivers. On level 3, which is basic public order training, the NPCC has set a requirement for 234 basic deployment units.
On the question from the noble Lord, Lord Coaker, on specialist officers, the NPCC has identified a national requirement for 108 officers trained in debonding protestors, 189 officers trained to remove protestors and another 189 who are trained to remove protestors from complex environments such as height. The noble Lord also asked about non-specialist officers. They are deployed to respond to peaceful protests and all have level 3 public order training.
The noble Lord, Lord Paddick, asked me about specials. Peaceful protests would seem to me to be well within the abilities of volunteer police officers—indeed, I have seen it in my own service overseas. He also mentioned cuts. I am afraid I am going to disappoint him by saying that we are well on the way to the 20,000 police uplift that was promised. I will also of course say that the nature of protests has changed and, therefore, so has the nature of policing, as reflected in much of this Bill.
Lord Paddick (LD)
I am sorry to interrupt the Minister and am grateful to him for giving way. I have seen evidence that special constables are being trained to level 2 and being issued with specialist equipment, so I am not talking about special constables trained to level 3, as the noble Lord suggested.
The noble Lord gave a whole series of numbers. The National Police Chiefs’ Council has decided that there should be specified numbers of level 3 and level 2-trained units of one, three and 18—one inspector, three sergeants and 18 constables—as the requirement nationally. To what extent have police services fulfilled those requirements? The indication that the Minister gave was that that is the target that the National Police Chiefs’ Council has given, but to what extent have police forces been able to fulfil that target?
Lord Sharpe of Epsom (Con)
I am afraid that I do not know the answer. I will write to the noble Lord with the detail. Regarding the specials, as long as they are trained, surely that is the point.
Chief officers are responsible for demonstrating that they can appropriately mobilise to a variety of public order policing operations at a force, regional and national level in accordance with the national mobilisation plan. The College of Policing sets consistent standards across England and Wales to ensure consistency across forces, allowing officers from different forces to operate in tandem when deployed to other force areas.
The required capacity for public order capabilities is informed by the assessment of threats, harm and risk from the National Police Coordination Centre, as agreed by the National Police Chiefs’ Council. Officials and Ministers in the Home Office regularly probe the National Police Coordination Centre on its confidence that forces can respond to disorder. At present, it assesses that forces are able to meet current protest demands. Forces have been able to use public order resources to respond to incidents including the awful disorder in Leicester in August and September, as well as Just Stop Oil’s recent disruptive campaign on the M25.
Amendment 142A seeks to ensure that statutory guidance issued under Clause 30 is subject to the affirmative scrutiny procedure, rather than the negative procedure, as the Bill currently allows. This follows a recommendation from the Delegated Powers and Regulatory Reform Committee, as explained by the noble Lord, Lord Rooker, and the noble Baroness, Lady Meacher. I thank the committee for its consideration of the Bill. I hope, but am afraid I doubt, that noble Lords will forgive me for echoing the arguments made in the Government’s response here. SDPOs do not represent a new concept. Successive Governments, dating back at least to 1998 and the creation of anti-social behaviour orders in the Crime and Disorder Act, have legislated for civil preventive orders of this kind, which can impose restrictions on liberty, backed by criminal sanctions. Many of these preventive order regimes include similar provision to that in Clause 30 for the Secretary of State to issue guidance which was not subject to the draft affirmative scrutiny procedure. Guidance issued for serious violence reduction orders is subject to the negative scrutiny procedure. Having said that, I listened very carefully to the speech by the noble Lord, Lord Rooker, and I will write to him with an attempt to unravel some of the discrepancies that he mentioned.
We therefore see it as entirely appropriate that the guidance is subject to the negative scrutiny procedure and respectfully encourage noble Lords not to press their amendments.
Lord Coaker (Lab)
My Lords, the last remark the Minister made, about writing to my noble friend Lord Rooker, was useful. Reflecting in the letter on the comments by the noble and learned Lord, Lord Thomas, might be helpful as well.
I will focus on my own amendment. I thank all noble Lords who contributed on it. The reason for it was the need for co-ordinated and updated guidance. I am grateful to the Minister for saying that the updated guidance will come at the beginning of 2023.
You can see why there is a need for clarification. An article in the Daily Telegraph just yesterday, quoting the chief constable of Greater Manchester, Stephen Watson, said:
“criticism of officers by the public for being too slow to clear the protesters was ‘not an unreasonable judgment’.”
He went on to say:
“The public has seen us reacting too slowly, less assertively than they would have liked.”
That is the second-most senior police officer in the country saying that the police should have acted more quickly with respect to the protesters. He goes on—and I am not a trained police officer, just reflecting on what the chief constable said in a national paper:
“I think fundamentally, if people obstruct the highway they should be moved from the highway very quickly. The so-called five stage process of resolution can be worked through”
quickly. He goes on, and here is the point that the guidance needs to clarify. Is the chief constable of Greater Manchester right, or are the other officers? The article says that his argument is that
“officers spent too much time building a ‘copper-bottomed’ case for prosecuting people for offences such as public nuisance rather than arresting them for the lesser crime of obstruction.”
I do not know whether that is right or wrong, but somewhere along the line there needs to be clarification through the guidance package, which we hope will come at the beginning of 2023. It should say that, to deal with protests quickly and robustly but according to the law, these are the options available in coming to any decision. The chief constable of Greater Manchester is clearly saying that the police could have done better by using the lesser offence of obstruction. Is he right or wrong? The guidance may be able to sort that out for us. I beg leave to withdraw the amendment.
Lord Paddick
Member's explanatory statement
This amendment raises the burden of proof for imposing a serious disruption prevention order to the criminal standard.
Lord Paddick (LD)
My Lords, Amendment 128 is in my name, supported by the noble Lord, Lord Skidelsky, the noble Baroness, Lady Fox of Buckley, and the right reverend Prelate the Bishop of St Albans. I will also speak to Amendments 129, 130, 133 to 136, and 139 to 142 in my name and to the other amendments in the group; and I will oppose Clauses 19 and 20 standing part of the Bill.
Serious disruption prevention orders are modelled on the orders given to terrorists and knife carriers, with similar draconian provisions, yet these are to be imposed on peaceful protestors, some of whom will never have been convicted of a criminal offence and some of whom will have never even attended a protest. These orders will effectively prohibit British citizens from exercising their human rights of free expression and assembly. They include the possibility of electronic tagging and restricting people’s use of the internet.
Liberty gives an example, which, in my own words is of someone who could be subjected to an SDPO, who has never been convicted of an offence, who attended two protests in the last five years and who, at those protests, based on inadmissible hearsay and on the balance of probabilities, contributed towards someone else doing something that was likely to result in serious disruption. The purpose of the order would be to prevent the person subject to the SDPO from contributing towards another person doing something that was likely to result in serious disruption at some point in the future.
HMICFRS says of serious disruption prevention orders:
“Such orders would neither be compatible with human rights legislation nor create an effective deterrent. All things considered, legislation creating protest banning orders would be legally very problematic because, however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order”.
In the same report, senior police officers are quoted as saying that SDPOs would
“unnecessarily curtail people’s democratic right to protest”;
that such orders would be a “massive civil liberty infringement”; and that,
“the proposal is a severe restriction on a person’s rights to protest and in reality, is unworkable.”
That is the police’s view. They added that it appeared unlikely that the measure would work as hoped, because a court was unlikely to impose a high penalty on someone who breached such an order if the person was peacefully protesting, to which HMICFRS said:
“We agree with this view and that shared by many senior police officers.”
It is what we would expect in Russia or Iran, not in the United Kingdom.
These orders can also be imposed on those convicted of public order offences, and although we impose their imposition on anyone, it cannot be right that a person can be convicted of a criminal offence of breaching a serious disruption prevention order and sentenced potentially to a term of imprisonment, on the basis of an order imposed on the balance of probabilities, potentially based on evidence such as hearsay that would not be admissible in a criminal trial. I have rehearsed these arguments time and again in relation to similar orders in the past.
The origins of this type of order are to be found in anti-social behaviour orders—ASBOs—another order imposed on the balance of probabilities but with criminal sanctions for a breach, which Parliament decided was unfair and unreasonable, and so replaced with an entirely civil-based, non-criminal approach. In the case of knife crime prevention orders, the Government used the argument that the police had advised them that knife carriers would not take the orders seriously if no criminal sanctions were attached to them. Even if noble Lords had some sympathy with that approach in relation to the potentially fatal consequences of knife crime, surely serious disruption prevention orders are far closer to ASBOs than to knife crime.
The noble Baroness, Lady Fox of Buckley, and the right reverend Prelate the Bishop of St Albans have added their names to my Amendments 128, 129 and 130; and the noble Lord, Lord Skidelsky, has also added his name to my Amendment 128. The amendments require a court to be satisfied “beyond reasonable doubt” —the criminal standard of proof—before imposing a serious disruption prevention order, rather than depending on the civil standard of “on the balance of probabilities”.
We support Amendment 131 in the name of the noble Lord, Lord Hendy, which states that participation in a lawful trade dispute should not result in the imposition of a SDPO. I can see what the noble Baroness, Lady Jones of Moulsecoomb, is doing with her Amendment 132, and, if she were here, I would have looked forward to her explanation of it to the Committee.
Although electronic tagging is limited to 12 months, serious disruption prevention orders can be imposed for up to two years—but they can also be renewed indefinitely. That means that someone who has never been convicted of an offence can be prohibited from being in or entering a particular area indefinitely, prohibited from being with particular people indefinitely, prohibited from engaging in particular activities indefinitely, and prohibited from using the internet for particular purposes indefinitely. Can the Minister explain how that provision would be enforced, if they could use the internet for some purposes and not others? My Amendments 133, 135, 136, 137, 138, 139, 140, 141 and 142 would prevent serious disruption prevention orders being renewed, effectively placing a maximum limit of two years on their imposition.
Someone who breaches a serious disruption prevention order can be sentenced to a maximum of 51 weeks in prison and an unlimited fine. My Amendment 134 questions whether an unlimited fine is appropriate for such an offence, for the reasons I have argued in previous groups.
Most of those amendments should be redundant, because I urge all noble Lords on all sides of the House to join me and the noble Lords, Lord Ponsonby of Shulbrede and Lord Anderson of Ipswich, and the noble Baroness, Lady Chakrabarti, in opposing the proposition that Clauses 19 and 20 stand part of the Bill. I beg to move Amendment 128.
Lord Skidelsky (CB)
My Lords, I enthusiastically support the amendment moved by the noble Lord, Lord Paddick.
I agree with the noble Lord, Lord Coaker, that we are not living in a totalitarian state, but George Orwell also warned of the slide from democracy to despotism: it becomes invisible so that, in the end, you cross a border without really knowing that your freedom has been taken away because you do not want to do anything that might lead to anyone wanting to take it away. We have not got there yet. Nevertheless, it seems that we are discussing areas of legislation in which we find, as the noble Lord, Lord Paddick, said, blocks of words being transferred mindlessly from one set of offences to another set of offences, rather like prefabricated hen houses. One has to guard against that, because the offences are of very different gravity and one must not use the same language when talking of one rather than the other.
Part 2 introduces the serious disruption prevention order, described by Liberty as a protest banning order, which gives police the power to ban a person who has not been convicted of any offence for up to two years from attending any protest, together with extraordinary powers of surveillance, including electronic surveillance. Now I am against prevention orders on the whole, because they tread the path of stopping the liberties of people who have not been convicted of any offence. That is the road down which they lead, so I am suspicious of that in principle.
Here, we have a penalty which can be imposed on a civil standard of proof, meaning that the conditions needed for being given an SDPO need to be proved only on a balance of probability. That compounds the offence. The Government are not only taking powers to inflict extraordinary penalties on someone who has not been convicted of anything, they are also claiming the power to do that on a balance of probabilities, rather than on having reasonable suspicion. That is what this amendment wants to remove and there are subsequent amendments to which the same logic applies. We need to put in a requirement of reasonable doubt into the whole series of these preventive disruption orders.
Lord Anderson of Ipswich (CB)
My Lords, I gladly put my name to the stand part amendments on Clauses 19 and 20, which of course stand for Part 2 as a whole, not because I am temperamentally inclined against compromise but because these clauses are so breath- takingly broad that I am not sure I would know where to begin the process of amendment.
Seeking perspective, I turned to the civil orders with which I am most familiar, terrorism prevention and investigation measures, or TPIMs, the replacement for control orders, mentioned by the noble Lord, Lord Paddick, which are currently being copied, I think reasonably, for hostile state actors in the National Security Bill. These are the most extreme forms of restriction known to our law, short of imprisonment. In a rational world, were measures such as these considered necessary in the completely different context of public order, they would be considerably lighter—but, in no less than six respects, the reverse is true. I shall briefly explain how.
The first respect is the trigger. TPIMs can be imposed only when it is reasonably believed that the subject is or has been involved in terrorism-related activity and that the TPIM is necessary to protect the public. An SDPO can be imposed under Clause 19 on someone who twice in the past five years has been convicted of something as minor as obstructing the highway, if an order is thought necessary to prevent them doing so again. Under Clause 20, the person need never have been convicted of anything, though of course if they breach any provision of their SDPO then, just like the suspected terrorist, they can be convicted and sent to prison.
The second respect is content. The range of TPIMs is limited to the specific measures specified in the Terrorism Prevention and Investigation Measures Act 2011. The Bill, by contrast, makes a virtue of the fact that the range of SDPOs is completely unlimited—a point emphasised in Clause 19(6), Clause 20(5) and again in Clause 21(7). Notification requirements seem to be envisaged as routine—as, remarkably enough, is electronic tagging—but these orders can require the subject to do, or prohibit the subject from doing, anything described in them. The extensive list of prohibitions in Clause 21(4) is for some reason not considered sufficient. The right to peaceful protest is not even referred to in the Bill as a consideration to which those imposing the orders must have regard, despite the obvious potential for these orders to inhibit the exercise of that right.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, at this late hour, I will say just a very few words. I start, rather tiresomely, with a pedantic legal point. The explanatory statements for the first three numbered amendments in this group suggest that they relate to the “burden of proof”, but they do no such thing. As I say, somewhat pedantically, I point out that the burden is unquestionably accepted to be on those who wish to pursue this supposed remedy, but these amendments are directed to the standard of proof, which is so critically important here.
As the noble Lord, Lord Skidelsky, said, this is no place for balance of probabilities; it is for the criminal standard of beyond reasonable doubt. That is assuming that anything stays in this part at all. Having just listened with my usual awe and admiration to my noble friend Lord Anderson of Ipswich, and having been conducted down memory lane—TPIMs were a significant part of my past when I was here in a judicial capacity—let me say that his attack on Part 2, on the whole concept of SDPOs, is devastating and unanswerable, and hopefully, at some point, the Government, will recognise that if they have not done so already.
In case the Government have not the good sense and courage to abandon entirely this whole group of provisions, I say that the balance of probability has absolutely no place here at all. Of course, it is the standard by which we determine civil disputes and claims, but, as has already been pointed out, ASBOs—which were given to anti-social people who were being very tiresome with no sort of justification towards their neighbours—were initially put on a balance of probability basis and even that was regarded as unacceptable. But how much more unacceptable is it when, as here, fundamental civil liberties are at issue. To suggest that the touchstone for deciding whether people should be barred from exercising their historic rights should be the balance of probabilities—“Well, perhaps it is just more likely that he did or didn’t do whatever it is”—is a nonsense. Again to revert to legalese: “a fortiori” means if it is a nonsense for one thing it is particularly so for something else; and it is particularly so here, in the circumstances where one contemplates making these draconian orders even when there has been no conviction whatever.
I shall support those who I hope will pursue the stand part provisions here, but, failing that, it is unthinkable that this Bill could go through on a balance of probability basis.
The Lord Bishop of Chelmsford
My Lords, I intend to be brief, but I wanted to speak in favour of Amendments 128, 129 and 130, addressing the Bill’s provisions on serious disruption prevention orders, adding my support to the noble Lord, Lord Paddick, and others, and in particular my friend, the right reverend Prelate the Bishop of St Albans. SDPOs are particularly hard-line and risk undermining people’s fundamental rights to protest, and they risk subjecting individuals to intrusive surveillance—methods that, as we have heard, are not typical in this country, and nor do we want them to become typical. The terms used to define who they can apply to are worryingly broad. The definition of “protest-related offence” as
“an offence which is directly related to a protest”
leaves the door far too open to interpretation. It therefore seems appropriate that the burden of proof for imposing SDPOs to the criminal standard should be raised as set out in Amendments 128 to 130.
Baroness Blower (Lab)
My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Chelmsford. Noble Lords will recognise this speech in style and content as the work of my noble friend Lord Hendy, of Hayes and Harlington, who is unable to be in his place this evening. I speak in his place on Amendment 131.
Clause 20 is wholly objectionable because it enables the imposition of criminal penalties in respect of conduct for which the defendant has not been convicted of any criminal offence, as we have heard from all around the Chamber. However, assuming the clause is to stay in the face of opposition from various parts of the Chamber, there is another defect.
The conduct at which it is aimed clearly comprehends picketing in the course of an industrial dispute. There will not be much effective picketing in the course of a trade dispute which does not offend against the description in Clause 20(2)(a)(iii), which refers to
“activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”.
The very purpose of picketing, as legitimated in Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, is to attend a workplace for the purpose of “peacefully persuading any person” not to work. If effective, this will seriously disrupt those so persuaded and their employer and will render nugatory the right to picket
“in contemplation or furtherance of a trade dispute”,
contained in Section 220 of the 1992 Act. That right has been statutory in this country since the Conspiracy, and Protection of Property Act 1875. The right was subject to offences created by the 1875 Act such as “watching or besetting” and an array of other potential offences such as obstructing a public highway or an officer in the exercise of his duty, or more serious offences.
Since 1875, the right to picket has been regulated and restricted by many amendments to the relevant law, the latest being several requirements imposed by the Trade Union Act 2016, now found in Section 220A of the 1992 Act. Yet the right remains. This clause would destroy it altogether. It is also a right protected by Article 11 of the European Convention on Human Rights, the right to freedom of association, and, in particular, the right to be a member of a trade union for the protection of one’s interests. It is likewise protected by ILO Convention 87, Article 6(4) of the European Social Charter, and many other international instruments that the UK has ratified.
What is needed is protection against this provision for those who are acting
“in contemplation or furtherance of a trade dispute”,
to use the time-honoured phrase, which is now found in Section 244 of the 1992 Act. The Government have used this protection in relation to Clause 6 to provide such protection against the offence there created. This modest amendment seeks its protection in relation to this new provision.
Lord Thomas of Cwmgiedd (CB)
My Lords, I entirely support the analysis so eloquently made by the noble Lord, Lord Anderson of Ipswich, and supplemented by the points made by my noble and learned friend Lord Brown. It is easy to think of ways of making these clauses, chipping here and chipping there. However, the approach of the noble Lord, Lord Anderson, was plainly correct. The Government have got themselves into the mess of putting this into legislation without understanding the context of where these orders were made in the past and what they are seeking to do now.
Being a lawyer, I always go back to precedent. You look at it and copy it all out, but at the end of the day you have to sit in your chair and think. There are two things the Government ought to think about. First, can they achieve what they want to do by something that is much more sensible?—to which the answer is plainly yes—and, secondly, what is the consequence of what they are doing? When you are dealing with people who carry knives, with terrorists, or with people who engage in activities that disrupt neighbourhoods, people gathering together, and violence in a social context, that is one thing. But here we are dealing with people who genuinely believe that they are fighting the existential threat to the planet—or they may be fighting for trade union rights, or for liberty. If you treat those people, who have a noble cause as they see it, in the way that you treat terrorists, what do you do for justice? You can only damage it severely. I therefore humbly ask the Minister to sit back in his chair and have a good think about the wisdom of this.
Lord Marks of Henley-on-Thames (LD)
My Lords, I have not been present for earlier proceedings on this Bill because of other commitments, for which I apologise. For that reason, I will say only a very few words. With everyone else who has spoken, I completely oppose Clauses 19 and 20 and support the amendments in this group restricting their ambit and the ambit of SDPOs, for all the reasons considered and voiced by my noble friend Lord Paddick in opening and all other noble Lords who have spoken.
The so-called serious disruption prevention orders amount to punishment that does indeed involve serious disruption: serious disruption of individual citizens’ liberties, imposed without a criminal conviction and on proof to the civil and not the criminal standard, and which can last indefinitely. These proposals are entirely inimical to principles deeply embedded in our law and to notions of crime and justice that we all hold so dear. They are an insidious attack on civil liberties. They threaten a gradual, incremental encroachment on civil liberties—the very type of encroachment that can ultimately lead to the destruction of those liberties themselves.
Baroness Chakrabarti (Lab)
My Lords, I declare a historical if not a current interest as a Home Office lawyer from January 1996 until the autumn of 2001. I was occasionally and habitually a happy and unhappy inhabitant of the Box.
I agree with—I think—every speech so far in this significant debate. I would go further than some in saying that I was always against this blurring of civil and criminal process from the beginning when, I am sorry to say, Labour did it. I was against ASBOs, CRASBOs, control orders, TPIMs, football banning orders and all the rest, because they were always about lessening criminal due process. That is always the intention when you blur civil and criminal process by way of these quasi-injunctive orders. Whether it is minor nuisance or suspicion of being associated with terrorists, whatever the gravity of the threat, you will catch behaviour without proper criminal due process and then prosecute people for the breach.
Although we do not always agree, I must commend the noble Lord, Lord Anderson of Ipswich, in particular on a devastating critique of this use of copy and paste in my former department. Computers are wonderful things—until they are not. I will not labour the point, save to quote the right honourable Member for Haltemprice and Howden, who has done his best on this Bill in the other place along with Sir Charles Walker, from the Times this morning:
“Serious disruption prevention orders, or SDPOs”—
protest banning orders—
“can be given to anyone who has on two previous occasions ‘carried out activities related to a protest’ that ‘resulted in or were likely to result in serious disruption’”—
which is not defined—
“or even ‘caused or contributed to the carrying out by any other person’ of such activities. This is drafted so broadly so as to potentially include sharing a post on social media or handing out a leaflet encouraging people to go to a protest—even if you did not go on to attend that protest. Those issued with an SDPO can face harsh restrictions on their liberty, including … GPS tracking and being banned from going on demonstrations, associating with certain people”,
et cetera—and the orders are renewable indefinitely, as we have heard.
I am sorry if I have made noble friends feel uncomfortable. Do not think about these measures as they would be employed today. Think about how they could be used on the statute book by another Government, not of your friends and not of your choosing, in 20 years’ time. That is why, in a terrible Bill, Clauses 19 and 20 should not stand part.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by echoing what the noble Lord, Lord Paddick, said: all the arguments in all the amendments could become redundant if we support not putting Clauses 19 and 20 in the Bill. The strength of feeling demonstrated through this short debate leads me to believe that that may well be what we vote on when we come to Report.
I forget whether it was my noble friend Lady Chakrabarti or the noble Lord, Lord Skidelsky, who referred to this as copy-and-paste legislation. I think it was the noble Lord, Lord Skidelsky, who gave the analogy of chicken coops being moved around to replicate these civil injunctions. But perhaps the most powerful speech we have heard was from the noble Lord, Lord Anderson, who gave six examples of SDPOs being tougher than TPIMs, which really caused me to sit back and reflect on the meat of what we are dealing with here today.
My noble friend Lady Chakrabarti said she has always been against what she called quasi-injunctive orders—civil orders—going all the way back to ASBOs. This caused me to reflect, as a magistrate, on which of those orders I deal with when I sit in courts. I deal with some of them: football banning orders, knife crime prevention orders and domestic violence protection orders—I think most noble Lords who have taken part in this debate think DVPOs are an appropriate use of civil orders. But, of course, the list goes on. That is really the point my noble friend makes: there are a growing number of these civil orders that, if breached, result in criminal convictions.
To repeat what I said, here we are meeting a very extreme situation in which people planning to get involved in protest or to help people do so can potentially be criminalised for that activity. The nature of the potential offence being committed is different.
The noble Lord, Lord Paddick, went through in detail, for which I thank him, the nature of the injunctions in Clauses 19 and 20, so I will not go through all that again, but I will make one point that he did not make. We are concerned that there does not seem to be any requirement for the person involved to have knowledge that the protest activities were going to cause serious disruption. That lack of a requirement of knowledge is a source of concern for us.
In the debate on the previous group, my noble friend Lord Rooker and the noble Baroness, Lady Meacher, spoke about the comments of the Delegated Powers and Regulatory Reform Committee, and my noble friend quoted from them. The noble Lord, Lord Beith, spoke about the Secretary of State issuing guidance to chief police officers and how that could go down a road whose potential political implications, in a sense, I prefer not to think about.
I will quote briefly from other committees which have reflected on this legislation. First, the Joint Committee on Human Rights has said:
“Serious Disruption Prevention Orders represent a disproportionate response to the disruption caused by protest. They are likely to result in interference with legitimate peaceful exercise of Article 10 and 11 rights. The police already have powers to impose conditions on protests and to arrest those who breach them. Other provisions of this Bill, if passed, will provide the police with even greater powers to restrict or prevent disruptive protest.”
Another committee, the Constitution Committee, said:
“The purposes for which a Serious Disruption Prevention Order can be issued are broad. They can be issued not only to prevent a person committing a protest-related offence but also to prevent a person from carrying out activities related to a protest. Such a protest need cause, or be likely to cause, serious disruption to only two people. This gives the orders a pre-emptive or preventative role. Furthermore, ‘protest-related’ offence is not adequately defined in this part of the Bill nor … is ‘serious disruption’. This undermines legal certainty. We recommend that the meaning of ‘protest-related offence’ is clarified more precisely.”
The Minister has a big job on his hands to try to convince any Member of this Committee that he is on the right track. The amendments in my name—the clause stand part amendments—are the quickest way to put this part of the Bill out of its misery.
Lord Sharpe of Epsom (Con)
My Lords, there are notices to oppose within this group, so it may help if I start by addressing serious disruption prevention orders as a whole, before turning to amendments to the clause. SDPOs will target protestors who are determined to repeatedly inflict disruption on the public or those who simply wish to go about their daily lives. Our experience at recent protests has shown that many police are encountering the same individuals, who are determined repeatedly to inflict disruption on the public.
It cannot be right that a small group of individuals repeatedly trample on the rights of the public without let or hindrance. Yes, many are arrested, but after paying small fines or serving short or suspended sentences, they are free to reoffend. This measure would, following the consideration and permission of the courts, allow for proportionate and necessary restriction or requirements to be placed on individuals to prevent them causing harm.
Additionally, in some cases, individuals choose to not get their hands dirty. They go around the country speaking to young people who are determined to make the world a better place—not to encourage them to study and seek out a career to better the planet, or even to enter politics to enact change; instead, they encourage them to commit criminal offences, alienate the public from their cause and jeopardise their opportunity for a career that will actually make a difference. Why should these individuals, who contribute to serious disruption, be permitted to behave as they do without consequence?
This is why SDPOs are needed, as drafted. They will provide an alternative, non-custodial route to prevent those who have a track record of trampling on the rights of others from doing so. The threshold for the imposition of these orders is appropriately high and I trust our courts to impose them only where necessary.
The noble Lord, Lord Paddick, asked about the HMICFRS conclusion. The report from the policing inspectorate considered only orders which would always ban an individual from protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption. Depending on the individual circumstances, this may mean that the court will not consider it necessary to stop individuals attending protests.
Amendments 128, 129 and 130 would raise the evidential threshold for SDPOs to the criminal standard. I am sure that many who support these amendments also support the civil courts approving injunctions against protesters. These are made on the civil burden of proof against large numbers of people, including “persons unknown”. SDPOs are made against single known individuals.
A number of noble Lords asked why SDPOs can be granted using a civil standard of proof, including the noble Lords, Lord Paddick and Lord Skidelsky, the noble and learned Lord, Lord Brown, and the right reverend Prelate the Bishop of Chelmsford, among others. The use of the civil standard of proof is not a novel concept for preventive orders. Football banning orders, for example, use the same standard of proof to help prevent violence or disorder at or in connection with any regulated football matches. By using a civil standard of proof, courts will be allowed, following due consideration, to place prohibitions or requirements they consider necessary to prevent an individual causing disruption.
Lord Paddick (LD)
My Lords, I am grateful to all noble Lords for their contributions to this debate. As many noble Lords have said, this is about restricting the human rights and civil liberties of unconvicted people on the basis of the balance of probabilities. The noble Lord, Lord Anderson of Ipswich, described the “breathtakingly broad” provisions, more draconian than those imposed on terrorists, that the Government propose to impose on peaceful protesters.
I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood—of course it is the standard of proof, not the burden of proof—and to the right reverend Prelate the Bishop of Chelmsford, for pointing that these orders will be imposed on activities in relation to a protest. As the noble Baroness, Lady Blower, described on behalf of the noble Lord, Lord Hendy, not only would lawful picketing be included but somebody who organised or chipped in to pay for coaches to bus people down to London to take part in a protest would be covered by these provisions.
The noble and learned Lord, Lord Thomas of Cwmgiedd, hit the nail on the head: quite clearly, there has not been enough thinking. I cannot believe that we have got to Committee in the House of Lords, having gone all the way through the process in the House of Commons, before a Minister agreed to start thinking about the consequences of these provisions. In defence of the Home Office and its officials, we should remember that Home Secretary Priti Patel was facing a potentially hostile Conservative Party conference in the wake of Insulate Britain protests and demanded an immediate, draconian response. That is how we have come to copying and pasting terrorist legislation and applying it to peaceful protesters without a second thought.
I agree with the noble Lord, Lord Ponsonby of Shulbrede, that we should support civil orders to protect victims of domestic violence, for example, but with civil sanctions. That is why anti-social behaviour orders are now anti-social behaviour injunctions, with civil penalties, which can include contempt of court and imprisonment. We are not talking about soft options here.
I could not believe the description of the sort of person on whom the Government think these orders are designed to be imposed. It was the most outrageous and extraordinary description of people going around telling young people all sorts of things. I have never heard or experienced anything like it in my life. If it is true, I am glad that the Government will now think about what has been said as a result of noble Lords in this Committee, whom the House has the utmost respect for and will listen very intently to when we come, as we inevitably will, to vote that these clauses do not stand part of the Bill. The Government need to do some long and hard thinking about these clauses because, with the support that we have seen across the House for these provisions to be taken out of the Bill, we will carry the House if the Government do not see sense on these measures. In the meantime, I beg leave to withdraw my amendment.
Lord Ponsonby of Shulbrede
“Review of sentencing for protest-related offences(1) Within three months of the day on which this Act is passed, the Secretary of State must publish a review into sentencing for public order and protest-related offences.(2) “Public order and protest-related offences” include, but are not restricted to, offences for protest-related activity under—(a) the Criminal Damage Act 1971;(b) the Highways Act 1980;(c) the Public Order Act 1986; (d) the Criminal Justice and Public Order Act 1994;(e) the Police, Crime, Sentencing and Courts Act 2022; andoffences charged following breach of an injunction against protest-related activity, granted under the Protection from Harassment Act 1997.(3) The review must include—(a) the average sentence given where a person commits a public order or protest-related offence, and(b) the proportion of cases in which the maximum available sentence is given for a public order or protest-related offence.(4) The Secretary of State must lay a copy of the review before each House of Parliament.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, this amendment is in the name of my noble friend Lord Coaker and the noble Lord, Lord Paddick. It would require the Secretary of State to publish a review into sentencing for protest-related offences within three months of the Act passing. The review must include the average sentence given for any protest-related or public order offence, and the proportion of cases in which the maximum available sentence is given. This will be a quick introduction to the amendment and a series of questions to the Minister.
First, what work has been done to look at current sentencing practice for public order offences before this whole tranche of possible new sentences is introduced? Hundreds, if not thousands, of Just Stop Oil and other protesters have now been arrested and given sentences. Do the Government have any view on the longer-term outcomes of those arrests and sentences? What is the average sentence or fine given for the activity which is already considered unlawful? How often has an existing available maximum sentence been used? What assessment have Ministers made of the impact of the Bill on the number of cases which need court time and how will this be managed, given the extensive backlogs in the existing criminal justice and court system?
The amendment covers a variety of legislation in which relevant powers can already be found, including the Criminal Damage Act 1971, the Highways Act 1980, the Public Order Act 1986, the Criminal Justice and Public Order Act 1994, the Police, Crime, Sentencing and Courts Act 2022, and offences charged following breach of an injunction against protest-related activity, granted under the Protection from Harassment Act 1997. The point is that we have layers and layers of new and old laws on our statute book, and we are yet to be convinced that these additional powers are necessary. It is for the Government to show how much the existing powers are being used and whether there is a real case for adding new powers through this Bill. I beg to move.
Lord Paddick (LD)
My Lords, we support Amendment 143 in the name of the noble Lord, Lord Coaker, to which I have added my name. We on these Benches believe that the prison service is overwhelmed. As a result, prisoners have no real opportunity for rehabilitation, and this can lead to a revolving door of offending, conviction and imprisonment. Liberal Democrats want to reduce the number of people unnecessarily in prison by introducing a presumption against short prison sentences and including the use of tough community sentences and restorative justice where appropriate. We want to transform prisons into places of rehabilitation and recovery by improving the provision of training, education and work opportunities.
That cannot be done against a background of an ever-increasing prison population. In particular, custodial sentences should be restricted to the most serious types of offending that place public safety at risk. We believe that peacefully exercising basic human rights of freedom of expression and assembly are not included in the types of offending warranting a custodial sentence in most cases. That it is why it is important to review sentencing for public order and protest-related offences to ensure that the right balance is struck between the right to protest and the disruption such protests may cause. If the balance is wrong, it is an indication of a repressive regime that seeks to stifle the democratic right of citizens in a free society to gather and express their concerns about the way the Government and Parliament are operating. We therefore support the proposed review.
Lord Davies of Gower (Con)
My Lords, I thank the noble Lords, Lord Coaker and Lord Paddick, for tabling this amendment. I empathise with the importance of understanding sentencing for criminal offences. However, the Government do not feel that it is necessary to accept this amendment. There are already adequate mechanisms in place to scrutinise sentencing. The Sentencing Council for England and Wales exists to promote greater transparency and consistency in sentencing. It issues guidance on sentencing and is responsible for monitoring sentencing. Its objectives are to promote a clear, fair and consistent approach to sentencing, to produce analysis and research on sentencing and to work to improve public confidence in sentencing.
As a result of the delegation of these functions, it is felt that the Government are not best placed to undertake such a review. I therefore respectfully ask that the amendment be withdrawn.
Lord Ponsonby of Shulbrede (Lab)
Well, the Minister did not make any attempt to answer any of the questions I asked. I do not know whether he would undertake to guide me to some government documents that may answer those questions. I think that may be useful, to see whether we might come back to this matter at a later stage.
Lord Davies of Gower (Con)
My Lords, in respect of the specific questions, which are more or less covered by the Sentencing Council for England and Wales, I think we will commit to write to the noble Lord, Lord Ponsonby.
Baroness Chakrabarti
“(4A) No other provisions of this Act may be brought into force until a report by His Majesty’s Chief Inspectorate of Constabulary and Fire Services on improvements to the vetting, recruitment and discipline of specialist protest police officers is laid before and debated in each House of Parliament.”Member’s explanatory statement
This amendment, and another in the name of Baroness Chakrabarti, require parliamentary debate of a report by HMCI on improvements to the vetting, recruitment and discipline of specialist protest police officers before most provisions of the legislation may be brought into force. They further prohibit the bringing into force of the provisions in any police area under HMCI special measures.
Baroness Chakrabarti (Lab)
My Lords, I congratulate those still here. We end, of course, with commencement, because that is the tradition. In moving Amendment 146 I will speak also to my Amendments 147 and 149. I also support Amendment 148 from the noble Lord, Lord Paddick, and Amendment 150 from the noble Lord, Lord Paddick, and my noble friend. We are dealing with the tension between ever more police powers on the one hand and the lack of equivalence in resources, training and vetting for policing on the other hand. This tension has been more and more exposed in graphic terms in recent months and years.
We began this evening with the eloquent speech from the noble Baroness, Lady Boycott, who spoke powerfully about incidents of abuse of police power in relation to journalists. We were assured, I think sincerely, by the Minister that it was far from the intention of the Government that those things happened. The Government apparently agreed with me that those were wrongful arrests, yet they have happened more than once. There are some in the police community who hold the view that this is a legitimate thing to do to prevent serious disruption, which is undefined in statute. So, with the amendments, we are seeking to ensure that there is some check on the new blank cheque that we are putting on the statute book, in addition to blank cheques that have already been put there by broad concepts such as conspiracy to cause a public nuisance, et cetera. That is what we are trying to get at.
Amendment 146 prevents the commencement of most provisions of the Bill until there has been
“a report by His Majesty’s Chief Inspectorate of Constabulary and Fire Services on improvements to the vetting, recruitment and discipline of specialist protest police officers”.
In another group, the Minister said, “If they’re trained, they’re trained”. So this is about ensuring that that is the case before additional power is granted. Amendment 147 is consequential to that.
Amendment 149 is crucial at a time when more than one police force is in special measures. It provides that provisions should
“not be brought into force for any area in which the police service is under special measures, the engage phase of monitoring, or other unusual scrutiny … by His Majesty’s Chief Inspectorate of Constabulary and Fire Services.”
That seems to be a perfectly reasonably check on the new powers and a perfectly reasonable request to make of Ministers, so I beg to move.
Lord Paddick (LD)
My Lords, I have tabled Amendments 148 and 150 in this group, and will speak also to Amendments 146, 147 and 149.
My amendments would mean that the new offences in the Bill—the delegation of functions and serious disruption prevention order provisions—could not come into force until the Government have laid before Parliament a report assessing the current capability of police services to use the provisions in those sections. Most of the 10 police forces inspected by HMICFRS said that the limiting factor in the effective policing of protests was a lack of properly trained and equipped police officers, not gaps in legislation. If that is already the limiting factor, what assessment have the Government made of the additional strain that the new provisions will have on already-stretched police officer numbers? What is the point of new legislation if the police do not have the resources to use it effectively—or, indeed, to use existing legislation effectively?
I can understand the principle behind Amendments 146, 147 and 149 tabled by the noble Baroness, Lady Chakrabarti; the right reverend Prelate the Bishop of Manchester has added his name to Amendments 146 and 147. Were it to be within the scope of the Bill, I too would support a moratorium on giving the police any further powers unless and until Parliament had a chance to consider a report by HMICFRS into the vetting, recruitment and discipline of all police officers, not just public order officers—particularly in forces that are subject to the “engage phase” of scrutiny by HMICFRS, commonly understood to be “special measures”. With so many forces requiring intensive scrutiny and intervention by HMICFRS, and public confidence in the police being so low, the police should not be given further powers until HMICFRS has reassured the public that they can have confidence in the police use of existing powers, let alone new ones.
The Lord Bishop of Chelmsford
My Lords, I add my support to Amendments 146 and 147, to which my right reverend friend the Bishop of Manchester added his name—I know he regrets that he is unable to be here today. I thank the noble Baroness, Lady Chakrabarti, for bringing these important amendments forward. Throughout the debate on the Bill, it has been clear that there are many justified and genuine concerns about provisions and the expansion of police powers laid out in it. I believe that it is therefore appropriate that further reflection should take place, and these amendments would provide for exactly that opportunity, requiring parliamentary debate of an HMCI report concerning improvements to the vetting, recruitment and discipline of protest police officers. In recent years, we have arguably seen an accelerated decrease in trust in the police, and it is critical that any expansion of powers such as those set out in the Bill does not occur without regard for the real implications of such measures.
Lord Coaker (Lab)
My Lords, I thank noble Lords who have spoken in this debate. I will make a couple of brief comments in support of the amendments. The noble Lord, Lord Paddick, forcefully made the arguments for Amendment 150, and I will not repeat them. I also support my noble friend Lady Chakrabarti’s amendments —she also made the arguments.
I will add one thing to the amendments of my noble friend Lady Chakrabarti and the right reverend Prelate the Bishop of Manchester—obviously spoken to by the right reverend Prelate the Bishop of Chelmsford. Amendment 147 talks about the “vetting, recruitment and discipline” of specialist officers. It is especially important that these amendments have been tabled. I know that the Government will be as worried, concerned and appalled as the rest of us in the week where we have seen the resignation of Michael Lockwood as the director-general of the Independent Office for Police Conduct due to a criminal inquiry. My noble friend Lady Chakrabarti made a point about vetting. I have no idea what the process or procedure was when Mr Lockwood got the post, but one wonders about the vetting that took place, and this raises the question yet again. We will not have a big debate about all this, but I think that what my noble friend Lady Chakrabarti’s amendments get at is that, if we are to restore public confidence, we have to address some of these issues. Unfortunately, at the moment, we seem to have one thing after another which undermines the valuable work that so many of our officers do.
I will raise one other point about commencement. The noble Lord, Lord Carlile, raised the issue of Section 78 of the Police, Crime, Sentencing and Courts Act 2022. Talking about the commencement of the Bill, he was worried about Section 78’s definition of
“Intentionally or recklessly causing public nuisance”
and how it related to the provisions in Bill. Before the commencement of the Act, as it will be, some clarification of how it relates to Section 78 of the Police, Crime, Sentencing and Courts Act 2022 would be helpful for our police forces as they interpret the law.
Lord Sharpe of Epsom (Con)
My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, for tabling their amendments; I absolutely understand the sentiment behind them. It is obviously important that the measures passed in the Bill are continually subject to inspection, reporting and scrutiny by the relevant bodies, such as HMICFRS. However, I remind noble Lords that the use of police powers is already carefully scrutinised by public bodies such as HMICFRS and the Independent Office for Police Conduct. The noble Lord, Lord Coaker, will forgive me for not referring to the ongoing case against the departing chief.
Lord Paddick (LD)
Can the Minister clarify what I thought I heard—noble Lords know what I am like with making mistakes about what a Minister actually said and what I heard. Did he say that the provisions in the legislation are designed to “deter protesters” and therefore relieve pressure on the police? Can he just clarify what he meant by that?
Lord Sharpe of Epsom (Con)
What I hope I said is that our expectation is that the provisions in the Bill will improve the ability of the police to “remove and deter protesters”, thereby alleviating some pressure on the police.
Baroness Chakrabarti (Lab)
That is very helpful. I agree with the Minister that police officers—we have a fine one in this Committee—and police forces should not be treated with a broad brush, but, and noble Lords will perhaps forgive me if I say it, nor should peaceful protesters. Hence, the question raised by the noble Lord, Lord Paddick, and hence the bulk of criticism of this entire draft legislation in this Committee. It is an unhappy privilege to be perhaps the last speaker in this Committee; I think I was the first. I am grateful to the Minister for his fortitude and courtesy. He wants to rise again.
Lord Sharpe of Epsom (Con)
I just want to clarify that I mean criminal protesters.
Baroness Chakrabarti (Lab)
I am grateful to the Minister but, of course, if the Government are able to keep expanding the definition of criminality, that does not give much cause for comfort about protecting peaceful dissent. I am none the less grateful to the Minister for his fortitude and courtesy throughout this three-session Committee. I hope that he and his colleagues will understand that what he has heard over these days and hours is very serious cross-party concern about these measures, reflected in vast sections of the country. I have no doubt that, after a good break and, I hope, a happy Christmas of reflection, colleagues will be back and some of these matters will definitely be put to the vote. With that, I beg leave to withdraw the amendment.
Public Order Bill
Monday 30th January 2023
(1 year, 9 months ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-I Marshalled list for Report - (26 Jan 2023)
17:09 - Division on Amendment 1 - Ayes: 243 / Noes: 221 - Amendment 1 agreed.
18:35 - Division on Amendment 8 - Ayes: 221 / Noes: 224 - Amendment 8 disagreed.
Lord Coaker
“Meaning of “serious disruption”(1) In this Act, “serious disruption” means disruption causing significant harm to persons, organisations or the life of the community, in particular where—(a) it may result in a significant delay to the delivery of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including access to—(i) the supply of money, food, water, energy, or fuel,(ii) a system of communication,(iii) a place of worship,(iv) a transport facility,(v) an educational institution, or(vi) a service relating to health.(2) In subsection (1)(a), “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”Member’s explanatory statement
This new Clause defines the concept of “serious disruption” for the purposes of this Bill, which is the trigger for several new offences and powers.
Lord Coaker (Lab)
My Lords, I start consideration on Report by moving my Amendment 1. I thank the noble Baroness, Lady Jones, the noble Lord, Lord Paddick, and my noble friend Lady Chakrabarti, for their support for this amendment regarding serious disruption and its meaning and relevance to this Bill’s new powers. I start by also thanking the Minister for his courtesy and usual help in discussing the Bill and its relevant parts, which have been very gratefully received. I also thank all his officials and other Ministers.
However, in thanking the Minister, I have to say how disappointed I was by the Minister in the other place, who said in an online article in the Telegraph over the weekend that our job as politicians “of all colours” was
“to stand up for the law-abiding majority whose lives were seriously disrupted by such protests”.
Who does not want to stand up for the law-abiding majority? I have never said, in any of the debates on this Bill, that the Government, or anyone who has opposed what I have said, want to ban protests, or accused any of them of being against the law-abiding majority. This is a genuine debate and discussion between people of different parties, across this House, on very serious issues on which we are seeking to improve and amend the Bill. There will be differences of opinion, but that does not mean that people are against the law-abiding majority, and that does not mean that people are not in favour of protest.
The debate is about clarity and thresholds; it is about where we draw the line—democracy at its best, thrashing out these issues and, yes, voting in the best traditions of a revising Chamber. It is my contention, and that of my party and others from other parties across the House, that the Bill has gone too far. My amendments have a higher threshold than there are in other amendments, such as Amendment 5—but there are others. There is a risk of the police, in my view and that of others, being given lots of new powers that, instead of providing clarity, will end up undermining and clamping down on peaceful and legitimate protests.
My Amendment 1 says that “serious disruption” must cause
“significant harm to persons, organisations or the life of the community, in particular”
in certain situations, but not exclusively in those situations. That would keep the threshold at a relatively high level, not lower it. The EHRC says, in an article published today, that these new amendments have the potential to enable the police to block peaceful protests or to shut down non-disruptive protests.
I shall not go through every amendment in this group tabled by the noble and learned Lord, Lord Hope, and supported by the Government. The language of Amendment 5 is much the same as in many of the other amendments, as it seeks legal clarity on definitions that are offence specific. Amendment 5, for example, relates to locking on, which means attaching yourself to a person, object or land, as set out in Clause 1. There is no definition of “attach”, so it can be linking arms. Clause 1 goes on to say that the offence happens if this
“causes, or is capable of causing, serious disruption”.
I want us all to consider that when we decide how we should vote on these matters. In other words, on some of the specifics around these amendments, we have to remember that an offence does not even have to happen—it just has to be capable of happening, and that should trouble us all.
Amendment 5 has a threshold and uses language such as “prevent” or
“hinder to more than a minor degree the individuals or the organisation from carrying out their daily activities.”
The same threshold is set for all the offences in Clauses 1, 3 and 4. Goodness me. Many of us—noble Lords in this Chamber and others watching these proceedings—would have been arrested or would have fallen foul of the law under these provisions. Let me give one example from my background. I will not go into the miners’ strike—it is more recent than that.
I, along with a community group, stopped a bus, rerouted by the bus company, from going down a road through an estate where there were children’s play areas, parks, et cetera. Many in that community were determined to act together because they decided that the bus company was acting in a way that was irresponsible with regard to the lives of people in that community and put children’s lives at risk. So we blockaded the road, linked arms across it and stopped the bus coming down that road for a few days. As a result, the bus company changed back to the original route.
This Bill would have threatened that activity and protest, making it unlikely that I, as a politician and councillor representing that area, as well as mothers, parents, grandmothers, grandfathers and friends with their children, using pushchairs in the road, would have been able to do that because it was more than a minor hindrance. It stopped that bus going down the road. Who is to say that that was wrong? Who can also say, if we pass these amendments, that that action would not be made inappropriate?
Do not take my word for it. I stand here as a Labour politician, but sometimes I read ConservativeHome. I was doing so at the weekend to see what might be said, which is always interesting and worthwhile. An article from Policy Exchange says that,
“the amended offences would make criminal liability turn on proof of serious disruption, which makes the meaning of ‘minor’ hindrance and ‘daily activities’ loom large”.
Of course there is a debate. I am sure that people are going to say, “Well, if you look at Lord Coaker’s amendment, and the others that support it, what does ‘significant’ mean? What does this mean? What does that mean?” Of course, there are debates about what different words mean, but the Government are pretending that, by lowering the threshold and using the words that they have included, you get rid of the legal uncertainty. That is not the case because, instead of having a debate about “serious”, you have a debate about “minor”. What is a “hindrance”? All those debates will loom large as, as the ConservativeHome article suggests.
As I have said, on my Amendment 1 there will be debate on the meaning of “significant”. It sets the threshold higher, which is the point that I am trying to make in my amendment. It does not prevent protest that might be capable of hindering someone carrying out their daily activities. So the lower threshold for serious disruption in Amendment 5 and others means that more than minor hindrance to the carrying out of daily activities, or construction, maintenance works or other activities, could result in police intervention and arrest. Wheelchair activists chaining their wheelchairs together in certain circumstances could cause more than a minor hindrance to daily activities. It could stop someone shopping.
I have looked at various websites through the weekend and have seen lots of different people supporting tree protests, where people have roped or attached themselves to trees to prevent something happening. Who is to say that those protests will not be affected by the new amendments? I have seen fine, upstanding citizens—not just members of the Labour Party, Communist Party, Socialist Workers, Liberal Democrats, Greens or others of similar ilk but even Conservatives—join those protests. Well, they are going to get a shock when they wake up and find that their own Government have said, “What you are doing is illegal, the village green trees that have been outside the pub for 300 years are going and there is nothing that you can do about it because we have introduced measures and amendments that mean that such protests will not be able to happen”.
Are we really saying in this Chamber that the definition of “serious” is “more than minor” and not incompatible with Articles 10 and 11 of the European convention? At the heart of this is the question of what “more than minor” means, particularly if applied to Clause 1. If, as Liberty says, I chain myself to a traffic light, and if that hindered two or more people for 10 minutes from crossing the street to shop, would that be “more than minor”? There is no legal certainty in what is meant by “more than minor”, nor indeed in what is meant by “hinder”—remembering that “serious disruption” does not even have to happen for those offences to be committed.
Lord Pannick (CB)
The noble Lord spoke about legal certainty. Could he help the House on how a court is to determine whether disruption is “prolonged”? If there is locking on and I am unable to take my child to school or my mother-in-law to hospital for an hour, two hours, or 10 hours, is that prolonged?
Lord Coaker (Lab)
That is the point I am making: there is of course going to be a debate about what various words mean. I have admitted it. I said to the noble Lord and to others that I have asked in the debate what “significant” means in certain situations. All I am saying is that I want to set the threshold higher; I want the threshold to be at a level at which “serious” can be used, rather than the “minor” level which the Government seek to introduce, supported by other noble Lords. Of course there will be a debate, whether about what I have put forward, or about “minor”, or about what “hindrance” means in certain situations. But this Chamber should be saying to the courts that what we mean by “prolonged” is that it has to happen not just once. It has to be more than a daily activity; it has to be something that impacts on the life of the community more than once or twice. That is what we are saying and that is why I am putting forward these amendments. I want the courts to realise that, when this Chamber passes these amendments, we are saying that serious means serious.
Of course there will be a debate about what that actually means. It is the same as with any other law we pass—it does not matter which one. The noble Lord, Lord Pannick, has much more experience in this than I do, but, in the end, the courts will have to determine what it means. We will come on to “reasonable excuse” in a minute, but I think the courts would want to know that this House has debated it. I am saying that “serious” means more than minor, and that “prolonged” means more than daily. In the end, the courts will have to determine that. But I say to the noble Lord, Lord Pannick, that that would be true whatever wording we use in the Bill: there will be a debate in the courts as to what it actually means. I want the courts to debate what “serious” means and what “prolonged” means. I do not want them to debate what “minor” means because the threshold starts too low.
Lord Faulks (Non-Afl)
I think the noble Lord said, just before the intervention from the noble Lord, Lord Pannick, that it would not be necessary to prove serious disruption. That cannot be right, with respect; I hope it was a mistake on his part. I understand that the proposed new clause inserted by the amendment is to go before the definition of the offence, which includes the words “serious disruption”, which will have to be established. Is that correct?
Lord Coaker (Lab)
Yes, of course. If I gave that impression, it was a mistake on my part. This is the whole point: there has to be “serious disruption”, as in my amendment. The debate—not the argument but the debate, as the noble Lord, Lord Pannick, just raised—is about what we actually mean by serious disruption. I thank the noble Lord, for pointing that out. If I said that, it was a mistake.
Baroness Jones of Moulsecoomb (GP)
I am curious about this “serious disruption”. Quite honestly, if anyone has driven on the M4, the M25 or through the streets of London, they will know what serious disruption is, because we get it every single day from people using their cars. If we have any confusion about what serious disruption is, that is what it is: traffic jams. Perhaps we ought to lobby the Government to stop traffic jams, because they cause more delays to children getting to school, to ambulances getting to hospital, and so on. Please, can we just understand that serious disruption is something we all experience, every single day of our lives? What we are talking about here is not really serious disruption: this is people who care about the future of humankind, here in London and worldwide. Could we take it a bit more seriously?
Lord Coaker (Lab)
I agree with my friend the noble Baroness about the importance of the issues. I think everyone in the Chamber is taking this seriously. There is a legitimate debate going on as to what “serious disruption” means. My friend is right to point out that we are discussing very serious issues, and we will talk about that when we come to “reasonable excuse” in particular. Before I am accused of being a hypocrite, I should say that I did drive here today—I thought I had better own up to that.
I turn to Amendments 48 and 49 and the Government’s response, we think, to slow walking, introduced at a very late stage—not in the Commons, and not even in Committee in this Chamber, but here on Report. It has been our contention that existing legislation, enforced robustly, would deal with many of the problems we have seen. As the chief constable of Greater Manchester said—and no doubt we will quote chief officers at each other, so let me start—in an article in the Telegraph on 12 December 2022, entitled “Just Stop Oil protesters should be arrested ‘within seconds’”:
“I think fundamentally, if people obstruct the highway they should be moved … very quickly”.
In other words, he argued for greater use of obstruction rather than a whole range of new powers, as contained in Amendments 48 and 49. We should remember that existing law, whatever the rights and wrongs of this, have led to Extinction Rebellion calling off its action.
In new subsection (3) as inserted by Amendment 48 and new subsection (4) as inserted by Amendment 49, there is the same argument about hindering that is more than minor, which I have just been through with respect to the meaning of “serious disruption”. In other words, the threshold for what constitutes “serious disruption” is being lowered.
I think all of us believe in the right to protest. Yes, sometimes we may get irritated when protests disrupt our lives, and clearly there have to be limits, but many of these amendments simply go too far; they will have a chilling effect on protests and protesters. It will undermine one of the fundamental freedoms we all enjoy: standing up to injustice as we see it. It is a price we pay for our democracy. Any interference with these freedoms poses an unacceptable threat to the right to protest, which is a fundamental cornerstone of our rights and our democracy. I beg to move.
The Deputy Speaker (Lord Brougham and Vaux) (Con)
My Lords, I remind the House that if this amendment is agreed to I cannot call Amendments 5, 14 or 24 due to pre-emption. As we are on Report, I remind noble Lords that they are allowed to speak only once.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I support Amendment 1, and no less strongly I oppose Amendment 5 proposed by the Government, my noble and learned friend Lord Hope and others. I never feel comfortable at the opposite end of the spectrum from my noble and learned friend Lord Hope, but I trust that he feels at least as uncomfortable on the other end of the spectrum from me.
Before commenting briefly on the actual language of these rival amendments, let me make what seems to me to be a critical preliminary point, and it is this: the meaning of “serious disruption”—assuming it is to be defined by one of these proposed amendments—is closely related to the concept and discussion and issue of “reasonable excuse” and the rival proposed amendments to that. I recognise that “reasonable excuse” comes under the next group but it is important that it should not be ignored at this stage. As your Lordships will readily understand, the lower the threshold is set for what constitutes “serious disruption”, the less justification there is for narrowing down, let alone excluding, the defence of “reasonable excuse” or for putting the burden of that defence on the accused. It becomes highly relevant as to what is decided in group 1 when we get to group 2. I acknowledge that the converse is true too: the higher the threshold for what constitutes “serious disruption” then the readier the House may be to look at shifting the burden, as the Bill already does, on matters of that sort.
Let me now turn briefly to the proposed definitions. Is “serious disruption” really to mean no more than substantial—in other words, something that is merely more than to a minor degree—interference with someone’s daily activities, as proposed by the Government, such as somebody driving to the shops? “Hindrance”, which is the concept used in the proposed government amendment, is effectively just that: it is really no more than interference and inconvenience. What weight, one asks, is given in the Government’s proposed definition to the word “serious”? Is it to be suggested that this is sufficiently catered to merely by the “hindrance” in the definition having to be
“more than a minor degree”?
I would submit it is surely not.
I do not wish to damage the points made by the noble Lord, Lord Coaker, and I would risk doing so if I were to go on at any great length. Surely the preferable definition is that which is proposed in Amendment 1, “significant harm”, as illustrated in the amendment. It is that significant harm, not merely interference or inconvenience, against which this legislation is directed, and it is certainly only that which could possibly justify most of the regressive, repressive features of this Bill. I therefore support Amendment 1.
Lord Paddick (LD)
My Lords, I will first address the opening remarks of the noble Lord, Lord Coaker. As I have told the House before, I have considerable experience of public order policing and my view is that the police have sufficient powers without any of the measures contained in this Bill. In fact, that is the view of many serving police officers who were interviewed by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, some of whom referred to the powers that currently exist as an “armoury” of powers to use in public order policing. Now even the Just Stop Oil protesters say they are no longer going to protest in the way that they have before because too many of them are in prison. If too many of them are in prison, and they are not going to protest in the way that they have before, why do we need yet more powers for the police and more laws?
I have Amendments 3, 4, 12, 13, 22 and 23 in this group, which are nothing to do with the definition of “serious disruption”, so let me deal with these first. These amendments relate to the new offences of locking on, tunnelling and being present in a tunnel. The new offences include activity that is capable of causing serious disruption, even if no disruption whatsoever is caused—another example of giving the police the power to intervene in anticipation that serious disruption may be caused before a protest has even started.
Amendments 3, 12 and 22 restrict the offences to activities that actually cause serious disruption. The new offences are not only committed by those who intend to cause serious disruption, but also extend to those who are reckless as to whether serious disruption may be caused, even if they have no intention of causing serious disruption. Amendments 4, 13 and 23 remove the “reckless” element.
Amendments 5, 14 and 24—and part of Amendments 50 and 51, as we have heard—relate to the definition of “serious disruption”. The Minister will no doubt cite the Commissioner of Police of the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” was clearer. Amendment 1, to which I have added my name—[Interruption.]
Lord Paddick (LD)
That was a natural break in proceedings as I am now going on to talk about the definition of serious disruption.
As we have heard, Amendments 5, 14, 24 and part of Amendments 50 and 51 relate to the definition of serious disruption. The Minister will no doubt cite the Commissioner of Police for the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” were clearer.
Amendment 1, to which I have added my name, provides greater clarity in relation to, what—with the best will in the world—will ultimately be a judgment call by the police. I respectfully suggest that
“Significant harm to persons, organisations or the life of the community”
provides the clarity the police are seeking in ways that the alternative, from the noble and learned Lord, Lord Hope of Craighead, does not. It even provides examples of what might constitute “significant harm”.
I turn to the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The noble and learned Lord probably realised that he had gone too far in his definition when the Minister signed them. I am not a lawyer. At university, I studied philosophy, not law, but I am not sure that defining “serious” as being “more than minor” is that helpful or reasonable. Surely it begs the question, “Well, what is minor?” Does the noble and learned Lord define minor as “less than serious”?
Having taken a common-sense rather than legal approach, I thought that serious was the opposite of minor. They are at opposite ends of a spectrum, in the sense that black is the opposite of white, not just the next level up. There are 50 shades of grey, apparently, between black and white; anything lighter in tone than black is not white. To use another analogy, the definition of a serious injury is not “anything more than a minor injury”.
I am reminded of the story of a student at Oxford University where the rule was that cats could be kept as pets, but not dogs, so he called his dog “Cat”. Saying that “serious disruption” is “anything more than minor” does not make it serious, even if the noble and learned Lord wants to call it that.
Of course, if the Government want to ban all protest that prevents or would hinder individuals carrying out their daily activities to more than a minor degree, they should say that in the Bill. They should not try to disguise the fact by saying that anything more than minor is serious—that dark grey is white. More than a minor degree cannot reasonably be defined as serious. We will vote in support of Amendment 1 and, if necessary, against Amendments 5, 14 and 24.
Government Amendments 48 and 49 deserve additional mention, over and above their adoption of the noble and learned Lord’s definition of serious as anything more than minor.
The police are asking for clarity. Let me quote from Amendment 48. Among other things, proposed new subsection (3A)(c) states that
“(c) the senior police officer reasonably believes that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession mentioned in paragraph (a), and (d) the senior police officer reasonably believes—(i) in relation to a procession mentioned in paragraph (b)(i), that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession, or (ii) in relation to an assembly mentioned in paragraph (b)(ii), that one of the conditions in section 14(1)(a) to (b) is met in relation to the assembly ... (3B) The senior police officer may—(a) give directions under subsection (1) in relation to—(i) the procession mentioned in subsection (3A)(a), and (ii) any procession mentioned in subsection (3A)(b)(i) in relation to which the condition in subsection (3A)(d)(i) is met, and (b) give directions under section 14(1A) in relation to any assembly mentioned in subsection (3A)(b)(ii) in relation to which the condition in subsection (3A)(d)(ii) is met.”
I am not sure that is the clarity the police are seeking.
These amendments go far beyond a too-weak definition of “serious disruption”. In considering whether a protest may result in serious disruption, the senior officer must have regard not just to the protest they are considering but to any other protest being held in the same area, even if they are organised by different people, involve different people, or
“are held or are intended to be held”
on the same day. The next thing the police will be telling protesters is that they cannot protest in central London because “There have been a couple of protests this month already”.
What is more, the police can define what “in the same area” means. When the police were given powers to designate a delimited area for a limited time for stop and search without suspicion under Section 44 of the Terrorism Act 2000, they designated the whole of London every day for years. There is nothing in these amendments to stop the Metropolitan Police, for example, designating the whole of London as the area in which the cumulative impact of protests needs to be taken into account.
The police are asking for clarity, so can the Minister please explain proposed new subsection (2ZH)(a), to be introduced by Amendment 48? What does
“all disruption to the life of the community … that may occur regardless of whether the procession is held”
mean? How can the life of a community be disrupted if a procession is not held?
These amendments would give the police extraordinary new powers to limit where, when and for how long marches and assemblies can take place, even if the protest is going to be peaceful and is not itself going to cause serious disruption, but, taken together with others in the area, even on a different day, may cause serious disruption. They would also allow the police to define what “area” means. These are yet more totally unjustified, unreasonable and excessive powers being given to a police service that no longer enjoys the confidence of large parts of society. We will vote against the amendments.
Baroness Fox of Buckley (Non-Afl)
My Lords, we genuinely saw a demonstration there during an argument about what might constitute a “serious” or “minor” disruption. We could argue for ages whether it was “serious” or “minor”, but one thing I want to stress is why I support raising the threshold to the maximum and why I will support the amendments.
However, I want to ask the Minister, and the Government in general: who are the Bill and these amendments aimed at? Too much of the justification for the Bill that we heard in Committee, in newspaper articles since and in statements by Ministers, focused on the tactics of Just Stop Oil and Extinction Rebellion. Those organisations boasting that they wanted to maximise serious disruption to people’s lives to force and shock society into acting undoubtedly did not help those of us trying to be liberal about the right to protest. They did not exactly help my side of the argument, and I am certainly no fan of those tactics—but how on earth will the Bill confine itself to only those protesters? That is my point.
When we were talking earlier about serious disruption, the noble Baroness, Lady Jones of Moulsecoomb, made the point that those of us who get stuck in traffic jams know what serious disruption is. She used the point to illustrate that she feels there are too many cars on the roads, but in London—and not only London—there are lots of disputes concerning low-traffic neighbourhoods. Local people will tell you that, because the councils have put up obstacles and bollards on local roads, journeys that once took 15 minutes often take an hour and a half, and that that often goes against public consultations.
Baroness Butler-Sloss (CB)
My Lords, I would have thought that the necessity for the Lord Speaker to retire for five minutes might be termed a “serious disruption” of the working of this House. However, the point I want to make, briefly, concerns the use of the phrase “capable of causing”. According to Amendment 48, a senior police officer will make the decision. What on earth will he base the decision on? It would certainly be easier with Just Stop Oil or Extinction Rebellion, but, as we know, there are many other processions and disturbances—particularly in London but right around the country—that he would not know to what they were leading or what they would be like. How on earth is he to assess whether they are capable of causing serious disruption? I find the issue very difficult to understand. I hope the Minister will explain what is really meant by a police officer deciding what is “capable of causing” serious disruption.
Baroness Chakrabarti (Lab)
My Lords, it is a pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, and a daunting privilege, as always, to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood. My views on the necessity and desirability of this proposed anti-terror-style legislation are no secret. But whether noble Lords are for or against this Bill—whether they are for or against its new offences, including thought crimes, stop and search powers, including without suspicion, and banning orders, including without conviction—all noble Lords must agree that the concept of “serious disruption” has been used throughout the Bill as a justification and trigger for interferences with personal liberty.
So, “serious disruption” should be defined. However, His Majesty’s Government resisted any definition at all, all the way through the Commons stages of the Bill and in this House, until this late stage, notwithstanding attempts by some of us on this side to provide a single overarching definition very early on, in Committee, and despite even senior police requests for clarity. What a way to legislate, bearing in mind that we are here at all only because of late amendments to last year’s bus—sorry, Bill—the police et cetera Bill, which would have had this whole Bill dropped into it, again at a very late stage.
Just over a week ago, via a Sunday afternoon No. 10 press release—because No. 10 press officers never rest on Sundays—and with no amendment even attached to that press release, we learnt that there was to be some sort of definition so that
“police will not need to wait for disruption to take place”.
The government amendments and signatures to amendments from other noble Lords were not published until about 24 hours later, so there was a whole media round of debate the next morning—this was before the conviction of Police Constable Carrick—concerning unpublished amendments. I hope that the Minister will tell us when he first knew about this new approach of having a definition, and why it was heralded by press release rather than discussion in your Lordships’ House.
As for the substance of the issue, government amendments are confusingly piecemeal and set the bar too low before a number of intrusive police powers and vague criminal offences kick in: “more than minor” hindrance is not serious disruption. More than minor is not serious enough. They cannot be serious.
I face more than minor hindrance in congested London traffic every day or even when walking through the doors and corridors of your Lordships’ House at busy times. The definition of civil nuisance at English common law involves “substantial interference” with the use and enjoyment of my property. Should it really be harder to sue my neighbour for polluting my private land than it will be under the Government’s proposal to have my neighbour arrested for protesting against pollution in the public square? Obviously not—or at least, not in a country that prides itself on both civil liberty and people’s ability to rub along together and even disagree well.
Instead, the single overarching and more rigorous Amendment 1 defines “serious disruption” as
“causing significant harm to persons, organisations or the life of the community”.
That is the overarching definition, and it includes “significant delay” in the delivery of goods and “prolonged disruption” of access to services, as set out in the Public Order Act 1986. To help the noble Lord, Lord Pannick, the concept of prolonged disruption is already in the 1986 Act as amended by last year’s bus, the police et cetera Act, so that is not a novel concept. We are really talking about significant harm instead of more than minor hindrance. I urge all noble Lords, whether they are for or against the Bill in principle, to vote for that.
Lord Hope of Craighead (CB)
I would like to speak next because my amendments have been mentioned and it is probably best that I explain what they are. I stress that the amendments under discussion are not my amendments: they are Amendments 5, 14 and 24 in this group, which substantially repeat amendments I tabled in Committee. There is a certain amount of revision of the words but essentially, I am making the same point as I did in Committee. They seek to give effect to a recommendation by the Constitution Committee, of which I am a member. I am grateful to the noble Lord, Lord Faulks, who, as I speak, is still a member of that committee, for adding his name to the amendments.
The committee noted that the three clauses concerning locking on, tunnelling and being present in a tunnel—the offences that are the target of my amendments—use the term “serious disruption” to describe the nature of the conduct that the Bill seeks to criminalise. The committee noted that this could result in severe penalties, such as providing the basis for a serious disruption prevention order, and took the view that a definition should be provided. On that issue, I think there is a wide measure of agreement across the House—perhaps with the exception of the noble Lord, Lord Paddick—that a definition is needed because of the nature of these offences and the consequences that follow from them.
Lord Paddick (LD)
I would like to clarify that I wholeheartedly support Amendment 1, which is a definition of “serious disruption”.
Lord Hope of Craighead (CB)
So there is agreement that a definition is needed because of the nature of the crime and the consequences that follow from it. The committee noted that a definition was given in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Baroness, Lady Chakrabarti, has referred. Those sections deal with the imposition of conditions on public processions and public assemblies. The amendment in the name of the noble Lord, Lord Coaker, seeks to adopt the same definition for the purposes of the Bill.
Baroness Chakrabarti (Lab)
I am sorry to be a hindrance to the noble and learned Lord, although I hope no more than a minor hindrance. The concept of “prolonged disruption” is a tiny part of the definition, but my noble friend Lord Coaker’s Amendment 1 does not replicate the definition in Section 73 of the 1986 Act. The new overarching principle that we would introduce with Amendment 1 is
“significant harm to persons, organisations or the life of the community”,
and that is not in the 1986 Act. It is not the provision that is limited in that Act to processions or indeed assemblies.
Lord Hope of Craighead (CB)
I am grateful to the noble Baroness and accept her correction. Of course the catalogue that follows is very much the catalogue that we see in the 2022 Act, and it was that which took our attention in the committee. Our view was that the definition is not suitable for use in the Bill because of locking on and, especially, tunnelling. The committee said that the definition should be tailored to the very different defences with which we are concerned in the Bill, and recommended that the meaning of the phrase should be clarified in a proportionate way—for a reason that I will come back to, because the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that point—in relation to each offence. That is what my amendments seek to do. I suggest that they are more in keeping with what the Constitution Committee was contemplating than the amendment by the noble Lord, Lord Coaker.
I have tried to provide definitions that are tailored to each of those three offences and are short, simple, proportionate and easy to understand. After all, this is a situation where guidance is needed for use by all those to whom the offences are addressed. That audience includes members of the public who wish to exercise their freedom to protest; the police, who have to deal with these activities; and the magistrates, before whom most of any prosecutions under these clauses will be tried.
At the end of my speech in Committee, my aim was to invite the Minister and his Bill team to recognise the importance of the issue and, if my amendments were not acceptable, to come up with a more suitable but just as effective form of words. As noble Lords can imagine, as we so often issue invitations of that kind and those words were uttered more in hope than expectation, it was rather to my surprise that on this occasion my hope was realised when the Bill team began to take an interest in what I was seeking to do. I am grateful to them and to the Ministers in the other place and in this House for the discussions that then followed, which helped me to improve and finalise my wording. I cannot claim that I have found an absolutely perfect solution, but I think what I have done is achieve the best that can be done. Certainly, it is very much better than the alternative that is before your Lordships.
Lord Paddick (LD)
My Lords, the noble and learned Lord says that “more than minor” is “significant”. Would he say that “more than minor” is not “serious”; it is “significant”?
Lord Hope of Craighead (CB)
These are the words we are dealing with. “Significant” is the word in the Amendment 1 and it is defining “serious disruption”, but we are trying to find words that define what we mean by “serious disruption” in the case of these three offences, which is my point. I come back to the point that the important word is “more”, because I am trying to establish the threshold at which it is right that the police should intervene. The problem with “significant”, of course, is that can mean different things to different people in different contexts.
Baroness Chakrabarti (Lab)
I think the difference between us is that the noble and learned Lord is suggesting that there is a binary: there is “minor” and there is “significant”, and therefore anything “more than minor” must be “significant” or—forget “significant”—“serious”. To understand the intention behind our amendment, one needs to think about “significant harm”—“harm” as in damage. Harm and damage, and significant harm and damage, are well understood in the law, as he knows. As for his concerns about the long list, it is a replication of provisions previously in the 1986 Act for assemblies and processions. To reiterate, it is a non-exhaustive list of examples. The crucial part of our definition is “significant harm”. I think an ordinary person on the street would understand “significant harm” as more serious a minor hindrance or one iota more than a minor hindrance.
Lord Hope of Craighead (CB)
I was looking to identify the threshold at which one reaches the point where, on my approach, one moves beyond a minor disturbance to something that becomes significant. That is why I use “more” for the point at which, I suggest, given these particular offences, it is right that the police should then intervene. I asked the question: once one reaches that point, in the case of the tunnelling, why should that go on and on? People are arguing about whether we have reached the stage where the harm is caused is significant without the further guidance of being directed to the point at which it becomes significant.
The problem with the words that the noble Baroness is addressing to me is that they can mean a range of things within the compass of the word “significant”. I am trying to direct attention to the particular offences and consequences that follow from the activities being carried on. That is why I suggest that “more” is the most important and significant part of my formula.
As for locking on, the other of the three offences, I do not have a long catalogue of things that may be affected. There is always a risk that something might be missed out, so I have tried to capture what is put at risk by the omnibus words “their daily activities”. But here again, the threshold that I am seeking to identify is to be found in the words
“more than a minor degree”,
for the reasons that I have explained. Again, the question is: why should the police wait any longer once that threshold is reached?
I come back to the point about proportionality that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned, and the reasonable excuse point. Proportionality is very important and the threshold has to be put into the right place, because we need to consider at what point the interference with the convention rights of freedom of expression and freedom of assembly and association becomes disproportionate.
In its judgment in the recent Northern Ireland abortion services case, delivered last December, the Supreme Court said in paragraph 34:
“It is possible for a general legislative measure in itself to ensure that its application in individual circumstances will meet the requirements of proportionality … without any need for the evaluation of the circumstances in the individual case”.
In other words, there is then no issue for a jury to consider or a magistrate to address his or her mind to; it will have been sufficiently addressed if the issue identified in the legislation is in the right place.
As to whether that is so, some guidance can be found in a decision of the Grand Chamber of the Strasbourg court in a Lithuanian case called Kudrevičius in 2015. That case was about a demonstration by farmers, of which a number have happened in recent years. They had gathered in a number of groups to block the traffic on a number of public highways. The court said that in that case the disruption of traffic that resulted could not
“be described as a side-effect of a meeting … in a public place, but rather as the result of intentional action by the farmers”—
in other words, they were intending to disrupt the highway—and that
“physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities”
of others, the court said,
“is not at the core of”
the right to freedom of assembly. That in itself, however, was not enough to remove their participation entirely from the scope of the protection.
That is the background for what the court then decided. It said that “Contracting States”, which included ourselves,
“enjoy a wide margin of appreciation in their … taking measures to restrict such conduct”
and that the farmers’ intention—a serious disruption of the highways to a more significant extent
“than that caused by the normal exercise of the right of peaceful assembly in a public place”—
was enough to enable the Court to conclude that the criminal sanction which was imposed there was not disproportionate. That is an example of a case which went across the border from being a side-effect of what was happening to something that was a deliberate obstruction of traffic, which is what locking on is all about, and a deliberate interruption of, let us say, the HS2 development, which is what the tunnelling is all about.
My approach also has the support of a decision by the Divisional Court in March last year in a case called Cuciurean. That case was about tunnelling. It affected only a small part of the HS2 project, it lasted for only two and a half days and the cost of removal was less than £200,000. However, the prosecution for aggravated trespass was upheld as not amounting to a disproportionate interference with the protester’s rights. I am sorry to weary your Lordships with those references, but, having looked at those and other case law, I believe that the position I have adopted in these amendments strikes the correct balance for the proportionate treatment of the rights we are talking about.
Of course, I hope that the noble Lord, Lord Coaker, will not press his amendment—although I have no doubt he will feel he should—because I believe it is not fit for purpose. It is not right to introduce a general definition of that kind, which is perhaps all right for one of three offences but is completely out of place for the other two. It is not good legislation. We try in this House to improve legislation. With the greatest respect to the noble Lord, I do not think his amendment improves it. On the contrary, I suggest that my amendments do improve it and, when the time comes, if I have the opportunity to do so, I will seek to test the opinion of the House.
Baroness Jones of Moulsecoomb (GP)
My Lords, I admire the noble and learned Lord, Lord Hope, for trying to convince us. I support and have signed Amendment 1. I cannot argue the law—I cannot argue how many angels dance on the head of a pin—but I can question the politics. My concern about the politics of the whole Bill is that the Government are seeking to be “regressive” and “repressive”—these words have been used. This is nasty legislation.
You have to ask: is it appropriate for a few dozen protesters? Is this heavy-handed legislation appropriate for that number of people who occasionally disrupt our lives? I would argue that it is not. It is almost as if this legislation is perhaps designed instead to prevent millions of people protesting, because the Government know they have lost the confidence of the public in Britain. In a recent poll, two-thirds of people thought that the Government were corrupt. That suggests that any legislation this Government try to bring in is possibly not very well designed for the majority of people in Britain. They are giving very heavy powers to the police when we have already seen that the public do not trust the police, and they are giving more powers to Ministers—and we do not trust Ministers.
It is very heavy legislation. I am worried that the Government are actually bringing legislation for when there are general strikes and hundreds of thousands of people on the streets protesting about the collapsing and soon-to-be privatised health system or the fact that everybody’s pay is getting squeezed apart from the pay of the bankers and the wealthy. I worry that they are bringing in these laws for far more people that just the protesters. Quite honestly, who would not agree with Insulate Britain? It is the smartest thing we can possibly do if we are worried about our energy crisis. So it seems that the Government are not really focused on the protests we have had so far; they are focusing on protests we might have in the future.
We are going to vote very soon on whether to declare a protest illegal if it disrupts somebody. The whole point of protest is that it disrupts life to some point, so that you notice and start debating it and it gets reported in the newspapers. It is incredibly important, in a sense, that protest is disruptive. I heard the noble and learned Lord, Lord Hope, say that Amendment 1 was not suitable, but I have taken advice from lawyers and I think it is entirely suitable, so I will be voting for it. My big concern in this House is that we have a Government who are simply out of control. They talk about protesters being out of control, but it is the Government who are out of control.
Lord Faulks (Non-Afl)
My Lords, as the noble and learned Lord, Lord Hope, said, the Constitution Committee considered that a definition of “serious disruption” would be useful. I think there is a measure of agreement around the House that it would be, but the debate is about how best to define it. The amendment tabled by the noble and learned Lord, Lord Hope, to which I have added my name, is an attempt to provide that clarification. I can well imagine a court asking itself, “What is a serious disruption?”, and looking to see whether Parliament has given any help. None is provided at the moment. So I welcome that the Government have accepted, albeit somewhat at the 11th hour, that a definition will be useful.
Amendment 1, moved by the noble Lord, Lord Coaker, and which has the support of others who have already spoken to it, places the bar high. When combined with the necessity of proving not only intention or recklessness on behalf of the putative offender but the absence of a reasonable excuse, which—if the amendment tabled by the noble Baroness, Lady Chakrabarti, is accepted—is a prerequisite before you get to the other elements in the offence, it seems to me that, with all those requirements combined, it would be very difficult, if not impossible, to establish that an offence had been committed. That may well be the underlying purpose behind the combination of amendments. The opposition parties may not approve of the legislation, and, if they cannot get rid of it altogether, they may wish to emasculate it to such an extent that, practically, it cannot be relied upon. That is a perfectly tenable point of view, but not one that I share—and neither do the general public, I think, having seen the effect of some recent demonstrations.
The definition proposed by the noble and learned Lord, Lord Hope, does not place the bar as high as the noble Lord, Lord Coaker, does in his amendment. The former provides for an act that
“will result in, or will be capable of causing, serious disruption if it prevents or would hinder to more than a minor degree”—
he emphasised that last phrase—
“the individuals or the organisation from carrying out their daily activities.”
Clearly, that would exclude mere inconvenience, but it would include “disrupting”—that is an important word—people going to work, hospital, a funeral or a sporting event or taking a child to school; in other words, their “daily activities”. If they were inconvenienced only to a minor degree, that would not be a serious disruption, but the amendment tabled by the noble and learned Lord, Lord Hope, would, I suggest, be a useful guide to courts in determining what amounts to a serious disruption. If it is suggested that it sets the bar too low, we should bear in mind those additional requirements: mere accidental interference is not enough. We should bear in mind, too, how those are bespoke amendments to deal with locking on or tunnelling; they are not general or vague attempts to raise the bar to a particular level.
I also think the opposition parties may wish to bear in mind what the Labour Party shadow Justice Secretary said in connection to this:
“Our brave emergency services are being held up from helping those in distress, and lives have been put at risk. On top of that, the public has been stopped from going about their everyday business.”
I do not suppose that the Opposition would wish to disassociate themselves from that. It seems entirely consistent with the amendments tabled by the noble and learned Lord, Lord Hope, on serious disruption—and, when we come to them, on “reasonable excuse”.
Of course, I entirely accept that the right to protest is fundamental, and we must, as citizens, be prepared to put up with inconvenience caused by those exercising that important democratic right. We may find it noisy and annoying—depending on how much we sympathise with the cause, even very annoying—but that would not be enough to be a serious disruption. It must be something more than annoying, but less than the very high hurdle which must be surmounted by the wording of the amendment moved by the noble Lord, Lord Coaker. Ultimately, it may come down to whether your Lordships consider that the right to protest is so fundamental that it must trump the rights of ordinary people going about their everyday lives. It is a difficult balance to strike, but although I profoundly respect the right to protest and have sympathy for many of the relevant causes, it seems to me that one has to counterbalance that with the rights of others to go about their lives—those rights are entitled to protection, too, and this amendment attempts to achieve a balance between those respective rights.
Lord Anderson of Ipswich (CB)
My Lords, I am also glad that your Lordships’ House is trying to explain for the benefit of protesters and police what is meant by “serious disruption”, even if we are not finding it very easy.
I will start with the new tunnelling offences in Clauses 3 and 4, which, as I said in Committee in support of the consistent approach of the noble and learned Lord, Lord Hope, are in a very particular category. The key point, recognised in Amendments 14 and 24, is that the disruption liable to be caused by tunnelling is not to the general public but to construction or maintenance works. Delays to the delivery of time-sensitive products, and prolonged disruption of access to a rather specific range of goods and services specified in Amendment 1 of the noble Lord, Lord Coaker, are not really to the point. The one-size-fits-all approach in Amendment 1 is neither designed for nor appropriate to the tunnelling offences. I would add that to require disruption to be “more than minor” in order to constitute the new offences seems quite sufficiently generous to tunnellers who are seeking to disrupt those engaged in lawfully organised works. That is why I put my name to Amendments 14 and 24 and shall support them if they are put to a vote.
The arguments are more finely balanced in relation to Amendment 5. The locking-on offence, as the noble Lord, Lord Coaker, has said, can be constituted by a remarkably wide range of actions. I am wary of a test that is too easy to satisfy, bearing in mind that serious disruption, or the prospect of serious disruption, is the trigger for the no-suspicion stop and search power, and for SDPOs, the whole existence of which is controversial, at least to me. But I take comfort from the fact that, as the noble and learned Lord, Lord Hope, has explained, hindrance to the public needs to be significant before it can meet the test of being more than minor. Indeed, “significant”, not “substantial”, is the very word used in Amendment 1 when it refers not only to “significant harm” but to “significant delay”.
The recent Policy Exchange briefing, to which the noble Lord, Lord Coaker, referred, complains that the “more than minor” test may be interpreted in the light of the Strasbourg case law
“so as to maximise the space for protest”.
I agree that it will have to be interpreted in conformity with the ECHR. Policy Exchange seems dismayed by that; I am rather encouraged by it. When the definition offered by the noble and learned Lord, Lord Hope, is criticised from one side for being too easy to satisfy and from the other for being too difficult to satisfy, perhaps it is not too wide of the mark, even in this more sensitive context.
My main point is that whatever view noble Lords may take of Amendment 5, the case for Amendments 14 and 24 is a strong one. I hope we will have the chance to vote for them.
Lord Brown of Eaton-under-Heywood (CB)
Before my noble friend sits down, would he agree that there is no particular reason why Amendment 1—although plainly it would pre-empt Amendment 5—should pre-empt Amendments 14 and 24?
Lord Anderson of Ipswich (CB)
I believe the Deputy Speaker so directed at the outset of this debate—but I will be corrected if I am wrong about that.
Lord Berkeley of Knighton (CB)
My Lords, I would like to ask the noble Lord, and not from a musical perspective, whether if we change the words “more than minor” to “major” we might not make some progress, because surely that is what they mean.
Lord Anderson of Ipswich (CB)
I am conscious that an expert musician will certainly know the difference between minor and major. I take refuge in the fact that there is no such amendment before us, so perhaps I do not need to answer that today.
Lord Pannick (CB)
My Lords, the right to protest in a democracy is of central importance, but I cannot see that there is much of a right to glue yourself to another person or object in order to disrupt the daily lives of other people. That is what we are talking about here. There are many ways of protesting in our democracy without locking yourself on—without disrupting the lives of others. The conduct with which these clauses are concerned is very often, as the noble Baroness, Lady Jones, accepted, for the very purpose of disrupting the lives of others. I think that such conduct should not be unlawful, as Amendment 1 proposes, only if it causes prolonged disruption.
Preventing people going to work or taking their children to school or relatives to hospital should be unlawful. That is, as far as I can see, more at the minor end and sufficiently strong to outweigh the interests of the protesters, as the cases cited by the noble and learned Lord, Lord Hope, demonstrate.
I suggest that the House bears in mind one further point. There is a danger, when we consider all these amendments, that we do so by reference to protest with which we may sympathise—maybe environmental causes. But the protest may also be by those whose causes are far less attractive and far more damaging to a democratic society. Such protesters may also decide to lock on, and the law needs to deter and penalise them.
Lord Hogan-Howe (CB)
My Lords, I would like to think about how we got here. First, there has been a series of events over the past few years during which people criticised the police, the CPS and the Government for not intervening when people were seriously disrupted. That is why we are having this debate. We could go through various cases, whether it is Heathrow, the M25 or the taxis around Parliament Square, when the drivers were kind enough to leave a lane around the outside; that was their decision, a point I shall come back to. Therefore, people have complained that the police have not been intervening.
One reason why the police have not been intervening concerns the offence that they usually rely on: obstruction of the highway, which is a very simple and absolute offence. There is no intent to be proved; all that needs to happen is obstruction of the highway. The Supreme Court has had to consider that simple offence, and it concluded that there was more to consider than whether the highway was blocked. It asked whether there was an alternative route and other action could have been taken by the police. There was lots of talk about intent in respect of what is really a very simple offence. Usually the penalty is a fine; very rarely is imprisonment imposed.
The second reason why this issue is having to be considered is that the public have got angry and sometimes started to take action themselves when the police have not, which is always dangerous. We can all recall seeing film of someone sat on the top of a tube carriage and the crowd dragging him off. That is very dangerous for everybody involved—a terrible situation, and it should not happen. We have seen cases where the motorways have been blocked, and the people at the front have started to intervene because they are fed up with waiting. It appears that nobody is going to do anything and, in any case—
Baroness Fox of Buckley (Non-Afl)
Certainly in Committee, the point was made—and I wonder what the noble Lord felt about it—that this was a crisis of policing, with the police not enacting laws we already have. It is entirely fair that the public have got frustrated, demanding that something should be done. If the police are uncertain what to do with a huge armoury of public order offences that could be used and sometimes are used, but in a fairly arbitrary fashion, why will giving them more powers and laws solve the problem of not using the ones they already have? That will disillusion the public even more with the whole process of criminal justice.
Lord Hogan-Howe (CB)
The noble Baroness makes a good point. I was going to come on to a point that she made, but the point the police are making is that, if there is a lack of precision around something as simple as obstructing the highway, can we help them? People have alluded to the fact that the police have asked for help, and that is one of the things Parliament can do: explain more clearly how obstruction can be a protest that is beyond the criminal boundary, particularly when political motives are involved. Generally, the police will try not to get involved in that, which why they are seeking help in asking for more legislation, rather than less, although in general I think they would say that they do not need any more legislation.
The noble Lord, Lord Coaker, explained very well why he would like to approach this issue in a different way. The problem I have with his amendment is that it refers to a “prolonged disruption”, as the noble Lord, Lord Pannick, said. I particularly do not like its reference to health. What if someone is having a heart attack or another very serious medical issue that involves minutes rather than hours—or days, in some cases?
Baroness Chakrabarti (Lab)
Just to be clear one more time, prolonged disruption is just an example. One does not need prolonged disruption for significant harm to be caused to a person, an organisation or the life of the community. I cannot think of a more significant harm than a person with a heart attack not being able to be transported in an ambulance.
Lord Hogan-Howe (CB)
That is what the amendment says: “prolonged”.
Who is going to decide? The noble Lord, Lord Paddick, made this point: people may have lost confidence in the police, for reasons that we understand. However, the alternative appears to be that we leave it in the hands of the protesters to decide how long they will stay. That is unacceptable. If the state is going to have a view on these matters, it is for the state to decide, not the protesters. Of course they will have a view, which may be different, but they have to take the consequences if they get that line wrong. That is not happening at the moment.
The noble Baroness, Lady Jones, said that we could all be disrupted. She has often made that point and I have often disagreed with her. She says that we are always disrupted every day, certainly in London—not the rest of country, frankly—by congestion and, therefore, why should we criminalise protest that only does the same thing? I hope that I am fairly representing her argument.
Lord Hogan-Howe (CB)
Nearly. Pollution kills people but we are not trying to legalise unlawful killing. One could pursue that argument to its logical extent, but I do not accept that someone intentionally blocking someone else’s path is the same thing as someone suffering the consequences of congestion. I expect that the noble Baroness is going to say something.
Baroness Jones of Moulsecoomb (GP)
In a disruption, people can turn off their engines. In traffic, they keep them running.
Lord Hogan-Howe (CB)
I am sorry—I was looking at my notes and missed that. Would it be terrible if the noble Baroness repeated it, so that I can properly respond?
Baroness Jones of Moulsecoomb (GP)
The noble Lord is so profound. I said that when there is disruption, people know that it is going to last some time, so they can turn off their engines. What happens in traffic is that people leave their engines running, which is, of course, highly polluting, as he said.
Lord Hogan-Howe (CB)
But the protesters could leave. It is in their gift—I think.
Baroness Jones of Moulsecoomb (GP)
The Met Police, after the disruption on motorways into London, put out a tweet asking people to report instances of being unable to get their children to school, medical emergencies or whatever. The stream of replies after the tweet was nothing to do with people objecting to the disruption; they were supporting the action. So the Met Police might have got that slightly wrong.
Lord Hogan-Howe (CB)
My final point is that although I cannot support the amendment of the noble Lord, Lord Coaker, for the reasons I have explained, I support the amendment of the noble and learned Lord, Lord Hope. However, the challenge made by the noble Lord, Lord Paddick, is that “minor” sounds intuitively contentious when referring to something serious, and it is an unusual bar by which to define something. The noble and learned Lord I think acknowledged that there may be more work to do on that.
Lord Hope of Craighead (CB)
I did stress that the word “more” is important. I agree that the word “minor” raises issues, but the “more” point is crucial to an understanding of my formula.
Lord Hogan-Howe (CB)
I accept that point and I would of course never tangle with a lawyer. However, I am just saying that at an intuitive level, even describing something as “more than minor” may be a concern and there may be a different form of words. In fact, I thought that noble Lords might have been able to group around the form of words the noble and learned Lord used in his speech, be it “significant” or “major”, as was suggested. It may be that we broadly agree that “serious disruption” is not okay. That is why we are struggling to find the exact definition in the amendments.
Finally, we should not leave the police with too many problems in terms of intent, recklessness or reasonable excuse. If we have a simple definition of an offence but then have to worry about intent or recklessness, the situation will, I suspect, become almost impossible and we will be back to where we started. That would be a concern.
Lord Davies of Gower (Con)
My Lords, I just gently remind the House of the rules of debate on Report, which say:
“On Report, no Lords Member may speak more than once to an amendment, except: the mover of the amendment”.
Intervening repeatedly on other Members is not really in keeping with the rules of debate on Report.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, at Second Reading and in Committee there was much discussion on the meaning of “serious disruption”, and many noble Lords spoke to the need to provide a clear definition in the Bill. I thank all noble Lords who have participated in what has been a fascinating debate. At Second Reading, I agreed with many of the comments made by your Lordships and committed to take the matter away. What we are debating today is the matter of thresholds, as all noble Lords who spoke noted. The debate is not about whether these measures ban protests: quite simply, they do not, and I thank the noble Lord, Lord Coaker, for his comments emphasising that fact. We are trying to ascertain the point to which protesters can disrupt the lives of the general public. This Government’s position is clear: we are on the side of the public.
I thank the noble Lord, Lord Coaker, for tabling his amendment, which provides a definition of “serious disruption” for offences in the Bill. I agree with the purpose of his amendment but do not believe that the threshold is appropriate. The Government want to protect the rights of the public to go about their daily lives without let or hindrance. I do not believe that his amendment supports this aim; therefore, I cannot support it. I make no secret of what the Government are trying to do. We are listening to the public, who are fed up with seeing, day after day, protesters blocking roads: they make children late for school; they make people miss hospital appointments; and they make small businesses struggle. Any change in law must address this, and I do not believe that the noble’s Lord’s proposed threshold does.
In this vein, I turn to the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, which also provide a definition of “serious disruption”, but for the specific offences of locking on, tunnelling and causing disruption by being present in a tunnel. His amendments follow the judgment handed down by the Court of Appeal following the Colston statue case. The court found that the right to protest does not extend to acts of criminal damage that are violent or where the damage is to more than a minor or trivial degree:
“We cannot conceive that the Convention could be used to protect from prosecution and conviction those who damage private property to any degree than is other than trivial.”
We agree with the judiciary and believe that this threshold should be consistent across the statute book. Although the court concerned itself with the matter of damage to private property, the same principles apply to obstructing the public from enjoying their right to go about their business without hindrance. That is why the Government support the noble and learned Lord’s amendments; I am very pleased we were able to surprise him in that regard. They provide a threshold for “serious disruption” that is rooted in case law. I thank him for tabling this amendment and, indeed, for explaining it in such a detailed and precise way. It provides both clarity to the law and a threshold that addresses the public’s frustration with disruptive protests.
I will now speak to government Amendments 48 and 49. The Commissioner of the Metropolitan Police Service has asked for further legislative clarity on police powers to manage public processions and assemblies. These powers are conferred by Section 12 of the Public Order Act 1986 for processions and Section 14 for assemblies. They allow the police to place reasonable and necessary conditions on protests to prevent specific harms from occurring. One of these harms is
“serious disruption to the life of the community”.
These two amendments provide clarity to this phrase for both Sections 12 and 14. The noble Lord, Lord Paddick, was quite right in anticipating that I would be quoting Sir Mark Rowley, who said:
“I welcome the Government’s proposal to introduce a legal definition of ‘serious disruption’ and ‘reasonable excuse’. In practical terms, Parliament providing such clarity will create a clearer line for police to enforce when protests impact upon others who simply wish to go about their lawful business.”
These amendments, supported by the police, prioritise the rights of the law-abiding majority. First, they carry over the noble and learned Lord’s definition of “serious disruption”. Secondly, they define the meaning of “community”. Thirdly, the police may consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly. In answer to the comments of the noble Lord, Lord Paddick, that these are too complicated, I say that the Home Office will work closely with the NPCC and the College of Policing to ensure that appropriate guidance and training are developed. Mirroring the definition of the noble and learned Lord, Lord Hope, will provide consistency across the statute book. As I have said, this is welcomed by the police. I point out that the definition specifies that the disruption is caused by physical means only.
The noble Lord, Lord Coaker, raised in the Policy Exchange paper the use of “minor” in the definition. These amendments protect the daily activities of the public; it is clear that the public are fed up with the disruption caused by protesters, and that is what these amendments address. Many protests that do not disrupt the lives of others occur on a regular basis. The noble Lord, Lord Hogan-Howe, made a very good point: that we should not allow the protesters themselves to determine the scale of disruption. Many protesters are able to express themselves and place pressure for change without blocking roads.
Currently the term “community” is undefined. The police should be able to use their powers to protect anyone who is detrimentally impacted by serious disruption from protests, not just those who live, work or access amenities where the protest occurs. The police must consider the absolute disruption caused to the public, as opposed to the disruption relative to what is typical for an area. The measure will give officers the confidence that they can use to respond to disruptive protests, even in areas routinely subject to spontaneous disruption such as traffic jams. To prioritise the rights of the public, the amendment allows the police to consider the cumulative impact of protests and separate protests. It is wrong that the public must repeatedly put up with disruptive protests, in part because each time there is a new protest, the police must consider the level of disruption afresh and in isolation from what has previously happened and what may be planned. If multiple protests cumulatively ruin the daily activities of a community, they must be considered collectively. Following from this, if the police are to manage the collective impact of protests, they must be able to apply the conditions on separate but connected protests. For example, a large protest campaign made up of multiple small protests that disrupt a large area should be subject to blanket conditions. Allowing the police to consider the cumulative impact of protests by requiring them to manage each individually complicates the operational response unnecessarily. Collectively, these measures will allow the police to protect the public from the disruptive minority who use tactics such as blocking roads and slow walks. The public are clear that they want the police to protect them from these tactics. In turn, the police have asked for clarity and law to confidently and quickly take action and make arrests where appropriate. The Government have listened to both, and I hope this House does the same and supports the amendment.
I will speak collectively to the amendments tabled by the noble Lord, Lord Paddick. These measures do two things to the locking-on and tunnelling offences. First, they lower the threshold of the offence so that acts capable of causing serious disruption are not in scope. Secondly, they alter the mens rea so that only intentional acts, and not reckless ones, are in scope of the offence. It is clear that the public do not want to see police officers sit by while criminal protesters disrupt their lives; lowering the threshold would mean that the police will have to do so. Why should an officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause serious disruption to the public? As for the mens rea, as I have said already, the Government are concerned with the disruption caused to the public. It does not matter whether it is caused recklessly or intentionally; what matters is the impact it has on people’s daily lives. For all these reasons, I encourage all noble Lords to support the amendments in the name of the noble and learned Lord, Lord Hope, and those by the Government and reject the others.
Baroness Butler-Sloss (CB)
Can the Minister deal with the issue of “be capable of causing” as opposed to actual disruption?
Lord Sharpe of Epsom (Con)
I did deal with that when I was talking a little about the tunnelling and locking-on offences. Why should the officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause, or be capable of causing, serious disruption to the public? Certainly in terms of tunnelling, I think that is very clear.
Lord Coaker (Lab)
My Lords, I thank all noble Lords who have participated in this really interesting and thoughtful debate. I thank the Minister for his response. I do not want to go through every single contribution; I do not wish to be rude to anybody who I do not respond to, but I want to make and reinforce a couple of particular points. I totally agree with the noble Lord, Lord Faulks. I repeat that the attempt by this Chamber to define “serious disruption” on the face of the Bill, as the Constitution Committee asked it to do, is a really important step forward and to try and do. The debate between us is where we set the threshold and how we define “serious disruption”. Perhaps this debate should have taken place on the Bill a few months ago, but it is taking place now and is particularly important.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
My Lords, in view of the fact that Amendment 1 has been agreed, for the convenience of the House, I remind the House that I shall not subsequently be able to call Amendments 5, 14 or 24, by reason of pre-emption.
Clause 1: Offence of locking on
Amendment 2
Baroness Chakrabarti
Member’s explanatory statement
This amendment makes the lack of a reasonable excuse a component part of the offence of locking on, thus placing the burden of proof upon the prosecution.
Baroness Chakrabarti (Lab)
My Lords, I first thank noble Lords; so too does Cole Porter from the grave, because “how strange the change” would have been from “major” to “just a little bit more than minor”.
This second group deals with the concept of “reasonable excuse”, which noble Lords will remember is present in a number of the new criminal offences in the Bill. As noble Lords have heard, some, including locking on in particular, are very vague and dangerous. I have some amendments, with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that attempt to set straight a reversed burden of proof, inappropriate in criminal law, where the Government have sought to place the burden on the innocent cyclist with the bike lock or the protester, or whoever, to demonstrate that they had a reasonable excuse when, really, the lack of a reasonable excuse should be a component part of the criminal offence and, indeed, something that a police officer considers before arresting someone.
The noble Lord, Lord Paddick, has said eloquently many times in your Lordships’ House that criminal offences need to be fit for purpose not just in a courtroom or even during a charging decision in a police station, but on the ground when an officer is considering who to arrest. Therefore, it is important that the lack of a reasonable excuse be a component, core part of the offence and not something that a hapless bystander or protester has to prove.
The noble Lord, Lord Paddick, will speak to other amendments in this group that he has tabled. I support all of them, whether my name is there or not; it is there in spirit. I would like to be clear about that and, similarly, with attempts to improve these offences and improve the definition of “reasonable excuse”. But, on account of time, I just want to focus on and prioritise the importance of not supporting the government amendments or, should I say, the amendments that Ministers have now signed in the name of the noble and learned Lord, Lord Hope of Craighead.
It seems harsh, to say the least, to single out “protest” from all the potential excuses that may or may not be reasonable in a particular case and a particular set of circumstances. Why single out protest as something that can never be reasonable? That seems to me to be an attempt to take proportionality out of the mind of a decision-maker—not just a court but a police officer on the ground. I think that is a mistake.
The noble and learned Lord, Lord Hope, will no doubt cite very leading authority on circumstances in which proportionality is so clearly part of an offence that there is no need for second guessing at the arrest or prosecution stage. But that will not be the case in relation to some of these offences and, I venture, locking on in particular.
I will not attempt to repeat the eloquence of my noble friend Lord Coaker with the various descriptions of linking arms, but the idea that an offence that can be committed with such trivial activity should not have an element of proportionality put in the mind of a decision-maker is of huge concern to me.
Without further ado, I commend the various amendments that I have described, but also ask noble Lords not to support any attempt to single out protest as the one excuse that is never reasonable. That seems rather unreasonable to me. I beg to move.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I support the noble Baroness on her amendments and am opposed to Amendment 8 from the Government and the noble and learned Lord, Lord Hope, which seeks to exclude and narrow down very dramatically the scope which, I submit, should be present in this offence for a defence of reasonable excuse.
Why should not a demonstration against measures concerning, for example, climate change as a question of fact and degree for the trial judge be adjudged reasonable, as was the case in DPP v Ziegler, which went to the Supreme Court. It is perfectly true and perfectly right that I should acknowledge this. Indeed, my noble and learned friend Lord Hope drew my attention way back at the end of last year to the latest Supreme Court decision, which he mentioned today with regard to group 1, in the Northern Ireland abortion case. It is a reference from the Attorney-General for Northern Ireland.
Lord Paddick (LD)
My Lords, I hesitate to participate in a legal argument when I am not legally qualified, particularly when I wrote this contribution in isolation at the weekend. However, there are two separate and distinct groups of amendments within this group. My amendments are about whether someone who has a reasonable excuse for their actions commits an offence or whether they should have a defence of reasonable excuse only once charged with the offence; in other words, does the reasonable excuse mean that they do not commit an offence, or should they be arrested and charged and only then have a defence of a reasonable excuse? The other amendments are about the definition of what amounts to a reasonable excuse.
On when reasonable excuse can be deployed, I have Amendments 7, 16, 26, 32 and 36 in this group, which are intended to have a similar effect to Amendments 2, 6, 11, 15, 18, 20, 25 and 34 in the name of the noble Baroness, Lady Chakrabarti. I am just as supportive of the noble Baroness’s amendments as of my own; in fact, bearing in mind that they have the support of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, I am sure that hers are to be preferred. My amendments are designed to ensure that a person does not commit the offence to which the amendments refer if the person committing the act in question has a reasonable excuse for their actions, instead of, as currently drafted, if a person has a reasonable excuse, they can use it as a defence only once charged.
The offences to which my amendments apply are: locking on, in Clause 1; tunnelling, in Clause 3; being present in a tunnel, in Clause 4; obstruction of major transport works, in Clause 6; and interference with key national infrastructure, in Clause 7. For example, Amendment 16 provides that a person does not commit an offence if they have a reasonable excuse for tunnelling. In Clause 3, the Government give an example of a reasonable excuse as being
“authorised by a person with an interest in land which entitled them to authorise its creation.”
Surely someone properly authorised to construct a tunnel should not be arrested and charged with tunnelling and only then be able to deploy that defence, when they are clearly not guilty of that offence from the outset.
The Minister may argue that the police will use their discretion, but we saw the case of the accredited and documented broadcast journalist Charlotte Lynch, who, while reporting on a Just Stop Oil protest, was arrested, handcuffed and held in police custody for five hours for conspiracy to commit a public nuisance. Using their discretion to avoid the detention of innocent people is not the police’s strongest suit—at least, not in public order situations. Perhaps I should remind the House that I am a former police officer.
The Minister may say that the police have to be able to act quickly and decisively in public order situations, and that determining whether or not someone has a reasonable excuse is difficult in such situations. If he were to say that, is the Government’s position that innocent, peaceful protesters should expect to be arrested and detained by the police, even if they have a reasonable excuse for their actions? The chilling effect on people’s right to protest would make such a stance reprehensible.
The other amendments in this group relate to the limitation of what amounts to a reasonable excuse, and I broadly agree with what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just said. Yet again the noble and learned Lord, Lord Hope of Craighead, has secured government support for his Amendments 8, 17, 18, 27, 28, 33 and 37. The Government seek to extend the proposed limitation to the offences of highway obstruction and public nuisance by means of Amendments 50 and 51 respectively, while the noble Lord, Lord Sandhurst, has come up with his own alternative, Amendment 55.
I was taken with the debate we had in Committee on this issue, as I said to the noble and learned Lord, Lord Hope, at the time. In summary, the noble and learned Lord suggested that, taken to its limits, provided that the reason for the protest was sufficiently serious, any criminal action, however serious, could be seen as reasonable. So, for example, if the purpose of the protest was to save the planet, surely nothing could be more serious and so protesters could argue that that gave them carte blanche to do whatever they wanted. Hence these amendments, signed by the Government, seek to remove any issue of current debate from constituting a reasonable excuse. The argument is that it is the legislature that should set out clearly the limits of reasonable excuse, rather than the courts, as recommended by the Constitution Committee.
In his letter of 23 January, the Minister cites two Supreme Courts cases, that of DPP v Ziegler and others, and, referenced by the Attorney-General for Northern Ireland, the Abortion Services (Safe Access Zones) Bill. As I keep saying, I am not a lawyer and I hesitate to offer a lay opinion, but in Ziegler the Minister rightly cites Articles 10 and 11 of the European Convention on Human Rights as offering some reasonable excuse for obstructing others. He then cites the judgment in the Northern Ireland case that, during a criminal trial, it is not always necessary to assess whether a conviction for an offence would be a proportionate interference with a defendant’s rights under Articles 9, 10 and 11. But my understanding is that this is the case only when the restriction of the exercise of convention rights is prescribed by the law in question, the law pursues a legitimate aim and the law is proportionate.
My understanding is that the protection of the European Convention on Human Rights does not need to be considered in a criminal trial if, and only if, the offence explicitly restricts those convention rights: for example, being present in an abortion clinic buffer zone; that the offence pursues a legitimate aim, the protection of women seeking an abortion in that case; and that it is proportionate—in that case, being limited to 150 metres around the clinic. For me, the question is whether the amendments in the name of the noble and learned Lord, Lord Hope of Craighead, meet the three tests cited by the Supreme Court in the Northern Ireland case. If the noble and learned Lord’s amendment were accepted, taking Clause 8 as an example, the restriction of a person’s convention rights by excluding issues of current debate from being a reasonable excuse would clearly be prescribed in law. That would be the first condition. It might even be considered to be pursuing a legitimate aim, in preventing someone from causing serious disruption by locking on, but I believe it fails in being disproportionate, in that it would apply to every attempt to exercise a person’s convention rights, no matter what the circumstances.
Take, for example, the march against the war in Iraq in February 2003, where the official estimate was 750,000 participants—the BBC reported that over 1 million people took part. The march brought central London to a standstill and, by any definition, serious disruption was caused. Are we really saying that the purpose of the march, in that case the war in Iraq, then an issue of current debate, should not have been taken into account by the courts when considering whether the protesters had a reasonable excuse for causing serious disruption? I accept that this is a serious issue, but I do not accept that this is a serious solution, in that it fails the Supreme Court judgment’s third test of proportionality.
As with the case of serious disruption in the previous group, I believe the noble and learned Lord, Lord Hope of Craighead, goes too far, as evidenced by the Government’s support for his amendments. In terms of “reasonable excuse”, that there should be no difference between a dozen extremists blocking the roads around Trafalgar Square—because, for example, they believe Covid is a myth—and 1 million people blocking the roads around Trafalgar Square in protest against the war in Iraq, because the issue of current debate about which they are protesting cannot be taken into account when considering reasonable excuse, cannot be right.
The other concern I have with the noble and learned Lord’s amendments is
“as part of or in furtherance of … an issue of current debate”.
Would a protest by the Flat Earth Society that caused serious disruption be permitted, because they could argue that they have a reasonable excuse for their actions and it was not an issue of current debate, but protesters in favour of additional support for families facing the cost of living crisis would not be able to access a reasonable excuse defence?
The amendment in the name of the noble Lord, Lord Sandhurst, seeks to overthrow the judgment of the Supreme Court in DPP v Ziegler and others. If my understanding of the noble Lord’s amendment is correct, no protest that inconveniences members of the public would be lawful, nor could there be any reasonable excuse for such conduct. Needless to say, we do not support the noble Lord’s amendment.
I accept the Constitution Committee’s recommendation:
“It is constitutionally unsatisfactory to leave to the courts the task of determining what might be a ‘reasonable excuse’ without Parliament indicating what it intends the defence to cover.”
However, it surely cannot be the case that Parliament wants the courts to ignore what the protest is about when determining what might be a reasonable excuse. As my commander said when I presented my solution for rotating police officers between uniform and CID, “I don’t know what the answer is, but this isn’t it”. We oppose these amendments.
Lord Faulks (Non-Afl)
My Lords, in the temporary absence of the noble and learned Lord, Lord Hope, from the Chamber, I speak to the amendments in his name, to which my name and that of the noble Lord the Minister have also been added.
The Constitution Committee, in its report published on 11 November 2022, considered the question of “reasonable excuse”—which is used, as has already been pointed out, in a number of contexts in this part of the Bill—and pointed out that it was not defined. It also said, at paragraph 14 of its report, that the offence does already
“require intent, which may render redundant the need for a ‘reasonable excuse’”.
The committee considered it unsatisfactory to leave to the court the task of determining what might be a “reasonable excuse” without Parliament indicating what it intends the defence to cover. Including a “reasonable excuse” defence invites arguments as to whether certain, but not other, political motivations might constitute an excuse. What the committee recommended was that that,
“unless a precise definition of ‘reasonable excuse’ is provided then the ‘reasonable excuse’ defence”
should be
“removed from Clauses 1, 3, 4 and 7”—
apart from anything else, in the interest of legal certainty.
This was a report from a committee looking at the constitutional aspects of the Bill. It included, as the House will know, Peers from all parties and none. I confess to some uncertainty as to what the Government can have intended by originally including a defence of “reasonable excuse”. If you cause serious disruption by attaching yourself to an object or land or otherwise locking on, as defined in the Bill, and you do so intentionally or recklessly, what could provide a “reasonable excuse” for doing so?
It seems to me that probably the only excuse that could be offered would be that your cause is a noble one: in particular, that you are concerned about the damage to the planet caused by climate change. I see the noble Lord, Lord Deben, taking a close interest in this debate, but I am not suggesting for a moment that he would be inclined to lock himself on—but that has been the stance taken by Extinction Rebellion and Just Stop Oil, as we know. It could be argued that any demonstration, however serious the disruption, is justifiable if it contributes in some way to putting extra pressure on the Government to take appropriate steps to, if not completely turn back climate change, at least substantially reduce its effect.
I suspect that “reasonable excuse” was put in the Bill in an attempt to ensure that the Bill then complied with the Human Rights Act: in particular, that it did not contain provisions that, in the light of the Supreme Court’s decision on Ziegler, might be said to be in breach of a demonstrator’s convention rights. The Ziegler decision has been controversial. Policy Exchange, in particular, in a number of publications has pointed out the flaws in the judgment, or at least the flaws in how the judgment has been interpreted.
Since the Supreme Court decision on Ziegler, there have been other cases which seemed significantly to water down its effect—the case of Cuciurean and the Colston statue case. However, the recent decision in the Northern Ireland abortion case, handed down in on 7 December 2022—after the Bill had progressed a long way in your Lordships’ House—has made it perfectly clear that Ziegler needs to be very substantially qualified. The ingredients of an offence can themselves ensure that it will be compatible with convention rights even if it does not include a defence of reasonable or lawful excuse.
It would be perfectly convention-compliant, in my view, to remove the defence of reasonable or lawful excuse altogether. I have to say that was my original preference, but I have been persuaded that it is better to retain the defence giving the possibility of a reasonable excuse that is restricted in the way the amendment allows. It would not be enough to say in relation to the offence that there is a worthwhile cause, such as combating climate change, and then to say that that is a reasonable excuse and have us ask a fact-finding tribunal, whether it be magistrates or even a jury, to give its views as to whether a reasonable excuse exists in the circumstances.
On the analysis of the relevant jurisprudence, the Supreme Court in the Northern Ireland case referred, among other cases, to the well-known animal defenders case decided in 2013. That case, and the European Court of Human Rights case law, shows that the state is granted a margin of appreciation in these areas. It would be a question of law rather than fact whether an offence sufficiently reflects the principle of proportionality. The prosecution will have to establish a serious disruption. It will also need to establish intention or, at least, recklessness. It seems entirely consistent with the Northern Ireland case that there is no need, as a matter of law, to provide for the free-ranging and imprecise defence of reasonable excuse.
The right to protest is extremely important. It is reflected in the ECHR, just as it was in the common law before the Human Rights Act was enacted, but this right should be balanced with the right of our citizens to go about their everyday life without interference. Inconvenience is something we should be prepared to put up with but where there is serious disruption involved, defined as the amendment which succeeded in the previous debate says, it should not be an answer for a defendant to say: my cause is so important that it trumps your right to go to hospital, to take your children to school or to go to work. This amendment is consistent with the law and with what the vast majority of the population would want.
Lord Skidelsky (CB)
My Lords, I support the amendments in the names of the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Brown. They would require the police to prove that a person charged with an offence lacked reasonable excuse, rather than the person charged to prove that they had a reasonable excuse. In other words, they restore the presumption of innocence rather than guilt.
The presumption of innocence is not just an archaic legal point. The intricate legal arguments are worthy of great respect but I do not think they get to the heart of the matter. Presumption of innocence is a cardinal principle of a liberal society—a cardinal political principle. Governments and law-enforcement agencies are always disposed to believe that their citizens are potential lawbreakers, I am afraid, so placing the burden of proof on the police is an essential safeguard for civil liberties. That seems to me the crucial point because unless that cardinal political principle is there, you are reducing the extent to which the police are answerable to the courts—and lawyers should be very interested in that point. You are reducing their accountability to the courts and that is why, in systems such as those in Russia and China, there is very rarely an acquittal because the presumption is that the person charged with an offence is guilty. The bias is then all in favour of the conviction rather than the acquittal. It is on the basis that this group of amendments embodies a fundamental political principle that I support it.
Lord Deben (Con)
I wonder whether I could suggest to the House that we have to think a little beyond the precise legal issues we have been concentrating on. First, I was drawn into this discussion by a previous speaker—the noble Lord, Lord Faulks—but I would remind him of my constant demand that we should take seriously the words of the Green vice-Chancellor of Germany, who made it absolutely clear that behaviour which meant that ambulances could not get to hospitals and suchlike was unacceptable as well as counterproductive. I do not think anybody would suggest that I have ever been a supporter of that kind of thing, and I do not think the noble Lord would have said that.
However, the Government have to face two very important questions. The first is on the point referring to the march of a million people, which of its nature is bound to discommode large numbers of other people. But as somebody who voted against a three-line Whip and against the Iraq war, it seems to me that unless you can accept that something so appallingly wrong can result in large numbers of people saying, “Not in my name”, you really cannot run a democracy. That is absolutely essential, so I need to know from the Government how they would explain that their particular way of looking at this would not have made illegal a march against the Iraq war. If that is not covered, then it seems that any of us who happen to believe in some fundamental issues will find it very difficult to support the Government.
The second thing the Government have to explain is how they see the position in which this puts the police. I have to say this carefully, but the truth is that the police’s reputation is practically at its lowest ever. We have to ask whether this is the right moment, in any way, to put them in the small “p” political position of making these kinds of decisions. That is why I voted against that ludicrous thing we introduced, which was that you could be prevented from making a noise. The concept was that, somehow or other, the police were going to say that if your protest was too noisy, they could stop it before it was started. I have never been on a protest that was not noisy and meant to be so; its noisiness was essential. But we passed that provision, which was and is nonsense. It will never be imposed but the Government argued for it, so they are in a slight difficulty here. The argument I used against that was not only that it was barmy, which was obvious, but that it would put the police in an embarrassing position at a time when the police are themselves—
Lord Deben (Con)
If I can just finish that sentence—when the police are themselves in a difficult position. I give way to my long-lasting jouster.
Lord Howard of Lympne (Con)
Does my noble friend not agree that the insertion of the words in this amendment would place upon the police the initial duty of deciding what is or is not a reasonable excuse?
Lord Deben (Con)
I do not disagree, since that is what it says. I am merely saying that I want the Government to be clear about what they are doing by involving the police at what may not be the most sensible time.
The last thing I want to say to the Government is this. There are many serious issues which, in a democracy, we have to ask the Government and the Opposition to deal with. Some of those serious issues are not being satisfactorily dealt with and, in a democracy, there comes a moment when a Government have to say to themselves, “We are so unable to deal with this that we will have to accept that there will be a significant increase in the public demonstration against where we are”.
Baroness Meacher (CB)
The noble Lord, Lord Deben, has made some very important points, particularly in relation to the police. It is worth elaborating for a couple more sentences. The fact is that the police already have great powers to deal with demonstrations and simply do not use them, as he suggested—partly because the police do not carry a huge amount of trust. The fact is also that these demonstrations reflect a huge amount of feeling among the public, and the police do not wish to stand out against those very strong feelings. Adding further powers for the police is not going to be helpful because the police will simply not use them for the reasons that the noble Lord, Lord Deben, very brilliantly—as always—pointed out. My main argument against these powers is that there is no point in them. They are designed to frighten people not to go out on protests. The police do not want these powers; they know that they would not use them. Therefore, they should not be introduced by Parliament.
Lord Sandhurst (Con)
My Lords, I will speak to my Amendment 55. I am grateful to follow the speech of my noble friend Lord Faulks. My amendment addresses the legal difficulties caused by the judgment of the Supreme Court in 2021 in the case of Ziegler, in respect of offences in which it will be, and will remain, a defence for a person charged to prove that they had a lawful or reasonable excuse for the act in question.
The judgment in Ziegler concerned Section 137 of the Highways Act 1980, which makes it an offence for a person
“without lawful authority or excuse”
wilfully to obstruct
“free passage along a highway”.
The Supreme Court ruled that the exercise of the convention rights to freedom of expression and freedom of assembly and association—which might loosely be summarised as the right to protest—constituted a lawful excuse. This has the effect that, before a person may be convicted of obstructing the highway, the prosecution must prove that a conviction would be a proportionate and thus justified interference with that person’s convention rights. In practice, this has caused real difficulties for the police, who at times have appeared paralysed. It has made it difficult for judges to run trials fairly and for magistrates to reach decisions.
My amendment leaves in the word “reasonable”. It does not make it a strict offence to obstruct the highway. You can still do it if you have a “lawful authority or excuse”. What is to be judged in future would be the duration and nature of what is done, not the fact that you have what you consider to be a high motive—whether it is flat-earth or anti-abortion protesters, it does not matter. It is not about whether you are a good person, or you think you are a good person; it is about what you are actually doing and whether you are stopping ambulances and people going about their daily lives unreasonably and for too long.
The amendment means that conduct being intended or designed to influence government or public opinion will not, of itself, make it reasonable or lawful. That is consistent with the jurisprudence of the Strasbourg court. I stress that the court has said:
“In a democratic society based on the rule of law, the ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”.
However, the law protects only the right to peaceful assembly. Articles 10 and 11 of the convention establish that public authorities are entitled to interfere with the right to protest for legitimate purposes such as the prevention of disorder, the prevention of crime and—importantly—the protection of the rights and freedoms of others. It is not about stopping every march, but about stopping prolonged obstruction. That is what we are about.
The Strasbourg court has gone on to rule that the rights of the public include the right to move freely on public roads without restriction, so there are two rights here; you have a right to protest, but the general public also have a right to move freely on public roads without restriction. It is a balancing exercise. The court has further recognised that states have a wide margin of appreciation in determining necessity when it comes to taking action against those who deliberately disrupt traffic or other aspects of normal life.
The right to protest in a public place exists, but it is not unfettered. It must be balanced against the rights of your fellow citizens. If the public are to be protected in the face of these novel types of protest we have not seen before, which in their duration and nature go far beyond what is fair and reasonable, the police must be able to intervene and not be paralysed by anxiety. Peaceful assembly and ordinary marches will still be protected. The public will still have to suffer and tolerate a measure of inconvenience and delay, but that will be within bounds.
My amendment would end the state of affairs in which persons who obstruct the highway, damage property or seek to avoid arrest can distort and upset the proper balance by asserting their motive. Peaceful protest will be permitted, but the balance will be restored. That is why, at the end of the amendment, it makes it plain that
“this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.
Henceforth, if my amendment is adopted, your assertion of a high motive will not suffice. You will be judged by what you did, how long it went on for, and the effect on other people.
Lord Wolfson of Tredegar (Con)
My Lords, as the House has just heard from my noble friend Lord Sandhurst, the area of law we are dealing with is the proportionate interference with convention rights. I respectfully agree with him that the decision of the Supreme Court in Ziegler raises the question of the correct balance and makes it important for the House to legislate in this area. However, it is my misfortune to disagree with him that we should take this opportunity to overturn the decision in Ziegler. Rather, I respectfully commend the approach of the noble and learned Lord, Lord Hope of Craighead, which has been set out for us this evening by the noble Lord, Lord Faulks.
Critically, the presumption of innocence is at the heart of our judicial process, and I do not think that any of these amendments cut across that. There are three reasons why I suggest that the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which is supported by the Government, ought to be accepted. The first is the point made by the Constitution Committee that we need precision in this area. Secondly, there is the fundamental point that we should not be leaving this to the police or the courts to decide on a case-by-case basis; as Parliament, we should take the opportunity, and indeed the responsibility, to draw the bounds of the offences in this area. Thirdly, we need to remember that, at the moment, Section 3 of the Human Rights Act requires the court to read any legislation, if possible, consistently with the convention. Absent, I suggest, the amendment of the noble and learned Lord, Lord Hope of Craighead, there is a real risk that the court will read down clauses to make them consistent with how it considers convention rights should be applied.
On the basis of the approach of the noble and learned Lord, Lord Hope, there is scope for reasonable excuse, but it is limited. That means we do not run the risk of the courts deciding cases on an unanticipated, or perhaps even incorrect, basis. We also do not need—despite my noble friend Lord Sandhurst’s amendment—to overturn the Ziegler case; what we will have, however, is a consistent, clear and precise approach to criminal law, which is precisely what we ought to have. I accept that some of my colleagues at the Bar may not be particularly happy with that, but, in this area and perhaps in others, their loss may indeed be the law’s gain.
Lord Coaker (Lab)
My Lords, in supporting Amendment 2 tabled by my noble friend Lady Chakrabarti and the noble and learned Lord, Lord Brown, and the points they have made, I will focus my remarks on Amendment 8 and the amendments consequent to it which seek to define a “reasonable excuse defence”.
I start by saying that I cannot really believe the mess the Government have got themselves into on both the definition of “serious disruption”, which we discussed previously, and the definition of a “reasonable excuse defence” we are discussing now. Nobody disagrees with the noble Lord, Lord Faulks—again, I agree with the Constitution Committee, as, I think, do most of us—but it would be extremely helpful if there were a definition of “reasonable excuse defence” in the Bill. I do not think that is a point of disagreement between us; the Constitution Committee itself recommends that. However, let us look at Amendment 8 as an example of the wording that is also used in Amendments 17, 27, 33, 50 and 51, as well as in other related offences. What protest ever takes place that is not part of a current dispute? Who protests because they are happy about something? I have not seen any demonstrations saying how brilliant this or that is; there might be an example, but, usually, a dispute happens and then people protest it—that is logical. But in each of these amendments, you cannot use “an issue of current debate” as a reasonable excuse in any circumstance. That is what we are being asked to agree to in Clauses 1, 3, 4 and 7 and some of the later clauses. Those clauses currently contain the reasonable excuse defence; the Constitution Committee says, quite rightly, that it would help if that were defined; and the definition the Government have supported says that you cannot use a current dispute as an excuse. I could go on at great length, but it makes the point by itself—it is ludicrous. That is the amendment the Government are supporting and that they are asking people to vote for.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, clearly, I intend to shed some light. The noble Lord, Lord Coaker, has generated a lot of heat on the purpose of “reasonable excuse”. I begin by thanking the noble and learned Lord, Lord Hope, for tabling his amendments. These exclude protest as a reasonable excuse for the criminal offences within the Bill. We would say that this amendment is consistent with the reasoning of the Court of Appeal in the Colston case in relation to the criminal damage allegations that were at issue in that case.
These amendments implement the Constitution Committee’s recommendation that instances of “reasonable excuse” in the Bill are defined. I thank the committee for its thoughtful analysis in this regard, which has helpfully informed much of today’s debate. The amendments from the noble and learned Lord also follow from the Supreme Court’s recent judgment that a lack of reasonable excuse in criminal offences is not necessarily incompatible with the European Convention on Human Rights. The noble Lord, Lord Faulks, has set out a compelling case for these amendments, so I will try to refrain from repeating the same points. Similarly, the noble Lord, Lord Wolfson, has very cogently set out the case for these amendments, and I will not repeat the points he made.
In summary: the Government support these amendments. They are necessary to ensure that these criminal offences serve their purpose. The entire reason we are legislating is to make it clear that locking on, tunnelling, and disrupting infrastructure are illegitimate tactics of protest. Now that we are satisfied that it is compatible with the European Convention on Human Rights to carve out protest as a reasonable excuse for these offences, we should do so. Parliament should make it explicitly clear that protest is not of itself a reasonable excuse for these offences. Not doing so will simply lead to protracted litigation in the courts. This much is clear from the Supreme Court’s decision in the Northern Ireland abortion clinics case.
Following from the noble and learned Lord’s amendments, the Government have tabled two more. The first similarly carves out protest from the offence of public nuisance. I take the opportunity to remind the House that the former common-law offence did not have a reasonable excuse for the offence at all. One was included in the statute on the recommendation of the Law Commission. Similarly to the offences within this Bill, and keeping in line with recent case law, we should now carve protest out of the offence.
The second amendment carves protest out of the lawful excuse for the offence of wilfully obstructing the highway. However, recognising that the offence is a low-level one, we do not carve it out in its entirety. Instead, the amendment removes protest from the reasonable excuse only where “more than” serious disruption is caused. The hope was to ensure consistency in the law; we sought to replicate the same proposed threshold of “serious disruption” in this offence. Therefore, protesters will still be able to obstruct highways to a certain degree. This, in the Government’s view, strikes the right balance between the rights of the public and the rights of protesters—an exercise that the noble Lord, Lord Sandhurst, rightly reminded the House is a fundamental part of the consideration of human rights.
Despite the definition proposed by the noble and learned Lord, Lord Hope, now not standing part of the Bill, there is still a need to clarify the circumstances in which obstructing a highway is not a legitimate exercise of one’s Article 10 and 11 rights. I would expect the precise wording to be settled as the matter is debated further by Parliament, and in such a manner as to ensure consistency and clarity for protesters, the police and the courts.
On the question from the noble Lord, Lord Deben, on the impact of such an amendment on a march such as that against the Iraq war, which we saw under the Blair Administration: under Section 3 of the Human Rights Act, this measure will still have to be read compatibly with the ECHR—a point the noble Lord, Lord Wolfson, made. Therefore, the point at which arrest and prosecution would be a proportionate interference with people’s Article 10 and 11 rights depends on the circumstances of each protest.
My noble friend Lord Sandhurst has tabled a similar amendment to those of the noble and learned Lord, Lord Hope, and the Government.
Lord Deben (Con)
I do not think I understand what my noble friend is saying. Is he saying that a march against the Iraq war would be acceptable? After all, it was about current issues. Very few issues were more current at the time. How would people know in advance that it would be acceptable? That is quite important, too.
Lord Murray of Blidworth (Con)
The reasonable excuse defence arises only once there has been a decision by the police to prosecute. The fact of the march itself is something that the authorities would have to judge, and they would have to do so in accordance with their obligations to act lawfully and in pursuance of their obligations under the Human Rights Act, including those under the provisions of that Act.
I return to the amendment from the noble Lord, Lord Sandhurst, which seeks to remove protest from the reasonable and lawful excuses of all criminal offences. While I appreciate the elegance of addressing the protest as a reasonable excuse question in one fell swoop and agree with the sentiment behind it—and find interesting the research in the Policy Exchange paper—I cannot support the amendment. Some offences, such as minor obstruction of the highway or the most minor of damage, such as that caused by water-soluble paints or dyes, can be a legitimate exercise of Article 10 and 11 rights.
The burden of proof was debated at length in Committee. The government position remains that the burden of proof should rest on the defendant. They are aware of all the facts pertinent to their case. As I made clear in Committee, it is not a novel concept for the burden of proof to rest on the individual.
I turn to the amendments in the name of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. These take issue with the reasonable excuse defence and seek to shift the burden of proving such a defence for the criminal offences from the defendant to the prosecution, making it a key element of the offence. Amendment 35, tabled by the noble Baroness, Lady Chakrabarti, also adds
“support for … a trade dispute”
to the protected activities of acts
“wholly or mainly in contemplation or furtherance of a trade dispute”
under Clause 7. The government position remains that the burden of proof should rest on the defendant. While I understand the sentiment, Amendment 35 is not necessary as we assess that support for a trade dispute would already be captured under the defence.
I also want to address one of the criticisms that was made in Committee, which I believe has inspired some of the amendments of the noble Lord, Lord Paddick. As I made clear in Committee, the reasonable excuse defence resting on the individual does not, and would not, mean that those suspected of committing the offences would be arrested and charged without consideration of whether or not they had a reasonable excuse for their actions. With regard to the arrests, Code G of the Police and Criminal Evidence Act 1984 states that the use of the power of arrest requires the belief that an individual is committing, has committed or is about to commit an offence, and that the arrest is necessary.
With regard to charging decisions, the Crown Prosecution Service has to consider whether there is a realistic prospect of conviction at trial, and whether the suspect has a reasonable excuse will factor clearly in that decision-making process. This obligation on Crown prosecutors is set out in the Crown Prosecution Service’s Code for Crown Prosecutors in paragraphs 4.6 and 4.7. Any reasonable excuse defence that a suspect may have will be considered as part of these processes.
Finally, I have considered the proposal in the amendment from the noble Baroness, Lady Chakrabarti, to include support for a trade dispute as a reasonable excuse. I do not believe that it is necessary, as an act in support of a trade dispute is, in essence, in furtherance of one and therefore already in scope of the defence. As with the last group, I encourage all noble Lords to support the amendments from the noble and learned Lord, Lord Hope, and the Government and to reject the others.
Lord Paddick (LD)
The Minister said that the Northern Ireland Supreme Court case shows that the amendments are consistent with the European Convention on Human Rights. I made the point that the proportionality test that the Supreme Court made in that case was on the basis that the convention rights were restricted only within 150 metres of an abortion clinic and not outside that, whereas these amendments would apply universally and therefore, in my judgment, are disproportionate. The Minister did not address that issue.
Lord Murray of Blidworth (Con)
I entirely understand that that is the noble Lord’s view. The test of proportionality will, of course, be decided on the facts of each case as it arises, which will be matters that will feed into the decisions taken by the police and CPS in the charging process.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords who spoke in an incredibly thoughtful debate—your Lordships’ House at its best, if I may say so. Noble Lords will forgive me if I do not mention everyone, for obvious reasons of time, but I am particularly grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for explaining that sometimes reverse burdens make sense when the criminality is just so obvious, such as carrying a bladed article in public, but that linking arms is generally not thought of as the same kind of criminality.
I am also grateful to the noble and self-deprecating Lord, Lord Paddick. He may not be a lawyer, but he is certainly a better lawyer than many of us lawyers would be police officers, I suspect. His brilliant exposition of the Northern Ireland case in particular, including by way of his last intervention, demonstrates that Ziegler is not dead. As we have heard from many noble Lords in this thoughtful debate, protest is not a trump card; it will not always be a reasonable excuse for criminality. But sometimes it might be. It is not irrelevant to these matters. Good law is about rules and discretion and, without the right amount of discretion, injustice will follow.
Most of all, I am grateful to the noble Lord, Lord Deben, because it was his particular thought experiment that made me most concerned about a mass demonstration such as the one on Iraq—but it could be on another subject under another Government in future. We are talking about a mass demonstration where, quite deliberately, the police do not run around arresting everybody; they use their discretion in the public interest not to do so, so as not to cause a very hazardous situation to human beings and public order, or because they simply would not be able to arrest a large number of people.
In my development of the thought experiment from the noble Lord, Lord Deben, instead of just not arresting people and just ensuring that people are safe, certain police officers arrest only a certain type of person—say, only people in wheelchairs, or only women, who are easier to arrest, or, dare I say it, only people of a certain race. If those people alone were then prosecuted and were not permitted to argue a reasonable excuse that they were just on the demonstration like everybody else, I suggest that a grave injustice would follow. The fact of the protest is never a trump card, but sometimes it is highly pertinent.
I shall not press the amendments in my name to a Division, because I have decided, on the basis of this debate, that the priority in the time that we have is to vote against the government amendments, which is what I would urge all those concerned about this to do.
The Deputy Speaker (Lord Young of Cookham) (Con)
I am unable to put Amendment 5, by reason of pre-emption.
Lord Faulks
“(2A) The fact that the person did the act mentioned in paragraph (a) of subsection (1) as part of or in furtherance of a protest on an issue of current debate will not constitute a reasonable excuse for doing that act.”Member’s explanatory statement
This amendment seeks to limit the scope of the reasonable excuse defence, as the ingredients of the offence themselves ensure consistent with case law that its interference with a protester’s Convention rights is proportionate.
Lord Faulks (Non-Afl)
The House has heard the debate, and I am not going to repeat the arguments, which have been well set out. I suggest that it is clear as a matter of law that this is a perfectly sensible and legal amendment to the Bill that would provide clarity. The alternative approach is that the police somehow have to assess the absence of reasonable excuse. It is a difficult balance to achieve; what the amendment does is strike a balance between the undoubted and important right to protest and the right of people to go about their everyday life. I commend this amendment to the House, and I wish to test the opinion of the House.
Baroness Chakrabarti
Baroness Chakrabarti (Lab)
My Lord, we come to the next group, and I have put my name to leaving out Clauses 1 and 2, on locking on and going equipped. I will not rehearse the problems with the vague nature of the offence of locking on, which, at its lowest, could literally be linking arms; or going equipped, which is a thought crime that could criminalise people carrying all sorts of innocent items in their rucksacks—bicycle locks or even potentially, in the context of the way in which some journalists or photojournalists have been arrested of late, the camera they were going to use to photograph the locking on, because they knew there was a protest. The noble Lord, Lord Paddick, will speak to some amendments he has tabled in the group to tighten and improve some of the more serious offences, and the Minister will of course speak to the government amendments, which I do not believe, for once, are incredibly controversial. I beg to move.
Baroness Jones of Moulsecoomb (GP)
I support the noble Baroness, Lady Chakrabarti. Quite honestly, we are trying to amend this awful piece of legislation and really, it is not enough: we should just kick it all out, including these government amendments.
Lord Paddick (LD)
My Lords, I have Amendments 19 and 31 in this group. As I explained in Committee, the offence of causing serious disruption by being present in a tunnel, as drafted in the Bill, could criminalise those in London Underground tunnels, for example. Amendment 19 is designed to restrict the offence to tunnels constructed in contravention of Clause 3: that is, a tunnel created to cause, or that is capable of causing, serious disruption. I am pleased to say that the Government agree, albeit that their alternative, Amendment 29, restricts the tunnels an offence can be committed in to
“a tunnel that was created for the purposes of, or in connection with, a protest”,
whether the tunnel was created in contravention of Clause 3 or not. They are not adopting my amendment, which covers any tunnel built in contravention of Clause 3.
I know one should not look a gift horse in the mouth, but can the Minister explain how being present in a tunnel that does not cause, and is not capable of causing, serious disruption—that is, a tunnel that was not created in contravention of Clause 3—can result in serious disruption being caused by a person being present in it? Why is it necessary to extend the definition of a relevant tunnel beyond tunnels created in contravention of Clause 3? Why should the House agree to government Amendments 21, 29 and 30 rather than my Amendment 19? I am sure the Minister will have been prepared to respond to that question. Maybe not, looking at him at the moment.
My Amendment 31 concerns the offence of being equipped for tunnelling in Clause 5. We believe that the offence of having an object
“with the intention that it may be used in the course of or in connection with the commission”
of an offence of tunnelling is unnecessarily complicated. Can the Minister explain why the proposed alternative wording—having an object
“for use in the course or in connection with”
the offence—is not sufficient? For example, Section 25 of the Theft Act 1968 states:
“A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat.”
What does
“with the intention that it may be used”
mean? Either the person intends to use the object or they do not, even if they may end up not using it—for example, because it might prove to be unnecessary. “I’ve got this pickaxe in case the protest tunnel we’re building encounters rocks, but if there are no rocks I may not have to use it,” is still having the pickaxe for use in the course of or in connection with tunnelling.
The other amendments in the name of the noble Baroness, Lady Chakrabarti, supported by the noble Baroness, Lady Jones of Moulsecoomb, and the right reverend Prelate the Bishop of Bristol, seek to leave out Clauses 1 and 2. Locking on has been used for centuries as a form of protest, most notably by the suffragettes. This new offence is widely and vaguely drawn—for example, to include people attaching themselves to other people without defining what “attach” means. Not only is there a right to protest, there is also a long-standing acceptance that people should be able to protest in the way they see fit. The creation of a locking-on offence is not even supported by the majority of rank and file police officers, according to His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services:
“Most interviewees did not wish to criminalise protest actions through the creation of a specific offence concerning locking on.”
As with the whole of the Bill, there is sufficient existing legislation to cover locking-on activity, whether it is highway obstruction, for which the penalty now includes a term of imprisonment, or public nuisance, where the maximum penalty is a prison sentence of 10 years. Can the Minister explain the circumstances in which locking-on activity would not be covered by any existing legislation?
As for Clause 2 and the offence of being equipped for locking on, as currently drafted, the offence of having something
“with the intention that it may be used in the course of or in connection with the commission”
of a locking-on offence by any person, not just the person in possession of the object, could cover a whole range of everyday objects that someone is innocently in possession of. While the offence presumably requires the prosecution to prove
“the intention that it may be used in the course of or in connection with”
an offence of locking on, the power of the police to arrest is merely based on a reasonable cause to suspect that an offence may have been committed—a very low bar. As I said in the debate on a similar clause in what was then the Police, Crime, Sentencing and Courts Bill, you could buy a tube of superglue to repair a broken chair at home, get caught up in a protest and be accused of going equipped for locking on.
From my own extensive knowledge of policing, I say that if you have a tube of superglue in your pocket while innocently trying to negotiate your way around a protest and are stopped and searched by the police, as this Bill will allow, and if you then believe you can convince a police officer that they do not have sufficient cause to suspect you are going equipped to lock on and, as a result, that you should not be arrested, that would represent a triumph of hope over experience. We support Amendments 9 and 10.
The Lord Bishop of Manchester
My Lords, I shall speak very briefly in support of the amendment to remove Clauses 1 and 2 that my right reverend friend the Bishop of Bristol signed. She regrets that she cannot be in her place today. As the noble Baroness, Lady Chakrabarti, said, establishing new offences of locking on and being equipped for locking on have very significant consequences for the right to protest. A few days ago I got an email from a retired vicar in my diocese. He wrote to tell me he is awaiting sentencing: he has just been convicted of obstruction by gluing himself to a road during a protest by an environmental group. The judge has warned him and his co-defendants that they may go to prison. I cite his case not to approve of his actions—which I fear may serve to reduce public support for his cause rather than increase it—but because it clearly indicates to me that the police already have sufficient powers to intervene against those who are taking an active part in such protests. Anything extra, as the noble Lord, Lord Paddick, has just so eloquently illustrated, is superfluous.
Lord Beith (LD)
I would like to add to my noble friend’s very precise definition of the drawbacks of this clause. In more general terms, its provisions will lead to situations in which people do not know they are breaking the law and are then accused by the police of doing so. I should have said they do not know they might be breaking the law because of its broad terms. That is a very unhelpful situation should it arise; in my submission, it will arise quite frequently. The sorts of things that are covered by this provision are everyday household items—as my noble friend pointed out—such as glue or a padlock. I referred in earlier debates to the practice of young people of placing a padlock on a bridge—as a sign that they are eternally joined with each other—and throwing the key into the river so that it cannot be taken off again. Imagine the conversation you would have with a police officer when you are trying to explain those circumstances, and he thinks you are on your way to a protest.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will make only a very brief intervention. I agree with what my noble friend said in her introduction of this group, and also what the noble Lord, Lord Paddick, said about his Amendments 19 and 31. I am looking forward to the Minister’s explanation of Amendment 29 and how that is a more appropriate amendment than Amendments 19 and 31.
One thing I can add to this interesting short debate is as a magistrate who deals regularly with the issue of reasonable excuse, and it is something we have got used to dealing with over many years. The context in which I see that excuse is when someone is carrying a knife or a bladed article. That is almost invariably the defence that one hears when one is in court. That is something that we are used to dealing with. It is also something that there is a lot of public interest in, so changing definitions and giving more scope to more complex laws does not help the courts. The courts have, in these contexts, the defence of reasonable excuse and they are well used to dealing with it. Nevertheless, the amendments in this group have been well presented and I look forward to the Minister’s response.
Lord Davies of Gower (Con)
My Lords, the amendments in this group take issue with offences listed in the first five clauses of the Bill, so it might be helpful to set out exactly why the Bill is so necessary and how it differs from existing public order legislation. The Bill seeks to speed up the ability of police to pre-empt, intervene and respond to the evolving tactics we have seen from—what can best be described as—a selfish minority of protesters. It also seeks to establish clear stand-alone offences, which target disruptive and dangerous behaviour, and impose sentences that are proportionate to the harm caused.
I have heard many times that the police already have the powers necessary to deal with disruptive behaviour, such as tunnelling or locking on. I disagree. We have only to look at the high levels of disruption as recently as a few months ago to see that more needs to be done. The Bill provides police with the powers necessary to combat these specific offences while ensuring that those who seek to cause serious disruption on private, as well as public, land are held to account. It is completely unfair that the hard-working public have to face misery and disruption caused by individuals locking on to a road or tunnelling under a building site, only to see the perpetrators arrested several hours after beginning their actions and then let off with a light sentence.
Clauses 1 and 2 are a key part of the Government’s plans to protect the public from the dangerous and disruptive protest tactic of locking on. We have seen protesters who use locking on and who tunnel be acquitted on technicalities. Therefore, it is important to have clear, stand-alone offences for locking on and tunnelling. This ensures that those intent on causing serious disruption for others can be brought to justice quickly and given a proportionate penalty that reflects the harms they have caused. The “going equipped to lock on” and the “going equipped to tunnel” offences enable the police to intervene earlier to prevent serious disruption. Dealing with a tunnel or a lock-on is extremely resource-intensive, taking hours of police time, which could be much better spent tackling other crimes and disorder on our streets. Surely noble Lords would agree that enabling the police to act before the acts are committed is in everyone’s best interests.
The Government are on the side of the public and will act to ensure that the public are protected from these disruptive acts. We welcome Extinction Rebellion’s sensible new year’s resolution to
“prioritise attendance over arrest and relationships over roadblocks”.
However, Just Stop Oil and Insulate Britain are digging their heels in and have committed to continue trampling on the lives of others. Faced with this threat, it is clear to me that Clauses 1 and 2 should stand part of the Bill. Therefore, I respectfully ask the noble Baroness, Lady Chakrabarti, to withdraw Amendment 9.
Amendment 19, tabled by the noble Lord, Lord Paddick, limits the extent of the offence of causing serious disruption by being present in a tunnel to tunnels which have been created through the commission of the offence of causing serious disruption by tunnelling. I thank the noble Lord for tabling this amendment and accept the need for clarity in distinguishing between those who cause serious disruption in a tunnel created for the purposes of or in connection with a protest, and those who cause serious disruption in tunnels such as the London Underground tunnels.
My noble friend Lord Murray previously committed to considering this matter further: subsequently, the Government have tabled Amendments 21, 29 and 30. These amendments provide that the offence of causing serious disruption by being present in a tunnel, as defined by Clause 4, is committed
“only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.”
The Government’s amendments provide clarity in the legislation on the scope of the offence. This means that people who cause serious disruption in tunnels not created for the purpose of or in connection with a protest—such as the London Underground tunnels—would not fall within the scope of Clause 4. In contrast to Amendment 19, it also includes no additional burden for the courts when prosecuting offences under Clause 4, in that they would not be required to show that an offence has occurred under Clause 3 as well.
Finally, Amendment 31 raises the threshold at which an object may be captured within the scope of the “going equipped to a tunnel” offence, as doing so would limit the effectiveness of the offence. We are trying to ensure that the police can act proactively before these harmful tactics are used. The amendment in the name of the noble Lord, Lord Paddick, raises the threshold for intervention too high. In light of this, I hope noble Lords will support the amendments in the Government’s name and reject the other amendments in this group.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords who spoke in this short debate. I believe it was such a short debate because so much of the argument has been rehearsed in the first two groups. I thank the Minister for the tone of his remarks. The reason that so many noble Lords voted as they did in the first two groups is because of their profound concerns about the breadth and vagueness of these offences. The brevity of this debate is in no sense any indication of support for, for example, locking on—an offence that could find a courting couple, if that is not too antiquated a term, who linked arms being accused of being capable of causing disruption to police officers and, if an argument ensues, finding themselves in the territory of locking on. It was a revelation in one of the debates on the Bill when the Minister, the noble Lord, Lord Sharpe of Epsom—who is now in his place—said, in response to a challenge by one of my noble friends, that, yes, linking arms could be attachment.
There are reasons why, for example, people in wheelchairs might attach themselves to the wheelchair in order to feel safer during a busy demonstration. There are so many unintended consequences. Even if one thought it were legitimate to create specific—or bespoke, which is the phrase normally used by my noble friend Lord Ponsonby—offences to tackle the suffragettes of the future, this offence is so broad and so vague that it would catch people who do not even intend militant protest at all.
With respect to the Minister, when he tells us that the events of recent months make this legislation necessary, how does that square with the comments of the right reverend Prelate the Bishop of Manchester? Gluing yourself to the road, with the intended consequence of being caught, has already led to prosecution and conviction. Legislating does not stop bad things happening but, with bad legislation, more bad things will happen. The law will be brought into disrepute, and the relationship between the police and the public will be further fractured at a time when it is under grave strain for a number of reasons that we need not rehearse.
In the light of the first two votes, His Majesty’s Government are going to have to do some serious thinking before the further passage of this Bill on these offences, the definition of “serious disruption”, the issue of “reasonable excuse”, and the need to protect journalists such as Charlotte Lynch, who the noble Lord, Lord Paddick, mentioned earlier, and a number of others who have been arrested under existing offences, including conspiracy to cause a public nuisance—no reasonable excuse for them before detention in a police station for many hours. The Government are going to have to think again.
In closing—because we may not get to the journalist protection amendment this evening—when the Home Secretary Ms Braverman appeared before the noble Baroness, Lady Hamwee, who is in her place, as chair of the Justice and Home Affairs Committee, before Christmas, she very kindly agreed to consider the subsequent amendment in my name and that of the noble Baroness, Lady Boycott, to give specific protection to journalists. I have not yet heard a response from the Home Office. I have followed up with emails to the Home Secretary and to the public correspondence section of the Home Office. I hope that, before we reach that later amendment, there could be some consideration, as was promised to your Lordship’s Justice and Home Affairs Committee before Christmas.
I shall withdraw my opposition to Clause 1 standing part for the reasons I gave. I have every confidence that, in the light of the last two votes, which may have come as a surprise to them, the Government will sensibly now give some consideration to the way forward for this Bill.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment and the amendments in the name of Lord Sharpe of Epsom at page 4, line 14 and page 4, line 15 provide that the offence in Clause 4 may be committed only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.
Lord Sharpe of Epsom
“(5A) In this section “relevant tunnel” means a tunnel that was created for the purposes of, or in connection with, a protest (and it does not matter whether an offence has been committed under section 3 in relation to the creation of the tunnel).”Member's explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 3, line 28.
Lord Sharpe of Epsom
Member's explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 3, line 28.
Baroness Chakrabarti
Member's explanatory statement
This amendment removes the Secretary of State’s power to make regulations by statutory instrument amending subsection (6) to add a kind of infrastructure or to vary or remove a kind of infrastructure; or to amend section 8 to re-define any aspect of infrastructure included within the new criminal offence.
Baroness Chakrabarti (Lab)
My Lords, now we turn to the offence of interference with the use or operation of key national infrastructure, which is clearly a matter of considerable concern to the life of the community and to the balance that we have been discussing between peaceful dissent and the rights and freedoms of people in a democratic society.
The definition of key national infrastructure becomes very important in relation to a new criminal offence which attaches to it a maximum of 12 months in prison. My Amendment 38 is perhaps fairly predictable for an amendment in your Lordships’ House: it seeks to remove the Secretary of State’s ability by regulations or statutory instrument to amend the definition of key infrastructure. As your Lordships will understand, it would be just too easy for any Government, now or in the future, to amend the definition in a way that was not proportionate, and to add matters and items to key infrastructure that the public did not consider to be key. On principle, I do not think that criminal offences should be created or amended in that way by Henry VIII powers. That is the reason for my Amendment 38. It is the sort of amendment that I would have tabled to any number of criminal justice Bills. It is not specifically about protest; it is an objection of principle to amending important definitions within criminal law in that way.
Amendments 39 and 40 in the group, tabled by the noble Lord, Lord Paddick, similarly try to tighten important definitions, but I will leave him to speak to those. I beg to move.
Lord Paddick (LD)
My Lords, as the noble Baroness, Lady Chakrabarti, just said, I have Amendments 39 and 40 in this group. As we discussed in Committee, while there may be some sympathy for measures designed to stop protesters blocking motorways, airport runways and railway lines, the legislation as drafted—covering anyone who interferes with the use or operation of any key national infrastructure, including being reckless as to whether it could be interfered with—could criminalise those legitimately protesting on railway station forecourts or concourses or those protesting outside or inside airport terminal buildings who do not intend directly to impact train journeys or flights. Clause 7(4) is extraordinarily broad in its scope, in that anything that prevents the infrastructure being used or operated to any extent for any of its intended purposes is covered.
For example, those awaiting the arrival of a controversial figure whose presence is arguably against the public interest, and who wish to demonstrate their objection to the person’s presence in the United Kingdom, should be excluded from the overbroad remit of this offence. I accept that they may be committing other offences, but to be prosecuted for interference with the use of key national infrastructure when this is clearly not the purpose or intention of the protest does not appear to be right. Amendments 39 and 40 seek to restrict the offence to infrastructure that is essential for transporting goods and passengers by railway and air respectively. We support Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, on the regulation-making powers of the Secretary of State to add, alter or delete the kinds of infrastructure covered by this offence.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we also support these amendments. As my noble friend Lady Chakrabarti made clear in her introduction, her Amendment 38 would remove
“the Secretary of State’s power to make regulations by statutory instrument amending subsection (6) to add a kind of infrastructure or to vary or remove a kind of infrastructure; or to amend section 8 to re-define any aspect of infrastructure included within the new criminal offence.”
As she explained, she is trying to give the Secretary of State a slightly more limited remit to introduce Henry VIII powers, along the lines suggested in her amendment.
The noble Lord, Lord Paddick, has explained his Amendments 39 and 40 very well. I will not repeat his explanation, other than to say that we are in favour of them in general terms.
Lord Davies of Gower (Con)
My Lords, Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, seeks to remove the delegated power for the Secretary of State to amend, add or remove infrastructure in the list under the legal definition of “key national infrastructure”. We have heard throughout the passage of the Bill about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power which will allow us to respond effectively to emerging threats. This was the position taken in Committee when this amendment was first tabled, and it is still the Government’ position. I assure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.
I turn to Amendments 39 and 40 tabled by the noble Lord, Lord Paddick. Amendment 39 seeks to narrow the scope of “rail infrastructure” to exclude protests that do not directly impact on the operation of trains, while Amendment 40 seeks to narrow the scope of “air transport infrastructure” to exclude infrastructure that is not essential for the purpose of transporting passengers and goods by air. As was noted when these amendments were considered previously, the scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8.
I would be keen to hear from the noble Lord, Lord Paddick, what he deems to be the essential and inessential elements of rail and air transport infrastructure. Rail and air infrastructure are each complex, interconnected systems, and it is not an easy exercise to find rail and air infrastructure that you can describe as non-essential to the running of services.
Lord Paddick (LD)
The Minister asks me to explain: I explained in my opening remarks, which I accept are not reflected in his notes. If there was a protest at the arrivals part of an airport against somebody who people felt should not be in the United Kingdom, they could be criminalised by this offence as drafted, because they would be interfering in some way with air transport—perhaps arrivals, but not disrupting flights, as the legislation intends. The Minister asked for an explanation; I have just given him one.
Lord Davies of Gower (Con)
I am very grateful to the noble Lord for his explanation. As I said previously, rail and air infrastructure are each complex, interconnected systems, and it is not an easy exercise to find rail and air infrastructure that you can describe as non-essential to the running of services.
Adopting this carve-out could pose a risk of ambiguity as to whether certain facilities—sidings, depots, maintenance facilities, freight facilities, air infrastructure used for pilot training, air shows and, potentially, trials of flights, aircraft and so on—would be covered. It would therefore create ambiguity for the transport industry, the police and protesters, and would give protesters another opportunity to delay prosecutions where the prosecution has to prove that the infrastructure targeted was “essential”. I also note that these are not safe places to conduct a protest, although this has not necessarily stopped people in the past. It is therefore the Government’s view that all parts of our rail and air transport infrastructure must be protected. For these reasons, I respectfully ask that noble Lords do not press their amendments.
Baroness Chakrabarti (Lab)
I am grateful once more to all noble Lords who spoke in this short debate. Once more, not testing the opinion of the House should in no way be taken as consent, let alone enthusiasm, for what the Government are doing here.
The criminal law should be an exercise in precision technical drawing, not impressionist art. However, this Government, and the Home Office in particular, are painting with a very broad brush. These broad powers and offences, which we have debated at length, are a blank cheque not just for police officers to use and misuse by accident or design, but for the Secretary of State to further define and amend this serious criminal offence of interfering with key infrastructure without the proper scrutiny that comes with primary legislation.
I am grateful to the Minister for at least giving me the assurance of the affirmative procedure. However, the problem with even the affirmative procedure is that, at a time of great public concern about the next protest movement down the track—the one that has not made the new year’s resolution that this Minister approves of—a list of amendments will be made to the regulations governing what is to be key infrastructure. Some of them will be sensible and acceptable, and some will be outrageous. Members of the other place and Members of your Lordships’ House will be put in the invidious position of saying yes or no without the kind of scrutiny and line-by-line consideration, voting and amendment that is possible with a criminal justice or public order Bill. This need to sub-delegate seems all the more extraordinary when we are getting public order Bills every year at the moment. This just does not compute to me.
Having tested the patience of noble Lords and the Minister, I will not test the opinion of the House.
Public Order Bill
Monday 30th January 2023
(1 year, 9 months ago)
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Baroness Morrissey
“(d) in any location that is visible from the curtilage of the abortion clinic.”Member's explanatory statement
This amendment seeks to protect the rights to privacy and private property, and endeavours to align Clause 9 with the limits of safe access zones legislation in other jurisdictions.
Baroness Morrissey (Con)
My Lords, I will speak to Amendments 41, 42 and 43 in my name. First, I apologise for any offence caused by my tabling those amendments without having been involved in Committee. I am afraid that I am still learning the ropes here, as it were, and I certainly did not intend any discourtesy. I hope that your Lordships can forgive me; I will certainly learn from my mistake. My motivation was, and still is, to offer your Lordships another way forward on the tricky Clause 9 which I hope might seem reasonable and sensible. It also has the advantage of having been tested and shown to be workable, both legally and practically, in another common-law jurisdiction. I thank my noble friend Lord Wolfson of Tredegar for his help with the finer points of the legal issues.
The amendments, collectively, take four points as given: first, that abortion, within certain parameters, is legal in England and Wales—whatever our individual views on abortion, that is not the issue up for debate today; secondly, that women who have decided to go ahead with an abortion should be able to avail themselves of the services without harassment or intimidation; thirdly, that there is a right to free speech; and, fourthly, given that abortion is a highly-charged topic, that it is appropriate to regulate space around clinics. The question is: how do we balance those four points? The amendments I have tabled seek to achieve balance in a way that I do not think is currently achieved by Clause 9 or, indeed, by Amendment 45, tabled by my noble friend Lady Sugg —someone I greatly admire and respect, but whose amendment gives me cause for some concern.
I will focus my remarks on my Amendment 42, which is at the centre of this matter. Amendment 42 is modelled on law adopted in 2015 in Victoria, Australia; it has been widely accepted and is working well. An Australian-style law has many benefits, especially when examined in contrast to Amendment 45. First, it ensures that women accessing abortions are free from intimidation, harassment or interference. It targets the worst forms of behaviour that protesters subject women to at abortion clinics. Yet it is reasonable in how it achieves those aims: it does not indiscriminately ban all peaceful and unintentionally intrusive activity.
Rather than banning all peaceful activity, the amendment prevents intimidation and harassment, defined quite precisely as communication by any means that is
“reasonably likely to cause distress or anxiety”
to a woman seeking an abortion. This prohibition ensures that women can access abortions without enduring disruptive protests, name-calling and otherwise distressing behaviour. Amendment 42 looks to cast a wide but realistic net compared to the rather vague proposal in Amendment 45, which seeks to prohibit “influencing”. I would like to clarify a few points that noble Lords may hear later on this subject from proponents of Amendment 45.
I believe it is too simplistic to say that Amendment 45 aligns English law with Northern Ireland’s Abortion Services (Safe Access Zones) Bill, with the blessing of the UK Supreme Court and that, therefore, we should feel reassured. I say this for the following reasons. First, the Supreme Court has not clearly identified “influencing”. That sets what I think is a worrying precedent for freedom of speech. Secondly, the UK Supreme Court did not say that Northern Ireland’s law would never lead to a situation incompatible with the European Convention on Human Rights. Rather, the test the court applied was whether it would almost always lead to an incompatible situation, so there might be some situations where a ban on influencing is incompatible with the ECHR.
There are also key differences between Northern Ireland’s law and Amendment 45. Notably, my noble friend Lady Sugg’s amendment applies to outdoor private spaces, and it carries a higher fine than under Northern Ireland’s law. It also does not explicitly ban filming women as they enter or leave an abortion clinic, or if it does, that is not clear, because it would require them to show that being filmed influenced their decision. If my noble friend implicitly accepts that Northern Ireland’s law should not be followed in its entirety, this House must decide on the best model to follow.
An Australian-style law is reasonable in these circumstances. It sets a clear threshold for the types of activities captured under the law, Australian courts have offered guidance on what the law means, and it offers stronger protections for women—for example, an explicit ban on filming them. Another key advantage of Australian law is that it has already been tested in the courts. The High Court of Australia upheld that it is valid in a key ruling in 2019, and in fact, the UK Supreme Court has quoted that judgment in its recent ruling on Northern Ireland’s law. The Supreme Court of Victoria has clearly interpreted the meaning of the communication prohibition, whereas the UK Supreme Court, as I said earlier, has not provided a clear interpretation of what “influencing” means or the activities it captures. I note that even other common-law jurisdictions such as Canada, which has a strict law in this area, do not ban influencing—and for good reason.
Amendment 45 would also ban silent prayer and goes further than supporters of my noble friend’s amendment wanted to go in Committee. I draw your Lordships’ attention to the remarks of the noble Baroness, Lady Barker:
“I listened carefully to a number of noble Lords who made emotive comments suggesting that we wish to ‘criminalise prayer’. In the case of a single person in silent prayer, no, we do not; in the case of a church where every member turns up, week in week out, to stand directly in the path of women trying to access a service with the avowed intent of frustrating their access, yes we do.”—[Official Report, 22/11/22; col. 1323.]
Unfortunately, this is a distinction without a difference in Amendment 45, which could criminalise anyone who prays silently. If silent prayer can be a form of communication about abortion, under an Australian-style law, and as clarified by the courts, it would be a crime only if it was reasonably likely to cause distress. I believe that that is a far more sensible threshold than the indiscriminate standard in Amendment 45.
Amendment 42 also avoids absurd situations. If we were to adopt similar guidance to, say, Victoria’s Department of Health, it would not extend to activities in the vicinity unconnected to abortion clinics, such as university lectures touching upon abortion. Similarly, it would create an exception so that road maintenance or construction works blocking the entrance to an abortion clinic would not amount to criminal liability. Amendment 45 does not contain a similar exception.
Finally with respect to this amendment, it is worth noting what the abortion provider Marie Stopes Australia says about the law in Victoria. It supports it, and has argued against laws that go further than it on the principle that more draconian prohibitions impose too great a burden on fundamental freedoms.
In the interests of time, I shall touch only very briefly on Amendment 41, which seeks to exempt most private property from the buffer zone. As it stands, both Clause 9 and the noble Baroness’s amendment would prevent, say, discussions about abortion from taking place in the garden of a private dwelling within a buffer zone.
Finally, Amendment 43 would ensure that penalties for offenders are proportionate and sufficient to match the severity of the offence, with a maximum penalty of an unlimited level 5 fine.
Creating buffer zones around abortion clinics is intrinsically fraught, and I hope that noble Lords see Amendments 41 to 43 as striking a careful balance between the aims of safe access zones to protect women and civil liberties. I look forward to hearing your Lordships’ views on the matter.
Lord Farmer (Con)
My Lords, I shall speak to my Amendment 44, supported by the noble Baronesses, Lady Fox of Buckley and Lady Hoey. I found the speech from my noble friend Lady Morrissey very interesting, and I shall refer to it shortly.
Fundamentally, with regard to the current Clause 9, calling for a 150-metre buffer zone—or safe access zone, as I think it is now being called—it is not supported by the necessary evidence and research data to justify placing on the statute book such a law, which would be a substantial incursion into the freedom rights of the individual. My amendment is not about abortion or abortion clinics per se; it is about good law or bad law. We have heard much at Second Reading and in Committee about the 2018 Home Office review on this matter and its judgment word, “disproportionate.” At this time, we do not have the evidence that such a clause as it currently stands is a proportionate response to activities nationwide around abortion clinics. Therefore, we need a review, to establish the facts about what is going on and respond accordingly.
After all, again as has been mentioned previously, we do have laws, including PSPOs, which are available for dealing with egregious practices. Buffer zones can be imposed by local councils when deemed necessary, and Bournemouth, Birmingham and Ealing are examples. The only activity currently being reported by the media that I am aware of is the arrest of two women for praying, and the fining of a veteran who paid for his girlfriend to have an abortion 22 years ago, for the same reason—praying.
I disagree that the Supreme Court judgment on Northern Ireland justifies this law on our statute books, for three reasons. First, we have had abortion for over 55 years, whereas in Northern Ireland this option has been legally available for less than four years. Moreover, secondly, it was made so in circumstances which in themselves have provoked much anger. Finally, with respect to Northern Ireland, key to the Supreme Court’s reasoning was the evidence which the Northern Ireland Assembly considered before passing the legislation. Those resting their arguments on what has transpired there actually strengthen my argument that a review should come first before we even craft legislation here. Similarly, we are not the US and should not be making pre-emptive legal strikes in response to changes there without the evidence from our own jurisdiction—albeit that there has been a dramatic US response to the decision of its Supreme Court on Roe v Wade.
Having read my noble friend Lady Sugg’s amendment, I should add that she has clearly thought long and hard after listening to opposing views during the passage of the Bill. I can see how hard she has worked to refine what was referred to by one of the amendment’s authors in the Commons as a “blunt instrument”. Similarly, I sympathise with the sentiment that we need to respect the will of the Commons. However, confusion was unnecessarily caused by making this a conscience vote in the other place, as I said at earlier stages. Voting for buffer zones should not be identified with voting for women’s rights to access abortion. That is not what is at stake here. We can respect the will of the Commons but still require it to think again about immediate nationwide restrictions on access to public space.
I turn very briefly to the amendments in the name of my noble friend Lady Morrissey. Again, I respect her efforts to craft a clause that is more human rights-compliant and otherwise fit for purpose. However, neither she nor my noble friend Lady Sugg deal with the substantive underlying principle of the need for a body of conclusive evidence before bringing a bespoke criminal regime into force for activities outside abortion centres.
Her amendments, as we have heard, are closely derived from legislation from Victoria, Australia, cited by the Supreme Court with regard to Northern Ireland. But, again, paragraph 151 of the Supreme Court judgment refers to evidential claims that were available to point to, to legitimise drawing on the Victorian situation. Our Parliament does not yet have that evidence, and this is why I will be unable to vote for my noble friend’s amendments.
My amendment takes seriously the possibility that legislation might be needed, but it gives the Commons a proper opportunity to debate how the proportionality of such restrictions can be established through the same evidence-based process typically required in every other area, and which other jurisdictions have drawn on in this area. So I ask your Lordships: why the rush?
Clause 9, and the process that led to its being added to the Bill in the other place, has many of the hallmarks of emergency legislation. Adam Wagner’s book Emergency State, which details flaws in the emergency Covid laws, provides salutary warnings about proceeding too hastily. He makes the point that
“the brute force of emergency law-making does damage and we need to avoid making the same mistakes again.”
Emergency states are ignorant, says Wagner. He adds:
“Decision-makers have to rely on limited and potentially unreliable information ... little scrutiny can lead to ignorant decision-making and corruption. It results in many hidden injustices, which may never come to light, or at least not until much later. And the vast powers can well outlast the emergency which was used to justify them.”
There is not even the need for emergency legislation here, as there was with the Covid outbreak. Surely a review, as detailed in my amendment, to be completed within a year, would provide Parliament with the evidence to produce a considered response to what is actually going on near abortion facilities. We are all aware that abortion is a contested, ideological issue. The two opposing sides hold different views that are legally allowed to be held and expressed.
However, I return to my point that the Bill is not about the rights and wrongs of abortion. It is the Public Order Bill and, as such, is how Clause 9 should be viewed. Is there sufficient public disorder to warrant such an incursion into citizens’ civil liberties? The answer is that we do not know. Therefore, we need a review. I commend my amendment for your Lordships’ consideration and beg to move.
Baroness Sugg (Con)
My Lords, I shall speak to Amendment 45, which I have co-signed, and to other amendments in this group.
The original Clause 9 was inserted in the Commons and is designed to bring in safe access zones around abortion clinics without delay and ensure that women can safely access their legal right to healthcare. We had extensive debates on the necessity for Clause 9 at earlier stages of the Bill. I will not repeat arguments and shall aim to be brief.
It is clear that revision was needed to Clause 9 as we received it from the Commons. The Government were not able to make a Section 19(1)(a) statement that the original clause was compliant with human rights, and noble Lords raised a number of other issues at earlier stages. I have co-signed Amendment 45, to be considered by your Lordships as an alternative to the existing Clause 9. This is a cross-party proposal based on debate and amendments at earlier stages, and is an alternative that I hope your Lordships will agree is an improved and now legally robust and compliant amendment, fulfilling our duty as a scrutinising, revising and improving House, while keeping the intent of this clause, as voted for by a Commons majority on a free vote. We have worked to ensure that this amendment is compatible with the Human Rights Act 1988 and we have been told that it does now meet the threshold for a Section 19(1)(a) statement. I would be grateful if my noble friend the Minister would confirm this from the Dispatch Box.
Amendment 45 also makes changes responding to other concerns raised by noble Lords at earlier stages. We have removed custodial sentences from the clause; private dwellings and places of worship have been exempted, as long as activity there is not designed to impact women outside that space trying to access healthcare; and we have included an exemption for those “accompanying, with consent”, to ensure that conversations that women wish to have will not be captured. The amended clause still contains the word “influence”, as referred to by my noble friend Lady Morrissey. It is a word in the original clause that was subject to some debate in Committee. This wording is also used in existing UK legislation for safe access zones in Northern Ireland, also referred to by my noble friend. That legislation was, indeed, upheld in December last year by the Supreme Court.
Of course, Northern Ireland is a different jurisdiction, and abortion is provided there in a very different way from that in England and Wales. I am not making the case that this legislation we are putting forward is identical to that in Northern Ireland: it is not, and nor should it be. This amendment reflects the needs of clinics and hospitals here in England and Wales, but it is important to note, because we all want to get the balance of this right, that the Supreme Court, in its ruling of 7 December last year, ruled that the use of the term “influence” was not only relevant but necessary to deliver on the introduction of safe access zones. It specifically stated that its removal and a sole reliance on “harassment, alarm and distress” or “impeding” provisions would leave women in Northern Ireland open to continued breaches of their rights, which is certainly not something we want. Again, recognising concerns about this wording in Committee, the offence is now one of strict liability in the new clause proposed by Amendment 45.
I will not support other amendments in this group if they are pressed to a vote. Amendment 41, which would put in some protection, does not actually go as far as Amendment 45, which exempts all private dwellings and places of worship within the zone. On Amendment 43, my noble friend Lady Morrissey criticised the level of the fine in Amendment 45, but I believe that her Amendment 43 puts forward exactly the same level of fine that we have put forward in Amendment 45. On Amendment 42, the use of Australian legislation in the proposed new clause was carefully considered and discussed with the Home Office at an earlier stage, a good few months ago now. It was decided that it would be better to base our new law on existing UK law, rather than on Australian law. Of course, as with Northern Ireland, there is a very different system for the provision of abortion, and a very different rights framework, and we now have the UK Supreme Court judgment.
I do not believe that these amendments fully address all the other concerns I have discussed, which noble Lords raised at earlier stages, and I think that Amendment 45 is more legally robust than the original, even with these amendments. I will leave it to other noble Lords to put forward the views they expressed in earlier debates. Lastly, my noble friend Lady Morrissey mentioned MSI. She is absolutely correct that MSI Australia is supportive of the legislation within Australia; however, MSI UK is very clear that it strongly believes that Amendment 45 is the right option for England and Wales.
On Amendment 44, I am grateful to my noble friend Lord Farmer for his courteous words as ever, and I share his desire to get this right, but I do not support another review by the Home Office. I wish this legislation was not necessary, but every week around 2,000 women use abortion clinics that are now regularly targeted by protesters. This activity is on the rise and much of it is organised and funded by groups from the United States. Action is needed to ensure that we do not allow this activity to escalate here in the UK. We are seeing these zones introduced in France, Spain, Canada, Australia, Northern Ireland and soon in Scotland as well. It is really important that we give women in England and Wales the same protection that women are getting in those jurisdictions. Patients, women’s groups, providers, medical practitioners and MPs are clear that we ought to take action now.
Lord Beith (LD)
My Lords, I have viewed this issue from a civil liberties standpoint, and that left me rather alarmed at the wording of Clause 9 as it came to us from the House of Commons. It clearly indicated a willingness to extend our laws in ways we have never contemplated before, to the expression of opinion or to influencing people. I was profoundly unhappy with all that wording and not entirely convinced that the matter could not be dealt with using the existing law—as I remember from often quoted cases, it has been. It raised the worry in my mind of where else these principles could be applied—for example, to vaccination clinics if they were picketed by anti-vax people, or to scientific laboratories where animal experimentation is carried out and staff are very fearful of their names and addresses becoming known and of walking into work. These are dangerous things to import into our law but potentially attractive in a number of other situations.
After we tabled amendments in Committee, I met the Minister and Home Office civil servants. I am grateful for that meeting, as it really showed that work and effort was being put into trying to find a clause which was compliant with the ECHR, and which met the genuine concerns of those who brought it forward in the Commons. I am glad to say that the amendment in the name of the noble Baroness, Lady Sugg, has met a number of my concerns. It obviously could not meet my concern that we might have been able to do this by existing law, but it has more clearly directed the focus of the Bill to deal with the perceived harm, which is the intimidation, harassment or unfair pressure. It has not sought to hang measures which go far beyond what can be reasonably justified in a free society on to that definition.
A number of things that the original clause had in it are not to be found in the amendment proposed by the noble Baroness, Lady Sugg. Within the amendment, it is no longer a criminal offence to express an opinion—a concept that absolutely horrified me, and that no one could seriously suggest I would ever vote for given my political background and views. Nor does that amendment interfere with people’s liberties as to what they do in a private house, for example, as it explicitly makes an exception in that respect; nor does it impede directly the work that goes on inside churches if they suddenly find themselves inside a zone because the zone has been brought around them. One of the oddities of this legislation is that the shape of the zone is statutory and cannot take into account any particular local considerations.
The original clause would, in my view, have actually precluded discussions between staff who were arguing whether a late abortion was justified in particular circumstances. The clause was so wide and so dangerous and, again, the things I have listed have been addressed in the amendment in the name of the noble Baroness, Lady Sugg. What was included also was the case of accompanying persons who might be having a genuine discussion with the woman concerned—maybe her sister or her partner—and perhaps taking different views in the discussion that is taking place within that area. That accompanying person provision has been dealt with, and I am glad that it has been. I am sympathetic to the amendments in the name of the noble Baroness, Lady Morrissey, but my main concern is that, when this goes back to the Commons, it goes back in a form in which it is not likely to be defeated. I think we are approaching that point. I would have preferred to have dealt with this in another way and for a review to take place, but we are where we are. It is a difficult judgment for Members of your Lordships’ House—or, at least, I think it is difficult. In my view, the work that has been done to propose this new clause has gone a long way to meet the concerns once you accept that something has to be done. In time, it may be seen to have some defects which would need further remedying, but that has influenced my approach to it.
Lord Weir of Ballyholme (DUP)
My Lords, I rise to support Amendments 41, 42, 43 and 44. Like others, I have strong views on the subject of abortion; I suspect I am in a minority position within both this House and this country, but, as a number of noble Lords have said, today’s debate is not about abortion and what position any of us hold on that subject. That is a debate for another day.
I think there are two key points in relation to this piece of legislation which this group of amendments goes to: first, what is appropriate and proportionate in terms of the law, and, secondly, how do we protect everyone’s rights? I agree particularly with Amendment 44 from the noble Lord, Lord Farmer, as it deals with some of the very concerning wording in Clause 9. Also, it is surely a time for a level of pause for thought because, as the noble Lord, Lord Farmer, indicated, thankfully it is the case that we are not in the United States.
The current law regarding abortion has been in place for most of this country for longer than I have been on this earth—just about, if any of you want to guess my age in that regard. It is a question as to why this is suddenly an emergency-type situation. Are we seeing a scale of problems on the ground for which there is not an existing law? I would say that is not the case. We do need to have thoughtful law as to appropriate levels of protection for everyone, and therefore I am very much minded towards the proposal which says “Let us examine what actually the facts are, rather than rushing through a piece of legislation and indeed a clause which applies a particular draconian solution to that”.
On the issue of how we protect everyone’s rights, there are elements within Clause 9 that I think no one in this House could ultimately disagree with. If we are saying, for example, that we want to protect anybody, in any set of circumstances, from intimidation or threats, in every situation, I think all of us would say “Yes, protections need to be there”. Similarly, we would want to protect people from harassment, or from being impeded or blocked from something. Whether it is at a clinic or in any set of circumstances, I think everyone in this House would agree that those protections need to be there. I would question the necessity of this clause on those grounds, because a range of laws already provide that level of protection against threats and intimidation.
Leaving that aside, if that was all that was in Clause 9, there would not be so much of a problem. I appreciate that Amendment 45 softened the language in some regards in relation to this, but according to some of the aspects that are within Clause 9 at present, we are going to criminalise anyone who
“advises or persuades”
or
“attempts to advise or persuade”,
or—perhaps most worryingly of all—
“otherwise expresses opinion”.
If Clause 9 goes through unchanged, we are making an expression of opinion a criminal offence.
The alternative wording in Amendment 45 talks about making it a criminal offence to influence, but surely at the heart of the concept of freedom of speech, and the value of democracy, is the peaceful way in which people try to persuade others of their point of view? It should be a battle of ideas. I indicated clearly that, where that goes beyond the art of persuasion towards any level of threat or intimidation, it is unacceptable and should be criminal, but if we are criminalising expressions of opinion or influence, that is fundamentally wrong.
As I indicated, I have a different view from many within this Chamber on the issue of abortion. But, if we are to defend freedom of speech and the freedom to protest, it is very easy for any of us to stand up and say that we believe in freedom of speech on an issue that we agree with, and it is very easy for any of us to stand up in this Chamber or elsewhere and say that we support the right to protest whenever we agree with that protest. But surely the test within any free society is about defending the rights of people who hold opinions that we disagree with—views which we would find unacceptable.
Lord Hogan-Howe (CB)
I thank the noble Lord for giving way. I understand the point he makes about the possibility of making the argument, but is his argument that the best place to have that debate—I think he used the word “battle”—is directly outside an abortion clinic as people approach, at the point at which they might be receiving treatment?
Lord Weir of Ballyholme (DUP)
Let me make it clear that it is not a place I would see myself being. But the point is that, if they are doing it in a peaceful, persuasive way, people may take actions and views which we—
Lord Weir of Ballyholme (DUP)
Well, it is good to see, in relation to that, the idea that we need to defend opinions and the rights to protest and free speech, even if we fundamentally disagree with the opinion that is put within that.
As has been indicated already, and as we have seen with PSPOs, the problem is that, in terms of interpreting the law, there is a level of mission creep that goes well beyond simply the issue of threatening or intimidation. For example, with PSPOs, we have seen people prosecuted for simply taking part in prayer.
As I said, if we are going to defend the right of people to freedom of speech and freedom to protest—and, yes, that always has to be done in a peaceful manner—let us do that not simply for things we agree with, or even things we disagree with, but even things that we find repugnant. As such, I believe that what is in Clause 9 is totally unacceptable. As I said, it mixes in things that all of us would find perfectly reasonable with things that go well beyond that. Seeking to criminalise an interpretation simply of influencing someone similarly takes this beyond what the bounds should be.
Lord Jackson of Peterborough (Con)
My Lords, I rise to speak to Amendment 45, tabled by my noble friend Lady Sugg, and to strongly and emphatically support the amendment in the name of my noble friend Lord Farmer. I am unconvinced as to whether, at the present time, Amendment 45 actually ameliorates the concern about incompatibility with the European Convention on Human Rights. I will be interested to hear the Minister’s specific answer to my noble friend Lady Sugg’s question. I do believe, however, that this amendment is still disproportionate and is a significant attack on freedom of speech and thought.
First, the amendment seeks to criminalise those who are
“influencing any person’s decision to access, provide or facilitate the provision of abortion services”.
When compared with Clause 9, this is still extraordinarily broad and could potentially cover a whole range of innocuous activities. I know that there is a value judgment to be made about handing a leaflet to a vulnerable woman offering financial or housing support, but what about silent prayer, as we have seen examples of more recently?
This amendment does not actually exclude the outside of private property, so anyone who is in their private garden or their own car expressing their conscience could be criminalised. For a law which specifically proposes to limit fundamental freedoms of speech, expression and even thought, should we not be very specific about which behaviours are being disapproved of and where?
Yet, this amendment is indiscriminately applied to every clinic in the nation. As noted, the prohibited behaviours are far too broad. For example, in Clause 9 the 150-metre arbitrary curtilage limit refers to the abortion clinic at Mattock Lane, Ealing, west London. Behaviours, such as standing silently as if praying, which are found to have influenced someone, are included. Quite how this applies is a moot point.
The Lord Bishop of Manchester
My Lords, in Committee I shared my concerns about Clause 9 as it then stood. I am grateful for conversations that have taken place since. I particularly thank the noble Baronesses, Lady Sugg and Lady Barker. The latter has listened patiently and sympathetically to me and my friends on these Benches at some length.
My concerns regarding Clause 9 had nothing to do with the moral merits or otherwise of abortion; they lie in my passion to see upheld the rights of citizens of this land, both to receive healthcare and to protest. Women must be able to access lawful medical interventions without facing distressing confrontations, directed at them personally, when they are identifiable by their proximity to the clinic or hospital. At the same time, anyone who wishes to protest in general about abortion law must be able to do so lawfully, with the least restriction on where and when they may do so.
I am grateful to the noble Baroness, Lady Morrissey, for the proposals she sets out in Amendments 41 to 43, which build on the Australian example. Were they the only amendments put forward, they would have my support. However, what we now have in Amendment 45 is, I believe, something that strikes a more exact balance. It meets human rights requirements and contains sensible limits. It has widespread support and is, I believe, more likely to survive scrutiny in the other place. If it is moved, I intend to support it.
I accept the remarks of the Supreme Court regarding the necessity of proposed new paragraph (a) on influencing, but I have two brief questions on that matter on which I seek clarification. Much has been made in religious circles about whether silent prayer would be criminalised by this clause. We have heard it again tonight. As noble Lords might expect, I believe in the power of prayer, so I want to clarify on the record that the act of praying is not in itself deemed an attempt at influence, given that when I pray, I am trying to ask God perhaps to change the heart of a third party.
My second and rather less metaphysical question is intended to clarify that influence works both ways. Would a coercive and controlling partner, or ex-partner, determined that a reluctant woman should go ahead with an abortion and accompanying her against her wishes, be as guilty of the same offence as an anti-abortion campaigner?
Finally, I cannot support the amendment in the name of the noble Lord, Lord Farmer. It would remove safe zones from this Bill without providing any obvious parliamentary process for us to re-engage with the issue in a timely manner.
Baroness Thornton (Lab)
My Lords, I very much welcome the remarks of the noble Lord, Lord Beith. I am so glad to hear that he has considered this matter and come to the conclusion he has. Of course, I also welcome those of the right reverend Prelate.
I say to the noble Baroness, Lady Morrissey, that this is a good try, but her proposals might well have benefited from testing had she been involved in Committee. She might have changed her mind about how we in this House need best to reflect the clear will of the elected House on this matter. Not only has the elected House had a clear view on this matter, so has this House. Our job today is to make sure we provide at this point in the Bill an amendment that does that job. Amendment 45 does that because it complies with the EHRC, recognises differences and proposes a framework that reflects the issues as they pertain to abortion provision in England and Wales.
However, Amendment 44 would in many ways do what we saw the last time we discussed this matter: kick it into the long grass. Indeed, I remind the House that last time, it was defeated by 138 votes to 39. It would bring about a delay, meaning that thousands of women, nurses and midwives going about their lawful business would be harassed and intimidated. This seems to me to be really very straightforward.
Baroness Hoey (Non-Afl)
My Lords, I welcome the fact that there seems to have been a change in this House. No one really is pushing for Clause 9 just to stay as it was. I very much welcome that. I will speak in support of Amendment 44 from the noble Lord, Lord Farmer, and say a few words on what I thought was a wonderful speech from the noble Baroness, Lady Morrissey, on her amendments. I will support those when and if they are called, as well as Amendment 44.
Surely the role of this House must be to help enact laws that are necessary and proportionate, according to evidence. I have not seen the evidence to say that it is necessary to enact this whole area around abortion clinics when, as has been pointed out by other noble Lords, we already have legislation covering many—indeed all—of the activities that we would all find abhorrent. The importance of a review is that we can test whether, for example, the public space protection orders are working. It seemed that they were working when the lady who was silently praying was arrested. Have we looked in detail at what is working and what is not? Why do we need something else when these orders are in place? As a minimum, the House—and the Government—should be reviewing the PSPO regime to see whether it is working as intended. Good evidence makes good law, and the opposite is also unfortunately true.
Clearly, there is an appetite in the other place to “do something”. That is what politicians always call for. Something needs to be done, and they want to do it quickly; there is an appetite to act now. That being so, should Amendment 44 not be adopted, the House would do well to adopt a reasonable model based on a tried and tested approach. For that reason, I support the amendments in the name of the noble Baroness, Lady Morrissey.
Lord Winston (Lab)
I want to make the point that perhaps I am the only Member of this Chamber who has had that evidence. I have had it for years. It started with in vitro fertilisation—which was regarded as abortion then—when my patients were repeatedly harassed and made ill as a result of what was happening to them in the street outside Hammersmith Hospital and in other clinics, not only in mine. There is plenty of evidence to show that women were deeply distressed, and this created a very difficult issue for their care afterwards.
Baroness Hoey (Non-Afl)
I am sure the noble Lord is absolutely right in what he says; of course women would be distressed by that kind of behaviour. What I am asking is whether it is necessary to take this draconian approach. For me, the real problem with the amendment in the name of the noble Baroness, Lady Sugg, is the word “influencing”. The noble Baroness has said that it has been seen as perfectly okay, but I believe it goes much further than is necessary to achieve the law’s stated aims. I genuinely believe that it has grave implications for freedom of speech in the country; it is a drip-drip approach and a slippery slope to other ways in which freedom of speech will be attacked.
I reiterate what has been said by a number of other noble Lords: the UK Supreme Court ruling on Northern Ireland’s law cannot be interpreted as a judicial mandate to endorse Amendment 45, which is in many ways very different from Northern Ireland’s law; it is much more draconian. The Australian model, which was mentioned by the noble Baroness, Lady Morrissey, is reasonable, effective and clear. The Australian courts have interpreted what the communication prohibition means, and the requirement that
“communication must be reasonably likely to cause distress or anxiety”
suggests, I believe, that the law is tailored more properly to its objectives. It avoids overcriminalisation and it is responsive to the distinctions on the types of activities that Clause 9 should capture, as made in Committee by noble Lords on both sides of this debate.
I urge noble Lords to agree to a reasonable approach, the most reasonable of which has been put forward by the noble Lord, Lord Farmer. If not, and if others decide that we need to do more, I hope that we will be able to support Amendments 41 to 43, tabled by the noble Baroness, Lady Morrissey, ensuring that we protect women without completely disregarding civil liberties.
Lord Cormack (Con)
My Lords, I have often said in this House that the first question we should ask when confronted with a new Bill is: “Is this necessary?” This point was touched on by the noble Baroness, Lady Hoey, a few minutes ago. I do not believe that this Bill is necessary much at all, and I certainly do not think that Clause 9 is necessary.
I would like to make an appeal to your Lordships tonight. Why can we not convene a meeting before Third Reading, because in our House it is possible to bring forward an amendment on Third Reading. It is very important that my noble friend Lady Sugg should be prominently involved in that. She has genuinely tried—and I respect and honour that—but I do not think she has got it quite right, and I say the same to my noble friends Lady Morrissey and Lord Farmer.
I think we need to have a round table to discuss whether it really is necessary to keep Clause 9 in the Bill and what we should replace it with, if anything. I do not believe we have the solution tonight. Each of the amendments before us has certain merits but not a single one of them covers all the problems as perceived in the past. I still think that it is possible to deal with those things, such as the problems just referred to by the noble Lord, Lord Winston, with laws that are already on the statute books—books that are far too cluttered already.
Can we not just pause, reflect and discuss, and see if Clause 9 is necessary, which I do not believe it is? Can we decide what we would replace it with and which elements of the three sets of amendments before us tonight can best be combined to give protection, if it is needed, to those who are harassed—there is not a great deal of evidence but I accept that it happens—and to protect the freedom not just of speech, which is so important to all of us, but of private prayer, without which you will wrench the soul from a community? Nobody can stop my praying privately, because you do not know when I am doing it. It is important that we recognise that freedom of speech without freedom of religion is hollow and false. We have to preserve them both.
Lord Hogan-Howe (CB)
My Lords, I support the amendment from the noble Baroness, Lady Sugg, to which I have added my name. I do not support the review in the amendment from the noble Lord, Lord Farmer. Everybody has been careful not to say that there is no evidence but that there is insufficient evidence. I think there is clear evidence that there is a problem. In fact, the international response of other jurisdictions shows that it is not just a UK problem; I am afraid it is a more widespread problem than that. I think there is a need for a new law, and I support this particular amendment because it is a reasonable response to an unreasonable challenge at the moment.
I did some research with officers who are trying to deal with these problems at the moment to see whether this response looked reasonable. First, those who oppose Amendment 45 say that it prohibits protests. Of course, that is true, but we had that this afternoon here: you cannot protest here. It is not the only place in the United Kingdom where people cannot protest. We are talking about 150 metres around a relatively small group of places, that are the only places women can approach for this sort of treatment—it is a legal treatment though I accept that people have strong views about it. One hundred and fifty metres is really quite a small area.
Secondly, people say that public space protection orders should be used as an alternative. I am afraid that the problem is that they are not working in the way that was intended because they were not intended for this problem; they were intended to help local authorities deal with various unspecified problems. In some areas, drivers were parking up because they were trying to get to a certain place and people who lived in that area were having problems with engines running all the time, so it was used for that sort of thing. It is a very vague power which has been useful with many problems, but it has not proved particularly helpful with this one.
One of the challenges is that local authorities have many priorities, and this is not always one of them. They have challenges around budgets, so they cannot always go to court—so often, even if there is a problem, these protection orders are not being applied for.
The second problem is that, with each local authority approaching this in its own local way, the wording is inconsistent. The police are asked to apply them consistently, but each wording is different—whether there is intent there or whether there is not—and that really has caused a challenge.
The police have been criticised a couple of times today for their lack of action sometimes, but they are taking action in some of these cases: in fact, there have been complaints about the fact that they have arrested people who were praying. Although that has been used as an example of something draconian, in the cases where people have been praying the CPS has declined to prosecute. All that the police have done is make an arrest. They do not decide to prosecute: that is the decision of the prosecutor. In these cases—for example, in the West Midlands case—the decision has been based partly on the fact that no one can be sure whether a person who is praying is going to protest against or support abortion, so how could they possibly make a decision about prosecution?
Secondly, there was a case where an individual had displayed within a zone a protest sticker or protest banner within their vehicle that talked about murder and abortion. In that case it was not about a lack of evidence; the CPS decided it was not in the public interest to continue. So I am afraid we are not seeing prosecutions and we are seeing dilemmas, and people are saying that there are complaints about people’s behaviour.
Another challenge is that the women who are most affected by this do not want to make complaints. Why would you? You are at your most vulnerable. You do not want to be identified. You certainly do not want to go to court and be a witness. In some people’s cases, they have come to mainland UK to receive abortion services, not having been able to obtain them in another part of the UK—so why would they want to advertise the fact that they have got involved in an abortion service? So this has relied a lot on the staff.
The staff’s view is also important. Every patient who is affected—badly, in my view—is affected only on the occasion when they seek assistance, but the staff are there all the time, day in, day out. Imagine the pressure on them as they go to their job, which they take to be helping somebody to improve their life, or at least to travel forward in a different way.
The aggravated feature for me of the behaviour being complained about is that these women are en route to a treatment that they cannot obtain anywhere else. As I mentioned earlier in my question, I do not really think these are protests. Where there is not an order in place, the people protesting are directly outside the entrance or exit of these buildings, directly approaching the women who are going to seek a service. This is not about trying to convince the Government. It must be the least effective form of protest if it is trying to influence the Government. People in here are saying they did not even know there was a problem—so how can it possibly be that that has been an effective form of protest? I am afraid that is not really a sound argument.
If that is the best place where somebody can seek to influence someone, there is already a law saying that when someone is seeking abortion services, they should seek advice about other options. If they need financial support, adoption or any of the other things that might help somebody in these terrible circumstances—the dilemmas that I sure they must face—the law says they are entitled to that support from the medical advisers and from other people who will help them. The least effective way, surely, has to be shouting across the street or handing out a leaflet at the point where somebody is trying to get treatment and already has a dilemma. I cannot see that that is a sensible way to address the particular problem that we are talking about.
It seems that this gets worse at certain times of the year. More protesters turn up at abortion clinics during Lent. Why should women who have to go during the Lent period have to face more pressure than the women who go at a different period? That is someone else’s view.
I want to address the point about prayer. I think we all understand why prayer is particularly sensitive. Of course nobody wants to ban it, but not everybody finds prayer a supportive thing. I say this with respect to the bishop and as a Christian, but not everybody reacts in the same way. You cannot assume that a prayer expressed on the street is something that everybody wants to receive, and in my view they have every right to resist, or not to be faced with that dilemma. We have to keep that in mind too.
The only final thing I would like to say is that we have talked about behaviour in very general terms, but some of it has been abhorrent: handing out dolls in various stages of development, handing out protest leaflets that are very explicit on what people are complaining about, and judging people at a point when they have a very difficult decision to make. I say finally that this chanting carries on can be heard in the clinics—it is very obvious when you think about it, but I had not until the weekend. At the point at which women are receiving treatment, they can hear this chanting and hymn singing outside. Would you like it, in any medical treatment? It is just not acceptable and something needs to be done.
I like the tone and broad direction of the amendment from the noble Baroness, Lady Morrissey, but I worry, that with people’s human creativity and that 150 metres around the clinics, they would be very creative and the only people who would suffer from that would be the women. So I cannot support that amendment, but I understand why it was made. Finally, I will say that I support Amendment 45 for the women’s sake, for the sake of people who are employed there, and for anybody else who might be visiting at the very time that these protests are being made.
Lord Shinkwin (Con)
My Lords, I rise to speak in support of the pragmatic way forward, provided by cross-party Amendment 44 in the name of the noble Lord, Lord Farmer, and the noble Baronesses, Lady Fox and Lady Hoey. I thank them for tabling it, and I do so for a particular reason. Some would have us believe, as we have heard in this debate, that this is simply about abortion. Noble Lords should be clear: it is not. There is so much more at stake that should concern us all. This amendment gives your Lordships’ House the opportunity to chart a more measured way forward that avoids the perils of passing a law that undermines a hard-fought fundamental freedom: the freedom of conscience—a freedom that, surely, it is our responsibility and our privilege to champion and, most certainly, not to undermine.
I will not rehearse the points I made when we last considered this clause. Suffice it to say, it frightens me, because it threatens freedom of conscience and creates a precedent with potentially huge ramifications, which should surely alarm and unite all of us who value democracy. Some noble Lords have mentioned urgency—even emergency legislation. This is why we cannot afford to rush headlong without a review—just a review, not a final decision—being conducted first so that, in line with subsection (4) of the new clause proposed by Amendment 44, the proportionality of the measures proposed in Clause 9 can be carefully considered in the round, taking the views of all the stakeholders, including, of course, abortion providers, into account. We talk in this Chamber about the danger of passing legislation with unintended consequences. This clause proves our point perfectly. It has danger written all over it.
I say to any noble Lord who does not care about the risks of undermining freedom of conscience, about setting dangerous precedents or about passing laws brimming with unintended consequences: please, go ahead—vote for this clause and for other amendments. But if any noble Lord has so much as a shred of doubt, I urge them to vote for the review which, I repeat, is not a final decision. It is simply a review, proposed by Amendment 44.
Baroness Fox of Buckley (Non-Afl)
My Lords, the debate in Committee was extensive and expressed concern that the wording of Clause 9, whether it intended to or not, was setting a dangerous precedent in which free speech and opinion, through giving out leaflets, could be criminalised in state-designated zones around hospitals and clinics. Some of us asked, “Where next?”, and I put down amendments to Clause 9. I am really pleased that the debate led to people changing their minds because concerns were heard, and I commend the noble Baroness, Lady Sugg, on listening. Amendment 45 is undoubtedly a different provision from having that Clause 9 and, in my opinion, is much improved from a civil liberties point of view.
We should therefore note that the proponents of Clause 9 now do not support it. Good—that is that out of the way. However, I have several problems with Amendment 45 but will concentrate on one at this time. It is about its proposed new subsection (1)(a), which has the idea that there should be no attempt to influence
“any person’s decision to access … the provision of abortion services”.
Influencing has been discussed here this evening in appropriately legalistic terms, which are important, but I want to bring a different perspective. It is dangerous to suggest that influencing someone to change their mind about a decision made should be against the law, in almost any circumstances. This is not the same as suggesting that the appropriate place to have, as somebody called it, the free speech debate on abortion is outside an abortion clinic. I organise a festival called the “Battle of Ideas”, but we should not be having a battle of ideas outside an abortion clinic when somebody is trying to access healthcare. That is not the basis on which free speech is threatened by these buffer zones going national, which I think it is.
Many women are very firm and clear; they have made a rational decision that they want an abortion. They have given a lot of time to that decision and will not be deterred. I do not think they would even be deterred by anti-abortion vigils going on, because they know what they want to do. It is a bit distressing but they go in, and good luck to them. However, some women may be unsure. If they are toing and froing, they should and must be free to change their mind at any time and in any direction, up until either termination or what have you. It is not coercive if you think again. If a woman is trying to work out, “Should or shouldn’t I have a termination?”, they can go to see a counsellor at BPAS or a Marie Stopes clinic because they are not sure. If somebody tries to influence them—not in one way or another, but by getting them to talk it through and think about it—a woman might then leave that counselling service and say, “I’ve thought about it now. I’ve made my mind up and I’m going to have a termination”. That is a woman’s moral autonomy and we assume she is not coerced in that situation. A woman who may not be sure and is still thinking about it, even as she goes in for a termination, might be given a leaflet and then says in her own defence, “I’ve changed my mind. There may be an option of getting some practical support for pregnancy”.
Whatever the reason is, that is their choice. The point is that I am pro-choice. I do not want us to undermine women’s agency in our enthusiasm to support laws presented as protecting women. We should not legislate on the basis of worrying about women, how they feel, and their being distressed. Influence is something we should protect. I want to influence you now. I might be failing, because you have the capacity to listen and make a decision. Influencing is the basis of democracy. We should be careful about saying that we should not be allowed to influence because a Bill in Parliament said, “Don’t influence in that bit of the country”.
I consider these vigils insensitive and a nuisance. I disagree with the anti-abortionists outside. I think that abortion is a woman’s right to choose and a key right for women. I find the views of the people on these vigils offensive, and their demonstrations are often objectionable and distressing. However, in a democracy we have to tolerate people who sometimes have views we find distressing or offensive.
I want to emphasise that earlier we had lots of debates about proportionate law-making and civil liberties. Everyone on this side of the House has made some fantastic speeches about how we have to be careful about bringing in laws and what the thresholds are. Amendment 1, which I spoke on and supported, suggested a much higher threshold for what we consider “serious disruption”. I do not think these vigils, however obnoxious they are, would merit even the lower threshold the Government had. Basically, what I am saying is that I do not like them, but I do not think we need a law against them. I listened in Committee, as well as the noble Baroness, Lady Sugg, and changed my mind. I was trying to amend Clause 9, but instead I do not think we should amend it at all. We should review whether we need nationally mandated buffer zones at all. I do not want to amend the buffer zones; I want to stop, pause and look at the evidence.
Throughout Committee and since, I have talked to lots of people on all sides. I have been inundated by my mates on the pro-choice side and people on the other side. What struck me was the variance in what I was hearing. We have heard from a former police leader that he has gone round and there is a real problem. We heard from the noble Baroness, Lady Sugg, that this is escalating. There is American money, and all sorts of things are happening. We have heard that, since Roe v Wade, there are lurid stories of quite aggressive things happening outside abortion clinics. I have also heard on the other side that all anyone is doing is silently praying and it is completely benign.
The truth of the matter is that, if we are going to make such a dramatic change in the law from locally decided PSPOs, where there is a particular problem, to a national decision to carve up some public space and say, “No, you are not allowed to stand there”, when there might not have even been a problem, can we not at least base it on what is really going on? Public space protection orders are local remedies. I do not like that carving up of public space, but it is there and it is used. In 2018 the Home Office asked the same questions we have asked tonight, did an extensive review of vigils around abortion clinics and concluded that introducing national buffer zones would not be a proportionate response considering the experiences of the majority of hospitals and clinics and that the majority of activities are more passive in nature. People who wanted this clause say, “No, that is out of date and completely wrong. The 2018 review does not hold”. Fine; let us have a 2023 review. That is all I am saying, let us find out; I am adamant about that.
One of the things I have been completely won over on is that the victims of these vigils are often not women trying to access a termination but the staff day after day. When you are going in for the termination, they might annoy you once. I cannot imagine anything more irritating than having to walk past this if you are trying to do your job providing women’s reproductive healthcare.
Let the review look at whether we can have a particular way of dealing with that. When I was talking about PSPOs, I heard, “PSPOs don’t work, you know; they’re useless at this”. In that case, we need a review. Come back in less than a year, so we can have decent legislation that fits the facts, not the virtue signalling. For the sake of women’s rights, it seems important to me that we take this seriously and not just do it as a political act.
Lord Etherton (CB)
My Lords, I shall support Amendment 45, subject to one important qualification. My experience in relation to this derives from presiding in the Court of Appeal over the very first buffer zone case, Dulgheriu & Anor v the London Borough of Ealing. Ealing set up what is now called a buffer zone around the Marie Stopes clinic, and I will refer to a couple of matters that have arisen in the course of this debate which informed the judgment in that case. We dismissed the application for a public spaces protection order, which was made by a Christian group called the Good Counsel Network. It protested daily, and its protests comprised a variety of different actions, including presenting people who were going into the clinic with posters of foetuses at various stages of development, distributing prayer beads and putting up tents. Overall, the object was to prevent an abortion taking place. There was also evidence that they called out “Mum” to the women going in, that they presented puppet babies and that they held both verbal and non-verbal vigils. The evidence was that that was extremely distressing to vulnerable women, who were going into the clinic for advice or treatment, and it was equally clear that the staff were also extremely upset by what was happening.
I am afraid that I disagree with those who say we need a review to see whether the legislation is necessary. It is clear that the 2014 Act under which the public spaces protection orders are made is not designed to protect individuals in this way; it is designed for the benefit of a community when there is an action or activity that is harmful to the community. So there is no legislation that can provide this sort of protection, so far as I am aware and Ealing was aware, and which is designed specifically for this type of attack, in effect, on very vulnerable people seeking medical advice.
I agree with my noble friend Lord Hogan-Howe in this respect: this is not like the protests we have discussed so far today; these are actions directed to particular people who are particularly vulnerable. There is no other legislation, so the only question is: do we have this on a national or a local scale? Under the 2014 Act, a number of consultations have to be conducted. They can take a great deal of time—not just weeks or months but sometimes years; the Ealing consultation took a very long time to complete—so, from my perspective, legislation of this kind is needed for the protection of vulnerable individuals. Amendment 45 covers the ground perfectly, subject to one thing: I do not believe that it is consistent or appropriate for the maximum penalty for this type of offence to be limited to level 5 on the standard level.
For tunnelling, the penalties range from fines to imprisonment. Many of these religious groups are very well-backed; I do not anticipate at all that, if there was a fine, that would be the end of the matter. I think there would be repeat offences. Consistently with the earlier provisions in relation to tunnelling, for example, on indictment there should be provision on repeat offences for there to be the ability to pass a sentence of imprisonment.
Lord Paddick (LD)
My Lords, this has been a long and passionate debate. We support Amendment 45 and only Amendment 45 in the name of the noble Baroness, Lady Sugg, signed by all sides of the House—the noble Lords, Lord Ponsonby of Shulbrede and Lord Hogan-Howe, and my noble friend Lady Barker.
As many noble Lords have said, this is not about the rights and wrongs of abortion. This is about someone who has made the very difficult decision to seek the help of an abortion service provider. As they approach the abortion clinic, they should not be met with groups of individuals whose sole purpose is to stop the woman securing the abortion services she is seeking. Of course, that does not necessarily mean physically standing in the way, but the mere presence of individuals can be intimidating to vulnerable people who are seeking such help.
It has been said that these individuals want to offer advice, but, if they are being honest, that advice is, “Don’t have an abortion”. Abortion service providers have to assess the needs of the individual seeking an abortion and offer advice and counselling on the options available, including: adoption; government and NHS support for if they decide to go through with the pregnancy; and the implications of having an abortion. Those who propose alternative amendments must surely accept that the presence of anti-abortion protesters in buffer zones amounts to a last-ditch attempt to prevent abortions, not to provide the objective, even-handed, science-based advice that is provided by abortion service providers.
Amendment 45 ensures the measure passed by 297 votes to 110 in the other place is European Convention on Human Rights-compliant. My understanding is that the Minister will confirm that the Government now consider this to be the case. We do not support the amendments in the name of the noble Baroness, Lady Morrissey. Amendment 41 seeks to remove the chance of a person being criminalised for expressing an opinion on abortion from their front garden or balcony. If there is a discussion going on between individuals in such places, they are unlikely to be heard by passers-by. If they are shouting at each other, either with the intent of influencing those attending abortion services or being reckless as to whether they might influence that decision, they must be covered by this clause. It is quite clear what Amendment 45 seeks to achieve, and the noble Baroness’s amendment is unnecessary.
Amendment 42, the noble Baroness claims, provides a pragmatic, reasonable approach to amend Clause 9 in a manner that respects the will of the Commons and seeks to make the clause more likely to be compatible with the ECHR. Yet Amendment 45 provides a pragmatic, reasonable approach that respects the will of the Commons and, the Government believe, is compliant with the ECHR. With respect, a safe access zone law from the state of Victoria, Australia, has not been tested for its compliance with the European Convention on Human Rights.
Amendment 43 may replace punitive prison sentences with fines compatible with similar offences, but so does Amendment 45. We do not support the amendment in the name of the noble Lord, Lord Farmer, supported by the nobles Baronesses, Lady Fox of Buckley and Lady Hoey. The purpose of the amendment, among other things, is to review the necessity of further legislation in this area, and whether legislating further would be proportionate.
Why has the noble Lord not put down such amendments to every other clause in this Bill, as there is overwhelming evidence, including from the police, from Just Stop Oil protesters, who are going to change tactics because too many of them are in jail under existing legislation, and many others, that legislating further on all these other issues is disproportionate?
I am grateful to Racheal Clarke at BPAS for her advice and briefings on this issue, where the case is strongly made for this clause, as amended by Amendment 45. Half of those treated by abortion clinics last year attended abortion clinics targeted by anti-abortion groups—more than 100,000 people. Protesters target the most-used clinics. People are delaying seeking abortion services because of encounters with anti-abortion protesters in the vicinity of abortion clinics, adversely affecting their clinical outcomes as well as suffering psychological impact. Police at a local level report being unable to address existing problems because of a lack of legislation.
Of the 50 abortion clinics targeted in the last five years, only five are now protected by public space protection orders, which are expensive for local authorities to prepare cases for and fight in the courts, were they to be challenged, and have to be renewed every three years. The threat of such challenges deters some local authorities from taking action when it is needed, and the refusal of a local authority to apply for a PSPO cannot be challenged. Unlike the rest of this Bill, there is clear evidence of the need for this clause as amended by Amendment 45.
Amendment 45 significantly amends the existing Clause 9. It takes into account many of the concerns expressed by noble Lords in Committee, and the Government now believe that it is compliant with the European Convention on Human Rights. We have had the judgment of the Supreme Court on similar legislation in Northern Ireland, as I referred to in a previous group. This clause, as amended by Amendment 45, is necessary and proportionate and we will support it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a wide-ranging and fascinating debate, and some would say that this may be the House of Lords at its best.
I shall first address the amendments moved by the noble Baroness, Lady Morrissey. She has come late to the party, and I have to say that I think that her amendments have suffered for that reason. Her amendments have not been tested against the Human Rights Act in any way; we do not know what the House of Commons would think about them, and we do not know what the Supreme Court would think about them. Of course, that is in contrast to Amendment 45, where we have a good view of the House of Commons’ likely view, as well as that of the Supreme Court, and as far as we know it is HRA compliant. So I think the noble Baroness has difficulties with her amendments.
The noble Lord, Lord Farmer, spoke to his Amendment 44 and spoke about the lack of use of public space protection orders. I thought that we heard very effectively from the noble Lord, Lord Hogan-Howe, about how public space protection orders had not in practice been put to any great use. In fact, the noble and learned Lord, Lord Etherton, in his speech also explained why they were not suitable for protecting individuals, as opposed to the rights of groups. But I have to say that I think that the noble Lord, Lord Farmer, betrayed himself at the end of his speech when he spoke about the lack of evidence of public disorder, which he prayed in aid for having a review. I have to say that I am not thinking about public order —I am thinking about the individual women who are going to get these services and are being intimidated through cruel protest, in many ways.
I turn to the amendment from the noble Baroness, Lady Sugg, to which I also have my name. I pay tribute to her for all the work that she has done on this matter; I know that she has been in constant discussion with Members of the other place and the Government, and this really is as good a chance as we have to get something on the statute books in good time. As I say, I pay tribute to her. I am also pleased that the noble Lord, Lord Beith, has welcomed these efforts.
One of the most influential speeches was from the noble Lord, Lord Hogan-Howe, who talked about the practicalities of policing a 150-metre zone and local authorities being reluctant to put in place public space protection orders. He also talked about the ingenuity of protesters potentially being able to get around the amendment of the noble Baroness, Lady Morrisey. That was perhaps one of the most influential contributions this evening. I hope that the noble Baroness tests the opinion of the House and I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I echo other noble Lords who said that this has been a wide-ranging and fascinating debate. As has been referenced and as noble Lords will be aware, through a free vote in the other place, Clause 9, which establishes buffer zones outside abortion clinics in England and Wales, was added to the Bill by 297 votes to 110. I said during the Second Reading of the Bill and in Committee that the Government will respect the will of the House of Commons.
At the time of introducing this Bill in the House of Lords, I signed a Section 19(1)(b) statement under the Human Rights Act 1998. This was because, at the time, we believed it was more likely than not that Clause 9 would be found to be incompatible with the European Convention on Human Rights. We have considered this again following the Supreme Court’s judgment in relation to the Abortion Services (Safe Access Zones) Bill in Northern Ireland. We now believe that Clause 9 is more likely than not to be compatible with the convention. However, we must be clear that while we can draw some parallels between Clause 9 and the Bill in Northern Ireland in relation to the balance of rights, they are not directly comparable. In particular, the threat levels from protests are different in Northern Ireland and the Northern Ireland Bill does not cover private property. It is also worth noting that the legislation in Northern Ireland is not yet in force. There have been no prosecutions, so it is difficult to make any assessment regarding enforceability of the Bill in Northern Ireland.
Clause 9 was described at the time in the other place as a “blunt instrument”, as others have noted. There is always a balance to be struck between the rights of protesters and the rights of others to go about their daily business free from harassment and disruption, as we have heard debated in relation to many of the other clauses of this Bill. People’s rights to gather, express their views and practise their religious beliefs are protected under Articles 9, 10 and 11 of the European Convention on Human Rights. People’s rights to privacy in accessing healthcare services are protected under Article 8. All these rights are qualified, and it can be appropriate to infringe on them sometimes—for example, to protect other rights or prevent crime.
The Government committed to work with noble Lords across both sides of this debate to make Clause 9 clearer and more enforceable. I thank those noble Lords who took the time to meet me and discuss this issue, and I can assure them that all views were taken into careful consideration and constructive conversations were had on all sides.
The Government have decided to step back and will take a neutral stance during this debate. I committed, as I said earlier, at this Dispatch Box to respect the will of the House of Commons, and I think the best way to do that is to allow the House of Lords to express its will. This clause will undoubtedly be tested in the courts. But this evening, we are offering a free vote to noble Lords on the Government Benches—although I cannot speak for the other Benches—so that noble Lords can vote with their conscience on where the balance of rights should lie.
The Government believe that all the amendments on the Order Paper today would more likely than not be found to be compatible with the European Convention on Human Rights. With that, it is now for the House to decide which amendment, if any, they wish to support.
Baroness Morrissey (Con)
Given that, even if my amendments were passed, the whole clause would be overturned by a majority of support for either Amendment 44 or Amendment 45, I will save a few minutes of your Lordships’ time and beg leave to withdraw the amendment.
Lord Farmer
“Review into certain activities taking place outside abortion clinics in England and Wales(1) The Secretary of State must arrange for the carrying out of a review into activities taking place in the vicinity of abortion clinics in England and Wales which could influence any person’s decision to access, provide, or facilitate the provision of abortion services.(2) The review must include evidence from and consultation with the following—(a) the operators of abortion providers,(b) owners and occupiers of the land within proposed buffer zones,(c) the National Police Chiefs Council,(d) individuals, charities, and organisations impacted by proposed buffer zones,(e) the relevant local authorities, (f) the public, and(g) such other persons or organisations as appropriate.(3) The review must consider the effectiveness of existing relevant powers including, but not limited to, the power under section 59 of the Anti-social Behaviour, Crime and Policing Act 2014 (power to make public spaces protection orders).(4) The review must assess the necessity of further legislation in this area, and whether legislating further would be proportionate.(5) The Secretary of State must publish and lay before each House of Parliament a report on the outcome of the review before the end of the period of one year beginning with the day on which this section comes into force.”
Lord Farmer (Con)
My Lords, I agree that it has been a very wide-ranging debate, with passion on both sides. I come back to the point of evidence and I start with the fact that I do not think a review was debated in the Commons. The circumstances under which this clause was attached to the Bill in the Commons were all a bit confused. At one stage, the Government had said it would be whipped, because it was a conscience vote, and then they allowed it to be a free vote with, I think, an hour’s notice. Within an hour, they had a big majority. Well, it is about abortion; it is an emotive subject. As I say, there was no debate about the evidence-gathering and it came to us, as we see, as a blunted instrument.
Lord Farmer (Con)
My Lords, it is gone 10 pm now, but I wish to test the opinion of the House.
Baroness Sugg
“Offence of interference with access to or provision of abortion services(1) It is an offence for a person who is within a safe access zone to do an act with the intent of, or reckless as to whether it has the effect of—(a) influencing any person’s decision to access, provide or facilitate the provision of abortion services, (b) obstructing or impeding any person accessing, providing, or facilitating the provision of abortion services, or(c) causing harassment, alarm or distress to any person in connection with a decision to access, provide, or facilitate the provision of abortion services.(2) A “safe access zone” means an area which is within a boundary which is 150 metres from any part of an abortion clinic or any access point to any building or site that contains an abortion clinic and is—(a) on or adjacent to a public highway or public right of way,(b) in an open space to which the public has access,(c) within the curtilage of an abortion clinic, or building or site which contains an abortion clinic, or(d) in any location that is visible from a public highway, public right of way, open space to which the public have access, or the curtilage of an abortion clinic.(3) No offence is committed under subsection (1) by—(a) a person inside a dwelling where the person affected is also in that or another dwelling, or(b) a person inside a building or site used as a place of worship where the person affected is also in that building or site.(4) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.(5) Nothing in this section applies to—(a) anything done in the course of providing, or facilitating the provision of, abortion services in an abortion clinic,(b) anything done in the course of providing medical care within a regulated healthcare facility,(c) any person or persons accompanying, with consent, a person or persons accessing, providing or facilitating the provision of, or attempting to access, provide or facilitate the provision of, abortion services, or(d) the operation of a camera if its coverage of persons accessing or attempting to access an abortion clinic is incidental.(6) In this section— “abortion clinic” means—(a) a place approved for the purposes of section 1 of the Abortion Act 1967 by the Secretary of State under subsection 1(3) of that Act, or(b) a hospital identified in a notification to the Chief Medical Officer under subsection 2(1) of the Abortion Act 1967 in the current or previous calendar year, and published identifying it as such, where “current” or “previous” are references to the time at which an alleged offence under subsection 1 of this section takes place;“abortion services” means any treatment for the termination of pregnancy;“dwelling” has the same meaning as in section 1 of this Act.”Member’s explanatory statement
This amendment replaces Clause 9 with an updated version following concerns raised at earlier legislative stages in the House of Lords; and in light of the Supreme Court judgment of December 2022 regarding a comparable law in Northern Ireland and the need to ensure compliance with the Human Rights Act 1998.
Baroness Sugg (Con)
My Lords, I am grateful to the many noble Lords who have stayed so late to listen to this important debate. It has been a considered debate, as others have said, and it has been a long one, so I shall be quick. I am very grateful to the noble Lords who have recognised the genuine efforts we have made with this amendment to find a reasonable and considered way through this, a way that will be accepted by your Lordships and by the other place. Amendment 45 is a more legally robust clause, it is compliant with human rights, it delivers the intent to protect women when they are accessing their legal right to healthcare and I would like to test the opinion of the House.
Public Order Bill
Tuesday 7th February 2023
(1 year, 9 months ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-II Second marshalled list for Report - (3 Feb 2023)
16:21 - Division on Amendment 47 - Ayes: 284 / Noes: 209 - Amendment 47 agreed.
16:40 - Division on Amendment 48 - Ayes: 240 / Noes: 254 - Amendment 48 disagreed.
16:54 - Division on Amendment 50 - Ayes: 239 / Noes: 248 - Amendment 50 disagreed.
17:39 - Division on Amendment 54 - Ayes: 283 / Noes: 192 - Amendment 54 agreed.
18:22 - Division on Amendment 56 - Ayes: 259 / Noes: 200 - Amendment 56 agreed.
18:35 - Division on Amendment 63 - Ayes: 247 / Noes: 192 - Amendment 63 agreed.
Lord Paddick
Lord Paddick (LD)
My Lords, I rise to move Amendment 46 in my name and to speak to Amendment 47, to which I have added my name. Amendment 46 would remove Clause 10 from the Bill; I am grateful for the support of the noble Baronesses, Lady Chakrabarti and Lady Meacher, and the right reverend Prelate the Bishop of Manchester, who have signed this amendment. Amendment 47 in the name of the noble Lord, Lord Coaker, to which I have added my name, would remove Clause 11 from the Bill. These clauses give the police new powers to stop and search for an article made, adapted or intended
“for use in the course of, or in connection with”
protest-related offences, such as highway obstruction, causing a public nuisance and offences under the Bill —Clause 10 based on suspicion and Clause 11 without suspicion—if a police officer of or above the rank of inspector authorises it in a particular place for a specified period. This can be done if the officer “reasonably believes” that people in the area are carrying prohibited objects.
These are a significant expansion of police powers at a time when confidence in the police is waning and on a day when another police officer has been given multiple life sentences for, among other things, abusing his authority. There is potentially an endless list of objects that could be made, adapted, or intended
“for use in the course of or in connection with”
protest offences. Coupled with the power to stop and search without suspicion, this could result in many innocent people being stopped, searched and potentially arrested for being in possession of commonplace objects. If a protest takes place in central London, for example, shoppers in Regent Street and Oxford Street could potentially be stopped, searched and arrested for possessing household objects that they had just bought in John Lewis.
Stop and search is a highly intrusive and potentially damaging tool if misused by the police. The fact that you are seven times more likely to be stopped and searched by the police if you are black than if you are white where the police require reasonable suspicion, and 14 times more likely where the police do not require reasonable suspicion, presents a prima facie case that the police are misusing these powers.
As a commander in the Metropolitan Police Service in July 2000, I presented a paper to my senior colleagues entitled “It is Time to Face the Realities of Stop and Search”. It attempted to demolish established explanations, provide an analysis of why in reality disproportionality was happening and set out steps that needed to be taken to ensure that stop and search was more accurately targeted. That was almost 23 years ago, at a time when disproportionality in stop and search with suspicion was running at eight times; it is now seven times.
A Joint Committee on Human Rights report of November 2020 stated that 25% of black voters in Great Britain were not registered to vote compared with an average of 17% across the population. Even more black people are likely to be excluded as a result of the new requirement to produce photographic identification at polling stations before you can vote. Black people are therefore likely to have less confidence in the electoral process, making protest more important to them as a way of making their voices heard. The same report cites the fact that 85% of black people are not confident that they would be treated the same as a white person by the police.
Put the two things together, and add the seven to 14 times disproportionality in stop and search, and you create a situation where the powers in Clauses 10 and 11 are likely to have a significant chilling effect on black and other visible minority people’s participation in protest. Not only is that reprehensible in itself but it is likely to increase the chance of serious violence as significant numbers conclude that violent protest is the only alternative means that they have of getting their views taken into account.
The only difference between Clauses 10 and 11 is the degree to which black and other visible-minority people will be deterred from participating in legitimate, peaceful protest. As the JCHR highlights, stop and search without suspicion has been available in the past only to combat terrorism—but was subsequently repealed because of police misuse—and serious violence. The JCHR said:
“It is surprising and concerning that the bill would introduce similar powers to deal not with serious offences punishable with very lengthy prison terms, but with the possibility of non-violent offences relating to protest, most of which cover conduct that is not even currently criminal.”
Even the Police Federation has concerns. Commenting on serious violence prevention orders, another expansion of stop and search without suspicion, a representative said:
“I imagine we would be deeply concerned about moving away from a form of stop and search that is not rooted in ‘Reasonable Grounds’. We could easily make a case that this leaves officers vulnerable to complaint, ‘post stop’, in an area which is already supercharged as an issue in many communities. Reasonable Grounds has a firm legal basis, is tried and tested, and therefore affords reassurance to our colleagues engaged in these stops.”
A previous Home Secretary asked HMICFRS to do a report on policing protests, page 109 of which says:
“Arguing against the proposal for a new stop and search power … another officer stated that ‘a little inconvenience is more acceptable than a police state’. We agree with this sentiment.”
Neither of these clauses should be part of the Bill. Depending on the support from other parts of the House, I may wish to test the opinion of the House on Amendment 46.
Baroness Jones of Moulsecoomb (GP)
My Lords, this House is wonderful. Your Lordships have heard from a former police officer exactly what the police think of this and how they will handle, or possibly mishandle, it; we are shortly to hear from a lawyer who has experienced court cases about this sort of thing; and here your Lordships have the inveterate protester who has been arrested at a protest—a peaceful one—and it was extremely unpleasant.
Basically, Clauses 10 and 11 could fundamentally change the relationship between police and protesters. At the moment, you can take my word for it, that relationship is usually quite good until the police are told to move in and arrest us or whatever. Most of the time it consists of natural talking, with us explaining what we are there for and them saying what they had for breakfast and that sort of thing. It is not as disastrous a relationship at the moment as it will be if these clauses pass.
Clauses 10 and 11 will definitely be able to change that relationship for the worse. The police will be able to physically stop and search protesters with or without suspicion. I do not know how awful that sounds to noble Lords, but we feel that we are in a democracy. We are not in Iran or Russia; we are meant to be in a democracy where the police are not allowed to do things like that.
The Greens will vote against these as unjust laws, and I very much hope that the majority of noble Lords will follow suit. We all have a very vaunted idea of what Britain, our freedoms and democracy are all about. Here we are seeing a retraction of that and a diminution of our freedoms. I do not see how anyone can vote for that, even the Government Front Bench over there. I very much hope that this measure comes to a vote, and I will definitely vote against.
Baroness Chakrabarti (Lab)
My Lords, I rise in support of my noble friend Lord Coaker and of my friend the distinguished former police officer and consistent advocate for rights and freedoms, the noble Lord, Lord Paddick. Stop and search is always a vexed question; even stop and search with reasonable suspicion is a vexed question. Of course, we must sometimes have it in a democracy, when people are reasonably suspected of various crimes, but even that becomes difficult because the threshold of reasonable suspicion is so low. Stop and search with reasonable suspicion in this Bill is problematic because certain offences in it, for example locking on, are so vague. Therefore, the range of items for which you could be stopped and searched on reasonable suspicion include, as the noble Lord, Lord Paddick, pointed out, things that you might pick up in John Lewis. They could include, for example, your mobile phone if that might be used in connection with the offence of locking on, and so on.
However, my priority is of course stop and search without suspicion. As the noble Lord, Lord Paddick, has rightly pointed out, this has classically been for things such as terrorism and carrying weapons, rather than carrying things such as bicycle chains or mobile phones. Noble Lords will see the problem, which is particularly vexed in the context of the statistics, year on year, on the disproportionate numbers of black and brown people who will be subject to stop and search. Too many young people, boys in particular, have had their first experience of the state and the police service via a racially discriminatory stop and search, because that, unfortunately, has been the culture of policing for too long. We now add a new layer: that there will be lots of young women, not least today, who are particularly concerned about being stopped and searched by the police. That is not a happy thing to have to report, but I am afraid it is the reality.
When I was a young director of Liberty, the National Council for Civil Liberties, almost exactly 20 years ago, what was then Section 44 of the Terrorism Act allowed suspicionless stop and search where it was considered expedient to preventing acts of terrorism. When an arms fair took place in Docklands, large numbers of protesters, not terror suspects but protesters, were prevented from getting anywhere near that fair. They were hassled and detained, sometimes under Section 44 of that Act. Initially, the Metropolitan Police denied that they would ever use such powers in such a way, until questions were asked in Parliament, including in your Lordships’ House.
I sent a young lawyer from Liberty down to Docklands; he came back with large numbers of notices that had been issued to protesters and journalists, and predominantly to black and brown people, under Section 44 of the Terrorism Act. That was stop and search without suspicion. It took many years to take that case all the way to the European Court of Human Rights in Strasbourg, where of course it was found that that power was just too broad. Suspicionless stop and search is very ripe for abuse, so I urge—
Lord Kerr of Kinlochard (CB)
I have great sympathy for the noble Baroness’s argument and that advanced by the noble Lord, Lord Paddick, but could she explain whether her objection to Clause 11 would be removed if subsection (7) were removed? It is in Clause 11(7) that what seems to be highly objectionable language occurs. It says that the constable
“may … make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person … is carrying a prohibited object”.
Supposing that that provision were not in the Bill—is the rest of Clause 11 objectionable?
Baroness Chakrabarti (Lab)
This being not Committee but Report, the simplest and speediest answer that I can give to the noble Lord’s question is that Clause 11 is about suspicionless stop and search. He has picked out a particular subsection in the scheme, which would have been interesting in Committee. But the crucial thing is that Clause 11 is on stop and search without suspicion, not in the context even of terrorism, where it can come with greater justification—for example, when everybody is stopped and searched on their way into the Peers’ Entrance if they are not a Peer, or at the airport, where everybody is treated the same. But, by definition, that will not be the case in this scheme. This broad power will be used against young people all over London on the day of a protest. It will cause such strife and will poison relationships between the police service and the people it serves. For that reason, I urge all noble Lords to reject in particular this power to stop and search without suspicion even of the protest offences to which I object in the Bill.
The Lord Bishop of Manchester
I too speak in support of the amendments to remove Clauses 10 and 11, to which I have added my name. I declare my registered interests as the co-chair of the national police ethics committee and the chair of the Greater Manchester Police ethics advisory committee.
Stop and search can be an extremely useful tool in the police kit box, but, like many tools, it works far less well if it is overused or used for the wrong task. Eventually, it loses its efficacy entirely. I have several broken screwdrivers at home that bear witness to my own excesses in that regard, as well as to my very limited DIY skills. That is the danger we run when we extend stop and search powers in what, at times, feels like a knee-jerk reaction. They are simply the most obvious tool at the top of the box, whether they are appropriate or not. As the noble Baroness, Lady Chakrabarti, indicated, stop and search becomes, as it has in the past, so discredited that it reaches a point where, like my screwdrivers, it is counterproductive to use it, even in circumstances where it would be right and appropriate to do so.
The noble Lord, Lord Paddick, reminded us, with some chilling figures, of its disproportionate use against certain sectors of society—young black men in particular —which damages confidence in policing not just with regard to stop and search but more generally. It is because I am passionate to support our police that I have such worries about anything that tends to diminish that public confidence. I have the greatest concerns where stop and search is undertaken without suspicion; such powers are even more at risk of simply being used against people who look wrong or are in the wrong place. They become especially prone to the unconscious bias that we might try to shake off but all to some extent carry within us. Should these amendments be pressed to a Division, they will have my full support and I hope that of your Lordships’ House.
I conclude by offering a modest proposal that goes beyond these clauses and the Bill. Could the Minister seek to gain a commitment from His Majesty’s Government to refrain from any extension of stop and search powers until such time as it is clear that the existing powers are being used properly and proportionately? Such a self-denying ordinance might lead to us have an intelligent conversation about how better to focus the use of stop and search. We could then look at whether there are circumstances in which those powers should be radically extended—but not before then.
Lord Deben (Con)
My Lords, I have a question. I am imagining the circumstances with which the police are faced. In what circumstances would they proceed to stop and search if they had no suspicion? This seems a rather curious concept: to stop and search without suspicion means that you do not like the look of somebody—but, even then, you might have a suspicion. I just cannot conceive of the circumstances in which it would be proper to stop and search without suspicion.
I am also particularly concerned about the effect of this as far as the police are concerned. If people can be stopped and searched without suspicion, they themselves will probably not have a suspicion that they should be stopped and searched. Given the present circumstances, in which the police will have to work very hard to recover confidence, a woman stopped and searched without suspicion, and who has no suspicion of why she should be stopped and searched, will have a very considerable concern.
Viscount Hailsham (Con)
I am very grateful to my noble friend for giving way, but I am afraid that he is wrong about the absence of suspicion. When I was a special constable 40 years ago—I do not have the experience of the noble Lord opposite—I would stand in Trafalgar Square and get messages on the police radio such as, “Race code 3 or race code 9 coming down in a beaten-up Vauxhall: worth a stop.” That is not suspicion; that is arbitrary stopping.
Baroness Meacher (CB)
My Lords, we are not focusing right now—nor should we be, in my view—on the issue of the lack of suspicion, although that is fundamental to Clause 11. Let us focus for a minute on Clause 10, which is about stops and searches without suspicion. Those stop and search powers were introduced for police, necessarily and very importantly, to enable them to stop people who they believe may be carrying a knife or another potentially dangerous weapon. I fully support those stop and search powers, but there is not a strong evidence base that the stop and search powers in that context are actually effective in preventing violent crime. So the idea of extending those powers to stop and search people in case they have a placard—a piece of paper—is completely and utterly disproportionate.
In a democratic society, it is utterly wrong to give disproportionate powers to our police to interfere with the fundamental right in our democracy to protest and to go out on the streets to express our opinions. If we forget the issue of suspicion, Clause 10 is utterly disproportionate, anti-democratic and unacceptable, and it will lead to further discordance between the police and lots of communities where we need to build community support for our police. It will have very detrimental effects on all sorts of people across our society. It is for these reasons that I, among others—I hope the whole House—would support withdrawing Clause 10 from the Bill.
Lord Deben (Con)
What a good intervention that was; I much agree with it. Returning to the previous intervention, my noble friend can say what he likes; indeed, as a former special constable, he has no doubt told many how they should behave, but I am very ordinary and follow the law. It seems to me that “without suspicion” means that you do not have a suspicion, and, if you do not have a suspicion, I do not understand how you will decide that you will stop and search somebody.
Also, we should not underestimate the lack of confidence in the police among young people in particular —and, frankly, not only young black people. I have four law-abiding children who are now grown-up; all of them, as teenagers, had very good reason to be extremely suspicious of the way in which the Metropolitan Police behaved, even though all of them were law-abiding to a degree which some would find rather embarrassing. The truth is that the Metropolitan Police, in particular, has a very long way to go to recover confidence. I beg Members of this House to say that this is not the moment to introduce something for which I do not think there would ever be a moment to introduce it. In this moment, of all moments, it is the wrong thing to do; it is bad for the police, democracy and the rule of law.
Baroness Butler-Sloss (CB)
My Lords, when my younger son was 18 or 19, he went around with black friends, and he was stopped three or four times a day with his black friends—but when he went out with his white friends, he was not stopped at all.
I am particularly concerned about Clause 11, and not only for what the noble Lord, Lord Deben, has said. With Clause 11, you start with
“a police officer of or above the rank of inspector”.
You then go to
“a police officer of or above the rank of superintendent”.
But in Clauses 6 to 8, it is a constable. So a constable can—without authority from anyone above, as far as I can see under the clause—stop and search someone without suspicion. We should be very cautious about that.
Lord Hogan-Howe (CB)
My Lords, I broadly support the position of having stop and search with cause, although I know that some would not agree with that, but the Government have to think carefully about without-cause stop and search.
First, the point that the noble Lord, Lord Deben, made is intuitively a good one. Why would somebody stop? There is already a Section 60 power to stop and search without cause. It is a power to be used, for example, in a public park where a large amount of violence has already occurred, and an officer declares that there should be without-cause stop and search. The idea is to deter people from congregating in that place so that therefore they do not carry weapons or attend that place. It was put there for a limited time and for a limited geography. I will come back to why I think it still has problems, but there can be a justification for it. We used to have Section 44 of the Terrorism Act to protect places—particularly places such as this place —against people who might go there to attack them. That was why we had it—and Parliament has agreed to both those powers, and one is still extant.
The next point that I wanted to pick up was, on the definition, which the noble Lord, Lord Paddick, mentioned, about whether something may be intended or adapted, that power also exists already in the definition of an offensive weapon. He made a good challenge, that therefore any ordinary object could be declared by an officer as helping with a protest—but I do not support that. We have had offensive weapon legislation since the 1950s, when people used to fight in the street with weapons, and the police have managed to make that definition work. If you carry a lock knife, it is clearly an offensive weapon; it is something that has been adapted to hurt people and that is the intention, that is something used to injure. But you can also have something with you that is intended for that purpose, even if it has an innocent explanation. So it is possible to make that work.
It is logical that you have a power with cause. If you decide that it is illegal to lock on or to tunnel, surely it has to be sensible to give the police a power to search for items that might do that. You could argue that, if it is going to be a big thing such as a spade to tunnel, you probably would not need to search too much—but you might need to search a vehicle or a place. The power to search is probably a logical consequence of deciding that some acts are going to be illegal.
However, I think that stop and search without cause has caused real problems. We still have it to some extent—and I speak as someone who has supported stop and search. When I was commissioner of the Met, when I took over in 2011—and people have acknowledged this—we drastically reduced stop and search, yet we reduced crime and arrested more people. The Section 60 stop and search, which I have already mentioned, we reduced by 90%, because it was causing more problems than it solved, in my view. Yet we still managed to arrest more people. The problem was that the Met had implemented throughout London, almost, so there were almost contiguous areas of Section 60, which is exactly what has been done around Section 44. The Section 44 counterterrorism legislation was intended to protect certain places, such as Parliament, but the Met put it in place throughout London.
The final thing that I wanted to come back to is that, particularly in London, stop and search without cause has such a bad reputation that it is probably not wise to extend it. One reason for that is that you now have many grandfathers and grandmothers who were affected by it in the 1960s, when it was called “sus”. In the 1980s and 1990s it was called Section 44, and now it is called Section 60. So I worry that the history of it in London may cause problems.
I go back to my first point: with with-cause stop and search, a logical consequence of causing certain things to be illegal is that it leads to a search for the items that might prove that that person either has that intent or intends to carry out certain acts. I speak as someone who has drastically reduced, not increased, stop and search. Particularly in the context of London, I caution the Government about extending without-cause stop and search.
Lord Hope of Craighead (CB)
My Lords, the Constitution Committee looked at the Bill with some care and was concerned about two provisions in Clause 11, not just one. The first was Clause 11(7), reference to which has already been made, but it was also concerned about the width of Clause 11(1)(b), which refers to persons who happen to be carrying prohibited objects in an area where the police suspect that these offences may be concerned. The point is that somebody may be carrying something within the area for a completely unrelated reason: they might just happen to be carrying a tool which could be thought to be adapted for tunnelling but was not intended for that purpose at all. The problem with this part of the clause is that it makes no reference at all to the reason why the person was carrying the object. The Constitution Committee thought that that was really stretching the matter too far. I have no problems with Clause 10, but there are these two problems with Clause 11.
Baroness Fox of Buckley (Non-Afl)
My Lords, I support Amendments 46 and 47. I say a very loud, “Hear, hear” to the impassioned intervention of the noble Baroness, Lady Meacher, which was spot on. I want to answer the question of the noble Lord, Lord Deben—on behalf of the Government, noble Lords will all be surprised to know. I thought I would quote what the Home Office Minister said the last time we dealt with this. The noble Baroness, Lady Williams, explained why these new powers were necessary:
“it is not always possible for the police to form suspicions that certain individuals have particular items with them.”—[Official Report, 24/11/22; col. 978.]
That is true, but if that is the basis on which we are legislating—that it is not always possible to know if someone has suspicious items on them—then even though you do not know what the suspicions are, it will be all right to stop and search them. This seems to me to bring arbitrariness into the law in a way that can only be dangerous and will not make any logical sense to anybody outside this House.
Think of the consequences of some of this. The Government keep telling us that this is not about stopping the right to protest, and I will take them at face value on that. But let us consider someone who is not doing anything suspicious or carrying anything suspicious, but who is going on a demonstration. The police have the right to stop them, which means that what is suspicious is that they are going on a demonstration: it implies that. Going on a demonstration is pre-emptively seen as something dodgy, and I therefore become sceptical when the Government assure me that this will not have a chilling effect on people going on demonstrations.
I draw attention to a clause that has not been mentioned in these amendments but is related: Clause 14, which we will not need if we vote down Clauses 10 and 11. It contains a new offence of obstructing a police officer in a police-related suspicionless stop and search—for which, by the way, you can go to prison for 51 weeks or get a substantial fine. This clause indicates why Clause 10 and even Clause 11 are so dangerous: they will destroy any feasible community relations with the police.
The noble Baroness, Lady Chakrabarti, referred to the fact that many women might well be nervous if they are approached for a suspicionless stop and search. In all the briefings we have received, people have drawn attention to what happened, tragically, to Sarah Everard. If the police say they have no suspicions but they are stopping and searching you, you might say, as a woman, “Excuse me, I am not having that; I don’t want that to happen.” In fact, a lot of advice was given to young women that they should not just take it on face value if a police officer approaches them and says he wants to interfere with them in some way. But I want to use a more everyday example.
During lockdown, two care workers I know were walking home from work and sat down on a bench in a park to have a coffee. They worked together in a bubble, giving intimate care to people in the care home they worked in throughout the pandemic. They were approached by a number of police officers, who asked them if they lived in the same home. When they said no, the police officers said they were breaking their bubble—if noble Lords can remember those mad days, that is what it was like. They said, rather jokingly, “We’re taking people to the toilet and working intimately with them day in, day out.” The police officers became quite aggressive, threatening to arrest them and all sorts of things. We know those stories from lockdown. The reason I share this story is that the woman who told it to me had never been in trouble with the police before. She had never been approached by the police in that way; she is a law-abiding citizen who would, generally speaking, support the kind of law and order measures being brought in by this Government. However, because this police officer treated her as though she was behaving suspiciously for having her coffee on a bench, having done a long 12-hour shift in a care home, she said that she will never trust the police again. She argued back and they threatened to arrest her.
I fear that, if we give arbitrary powers to the police to use suspicionless stop and search, this Government might unintentionally and inadvertently build a new movement of people who do not trust the police and are not suspicionless but suspicious, with good reason in this instance, that the police are stopping them arbitrarily and that we are no longer a free society. We should all vote against Clauses 10 and 11 and, through that, destroy Clause 14 as well.
Lord Hacking (Lab)
My Lords, I will carry through a bit further the citation from my noble friend Lady Fox of the noble Baroness, Lady Williams, a much-respected Minister at the Home Office. More fully, she said that these powers were necessary:
“To ensure that the police have the ability to proactively prevent protesters causing harm … it is not always possible for the police to form suspicions that certain individuals have particular items with them.” —[Official Report, 24/11/21; cols. 977-78.]
That leaves me with a sense of nervousness, for the same reason as the noble Lord, Lord Debden, who unfortunately seems to have left the Chamber—
Baroness Jones of Moulsecoomb (GP)
He is called the noble Lord, Lord Deben.
Lord Hacking (Lab)
For the reasons that the noble Lord gave in his short speech, these statements by the noble Baroness, Lady Williams, who is greatly respected in this House, make me nervous.
Lord Wolfson of Tredegar (Con)
My Lords, as we are on Report and not in Committee, I will make three short points.
First, the noble Baroness, Lady Jones of Moulsecoomb, is quite right to refer to our freedoms. I am sure that she intentionally used the plural and not the singular, because there are two freedoms here that we need to have regard to: the undoubted freedom to protest and demonstrate, and the freedom to go about your business unhindered and not be harassed. Ultimately, in a democratic society we seek to balance those two freedoms. We need to have regard to both sides of that coin.
Secondly, on the objects that could be caught by these clauses as drafted, a number of references have been made to John Lewis—I do not know whether its publicity department is grateful for that. It would be a misconception to proceed on the basis that, merely because an object has been or could be bought in John Lewis, it is therefore inoffensive and should not be caught by the criminal law. The last time I was in John Lewis, which I accept was some time ago, it sold very large knives, hammers, ropes and other implements. Let us put the John Lewis point to one side; it is a good old-fashioned red herring.
Thirdly, I turn to what the clause provides. The noble Lord, Lord Deben, and the noble and learned Baroness, Lady Butler-Sloss, focused on the powers of the constable in Clause 11(7). The important thing about Clause 11(7), I would suggest, is that you have to read the clause as a whole. Clause 11(1) starts with an officer at
“or above the rank of inspector”
believing, first, that some offences are going to be committed and, secondly, that people will be carrying prohibited objects, which are defined in the clause. Next, that officer has to reach three conclusions under subsection (4). I invite noble Lords to look at subsection (4), because “necessary” appears there three times. He has to believe reasonably, first, that
“the authorisation is necessary to prevent the commission of offences”;
that the “specified locality”—it has to be a specified locality—
“is no greater than is necessary to prevent such activity”;
and that the period of time, which cannot be more than 24 hours, is no more than is necessary. What can the superintendent do under subsection (5)? All they can do is to continue that authorisation—not start it, but continue it. For how long? No more than a further 24 hours. It is in that context that the constable can apprehend and do a stop and search.
Viscount Stansgate (Lab)
My Lords, I want to make one point about Clause 11, which in my view should not be in the Bill. I appreciate that the previous speaker has just given a very lawyerly defence of the Government’s view. I am not a lawyer, but I want to say this: I wonder why the Government want to be on the wrong side of history by including Clause 11 in the Bill. I look at Members around the Chamber and think to myself, “What on earth would you feel like if you were ever arrested, stopped and searched without suspicion by a police officer?” I would like noble Lords to bear that in mind when they come to vote, if we are going to vote on this. A lot has been made of the younger generation, and I personally believe that Clause 11 would damage relations in the way that has been outlined by many people making very able speeches. But your Lordships should ask yourselves: how would you feel if you were stopped and searched without any reasonable suspicion by a police officer?
Lord Coaker (Lab)
My Lords, I rise to speak to Amendment 47 in my name, for which I am grateful for the support of the noble Lord, Lord Paddick, the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Manchester. Just in case I forget, I say now that I want to test the opinion of the House on Amendment 47.
Before I do so, I want to say how much I sympathise and agree with much of what the noble Lord, Lord Paddick, and others have said about Amendment 46 and stop and search with suspicion. It is worth reflecting that many of us are grappling with a Bill with much of which we disagree, but we are at Report stage and difficult decisions and choices are before us about how we might improve the Bill—if the votes are won in your Lordships’ House—and send it back to the other place with the best possible chance of it not being overturned, thereby impacting on the legislation in a way which will protect, as many of us want to, the rights and freedoms that the people of this country have enjoyed for generations and which parts of the Bill seriously threaten to undermine. That is the choice that lies before us. That is the difficult choice I have in saying from the Labour Front Bench that we are focused on Clause 11 in particular. That does not mean that we agree with other aspects of the stop and search powers, but it means that we think that Clause 11 in particular is an affront to the democratic traditions of our country.
We have heard what it actually does. We have had a former Commissioner of the Metropolitan Police, a former senior police officer of the Metropolitan Police, and others, telling us about stop and search without suspicion and the impact that it has on black and ethnic minority communities, particularly on the young. Will your Lordships seriously pass into law something that will make that fragile relationship between the police and those local communities even worse? Is that what we want to do? And what is it for: terrorism, serious gun crime, serious knife crime, or the threat of murder and riots on our streets? No, it is because some protests may take place somewhere, and we will have stop and search without suspicion to deal with it. Is that in any sense proportionate or a reasonable response to public disorder? Clearly, it is not.
I cannot believe that His Majesty’s Government are seeking to introduce into law stop and search without suspicion for protest-related offences. I do not believe the Government themselves would have believed it—they certainly would not have believed it in the time of the noble Lord, Lord Deben, with the Conservative ideology as it existed then. Margaret Thatcher would not have introduced it. She would have regarded it as an affront, even in the face of the poll tax riots and the miners’ strikes—although there were certain things that went on there. In the face of all that, she did not introduce that sort of legislation. I will be corrected by any member of that Government—there are a few here—as to whether that was the case. She understood that the right to protest was fundamental, however difficult that was for Governments. Yet the Conservatives of today believe it is perfectly reasonable to introduce this not for murder, terrorism or knife or gun crime, as I said, but for protest. Is that the Tory tradition that this Conservative Government want to lay out before the country? It cannot be. It is a totally disproportionate reaction to what is happening, but the consequences are serious and dramatic, and potentially catastrophic. As so many noble Lords have said, at a time when there is a fragility of confidence between the police and certain communities, it is like pouring petrol on the flames. It is just unbelievable.
However, it is not just that. In the debate last week I gave an example, and I will give another one, because that brings it home and makes it real. When your Lordships vote on leaving out Clause 11, consider this. If it is in the Bill, there is a fear about what happens when there are protests around Parliament—there will be protests; I do not know what they will be about. Let us say that people lock arms—disgraceful—so they have attached. The police are worried about it and so an inspector declares that, for 24 hours, it is an area that they are concerned about. That gives an additional power to the police to stop and search without suspicion. Your Lordships can be searched. I know you would think that was an affront, but that is the reality that many black and ethnic minority communities face every single day, sometimes—that is an exaggeration, but they face it in certain circumstances.
Lord Anderson of Swansea (Lab)
Surely it is not just a matter of black and ethnic minorities. We do not know who were the two care workers who were stopped, whom the noble Baroness, Lady Fox, mentioned. However, it is clear—I speak as someone who, as a young barrister, had to carry out many sus law prosecutions—that a person stopped in those circumstances may next week appear on a jury and may be hostile to the police as a result of that, taking it out on them as a member of the jury.
Lord Coaker (Lab)
I thank my noble friend Lord Anderson for that important point.
My example is that around Parliament Square, we have a designated area. Your Lordships, passing through it, can be stopped. I think that the noble Lord, Lord Hogan-Howe, has often mentioned that sometimes you have no idea that you are in such an area. I know that all your Lordships would co-operate—we have clarified that it must be an officer in uniform, so we would all stand there. However, if it was tourists who could not speak English, then good luck with that. It may be a young student with no idea that they are being stopped. That would happen. It is in the Bill that it is an offence to resist, and so it goes on. It is a complete overreaction and a disproportionate proposal that the Government are making.
To bring it home, let us think of it on Parliament Square. That is not some obscure place in the back end of London somewhere, or Manchester or wherever. Let us bring it right to our doorstep. When somebody says, “Who made it happen?”, the answer will be that Parliament made it happen, unless it is stripped out of the Bill. Unless it is changed or taken out, it is us.
We have heard from numerous noble Lords today objection after objection to the Bill. I have many objections to it. However, if you hone it down, there cannot be many more pernicious examples than Clause 11. Stopping and searching without suspicion for protests—honestly. Good luck to the Minister in justifying it. I know that his brief will give him all sorts of good arguments but at the bottom, it is a baseless piece of proposed legislation that seriously undermines the right to protest. It will have a chilling effect on many people who are simply protesting in the way that they have always done. I will divide the House when it comes to Amendment 47 and ask your Lordships to stand against Clause 11, to send it back to the other place and say that the Government must think again. It is a disproportionate reaction to a problem which they may perceive and it should be thrown out of the Bill.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the amendment tabled by the noble Lord, Lord Paddick, seeks to remove the suspicion-led stop and search measure from the Bill, while that tabled by the noble Lord, Lord Coaker, seeks to remove the suspicionless stop and search measure. I understand the strength of feeling expressed by all noble Lords today when speaking to these amendments, but I do not support the removal of these provisions.
Stop and search is a vital tool used to crack down on crime and to protect communities. It is entirely appropriate that these measures are extended to tackle highly disruptive protest offences. The extension of stop and search powers will enable the police to proactively tackle highly disruptive protest offences by searching for and seizing prohibited items which are made, adapted or intended to be used in connection with protest-related offences, such as glue, chains and locks. We know that stop and search has a strong deterrent effect. These measures can prevent offenders from carrying items for protest-related offences in the first place because of the increased chance of getting caught. This was highlighted in the HMICFRS report on the policing of protests, where it was noted that suspicionless search powers can act as a deterrent when circumstances justify use of these powers. I hope that noble Lords will forgive me for repeating this, and there is a difference of opinion with the noble Lord, Lord Paddick, but as I explained in Committee, His Majesty’s Inspector, Matt Parr, from HMICFRS reaffirmed his support for the suspicionless measure at the Bill’s evidence session in June.
It is vital that the police are given the powers that they need to reflect the operational reality of policing. In the fast-paced context of a protest, it can be challenging to assert the appropriate level of suspicion needed for a suspicion-led search, which is why the Bill includes the suspicionless provision. The suspicionless power will be usable only if certain conditions are met and in cases where, as we have heard, a police officer of or above the rank of inspector authorises its use in a specified locality for a specified period. This power uses a similar framework to that found within Section 60 of the Criminal Justice and Public Order Act 1994 to ensure consistency in police powers and safeguards.
When this House considered the suspicionless power during Committee, much discussion focused on the execution of the search, so I thought it might help to set that out in detail here. As I noted above, this power uses a similar framework to that found in Section 60 of the Criminal Justice and Public Order Act 1994. An authorisation for a Section 60 suspicionless order may be given only by an officer of the rank of inspector or above and can be in place for a maximum of 24 hours. The Section 60 order can be extended for a further 24 hours, to a maximum of 48 hours, by an officer of or above the rank of superintendent, but it cannot be in place for more than 48 hours. It is for the authorising officer to determine the geographical area of the order, which will depend on the situation that led to the order being authorised.
Lord Paddick (LD)
My Lords, I thank all noble Lords who have spoken from all sides of the House and of the debate, from former police officers to the noble Baroness, Lady Jones, who was arrested at a protest.
The noble Lord, Lord Wolfson of Tredegar, made a great play on John Lewis. I emphasised in my speech that I was talking about everyday household objects, some of which may be purchased from John Lewis. The red herring was the noble Lord’s emphasis on John Lewis, rather than my emphasis on everyday objects and so forth.
The noble Lord, Lord Deben, asked what stop and search without suspicion was and what an officer would do. I accept that an inspector or above has to authorise officers to go ahead and stop and search without suspicion. The power means that police officers who are so authorised can stop and search whoever they like and do not have to justify what they are doing.
I should not waste noble Lords’ time dividing the House on an amendment that Labour will not support, and a vote that we therefore cannot win, however passionately I and other noble Lords feel about Clause 10. Therefore, I beg leave to withdraw the amendment.
Lord Coaker
Lord Sharpe of Epsom
“Imposing conditions on public processions: serious disruption(1) Section 12 of the Public Order Act 1986 (imposing conditions on public processions) is amended as follows.(2) After subsection (2) insert—“(2ZA) In considering for the purposes of subsection (1)(a) whether a public procession in England and Wales may result in serious disruption to the life of the community, the senior police officer may have regard to the cumulative disruption to the life of the community resulting from—(a) the procession,(b) any public procession in England and Wales within subsection (2ZB), and(c) any public assembly in England and Wales within subsection (2ZE).(2ZB) A public procession (“Procession A”) is within this subsection if it was held, is being held or is intended to be held in the same area as the area in which the procession mentioned in subsection (2ZA)(a) (“Procession B”) is being held or is intended to be held.(2ZC) In subsection (2ZB) “area” means such area as the senior police officer considers appropriate, having regard to the nature and extent of the disruption that may result from Procession A and Procession B. (2ZD) For the purposes of subsection (2ZB), it does not matter whether or not— (a) Procession A and Procession B are organised by the same person,(b) any of the same persons take part in Procession A and Procession B,(c) Procession A and Procession B are held or are intended to be held at the same time, or(d) directions are given under subsection (1) in relation to Procession A.(2ZE) A public assembly is within this subsection if it was held, is being held or is intended to be held in the same area as the area in which the procession mentioned in subsection (2ZA)(a) is being held or is intended to be held.(2ZF) In subsection (2ZE) “area” means such area as the senior police officer considers appropriate, having regard to the nature and extent of the disruption that may result from the assembly and the procession.(2ZG) For the purposes of subsection (2ZE) it does not matter whether or not—(a) the assembly and the procession are organised by the same person,(b) any of the same persons take part in the assembly and the procession,(c) the assembly and the procession are held or are intended to be held at the same time, or(d) directions are given under section 14(1A) (imposing conditions on public assemblies) in relation to the assembly.(2ZH) In considering for the purposes of subsection (1)(a) whether a public procession in England and Wales may result in serious disruption to the life of the community—(a) all disruption to the life of the community—(i) that may result from the procession, or(ii) that may occur regardless of whether the procession is held (including in particular normal traffic congestion),is to be taken into account, and(b) “the community” means any group of persons that may be affected by the procession, and it does not matter whether or not all or any of those persons live or work in the vicinity of the procession.”(3) In subsection (2A) (examples of serious disruption)—(a) before paragraph (a) insert—“(za) it may, by way of physical obstruction, result in the prevention of, or a hindrance that is more than minor to, the carrying out of daily activities (including in particular the making of a journey),”,(b) in paragraph (a), for “a significant delay to” substitute “the prevention of, or a delay that is more than minor to,”, and(c) in paragraph (b), for “a prolonged disruption” substitute “the prevention, or a disruption that is more than minor,”.(4) After subsection (3) insert—“(3A) Subsection (3B) applies where—(a) a public procession is being held or is intended to be held in England and Wales,(b) it appears to the senior police officer that there is a connection between the procession and—(i) one or more other public processions that are being held or that are intended to be held in England and Wales, or(ii) one or more public assemblies that are being held or that are intended to be held in England and Wales, (c) the senior police officer reasonably believes that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession mentioned in paragraph (a), and(d) the senior police officer reasonably believes—(i) in relation to a procession mentioned in paragraph (b)(i), that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession, or(ii) in relation to an assembly mentioned in paragraph (b)(ii), that one of the conditions in section 14(1)(a) to (b) is met in relation to the assembly.(3B) The senior police officer may—(a) give directions under subsection (1) in relation to—(i) the procession mentioned in subsection (3A)(a), and(ii) any procession mentioned in subsection (3A)(b)(i) in relation to which the condition in subsection (3A)(d)(i) is met, and(b) give directions under section 14(1A) in relation to any assembly mentioned in subsection (3A)(b)(ii) in relation to which the condition in subsection (3A)(d)(ii) is met.(3C) Directions given in accordance with subsection (3B) may impose the same or different conditions in relation to different processions and assemblies.(3D) In subsections (3A) and (3B) “the senior police officer” means—(a) where the public procession mentioned in subsection (3A)(a) is being held, the police officer responsible for managing the police response to the procession, and(b) where the public procession mentioned in subsection (3A)(a) is intended to be held, the chief officer of police.(3E) A direction given by a chief officer of police by virtue of subsection (3D)(b) must be given in writing.””Member’s explanatory statement
This new Clause amends section 12 of the Public Order Act 1986 (imposing conditions on public processions) to make provision about when a public procession in England and Wales may result in serious disruption to the life of the community. The amendments also allow for conditions to be imposed in relation to connected processions and assemblies.
Lord Sharpe of Epsom (Con)
My Lords, we now turn back to government Amendments 48 to 51, which relate to the definition of serious disruption within Sections 12 and 14 of the Public Order Act 1986 and the reasonable excuse defence with regard to the offences of wilful obstruction of the highway and public nuisance. These were debated by the House last week, so I intend to keep this brief.
Your Lordships will recall the compelling speeches made by the noble and learned Lord, Lord Hope, in defence of the amendments he had tabled. I am sure I speak for many in expressing regret that his amendments were so narrowly defeated. The Government’s amendments follow the noble and learned Lord’s by proposing many of the same amendments for other aspects of public order legislation.
In summary, government Amendments 48 and 49 alter the definition of serious disruption in Sections 12 and 14 of the Public Order Act 1986. They do this by, first, carrying over the definition of “serious disruption” suggested by the noble and learned Lord, Lord Hope. Secondly, they define the meaning of “community”. Thirdly, they will enable the police to consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Fifthly and finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly.
Government Amendments 50 and 51 are similarly inspired by the reasonable excuse amendments from the noble and learned Lord, Lord Hope. Amendment 50 carves protest out of the offence of public nuisance, while Amendment 51 carves protest out of the lawful excuse of the offence of wilfully obstructing the highway. However, recognising that the offence is a low-level one, we do not carve it out in its entirety. Instead, the amendment removes protest from the reasonable excuse only where more than serious disruption is caused.
The Government’s amendments represent sensible, pragmatic changes that not only respond to a request from the Commissioner of the Metropolitan Police Service for further legislative clarity on the police’s powers to manage public processions and assemblies but bring aspects of public order legislation into line with recent case law. I would therefore like to test the opinion of the House.
Lord Sharpe of Epsom
“Wilful obstruction of highwayIn section 137 of the Highways Act 1980 (penalty for wilful obstruction), after subsection (1) insert—“(1ZA) Subsection (1ZB) applies where—(a) a person wilfully obstructs the free passage along a highway, and(b) the obstruction causes or is capable of causing serious disruption to two or more individuals or an organisation.(1ZB) The fact that the person wilfully obstructed the free passage along the highway as part of or in furtherance of a protest on an issue of current debate does not constitute a lawful excuse for the purposes of subsection (1).(1ZC) For the purposes of subsection (1ZA) an obstruction causes “serious disruption” if it prevents, or would hinder to more than a minor degree, the individuals or the organisation from carrying out their daily activities.””Member's explanatory statement
This new Clause amends section 137 of the Highways Act 1980 (penalty for wilful obstruction of the highway) to provide that where a person wilfully obstructs the free passage along a highway and that obstruction causes or is capable of causing serious disruption, the fact that they did so as part of or in furtherance of a protest on an issue of current debate does not constitute a lawful excuse.
Baroness Chakrabarti
“Protection for journalists and others monitoring protestsA constable may not exercise any police power for the principal purpose of preventing a person from observing or otherwise reporting on a protest or the exercise of police powers in relation to—(a) a protest-related offence,(b) a protest-related breach of an injunction, or(c) activities related to a protest.”Member's explanatory statement
This new Clause would protect journalists, legal observers, academics, and bystanders who observe or report on protests or the police’s use of powers related to protests.
Baroness Chakrabarti (Lab)
My Lords, we now come to the totally uncontroversial matter of protecting journalists from abuse of police power. This is an amendment in my name and also those of the noble Baroness, Lady Boycott, the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Hope of Craighead. We are honoured to have as our guest today the young LBC reporter Charlotte Lynch, who was arrested by Hertfordshire police for doing her job last November. The noble Baroness, Lady Boycott, will explain.
Baroness Boycott (CB)
I shall be brief, because I know that time is of the essence. I begin by reading a very short extract from a news report for 28 November 2022—a couple of months ago:
“The BBC said Chinese police had assaulted one of its journalists covering a protest in the commercial hub of Shanghai and detained him for several hours, drawing criticism from Britain’s government, which described his detention as ‘shocking’ … ‘The BBC is extremely concerned about the treatment of our journalist Ed Lawrence, who was arrested and handcuffed while covering the protests in Shanghai,’ the British public service broadcaster said in a statement late on Sunday.”
I shall substitute a few words here to make the point. I substitute “Charlotte Lynch” for “Ed Lawrence”, “the M25 in Hertfordshire” for “Shanghai”, and LBC for the BBC—and another world. Charlotte, like Ed Lawrence was handcuffed for doing her job. She was held in a cell with a bucket for a toilet for five hours; she was fingerprinted and her DNA was taken, and she was not allowed to speak to anyone. Her arrest took place just two weeks before Ed Lawrence’s. Is this the kind of world we want to live in?
As many noble Lords know, I have been a journalist and a newspaper editor. I have sent people to cover wars and protests, and I believe fundamentally in the right of anyone in the world, especially in our country, to protest about things they believe in. You protest only when you cannot get anywhere with anything else, when letters to MPs, to the local council and the newspaper have been explored and you take to the streets. But just as this is a fundamental right, so is it more than just a fundamental right—it is a duty— of journalists to report on demonstrations, because demonstrations are where we see where society is fracturing and where people really care. I cannot believe, as a former newspaper editor, that I would now have to think that it might be more dangerous to send a journalist to Trafalgar Square than to Tahrir Square. I urge noble Lords to vote for this amendment.
Lord Hope of Craighead (CB)
My Lords, it is hard to overemphasise the importance of this amendment. It is firmly rooted in Article 10 of the European Convention on Human Rights, which provides that:
“Everyone has the right to freedom of expression. This right shall include freedom to … receive … information and ideas without interference by public authority”.
The word “everyone” which begins that article is extremely important because it applies the rights to everybody, whoever they may be. It may be suggested that the point being made by the amendment is so obvious that it is unnecessary, but I simply do not believe that. In the highly charged atmosphere of the kind of public protest we are contemplating in these proceedings, it is too big a risk to leave this without having it stated in the Bill and made part of our law. It should not be necessary, but I believe it is necessary, and it is firmly rooted, as I say, in Article 10 and those very important words. I support this amendment.
Lord Garnier (Con)
My Lords, I could not put a cigarette paper between the arguments of the two previous speakers and those I would like to make. If we are not careful, we will move to preventing the media from creating fair and accurate reports of our courts and even of this place. I do not believe I am exaggerating in linking the two sets of arguments and I very much support this amendment.
Lord Hogan-Howe (CB)
My Lords, I do not support the amendment, and I do this at some danger, because one of my roommates in the Lords is proposing it. I do not support it for a reason of principle and a reason of practice. First, on the reason of principle, I quite agree that a journalist should not be arrested for doing their job: it is very obvious that this should not happen. However, if I understand it correctly, the only reason a journalist might be challenged about their behaviour is if they are doing an act contrary to the Bill—in other words, they are locking on or they are protesting in a way that is illegal. That is the behaviour that is being challenged.
Secondly, whether or not you accept that argument for journalists, I do not understand how you define these other people in a way that the police will understand, particularly in a protest. An observer, somebody who is monitoring: how are the police to know who these people are? I guess that as soon as a protester is challenged, they might decide that they are a monitor, an observer or any of the groups that might be protected.
I understand the principle behind it. None of us wants to stop people holding the police to account, but that is not really the problem. Even if you accept that journalists should be protected in this way, I do not understand how you define the group in a way that allows the police properly to do their job without asking people how they fall into this category—they are not registered anywhere. Journalists complain that many people now claim to be journalists but are merely reporting online. Is that group included in this definition as well?
Baroness Jones of Moulsecoomb (GP)
My Lords, I disagree very strongly with the noble Lord, because I think he is wrong. Once you give the police the idea that it is okay to arrest a journalist, why would we expect them to understand—you cannot deny that the police quite often misuse the law because they do not understand it—that they can do so only if they are gluing their hands or something like that? In any case, what journalist would do that? I cannot think that they would want to.
Lord Hogan-Howe (CB)
Mistakes are made; people are arrested wrongly. The police find acute problem-solving solutions when everyone else talks about “in six months’ time”. Someone has to make a decision; sometimes they make the wrong one—they happen to be human beings—and that is a problem. There is no general defence of being a journalist to any criminal offence. There is protection of legally privileged material, including journalistic material, and the Police and Criminal Evidence Act provides quite proper protection for that. However, that is not the same as providing a general defence for criminal behaviour to a journalist. In my view, that is what this proposes.
Baroness Jones of Moulsecoomb (GP)
I speak as the mother of a journalist, so I have a vested interest here, but journalists do not go along to protests to join them but to watch and report on them. The Hertfordshire police and crime commissioner, David Lloyd, with whom I had the displeasure of sharing a panel the day after this all happened, said that protesters should not have the oxygen of publicity. That was his attitude: “Freedom of the press is fine, but not for protesters.” That is utterly unreasonable, as are the noble Lord’s comments. I support this very strongly. I do not see why anyone here would have a problem with it, except the Government. What are they frightened of? What do they think journalists will report that would look so bad for them? Obviously, almost anything.
Viscount Hailsham (Con)
My Lords, I support what the noble Lord, Lord Hogan-Howe, has said. This is really a matter of definition. We all agree that journalists should not be arrested while doing their job, but it is very difficult for a policeman to distinguish between A and B—
Viscount Hailsham (Con)
Yes, but I do not think the noble Baroness has focused on the point that a lot of demonstrators would represent themselves as journalists to avoid the prescriptive provisions of the Bill. That is what the noble Lord, Lord Hogan-Howe, was talking about, and he is wholly right.
Lord Hope of Craighead (CB)
I thank the noble Viscount for giving way. The word “journalist” is not in the amendment—just “a person”, who is defined as “observing or otherwise reporting”. That is what it says, and it is very clear.
Viscount Hailsham (Con)
I appreciate that. I did not realise that the noble and learned Lord was intervening—I apologise for not sitting down at once. The point is surely that we are dealing with the need to protect journalists. The risk is that any demonstrator involved will say that they are a journalist or otherwise fall within the protection of this proposed new clause. That is what worries me.
Baroness Fox of Buckley (Non-Afl)
My Lords, if anything illustrates why this amendment is needed, it is the last few exchanges. A number of noble Lords are already suspicious that people reporting on a demonstration are really malevolently pretending to be doing so. The noble Lord, Lord Hogan-Howe, said that the police have said to him that people will pretend to be reporting and asked how they would know. That is the difficulty. If the police start off suspicious that journalists are really just people pretending to be journalists to get away with locking on and being disruptive, we have a problem.
What this amendment will do, and it is important to do so, is to state that it is a legitimate pursuit to be reporting on a demonstration, whatever your opinion of the demonstration. I have heard people say that all the people reporting on a demonstration who are not officially working for the BBC or LBC are actually demonstrators, but there are people who are opposed to, for example, Just Stop Oil who are reporting on it because they are trying to get support against the demonstrators. That is what is ironic. The point is that they are reporting. In a democracy, we need to know about such things. One of the great things about technology is that you can sometimes see it and know about it because somebody is there reporting on it or filming it.
We should stick by the principle of journalistic freedom. Those people who say people pretend to be journalists to get off scot free show how the Bill is already poisoning the well and making anybody associated with a demonstration in any capacity seem dodgy. What is dodgy is making that conclusion.
Lord Hogan-Howe (CB)
May I respond to the noble Baroness, because I think she misrepresented what I said? I think I said that the officer would be intervening because of criminal behaviour, not because someone was a journalist or was suspected of being one. That would be the reason. There may be cases where an officer has intervened because they thought someone was a journalist and they did not want it to be recorded. I am not saying that has never happened; that would be wrong. There is no doubt about that. My point was only that the only reason for an officer to intervene should be—in principle, from the law—because the person is committing a criminal offence. That is what the Bill is all about: defining what is criminal and what is not. Therefore, I do not think it is fair to represent what I said as picking on someone because they are a journalist.
Baroness Chakrabarti (Lab)
I wonder if I could help the noble Lord, Lord Hogan-Howe, because he has not, with respect, read the amendment—or at least not very carefully. To be clear, there would be nothing to prevent the arrest of a journalist, filmmaker, legal observer or anybody else if the officer suspected the commission of a criminal offence, including offences in the Bill that I disagree with. The protection is only against the use of police powers for the primary purpose of preventing the reporting. That is a judgment that is left to the officer, but what he cannot do is to say, “You’re a reporter. You’re giving protesters the oxygen of publicity, and I’m gonna arrest you.” That is the protection given here to people such as Charlotte Lynch, who could not possibly have been reasonably suspected of locking on or committing any other criminal offence. Such people could be suspected only of what they were actually doing: their job as reporters in a free society.
Lord Davies of Gower (Con)
My Lords, I remind noble Lords that this is Report stage and they have one opportunity to speak.
Lord Cormack (Con)
My Lords, I am glad that my noble friend has just said that, because it was the point I was going to make. I will make one brief intervention. I was always brought up on the proposition that it is better that someone who is guilty goes free than that someone who is innocent is punished. That ought to be our guiding principle, particularly when we are dealing with such sensitive issues and such an important Bill.
When the noble Baroness, Lady Boycott, spoke very briefly, and very powerfully, she began with a story from China. We do not want to be bracketed with that. We talk a lot in this House about the importance of freedom of speech, and we mean it—passionately. However, freedom of speech cannot exist properly unless there is a free press. It may often say things that we deplore or get the balance wrong, but it must have that freedom. A free society depends upon a free Parliament and free speech, and it depends upon a free press and free broadcasting. We are going in the wrong direction with this issue if we do not accept the amendment that has been signed by a very distinguished Law Lord: the noble and learned Lord, Lord Hope of Craighead. I would take his advice on this as much as I would take anyone’s. It would be better if the Government did not oppose this amendment.
Lord Patten of Barnes (Con)
I would like to follow what my noble friend just said, or at least the beginning of his remarks following the speech by the noble Baroness, Lady Boycott. If the Chinese Communist Party, through its quisling administration in Hong Kong, was introducing legislation like this, we would denounce it. The Foreign Office would denounce it—it would be in its six-monthly report about attacks on freedom of speech and attacks on freedom in Hong Kong—and we would all cheer. It is astonishing that we are proposing in this country the sort of thing which we would denounce if the Chinese Communist Party were doing it in Hong Kong.
Lord Wolfson of Tredegar (Con)
My Lords, I may be labouring under a misapprehension, but surely there is a critical difference between this country and China. As I understand it, the proposed new clause would prevent a constable exercising a police power for the principal purpose of preventing someone observing or reporting on a protest. If we do not pass this amendment, that act—that is, arresting somebody for the principal purpose of preventing reporting on a protest—would still be unlawful: it would be an abuse of police powers to do that. The difference is that here we are being asked to pass legislation to make illegal that which is already unlawful. That is the concern I have with it. When I was a Minister, I was frequently told, “You should add this clause and that clause to send a signal”, and I kept saying, “The statute book is not a form of semaphore.” My problem with this clause is nothing to do with the content of it; I just have a problem with passing legislation to make unlawful that which is already unlawful.
Lord Paddick (LD)
My Lords, there cannot be any legitimate objection to journalists, legal observers, academics or even members of the public who want to observe and report on protests or on the police’s use of their powers related to protests. We have seen in incident after incident how video footage of police action, whether from officers’ own body-worn video or that taken by concerned members of the public, has provided important evidence in holding both protesters and police officers to account for their actions. The need for this amendment is amply evidenced by the arrest and detention of the accredited and documented broadcast journalist, Charlotte Lynch, while reporting on a Just Stop Oil protest. It is all very well for noble Lords to say, “Well, if somebody was arrested in the way that Charlotte Lynch was arrested, it was unlawful”, but the fact is that Charlotte Lynch was taken out of the game for five hours and detained in a police cell, where she could not observe what was going on. We need upfront protection for journalists and observers, and not to rely on a defence that they can put after they have been handcuffed, arrested, and put in a police cell even though they are in possession of a police-accredited press pass. We support this amendment and will vote for it if the noble Baroness divides the House.
Lord Berkeley of Knighton (CB)
My Lords, there is something to be said for semaphore in the wider sense. That is, one of the problems that I think many noble Lords have had with the Bill is that it is sending a signal, as the noble Lord, Lord Patten, just suggested, against freedom of expression. Certainly, we need clarity in making law—I have changed my mind on two amendments today thanks to the interventions of the noble and learned Lord, Lord Hope. However, I will not change my mind on this one, because I think back to those women who were dragged around at the protest after Sarah Everard’s murder and who themselves filmed what was going on, to the disgust of the whole nation. Sometimes semaphore is very important. We are looking not just at the fine lines of the law today but at the message we are sending to the population: that we are a free society and that we want a free press. I will support the amendment.
Lord Coaker (Lab)
My Lords, we support the amendment moved by my noble friend Lady Chakrabarti and if she divides the House, we will support her in the Division Lobbies. As the noble Lord, Lord Cormack, said, a free press is the hallmark of a democratic society; we should remind ourselves of that. In doing so, I reflect again on the really important point made by my noble friend. The amendment is not concerned with the police using their powers proportionately, where appropriate, if criminal behaviour is taking place. It states:
“A constable may not exercise any police power for the principal purpose of preventing a person from observing or otherwise reporting on a protest”.
It is not saying that there is carte blanche for anybody who is observing to do anything they want around a protest, to exploit it for their own reasons and to conduct criminal activity, or that it would prevent the police doing anything about that; far from it. It seeks to allow reporters and others to observe and report to the wider public, to different sections of the country and beyond, who may not even be there or understand what the protest is about. That is important, and this must be an unfettered, protected power. That is why we support the amendment, which is extremely important, among the many other extremely important amendments we are discussing today.
Lord Sharpe of Epsom (Con)
My Lords, I apologise for my slightly tardy arrival.
Amendment 54, tabled by the noble Baronesses, Lady Chakrabarti and Lady Boycott, and the noble Lord, Lord Paddick, seeks to establish a specific safeguard for journalists and bystanders during protests. It follows the wrongful arrest and detention of the LBC journalist Charlotte Lynch in November. May I reassure the House that it is not okay? I agree with the noble Baroness, Lady Jones, that it is absolutely not okay to arrest a journalist who is doing their job.
I thank the noble Baroness, Lady Chakrabarti, for tabling this amendment, and agree with the need for journalists and innocent bystanders to be adequately safeguarded during protests. The Government are clear that the role of members of the press must be respected. It is vital that journalists be able to do their job freely and without restriction. I agree with the noble Baroness, Lady Fox, the noble Lord, Lord Coaker, and my noble friend Lord Cormack that a free press is the hallmark of a civilised society.
The police can exercise their powers only in circumstances where they have reasonable grounds to do so. Hertfordshire Constabulary has accepted that its wrongful arrests of journalists on the M25 were unlawful. Noble Lords will be aware that an independent review was conducted into Hertfordshire Constabulary’s arrest of journalists during the M25 protests. With your Lordships’ indulgence, I will go into a little of the detail on that. Cambridgeshire Constabulary’s report specifies that:
“The power of arrest is principally governed by PACE 1984 and to be lawful, the arrest must be necessary by reference to statutory powers set out within PACE 1984. Code G provides additional rules and guidance on the use of the power of arrest. Of particular relevance to this operation, it is important to observe the judgement laid out following O’Hara v Chief Constable of Royal Ulster Constabulary 1996—an officer cannot exercise the power of arrest based on instruction from a superior officer. In order to satisfy the requirements under section 24 of PACE 1984, the superior officer must convey sufficient information in order for the arresting officer to develop reasonable grounds.”
I went into that in some detail because Section 24 —“Arrest without warrant: constables”—is very clear. A constable may arrest without warrant
“anyone who is about to commit an offence; anyone who is in the act of committing an offence; anyone whom he has reasonable grounds for suspecting to be about to commit an offence; anyone whom he has reasonable grounds for suspecting to be committing an offence. If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.”
Under those criteria, I struggle to see how the primary purpose of being a journalist, which the noble Baroness, Lady Chakrabarti, referred to, and reporting on a protest, would ever constitute reasonable grounds.
Going back to the Cambridge case, the constabulary also specified that code G of PACE 1984 gives some separate guidance on necessity criteria:
“The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person.”
It is very clear. We are all protected by those rules and that includes journalists. The review revealed that the issue was one of training and proposed several recommendations to fix this, including ensuring that all public safety officers and commanders carry out the College of Policing and National Union of Journalists awareness training. The constabulary has promptly implemented these recommendations. This is not an issue of law but one of training and guidance, which is already being addressed.
Lord Garnier (Con)
My Lords, PACE is nearly 40 years old. Is not the training completed?
Lord Sharpe of Epsom (Con)
My noble and learned friend makes a very fair point, but the College of Policing and the National Union of Journalists awareness training is a little more recent than the 40 year-old PACE codes.
The College of Policing’s initial learning curriculum includes a package of content on effectively dealing with the media in a policing context. In addition, the authorised professional practice for public order contains a section on the interaction of the police with members of the media. This includes the recognition of press identification. It should also be noted that it is entirely legitimate for a police officer to inquire why an individual may be recording at the scene of a criminal offence if they deem it appropriate. We do not want to suggest that this is unlawful.
In light of those factors, while I completely understand the direction and purpose of the amendment, we do not support it because we do not deem it to be necessary. These defences are already covered in law.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to all noble Lords who have spoken in this short but vital debate. Once more to respond to the noble Lord, Lord Hogan-Howe, who I am not sure has read the amendment—
Baroness Chakrabarti (Lab)
This amendment is not about preventing the arrest of anybody, journalist or otherwise, who is reasonably suspected of committing a criminal offence, including offences in this Bill. There is no definitional problem, because what is defined is the purpose of the arrest, not the identity of the person. This is important because even after Charlotte Lynch’s arrest, a Conservative police and crime commissioner took to the airwaves to say, “You are giving the oxygen of publicity to protesters.” In other words, “You are complicit in this kind of disruptive action by reporting it.”
If a senior Conservative police and crime commissioner took that view, it is perhaps understandable that some hard-working, hard-pressed police officers in difficult times might take the same view. The offence for which Miss Lynch was arrested was the very open-textured “conspiracy to cause a public nuisance”. Therefore, if a journalist has been tipped off that there is to be a demonstration that may or may not turn out to be disruptive and they go to do their job of reporting, some police officers, it would seem, and others may believe that in some sense to be complicity in causing or conspiracy to cause a public nuisance.
I also want to thank the Minister and his Bill team for meeting me just yesterday—although of course the Home Office press office had already told various media outlets that the Home Office was doubling down on this amendment. At that meeting, I asked the Minister and his colleagues to explain the basis for Ms Lynch’s arrest being unlawful. By the way, many other journalists have recently been arrested; what was the basis for these being unlawful arrests? I got the answer that noble Lords just got from the Minister.
What is said to be unlawful about Ms Lynch’s arrest is not that she is a journalist, but that individual officers were taking direction from their superiors and not exercising their own judgment. That is a technical and very important matter, but it is not the issue at stake here. I asked the Bill team and the Minister: where is the authority, the legal provision, in primary or even secondary legislation, that says that journalists should not be arrested, for example for conspiracy to cause a public nuisance, just for reporting on something that itself may be a public nuisance? There was no authority and no provision offered. So vague assertions about PACE codes that do not even deal with my specific point are really not going to cut it—not on something as important as free reporting in a free society.
I have moved this amendment and I seek to test the opinion of your Lordships’ House.
Lord Anderson of Ipswich
Member's explanatory statement
This amendment would limit the trigger events for an SDPO to the commission of a protest-related offence and the breach of a protest-related injunction.
Lord Anderson of Ipswich (CB)
My Lords, I rise to propose a number of amendments to Part 2 of the Bill, which provides for serious disruption prevention orders, or SDPOs. These are civil orders, breach of which is punishable by imprisonment. Imposed by magistrates at the request of the police, their intended effect is to prevent people, who may or may not have been convicted of a protest-related offence, from participating in or assisting future protest-related activities by means of blanket restrictions on their movement, activities, association, and use of the internet—see the list of permitted requirements in Clause 21(2) and the rather forbidding list of permitted prohibitions in Clause 21(4), neither of which is exhaustive.
In Committee, the Minister said, rather colourfully, that SDPOs are targeted on
“a small group of individuals”
who
“repeatedly trample on the rights of the public without let or hindrance”.—[Official Report, 13/12/22; col. 639.]
For those individuals, we are asked to assume that the availability of bail conditions and of ever-longer prison sentences for an ever-growing list of offences are insufficient.
My objections to SDPOs are twofold. My first is, to use the Minister’s language, that they can imposed not just on those who trample on others but on people who tiptoe over the boundary or enable others to do so and, indeed, under Clause 20, on people who have never broken the law and in respect of whom there is no evidence that they ever will. The likely effect of these clauses in chilling the freedom of assembly is obvious.
My second objection is that there are remarkably few lets and hindrances on SDPOs themselves, even by the standards of comparable orders aimed at the prevention of knife crime, domestic violence and terrorism. In Committee, I pointed out the six central respects in which SDPOs are more severe even than the TPIMs, successors to the once-controversial control orders that we impose on a tiny handful of dangerous terrorists and that I was much concerned with when I was Independent Reviewer of Terrorism Legislation. Yet the Government estimate that 400 SDPOs will be imposed every year: 200 after conviction for protest-related offences under Clause 19, and 200 under Clause 20 on people who need not have been convicted of anything at all.
I turn to the three categories of amendments in this group. The first category is the old stand part debates from Committee, renewed in the form of Amendments 59 and 63 in the name of the noble Lord, Lord Ponsonby, which I have signed, along with the noble Lord, Lord Paddick, and the noble Baroness, Lady Chakrabarti. These give effect to the views of bodies ranging from HMICFRS to the Joint Committee on Human Rights. They attracted wide and distinguished support when we debated them in Committee.
The second category of amendments are those tabled by the Government after the Minister’s promise to think further. Amendments 58 and 62 reduce from five years to three years the period in respect of which previous offences or other conduct may be taken into account before imposing an SDPO. That does not address the main concerns with SDPOs, but it is something. Amendment 65, with those consequential on it, deletes the express authority in the Bill for the use of electronic tags to monitor compliance with an SDPO. This removes one of the more eye-catching features of these orders but leaves unaffected the unlimited range of requirements that an SDPO may contain, limited only by the purposes broadly defined in Clauses 19(5) and 20(4). Finally, Amendment 69 provides that an SDPO may not be renewed more than once, although, since SDPOs can still be imposed for an unlimited duration, this might be considered a rather limited comfort. I thank the Government for these amendments, which are welcome. However, with respect, they do no more than nibble around the edges.
The third category of amendments are the seven that appear under my name, with the support of the noble and learned Lord, Lord Thomas of Cwmgiedd, and, as to six of the seven, the noble and learned Lord, Lord Hope of Craighead. I hope that it is fair to describe them as modest. I will say a brief word about each.
Amendment 56, to which I draw the particular attention of the House, and Amendment 60 would limit the trigger events for an SDPO to the commission of a protest- related offence or the breach of a protest-related injunction by the person to be subjected to an SDPO. The effect of that change is that you could not be a target of an SDPO, as you could under the Bill as it currently stands, if you drove your daughter to a demonstration in which serious disruption such as delay or hindrance was caused to two or more individuals.
Amendments 57 and 61 would ensure that a second or subsequent SDPO made in respect of any person was founded on trigger events that had not already been taken into account for the purposes of the imposition of a previous SDPO. I would be amazed if anything different were intended by Government, and I persist in the hope that these might be accepted as simply clarifying or tidying-up amendments.
Amendment 64 would limit the requirements that may be imposed by an SDPO to those having the effects specified in Clause 21(2). That would no longer be an illustrative list but an exhaustive list. But note the modesty of this amendment too: it would leave unaffected the long and draconian list of permitted prohibitions in Clause 21(4).
Amendment 71 would limit the total maximum duration of any SDPO to two years, which could be extended to a total of four years under the Government’s Amendment 69. Of course, new facts could form the basis of another SDPO even beyond that point.
Amendment 72 would remove the Secretary of State’s power in Clause 30(2)(b) to give guidance to the police
“about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.
That guidance power is an extraordinary infringement on the operational independence of the police, as I hope your Lordships will agree.
I am unrepentant in my opposition to SDPOs as unnecessary, disproportionate and dangerously broad. That is why I support the stand part amendments from the noble Lord, Lord Ponsonby, and will vote with him if he so invites the House to remove Clause 20 from the Bill. If there is insufficient appetite to remove Clause 19 and the Benches opposite indicate their support, I propose to test the opinion of the House on my Amendment 56, which would ensure that the trigger events for an order under Clause 19 are limited to protest-related convictions or breaches of protest-related injunctions.
Lord Hope of Craighead (CB)
My Lords, as the noble Lord, Lord Anderson, said, I support all but one of his amendments. The one I do not support is very minor and, out of an abundance of caution, I decided not to put my name to it. A particular point I wish to draw attention to arises from his Amendments 56 and 60, which deal with the trigger events for the pronouncement of these orders. The noble Lord seeks to take out the third, fourth and fifth trigger events. He is absolutely right to want to do so because of the breadth of the expression, and of a particular point that I will come to.
The third trigger event concerns carrying out
“activities related to a protest that resulted in, or were likely to result in, serious disruption”.
That phrase describes a protest, but the word “activities” is so wide that it raises real questions about the certainty of this provision. The same point arises in respect to the fifth trigger event.
The fourth trigger event contains quite an extraordinary proposition, which is that the person
“caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction”.
An offence is defined in statute. Everyone is presumed to know the law, so it is fair enough to mention the “offence” in that particular trigger event, but injunctions are directed to individuals; they are not publicised in the same way as offences. A person might have absolutely no idea that the other person in question was in breach of an injunction, of which he had no notice whatever. That is absolutely objectionable. On any view, the fourth trigger event should be deleted from both these clauses, but for broader reasons and those given by the noble Lord, Lord Anderson, which I need not elaborate on, I support his amendments.
Viscount Hailsham (Con)
My Lords, I will make three brief comments about these amendments. First, regarding the trigger points, I entirely agree with Amendments 56 and 60 from the noble Lord, Lord Anderson, which the noble and learned Lord spoke to. The reference to an injunction is particularly worrying because, for the reason the noble and learned Lord mentioned, members of the public would not be aware of it. In any event, what are or could be contemplated in the third, fourth and fifth trigger events are acts that are very remote from the mischief the Bill contemplates. Therefore, I very much hope that the amendments are put to the House, and I shall support them if they are.
Secondly, your Lordships need to keep in mind that the test of necessity, which is dealt with in Clause 20(1)(d), is quite a high bar. I deal with it in interim orders made by the regulatory panels, which are fully aware that “necessity” is different from “desirability” and requires quite a high threshold.
My last point is a query to the Minister, if he would be so kind. It is a very long time since I dealt with complaints before magistrates’ courts, so I apologise for not really being familiar with the procedure. In any view, these SDPOs are very serious. Does the complaint, which presumably has to be made both by the court and to the person named, specify the concerns felt by the senior police officer? Does it specify the relief being sought in the order itself? I assume that these are inter partes hearings, not ex parte. Does the person against whom the order is sought have the opportunity to make representations, give evidence, be represented and object to the relief being sought? This is ignorance on my part, but I fancy that quite a lot of your Lordships would like to know the procedure being invoked.
Lord Paddick (LD)
My Lords, as we have heard, most of the amendments in this group seek to restrict the proposed provisions in serious disruption prevention orders so that they are more in line with terrorism prevention and investigation measures. TPIMs are primarily designed for instances where the case against someone who is believed to be a serious threat to society—a suspected terrorist—is based on intelligence rather than evidence that could be given in open court. They are supposed to be a temporary measure while attempts are made to secure the evidence necessary to convict the person of a criminal offence. SDPOs as originally drafted were potentially limitless banning orders preventing people from involvement in protests, even if they had never physically been present at a protest before and, in the case of Clause 20, had never been convicted of a criminal offence.
As the noble and learned Lord, Lord Brown of Eaton- under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights if a court was satisfied on the balance of probabilities—depriving people of their human rights on the weakest of evidential tests. Even in the case of Clause 19, on serious disruption prevention orders on conviction, where the court is convinced beyond reasonable doubt that a criminal offence has been committed, the court needs to be satisfied only on the balance of probabilities that the offence was protest related. It then has to be satisfied—again, only on the balance of probabilities—of a second involvement in a protest. For example, if someone had contributed to crowdfunding to pay for coaches to take protesters to London and, in the end, there were not enough protesters and the coaches never went, but serious disruption was likely to have resulted if they had and the coaches had been full of protesters, on the balance of probabilities the court could impose an SDPO.
That many of the amendments in this group attempt to weaken SDPOs, making them merely outrageous rather than totally unacceptable, is no reason to support them—perhaps with the exception of Amendment 56, which seeks to limit those who would be made subject to an SDPO and which, frankly, goes nowhere near far enough. The House should not make legislation less bad when it has an opportunity to oppose it in its entirety. The noble Lord, Lord Anderson, expressed his support for that by signing Amendment 59.
As His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported in its review of public order policing, the police’s view was that courts would be reluctant to deprive individuals of their right to protest by granting protest banning orders in the first place, and even more reluctant to impose any significant penalty should someone breach an order by peacefully participating in a future protest. If they caused serious disruption, they would be convicted of a substantive public order offence. As a result, SDPOs were seen as unworkable and having no real deterrent effect.
We support the amendments in the name of the noble Lord, Lord Ponsonby of Shulbrede—to leave out Clauses 19 and 20—which have been signed by me, the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Chakrabarti. We cannot support depriving anyone of their human rights on an evidential test of the balance of probabilities, especially when the police believe that the courts would be unlikely to impose SDPOs or a deterrent penalty for any breach. We will support the noble Lord when, we hope, he divides the House on Amendments 59 and 63.
Lord Ponsonby of Shulbrede (Lab)
My Lords, to be clear at the outset, we will support Amendment 56 in the name of the noble Lord, Lord Anderson, and I will not divide the House on Amendment 59. I shall speak to Amendment 63, which is tabled in my name and has cross-party and Cross-Bench support.
I welcome the positive move that the Government have made on SDPOs, particularly removing electronic monitoring and limiting an SDPO’s renewal to only once to take into account some of the concerns raised in this House and the other place. Despite this, it remains my view that it is necessary to pursue the wholesale removal of Clause 20. It is simply not proportionate, necessary, Human Rights Act-compliant or good value for money to introduce a power to allow serious disruption prevention orders to be given without a conviction being made.
This is not just my view. The Joint Committee on Human Rights agrees that Clause 20 would interfere
“with legitimate peaceful exercise of Article 10 and 11 rights”
and that:
“The police already have powers to impose conditions on protests and to arrest those who breach them.”
Amnesty International also agrees, saying that Clause 20 is “wholly disproportionate”, restricting
“the exercise of a fundamental right of peaceful assembly based on past conduct and there is no requirement that the past conduct be of a serious nature.”
The Metropolitan Police Commissioner also agrees, confirming this week that “policing is not asking for new powers to constrain protests”.
Experts agree that, since the police already have the powers they need and since this new power would threaten the fundamental right to assemble peacefully, the Government would be wise to think again on this matter. The UK cannot condemn authoritarian regimes cracking down on protests and at the same time celebrate the bravery of protests such as the umbrella movement or the white paper protesters. I will divide the House on Amendment 63, and I hope the Government will use this opportunity to remove this harmful provision.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have contributed to this shortish debate. This group contains notices to oppose, so I will start with those amendments which take issue with serious disruption prevention orders as a whole. The feeling expressed by noble Lords when speaking to these amendments is clear, but I do not support the full removal of these provisions, and it is important that I make clear the reasons why.
Peaceful protest is a fundamental part of our democracy, but causing serious disruption under the guise of a protest is not. Why should protesters who are determined repeatedly to inflict serious disruption continue to be allowed to do so, especially when their actions impact those who simply wish to go about their daily lives, and potentially risk the safety of our emergency services? SDPOs will give the police and the courts the powers that they need proactively to prevent protesters causing serious disruption, time and again. Those protesters found in breach of an SDPO will be liable for arrest, meaning that the police will not need to stand by until an act of protest-related serious disruption has already taken place before they can act.
Some will argue that many of these protesters are already arrested, but a small group of individuals who have been arrested during disruptive protest action have reoffended soon after. To deter this small group of individuals, SDPOs provide an alternative, non-custodial route to prevent those who have a track record of causing serious disruption in the name of protest. SDPOs will prevent protesters causing harm by subjecting them to proportionate and necessary restrictions or requirements. Such restrictions might involve stopping a protester who has previously locked on carrying an item that would assist them doing so again or require a protester, for example, to report to a police officer at the time when a planned protest is due to take place. I should make it clear that it will be up to the courts to consider what measures are put in place on a case-by-case basis to ensure that they are both proportionate and necessary.
In Committee, concerns were raised that SDPOs are a harsh and intrusive way of preventing serious disruption. However, it is important to make it clear that a prohibition or requirement of a preventive order is much less intrusive than a prison sentence, which is a potential consequence of some of the protest-related offences that can lead to an SDPO.
Many noble Lords have asked whether anybody at a protest could be subject to an SDPO. As I hope I made clear in Committee, only those who have committed protest-related offences, breached a protest-related injunction or caused or contributed to protest-related activities on at least two occasions would be considered for an SDPO. It is for the courts to decide whether someone’s actions caused or contributed to serious disruption at a protest and meet the threshold of an SDPO.
In answer to my noble friend Lord Hailsham’s question, I say that the person potentially subject to an order may present evidence so, yes, the court may consider evidence from the person potentially subject to an SDPO and may adjourn proceedings if the person does not appear for any reason. I should also clarify that Clause 20(6) states:
“On making a serious disruption prevention order the court must in ordinary language explain to P the effects of the order.”
Therefore the person would need to be present.
Viscount Hailsham (Con)
I interpreted that subsection to mean that the statement could be in writing if the person did not attend. Is that correct?
Lord Sharpe of Epsom (Con)
I will need to clarify that but, given the other things that I have said, it would imply—I stress “imply”—that the person needed to be there, but I will come back on that point.
I also stress that those who make their voices heard without committing offences or causing serious disruption would not be affected.
The evidential threshold of SDPOs was also the subject of discussion. I am sure that many noble Lords support the courts’ imposition of injunctions which are made on the civil burden of proof and ban large numbers of people protesting in certain locations, including, on occasions, “persons unknown”. The burden of proof is the same for SDPOs, and they are made against known individuals whose actions have shown that an order is necessary.
Noble Lords also raised the question of how SDPOs will be enforced. As I hope I conveyed in Committee, it will ultimately be for the courts to place necessary, proportionate and enforceable conditions on protesters subject to an SDPO and for the police to exercise any powers of arrest in relation to breaches. However, I assure the House that the Government will be setting out statutory guidance for SDPOs to aid the police and courts in due course.
The use of SDPOs is critical when equipping the police with powers to ensure that they can take proactive steps against prolific protesters. So in removing SDPOs fully from the Bill, we will continue to see the police struggle to get ahead of those protesters who are hell- bent on repeatedly inflicting serious disruption.
The noble Lord, Lord Paddick, mentioned the HMICFRS’s comments about banning orders not being compatible with human rights, but the report from the policing inspectorate considered only orders that would always ban an individual protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption, so depending on the individual circumstances this may mean that the court will not consider it necessary to stop individuals attending protests.
Nevertheless, as I made clear when we discussed these measures in Committee, I recognise the strength of feeling expressed by your Lordships. In that vein, I turn to the amendments tabled by the noble Lord, Lord Anderson. I thank him for his continued engagement on this Bill as a whole. His amendments all seek to amend the SDPO regime in some way, be it limiting the trigger events for an order, limiting the maximum duration of an SDPO, limiting the requirements that can be imposed on an individual or amending some of the guidance that is to be issued by the Secretary of State concerning these measures. We still believe that SDPOs are an important and useful tool for stopping repeat protesters committed to causing disruption. For this reason we regrettably cannot support the amendments proposed, which we assess amount to a substantial dilution of the Bill’s effectiveness. However, we recognise the sentiment behind them, as well as the other concerns raised, which is why I committed to take the matter away.
As a result of that consideration, the Government have tabled amendments which seek to allay some of the concerns expressed by your Lordships. We have tabled an amendment which removes the electronic monitoring provisions from the Bill, meaning that no individual subject to an order would have the requirements and prohibitions imposed monitored electronically. This was a particular concern of your Lordships, and we have responded accordingly. The second amendment reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years. The final amendment addresses a criticism made by your Lordships concerning the renewal of an order. Indeed, many noble Lords expressed concerns that an order could be continuously renewed. The amendment we have tabled therefore addresses this by setting a limit on the number of times an order can be renewed to only once. It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs. I encourage all noble Lords to support the amendments in the Government’s name and to reject the others in this group.
Lord Anderson of Ipswich (CB)
The Minister will recall that I described my Amendments 57 and 61 as clarificatory. It seemed to me that the Government must surely have not intended that a second or subsequent SDPO made in respect of the same person could be founded on trigger events that had already been taken into account for the purposes of a previous SDPO. I understand that the Minister does not accept my amendments, but can he at least clarify that that is the Government’s understanding of the Bill?
Lord Sharpe of Epsom (Con)
I can clarify that that is the Government’s understanding.
Lord Anderson of Ipswich (CB)
I am grateful to the Minister for that and for his engagement throughout this process. I am also grateful to all noble Lords who have spoken in this debate, in particular to the noble and learned Lord, Lord Hope, for his extremely pertinent points on the three sub-paragraphs that my Amendment 56 would remove from Clause 19, and to the noble Viscount, Lord Hailsham, for the broader point, which I tried to make as well, that those sub-paragraphs capture conduct that is simply too remote to justify the imposition of such a draconian order.
Very fairly, the noble Viscount made the point, echoed by the Minister, that a magistrate asked to make these orders under Clause 20, for example, must think it “necessary” for certain purposes—he noted the strength of that word. The noble Viscount is right about that, of course, but I simply ask the Government to have in mind, as I am sure they do, that the purposes for which it can be necessary are expressed very broadly indeed. For example, if you look at Clause 20(4)(c), you see that it can be necessary to prevent a person
“causing or contributing to … the carrying out by any other person of activities”.
One has all the same, very indirect language that I seek to remove by Amendment 56.
My amendments leave the police with a completely workable system to deter the small group of individuals who, in the Minister’s words, are hell-bent on repeating serious disruption; there can surely be no doubt about that. Both my amendment and the amendment relating to Clause 20 are too modest to impact on that objective. That is less than some of us would have wished, and I am sure the Government and the House of Commons will be well aware of that when it goes back to them, if these amendments are carried.
I have sympathy with the noble Lord, Lord Paddick, who does not think that my Amendment 56 goes far enough. I would love to have seen other amendments put to the vote, but I am told that politics is the art of the possible. I think the noble Lord agrees that this amendment is a great deal better than nothing and that this improvement will be greater still if Clause 20 can be removed from the Bill. I would like to test the opinion of the House on Amendment 56.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment omits the provision in Part 2 of the Bill that provided for a serious disruption prevention order to include a requirement for a person to submit to electronic monitoring of their compliance with such an order.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
“(8A) The court may not renew a serious disruption prevention order more than once.”Member’s explanatory statement
This amendment provides that a serious disruption prevention order may not be renewed under Clause 28 more than once.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
The Deputy Speaker (Baroness Finlay of Llandaff) (CB)
I cannot call Amendment 71 due to pre-emption.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom that leaves out Clause 23.
Public Order Bill
Tuesday 21st February 2023
(1 year, 9 months ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-I Marshalled list for Third Reading - (20 Feb 2023)
Baroness Sugg
Member's explanatory statement
This amendment and the following amendments in the name of Baroness Sugg clarify that in order for an offence to be committed under subsection (1) of Clause 10, the person mentioned in paragraph (a), (b) or (c) of that subsection must be in the safe access zone for the abortion clinic in relation to which they are accessing, providing or facilitating the provision of abortion services.
Baroness Sugg (Con)
My Lords, in moving Amendment 1 I will speak briefly to the other amendments in my name, all of which are clarifying amendments.
Amendments 1 to 4 make it clear that for an offence to be committed under Clause 10(1), the person mentioned in subsection (1)(a) to (1)(c) must be in the safe access zone for abortion clinics. Amendment 5 is a change in wording though not in intent, to follow current Ministry of Justice practice to refer only to a fine, as is done elsewhere in this Bill. I beg to move.
Lord Jackson of Peterborough (Con)
My Lords, I rise to speak to Amendment 1, tabled by my noble friend Lady Sugg. I will not repeat the comments made on Report. However, given that these are helpful tidying-up, administrative amendments, it is appropriate to put on record my very serious concerns about Clause 10.
I still have reservations about the sui generis nature of the proposal, particularly the use of “influence” in Clause 10(1)(a). Including this subsection in the legislation is an extremely slippery slope. This will come back to haunt the House and the Government in due course, not least because the clause is unnecessary. It is legislation by anecdote and a knee-jerk reaction to lived experience, rather than empirical evidence, not least because there is existing legislation in place and, as I mentioned before, there are PSPOs—which, incidentally, do not work. The two notable cases raised in the debate earlier this month have resulted in no criminal action and their dismissal, because the threshold for criminality and prosecution was not being met in those unique cases, involving a minister of religion and a Christian activist.
The clause will result in stigmatisation, hostility towards and, eventually, the criminalisation of, one group of people: Christians. I do not think that is what the vast bulk of your Lordships would wish to happen. The clause is pernicious and a fundamental assault on freedom of speech and thought. Although it cannot be stopped and this Bill will get Royal Assent, it is timely and appropriate for some of us to make the case that this is bad law. It is stigmatising a small group of people who are not fashionable, and it will come back to haunt in due course all of us who care very deeply about freedom of speech.
Lord Cormack (Con)
My Lords, I rise briefly to support what my noble friend has just said. I am grateful, as we all are, to my noble friend Lady Sugg, who has made a genuine effort to improve things since the first time she moved her amendment. That should be, and I think is, acknowledged throughout the House.
As my noble friend Lord Jackson said, we are potentially on a slippery slope here, because the stigmatising of someone who privately prays and does not necessarily say anything at all is very dangerous. We sometimes debate what happens in other countries, and although this is a long way off Chinese practice, it is going in that direction. We should be very careful. The law as it stands, without Clause 10, is adequate to deal with any problems that might arise. I can see that they might from time to time, but I do not believe that the “sledgehammer to crack a nut” approach is the right one. As my noble friend said, the Bill will go on the statute book. It will accompany many other imperfect pieces of legislation that we really should not have allowed through your Lordships’ House.
Lord Anderson of Ipswich (CB)
My Lords, I want to say three things. First, I pay tribute to the noble Baroness, Lady Sugg, for the remarkable job she did after the contentious committee hearing on this clause. She forged a result which, although certainly not perfect, and which continues to evoke strong feelings, had the support of a very great majority of your Lordships.
Secondly, I thank the Minister for taking on board Amendment 9, which is surely not controversial but mends the hole in this Bill by ensuring that the same incidents are not taken into account for successive serious disruption prevention orders.
My third point is also addressed to the Minister, but I suspect more particularly to his ministerial colleagues. On both stop and search and serious disruption prevention orders, your Lordships’ House has not obstructed clear government policy but has found a way—with the benefit of our collective experience—to leave the police with the powers the Government say they need, while removing the excessive and unnecessary elements of each power. The things we removed are no-suspicion stop and search and the power to trigger SDPOs on the basis of activity that does not meet the criminal threshold.
I remind the Minister that all this was passed with overwhelming Cross-Bench support. All three amendments on these subjects were signed or supported by two Lord Chief Justices, two further judges of our highest court and a former Commissioner of the Metropolitan Police, my noble friend Lord Hogan-Howe, who, in my experience, knows exactly what he is talking about on these issues. The three amendments collectively attracted 162 Cross-Bench votes, with only eight against. Of course, these Benches are only a small part of the House, but not one, I hope, that anyone would willingly confuse with a crypto-anarchist front. I believe that the Minister, with his own policing experience, will see the force of these views, and I ask him to convey that to his colleagues in the Commons. I hope that this Bill can become law without tiresome ping-pong and with these amendments in place.
Lord Paddick (LD)
My Lords, we wholeheartedly support all the amendments in this group. Noble Lords often talk about the tremendous work the noble Baroness, Lady Sugg, has done on this Bill, although I realise they have not said it in those terms.
It may come as a surprise to Members of this House that I consider myself to be a Christian. I rather overdid it: I was baptised as an infant; then I became a Baptist and was baptised by total immersion; and then I went to Oxford and was confirmed in the Church of England. It was belt and braces as far as I am concerned. This legislation is not anti-Christian and, in respect of people who privately pray, my understanding is that prayer works very effectively outside of a 150-metre radius of an abortion clinic.
I have to apologise to the House: I should have been on my guard on Report. I refer to the debate on 7 February, when the Minister talked about the Government having tabled amendments
“which seek to allay some of the concerns expressed by your Lordships.”
I think the Minister knows what is coming. He went on to say that the second amendment, Amendment 58,
“reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years … It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs”.—[Official Report, 7/2/23; cols. 1147-48.]
Regrettably, when it came to Amendment 58, the Minister “not moved” his own amendment. I was not quick enough to intervene to rescue it, so that amendment is lost. It was not part of an amended part of the Bill, so it cannot be amended here at Third Reading, and it cannot be amended in the Commons either. As I said, I apologise for not being quick enough to spot that mistake. Having said that, we support all the amendments before the House today.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we too support all the amendments today. I open by thanking the noble Baroness, Lady Sugg, for all her work on this matter; I know that she has worked tirelessly between both Houses and both sides of this House. I am glad that we have reached this point and, to that extent, I agree with the noble Lord, Lord Cormack.
I reiterate what the noble Lord, Lord Paddick, said: plenty of Christians support the amendments and there are a number I know who would take exception to people describing them as somehow not as good Christians as those who wish to protest by praying within 150 metres of an abortion clinic. It is perfectly clear that you can pray wherever you like, but outside 150 metres of an abortion clinic.
I would like to reinforce the points made by the noble Lord, Lord Anderson, who talked about the strength of the votes at earlier stages of the Bill. He highlighted stop and search and SDPOs, and the strength of support from across the Cross Benches, including from many very senior former judges. I hope that when the Minister wraps up, at this stage or the next, he says something or gives us some hint about how far the Government will go in recognising the concerns that this House has expressed.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, subsequent to Report and ahead of today’s Third Reading, the Government have brought a number of clarificatory technical amendments.
First, during the debate on Report on 7 February, the noble Lord, Lord Anderson, asked for clarification, as he has referred to, that a second or subsequent serious disruption prevention order made in respect of the same person could not be founded on trigger events that had already been taken into account for the purposes of a previous order. I confirmed that that was indeed the Government’s intention. In this spirit, the Government have today brought an amendment clarifying that position within the legislation. I hope noble Lords are satisfied with that legal clarity and I thank the noble Lord for his remarks.
Finally, on Report, your Lordships voted to remove from the Bill Clause 11 on suspicionless stop and search, and Clause 20 on serious disruption prevention orders made otherwise than on conviction. As a result, the Government have brought tidying amendments that are consequential to those amendments. I will not speculate further on what may happen later.
Baroness Sugg
Member's explanatory statement
See the amendment in the name of Baroness Sugg at page 11, line 14.
Member's explanatory statement
See the amendment in the name of Baroness Sugg at page 11, line 14.
“where the person mentioned in paragraph (a), (b) or (c) is within the safe access zone for the abortion clinic.””Member's explanatory statement
See the amendment in the name of Baroness Sugg at page 11, line 14.
Member's explanatory statement
A level 5 fine in England and Wales is unlimited. This amendment clarifies that this is the intended effect of this provision by bringing the drafting in line with current Ministry of Justice practice to refer only to “a fine”, as is done in other places in this Bill.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 11 (powers to stop and search without suspicion).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 11 (powers to stop and search without suspicion).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 11 (powers to stop and search without suspicion).
Lord Sharpe of Epsom
“(c) P’s conduct mentioned in paragraph (a) has not been taken into account when making any previous serious disruption prevention order in respect of P.”Member's explanatory statement
This amendment clarifies an uncertainty in the Bill regarding the conditions for making a serious disruption prevention order. It clarifies that a previous conviction or breach may not be taken into account if that conviction or breach has already been taken into account in respect of the making of any earlier serious disruption prevention order.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom that leaves out Clause 13.
Lord Sharpe of Epsom (Con)
My Lords, perhaps I may detain the House a little longer to mark the end of this Bill’s passage through your Lordships’ House. It has been a wide-ranging debate, with much scrutiny across three days of Committee and two days of Report.
I must express the Government’s disappointment at the removal of some very important measures, the aim of which was to support the police in better responding to the sort of disruption which has been impacting the public going about their daily lives. Those amendments will now be considered in the other place and we will no doubt be debating them again soon.
Notwithstanding that, I want to take this opportunity to recognise the contributions of those who have supported me in steering the Bill through the House. I pay particular tribute to my noble friends Lord Murray of Blidworth and Lord Davies of Gower. I also express my thanks to noble Lords on the Government Benches for giving this Bill the scrutiny that the public expect. I thank the Front Bench opposite for its engagement on the Bill, accepting that there have been some areas of disagreement between us. I expect nothing less, of course, of these noble Lords. The noble Lords, Lord Coaker and Lord Ponsonby, and the noble Baroness, Lady Chakrabarti, have been passionate advocates for their causes throughout this process.
Lord Paddick (LD)
My Lords, I thank the Minister and his Bill team for listening to at least some of the concerns noble Lords have raised, and for the way in which they have responded to them. When similar restrictions on protests were considered by this House in the Police, Crime, Sentencing and Courts Act, the Government were defeated on 14 occasions. This time, the Government were defeated eight times, but that was only because we did not feel there was enough time to vote against other measures that we were very concerned about. However, I thank the Minister and his team. I thank Elizabeth Plummer in the Liberal Democrat Whips’ Office, who has supported me throughout. I thank His Majesty’s loyal Opposition for the constructive way in which noble Lords of the Labour Party have worked together with us to ensure that the democratic right to protest has been maintained.
Lord Coaker (Lab)
My Lords, I start with some brief remarks. I very much thank the Minister, his colleagues on the Government Front Bench and the Bill team for their help and time during the passage of the Bill—including today’s clarificatory amendments which the Minister brought forward. It is an example of how this can and should be done, even when there are genuine disagreement between us. The briefings and discussions we had helped inform debate and, I hope, have led to better legislation—which is indeed what we all want. I thank the Minister very much for that; it is much appreciated.
I thank my noble friend Lord Ponsonby for his support and important contributions. I say to the Chamber that he brings a calmness to my more excitable character, which is extremely helpful. In thanking him, I also thank our office for its support, and in particular, over the last few weeks, Liz Cronin. I thank many of my noble friends for their contributions to this debate, particularly my noble friend Lady Chakrabarti. I thank the noble Lord, Lord Paddick, and his colleagues, and I thank him for the remarks he just made. I thank the noble Baroness, Lady Jones, for the contributions she has made, and a number of Cross-Benchers—including the noble Lord, Lord Hogan-Howe, who has been mentioned, the noble Lord, Lord Anderson, and others.
To those very senior former judges, including the noble and learned Lord, Lord Hope, I say that I very much appreciated my crash course in the law; I hope that I have appeared to know what I am talking about, which is always a start. The interventions of the noble and learned Lord, Lord Hope, and those of many of the other senior judiciary members who we have here, make a huge contribution to the difficult debates that we have, even where we disagree between ourselves. This is an extremely important Bill and the debate will no doubt continue as it returns to the other place for its consideration of our changes.
I want to emphasise—the noble Lord, Lord Anderson, mentioned this—that the debates here and the changes made reflect a genuine attempt to address where the line should be drawn between the right to protest and the right of others to go about their daily lives. It was not about those supporting a law-abiding majority and those putting the rights of protestors first. Across the world, democracy and the right to protest are non-existent or under threat. In our great democracy, tensions arise and anger around protests can sometimes, quite rightly, provoke public outrage. In seeking to deal with that, however, we must not, even inadvertently, damage freedoms that we all cherish.
I hope that the other place will reflect carefully not only on the actual amendments that we have made but on the debates that took place around them. They were debates, yes, on how we deal with the challenges emerging particularly from recent protests but also, crucially, on maintaining the democratic traditions of which we are all so rightly proud.
Public Order Bill
Tuesday 7th March 2023
(1 year, 8 months ago)
Commons ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 7 March 2023 - (7 Mar 2023)
18:12 - The House divided: - Ayes: 116 / Noes: 299 - Question accordingly negatived.
18:30 - The House divided: - Ayes: 281 / Noes: 236 - Question accordingly agreed to.
18:43 - The House divided: - Ayes: 286 / Noes: 235 - Question accordingly agreed to.
18:55 - The Committee divided: - Ayes: 285 / Noes: 231 - Question accordingly agreed to.
19:08 - The House divided: - Ayes: 280 / Noes: 232 - Question accordingly agreed to.
Mr Deputy Speaker (Mr Nigel Evans)
I inform the House that I have selected amendments (a) and (b) to Lords amendment 5.
Clause 9
Offence of interference with access to or provision of abortion services
Andrew Lewer (Northampton South) (Con)
I beg to move amendment (a) to Lords amendment 5.
Mr Deputy Speaker
With this it will be convenient to discuss the following:
Lords amendment 5, and amendment (b) thereto.
Lords amendment 6, and Government motion to disagree.
Lords amendment 7, and Government motion to disagree.
Lords amendment 8, and Government motion to disagree.
Lords amendment 9, and Government motion to disagree.
Lords amendment 36, and Government motion to disagree.
Lords amendment 1, Government motion to disagree, and Government amendment (a) in lieu.
Lords amendment 17, Government motion to disagree, and Government amendment (a) in lieu.
Lords amendments 20, 21, 23, 27, 28 and 31 to 33, Government motions to disagree, and Government amendments (a) and (b) in lieu.
Lords amendments 2 to 4, 10 to 16, 18, 19, 22, 24 to 26, 29, 30, 34, 35 and 37.
Andrew Lewer
I have tabled my amendment because the Bill, in its current form, has a problem. The part of the Bill it deals with is leading us into the territory of thought crimes and creates unprecedented interference with the rights to freedom of speech and thought in the UK.
Sir Desmond Swayne (New Forest West) (Con)
If my hon. Friend were to go on Twitter now, he would find a recording of an arresting officer telling a lady that praying silently is already a crime, and we have not even passed this Bill yet. Are we not really in Orwellian territory of thought crime, as he said?
Andrew Lewer
I could not agree more with my right hon. Friend, and that is the concern. The part of the Bill I am referring to is Lords amendment 5; put forward in the House of Lords by Baroness Sugg on the matter of “interference” within buffer zones.
I understand that many people will find it highly inappropriate for vocal or difficult protests to be held right outside abortion clinics, and I categorically condemn harassment against women at all points in their life, let alone near an abortion facility. However, that is a world away from the police being able to detain people and question them over what they are doing if they are merely standing there or praying quietly—or worse, if they are praying silently and are then asked by the police, agents of the state, “What are you thinking about?”
Ian Paisley (North Antrim) (DUP)
I commend the hon. Gentleman for tabling this amendment. Does he agree that the Government could do one thing today: they could indicate clearly that this measure does not apply to people engaged in prayer? Secondly, does he agree that if the Government allow this situation to continue, they are going to turn the police into a laughing stock? People will be mocking them, saying, “What about all the knife crime and all the other problems that you have? And you are arresting people for silently praying.” This provision really does make a fool of the police, does it not?
Andrew Lewer
It does cause reputational damage to the police; the videos that some colleagues have seen are hugely disturbing. It makes it difficult for Ministers to stand up and say, “The police are on your side, they will defend you”, when people see a woman who is on her own and standing perfectly still being harassed by the police. I agree entirely with the comments that the hon. Gentleman has made.
So, “What are you thinking?” is covered by the Bill in its current state and remains there despite the Sugg amendment. Action such as I was describing is entirely unacceptable in a free and open society, and I could have my pick of dystopian novels—one has already been referenced—from which it would not be out of place.
Alexander Stafford (Rother Valley) (Con)
No one, in any part of the House, wants women or anyone else to be harassed while going about their lawful business. However, does my hon. Friend acknowledge that legislation is already in place whereby local councils can apply buffer zones around abortion clinics and other such areas when it is necessary to do so? Three or four local authorities have already introduced buffer zones, so this extra amendment is not necessary, because local authorities already have the powers.
Andrew Lewer
Indeed. The Lords amendment extends something that is already disturbing, as we see in some of the video instances that have taken place. These zones would be the only place in the UK where consensual communication is banned by the state—simply saying that sentence makes this seem such an absurdity. To those who say this would never happen, I say that it has indeed already happened. In December, in Birmingham, Isabel Vaughan-Spruce was searched, arrested, interrogated and placed on criminal trial for silently praying within one of these zones, and she has now been arrested again.
Eddie Hughes (Walsall North) (Con)
There is an important detail missing from what my hon. Friend just said, as I understand that when Isabel Vaughan-Spruce was arrested the clinic was not even open. It just seems that if we continue down this line, we are going to extrapolate on an extrapolation in order to make absolutely sure that anybody can be arrested for anything.
Andrew Lewer
That is exactly right, and I thank my hon. Friend for that contribution. Indeed, the question asked then was, “Are you praying?” When that was answered with, “I might be”, the next question was, “What are you praying about?” That was answered with, “I am praying in my head.” It is extraordinary that that leads to someone being arrested in this country in 2023.
Last month, a father and Army veteran was fined in Bournemouth after being grilled by the police about what he was silently praying in his head. This points the way to a world where freedom from offence, or even potential offence, supersedes freedom of speech and religious belief. We have created, therefore, a situation where we can impose criminal penalties for silent thought, and there will be countless ramifications. For example, it would make it increasingly difficult for my hon. Friend the Member for Congleton (Fiona Bruce), as the Prime Minister’s special envoy for freedom of religion or belief, to advocate for these freedoms abroad. We often have debates in this House where we are all telling the rest of the world what to do and people will turn around and say, “How can you lecture us about religious freedom when there are areas where you cannot even pray in your own country without being arrested and hauled off by the police?”
Sir Julian Lewis (New Forest East) (Con)
My hon. Friend is speaking first in the debate, so I would like to give him an opportunity to anticipate an argument, with which I have considerable sympathy, that we are going to hear urged against him. I refer to the fact that we have seen in other countries, particularly the United States, loud and noisy protests outside abortion clinics and they are what has undoubtedly led to this movement for zones. Will he confirm that if his amendment goes through, it will not, in any way, affect the ability of the law to prevent women from being genuinely harassed when they go to abortion clinics?
Andrew Lewer
That is an extremely important part of this amendment—it makes sure that those protections are very much still in place, as indeed they already are under the Police, Crime, Sentencing and Courts Act 2022. Censorship is a notoriously slippery slope. It might not be our thoughts that are being criminalised today, but we should be careful not to open the door to that happening tomorrow to other opinions that people might hold about something else.
Sir John Hayes (South Holland and The Deepings) (Con)
Which is precisely why successive Prime Ministers and Health Secretaries, including the current Chancellor of the Exchequer, took the view that there was no need for further action, Indeed, they did not see this as a matter for a free vote, which abortion, as a generality, rightly is. This is about freedom: it is not about the purpose of that freedom or the location of it. It is about the ability to think, speak and pray freely.
Andrew Lewer
It is, and that is an important point. This is not a debate about opinions on abortion. Opinions about abortion are varied and differ hugely throughout the House. The 2022 Act already gives the police the power to
“place any condition on a public assembly (that is necessary to prevent disorder, damage, disruption, impact or intimidation)”.
That is far more targeted and proportionate. If Members do not feel those powers are sufficient, that is a conversation about altering public space protection orders, not imposing nationwide buffer zones.
Those who do not accept amendment (a) must be able to justify to both themselves and the public why they do not believe that private prayer is a fundamental human right in the United Kingdom. The Bill must absolutely not outlaw our fundamental human rights and I remain far from convinced that, unamended, it will not.
Jon Trickett (Hemsworth) (Lab)
May I first seek your advice, Mr Deputy Speaker? May I speak to the other amendments on the order paper?
Mr Deputy Speaker (Mr Nigel Evans)
Please speak only to the amendments that are before us today.
Jon Trickett
Thank you for your guidance, Mr Deputy Speaker: I just wanted to be clear.
I have some sympathy with the points made by the hon. Member for Northampton South (Andrew Lewer), although clearly the ability of people to go about their lawful business at work, including clinicians, administrative assistants and women going to have procedures, must be protected. I am not convinced that his amendment (a) would achieve an absence of harassment, so I will not support it and the House should not do so either.
I have some sympathy with the points the hon. Gentleman made, however, because the whole Bill is an assault on British liberty. That is the central point, and I will illustrate it in several ways later in my speech. This is an extraordinary Bill. It will hand unprecedented, draconian powers to the repressive arms of the British state, but we have been given only three hours to discuss it. The debate on protecting people going for abortions could take three hours in itself, but we are faced with a series of amendments that were debated in the Lords over days. We have been given three hours, and that is outrageous. Why have the Government provided so little time to discuss these matters, some of which go back a thousand years in English history?
Lords amendment 6 deals with stop and search without suspicion. The police will be granted the power to intercept people who are not even suspected of committing a crime. That is an extraordinary power after more than 1,000 years of the struggle by the British people for a state that protects our liberty. Several of those who spoke in the debate in the other place said that the only comparison they could think of was in the laws that were passed against terrorism. Protesting about injustice is not terrorism, and to conflate the two is a mistake. I have not heard the Government make the case for that, and I will be interested to hear what they have to say. The police have said that they do not want these powers, and previous members of the judiciary in the Lords said that they were concerned about how the Bill could be interpreted.
The Bill as it stands will lead to a further breakdown in confidence between the police and other parts of the state on the one hand, and communities on the other. One example is the Sarah Everard case, where police moved in to prevent what was effectively peaceful and justified protest. That led to a major breakdown in confidence in the Met, although that was already in process because it was a serving police officer who had committed the crime. The police used the covid rules that were then in place, the appropriateness of which had been debated in the House.
Sir Charles Walker (Broxbourne) (Con)
I am sympathetic to what the hon. Gentleman is saying, and I support him in his cause this afternoon, but the arrests in the Sarah Everard case were made because, shamefully, this House had banned the right to protest.
Jon Trickett
That is the point I was just making, and I thank the hon. Gentleman for repeating it.
The police used the covid rules, which had been passed by the House, possibly regrettably. But under this Bill, the police will need no excuse whatever, because the law will allow them to arrest people even if there is no suspicion of any kind. It is quite extraordinary to see a clause in a Bill brought before this British House of Commons proposing that people can be intercepted by the police on no suspicion whatsoever.
Ian Paisley
The hon. Gentleman is making a powerful point. Is it not the case that this Bill removes from the police the right to use something that we expect from them: discretion? It removes the ability to use their discretion and be proportionate. This Bill applies a disproportionate action and forces the police to take that disproportionate action.
Jon Trickett
I thank the hon. Gentleman for making that point. He is right that the British state claimed historically to be the bastion of our liberty, but today it is proposed that it become an engine of our suppression. An authoritarian state is being created here, and it is not acceptable.
When I said earlier that these rights go back centuries, I was not exaggerating. The right to freedom of association—for people to meet with whoever they choose, on the streets or anywhere else—is part of the very structure of our society. The rights of free speech, freedom of association and freedom of assembly were built into our constitution for generations and centuries. They will all be fundamentally disrupted by this piece of legislation.
Habeas corpus, the right of individuals not to be intervened on by the state or its apparatuses without good reason, goes back centuries. Protection against arbitrary imprisonment by the state was incorporated in the Habeas Corpus Act 1679. The Bill of Rights 1689 went through this House of Commons, and now the House of Commons is being asked to surrender at least part of the principle of habeas corpus, and on no suspicion whatsoever. I add that point one more time, because it is extraordinary that that is what is being said.
It may be said, “Well, in the light of what’s happening in the country, with the protest movements and so on, we need new powers.” Just a minute, though—will the Minister in responding perhaps tell us why a breach of the King’s peace, or the Riot Act 1714, or other items of legislation which have gone through this House and have protected our liberties over the centuries, might not be appropriately used? A breach of the peace is an act of common law going back before the year 1000, to King Alfred—that is how deep the attachment to liberty is in our country, yet it is about to be broken.
The Justices of the Peace Act 1361, preventing riotous and barbaric behaviour that disturbs the peace of the King, also went through this Parliament. Why is it suddenly necessary now, after more than 1,000 years of our history, to empower the state to operate in these ways? We have many other Acts; the Riot Act was read on the steps of the town hall, I think, in my home city of Leeds, against the gas workers who were on strike in the 19th century. In Featherstone in my constituency, the Riot Act was read and people were killed. All they were doing was striking to protect their wages and incomes. How can it be that there is no legislation in place that might deal with the kind of actions we can envisage taking place? Why is it that suddenly, in this century, we are about to abandon 1,000 years of our history? I will come to an explanation in a moment.
I have spoken to Lords amendment 6, but I will briefly speak to Lords amendment 1 and the attempt to define what the Government mean by “serious disruption”. The amendment is now being replaced by the Home Secretary, who is proposing amendment (a) in lieu. The amendment in lieu is quite astonishing. It suggests that anybody may be arrested if they have taken action that might, in more than a minor degree, affect work or supply of goods and services. Subsection (2)(b) of the Home Secretary’s amendment in lieu refers to the following activities: the supply of money, food, water, energy or fuel, communication, places of worship, transport, education and health. It so happens that those are the areas where there is industrial action—where people are taking action to protect their living standards, a right they have had for more than a century.
Why is the list that has been provided to this House in this amendment proposing those particular areas of action? How can minor disruption to services now be regarded as a criminal offence? This will provoke a breakdown in trust between the police force, the state itself and people taking action. I represent a mining community. I went there just over 27 years ago, and during the strike—[Interruption.] Are you trying to say something, Madam Deputy Speaker?
Madam Deputy Speaker (Dame Rosie Winterton)
I was just trying to communicate that at some point we need to be aware that there are quite a few speakers. That is all.
Jon Trickett
I appreciate your guidance, Madam Deputy Speaker; I am about to finish on this point.
The definition that the Lords tried to introduce was not perfect but it was far better than the amendment before us. We have a failing political and economic system, and consent has broken down across wide parts of the country. There are two ways of moving forward: either we try to produce a just and more equal society or we move from consent to repression. That is where this Government are taking us, and it is a seriously bad step. This legislation, and certainly the amendments, ought not to go through.
Several hon. Members rose—
Madam Deputy Speaker
Order. It will be clear that quite a few hon. and right hon. Members wish to speak in the debate. I would suggest that colleagues keep to about eight minutes to start with. I will not need to put a time limit on if we can think of each other in a comradely fashion—that would be great. I call David Davis.
Mr David Davis (Haltemprice and Howden) (Con)
May I start by commending the hon. Member for Hemsworth (Jon Trickett)? I agree very much with what he had to say, but I say to him that, although the laws and the constitution underpinning these matters are, as he said, up to 1,000 years old, much of the tradition of modern demonstrations goes back to the 1930s, when the behaviour of the police towards demonstrators led to the creation of the National Council for Civil Liberties, for example. I know that because my grandfather led more than one demonstration and was arrested—after being baton-charged by the police—for inciting violence. He was sent to prison for six months—although the judge gave him the option of being bound over for six months and not making irritating speeches, and he said he would rather go to prison, so there we are.
My hon. Friend the Member for Northampton South (Andrew Lewer) made one of the best speeches I have heard in this House for a very long time on something as fundamental as the right to prayer without intercession by the state. That is an issue that is thousands of years old, and he was absolutely right.
This is problematic. What we are debating is the outcome of an over-heavy-handed Bill—that is where it starts. We were all outraged by the behaviour of some of the demonstrators—disrupting ambulances and Lord knows what else—and the Government reacted to that, but they overreacted, frankly. The Lords have corrected that, and the Government have conceded on a number of important points. They have removed the possibility that a serious disruption prevention order—one of the most restrictive measures we have short of imprisonment—can be imposed on people who have never been convicted.
I say to the Minister that five years after a conviction is a very long time. Most non-violent convictions are spent after one year, so five years is a devil of a long time to allow such restrictions to be put on somebody. The Lords have removed the electronic tagging requirement again. The idea that creating nuisance should lead to someone being tagged is, in my view, a barbaric proposal, and it is gone. An explicit provision that the police cannot use their powers against journalists was carried by about 90 votes in the Lords. That should not even have come up; it is so obvious that that is undermining for us.
The SDPOs are still very restrictive for what are relatively simple offences. They involve bans on using the internet in certain ways, bans on being in certain areas, bans on intended protests, and many other restrictions. They resemble control orders, which—remember—are counter-terrorism measures. That is a crude approach. As I said, five years is too long for the criminal offence to be unspent, so I hope that the Government will look at that again, or, if they do not, that the Lords send it back again.
The organisation Liberty, which, as I said, came into being because of these sorts of problems with demonstrations in the ’30s, has raised concerns about the possibility of political interference, which is really serious. The Secretary of State may issue “guidance about identifying persons” to whom the police should apply an SDPO. In that, we in this House will have no say. That is, again, a critical concern.
The most important thing was raised by the hon. Member for Hemsworth: suspicionless stop and search. Stop and search is an abuse of our freedoms, full stop. Being stopped by a policeman and required to strip off, or to empty one’s pockets and bags, is an abuse that we do not allow in this country. Let me be clear: the vast majority of police are responsible, decent and public-spirited people, but the past year has shown that there are also some other people in there. The Sarah Everard offence has been referred to; Couzens was charged with other offences just recently. That demonstrates the danger of handing over unfettered power to people who might abuse it. That is the simple point, and what the state is doing is handing over that power. What we are looking at here—suspicionless stop and search—has to be restricted or eliminated. If we do not do this, we will be in the same position as some states with which we have no sympathy.
Last, I want to reinforce my point with quotations from His Majesty’s inspectorate of police. Inspectors went round 10 police forces asking for their opinions, and right enough, there was a spectrum, but I want to read out a few sentences from their report. They said:
“At one end of the spectrum, an officer we interviewed described the current legislation”—
that is, the existing legislation, not this Bill—
“as providing ‘an arsenal’ of weapons for the police to use, including many appropriate for use in the context of disruptive protests. Consequently, that interviewee”—
a police officer—
“and many others saw no need for change. Arguing against the proposal for a new stop and search power (Home Office proposal 5) another officer stated that ‘a little inconvenience is more acceptable than a police state’.”
That is a policeman speaking. His Majesty’s inspectorate said:
“We agree with this sentiment.”
His Majesty’s inspectorate, with all its knowledge—much greater than that in the civil service and the Home Office—think that the proposal is unnecessary and that to keep it is to veer towards a police state. On that basis alone, I say to the Minister, please think again about getting rid of the amendment.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). Our view remains that, despite the best efforts of the other place, the Bill continues to represent a draconian and utterly unjustified attack on protest rights. It is fair to acknowledge that the Government have given some ground, but it is far from enough, so we will vote against a number of the Government’s motions to disagree.
Let me deal first with no-suspicion stop and search, in clause 11. It is horribly ironic that as part of a Bill which the Home Office claims—unconvincingly—is designed to tackle “dangerous and highly disruptive” tactics, the Home Office itself is turning to one of the most dangerous and highly disruptive police tactics: suspicionless stop and search. It is a tactic that achieves next to nothing, yet causes considerable harm, including shocking racial disparities—a fact which I do not think the Government have properly acknowledged during the course of the Bill’s passage.
The profoundly negative impact of stop and search on individuals and on community faith in the police came across loud and clear to me as a member of the Home Affairs Committee when we heard evidence as part of our “The Macpherson Report: Twenty Years On” inquiry. Nobody with reasonable knowledge of the Macpherson report, numerous subsequent inspection reports, or the Home Affairs Committee report could responsibly think that expanding no-suspicion stop and search is a sensible way to go, or the answer to any of our problems. Our Committee report warned of the dangers of such search powers resulting in injustice and undermining the legitimacy that is fundamental to the model of policing by consent. In doing so, we echoed earlier inspectorate reports and the words of the former Home Secretary, the right hon. Member for Maidenhead (Mrs May), who in 2014 spoke about the huge damage done to the relationship between the police and the public when innocent people are stopped and searched for no good reason.
Similarly, when looking at the Bill, the Joint Committee on Human Rights—we will hear from its Chair, my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), shortly—objected to these powers. We fully support the Joint Committee’s conclusions on the inherent risk of arbitrary and discriminatory use, and the point that post-exercise accountability is simply not enough. The Committee rightly highlighted that such powers have been used only for really significant and serious offences, such as terrorism or serious violence. Now, the Government want to use them for non-violent activities that are only just now being made criminal offences. The question is: what comes next? It is a very, very slippery slope and a totally inappropriate use of such powers.
The trigger for the powers is also ridiculously low: it could be the possibility that someone somewhere is seriously annoying or inconveniencing somebody else—the public nuisance offence—or that somebody somewhere could lock on to a fence or a gate in a way that is capable of causing more than minor disruption to two people. Suddenly, the whole neighbourhood can be searched in the name of stopping that serious annoyance or the more than minor disruption for two people. The right hon. Member for Haltemprice and Howden quoted the police officer who told His Majesty’s inspectorate that
“a little inconvenience is more acceptable than a police state”.
That is absolutely spot-on. In short, it is a totally ludicrous proposal of dubious consistency with human rights law. It is similarly ludicrous and disproportionate that the penalty will put at risk of imprisonment completely innocent people who simply challenge an officer over an asserted use of a blanket power. That is a dangerous road to go down.
Turning to serious disruption prevention orders, we acknowledge again that the Government have come some way in diluting these highly objectional orders made otherwise than on conviction, but we remain of the view that the whole idea of SDPOs is utterly Kafkaesque and threatens an unjustified infringement on the right to protest of huge numbers of people each and every year. We support the critique provided by Lord Anderson in the other place. It is not long since terrorism prevention and investigation measures were reluctantly introduced, which see significant infringements of a person’s liberty without the use of a criminal court to protect the public from a risk of terrorism. Recently, this House gave cautious support for state threat prevention and investigation measures, but the application of similar ideas, not for the purposes of countering terrorism or espionage, but in the field of protest, is utterly disproportionate and unnecessary. The nature of the SDPO is less defined and lacks similar oversight, limitations or protections compared even with TPIMs or STPIMS, and that is extraordinary. The possibility of a prison sentence for a breach is ridiculous, and the trigger for the imposition of an SDPO is many times lower. Again, the question is: where next? It is a slippery slope indeed. The police do not ask for these powers, and the whole notion should be removed from the Bill.
Finally, we support new clause 1, which seeks to clearly define the meaning of serious disruption and put an appropriate threshold on it. That definition is crucial for a number of other offences and powers. The Government amendment in lieu puts in place so low a threshold that we would prefer no definition at all. If this Government want serious harm simply to be “more than minor”, that triggers all sorts of crazy and unacceptable consequences. Crimes could be committed simply because two people or an organisation had to face moderate or even moderate to minor disruption. Frankly, it is such a wishy-washy low bar that the Bill would be better off with no definition at all. Our view remains that this whole Bill is rotten, overblown, unwelcome and a dangerous threat to human rights, perhaps a bit like the Government themselves. It is a dreadful attack on rights, and it is also dreadful that the constitution allows it to happen. Anything that waters it down is welcome, but in reality the whole Bill should go altogether.
Sir Charles Walker
I rise in support of Lords amendments 6 and 20 and to urge the Government not to strike them out. I received some excellent briefings, as many hon. and right hon. Members did, from Big Brother Watch and Liberty, supporting the arguments that will be made this afternoon as to why Lords amendments 6 and 20 should be retained, but actually I found an even better briefing in support of those amendments, and it was provided by the Whips Office.
In “Chamber Brief: Public Order Bill”, the Whips make the best argument possible for retaining these two amendments. If I may, I will just quickly read it out. The brief states:
“Lords amendment 6 removes clause 11: power to stop and search without suspicion from the Bill.”
That sounds an outstanding thing to do. It continues:
“This would mean senior police officers would not be able to give an authorisation allowing a constable in uniform to conduct a suspicion-less stop and search of a person or vehicle”.
That sounds excellent. I do not want suspicion-less stop and searches. It sounds extraordinary that anyone in this House would support suspicion-less stop and searches. In fact, I am surprised that the Whips in my party are requesting colleagues to strike out Lords amendment 6 in relation to suspicion-less stop and searches. When I am going about my business, I do not want to be stopped by a police officer and asked about my business. When I say to the police officer, “Why are you stopping me?”, it seems pretty odd that they can say, “I have not really got a reason to stop you, it is just that I can.”
The Whips’ brief, or the Government’s brief passed through the Whips Office, has a wonderful bit of doublespeak at the end of the paragraph. It states:
“Removal of this clause from the Bill reduces the tools available for the police to use when responding to serious disruption and the Government cannot support it”.
The police do not have these tools yet, so how can the amendment reduce the tools available? That does not make any sense at all.
In promoting their position that Lords amendment 20 should be struck out, the Government say:
“Lords amendment 20 removes clause 20: serious disruption prevention orders made otherwise than on conviction entirely from the Bill. This would mean that an order could not be made by a magistrates court on application by a relevant chief officer of police. It is important that the police have the power to seek an order on application, rather than solely at the point of conviction.”
I understand that, when someone is convicted, the police might have a point of view, but to begin placing restrictions on people before they have been convicted of any crime strikes me as somewhat unBritish.
The Minister for Crime, Policing and Fire (Chris Philp)
There is some factual confusion about this, and I am grateful for the opportunity to clear that up. In the other place, the Lords made an amendment to clause 19, which said that the orders could be made without a conviction. The Government accept that amendment—we do not seek to overturn it—and we accept that a conviction is required before an SDPO can be made. Clause 20 is rather misleadingly titled, because it implies that an SDPO can be made without a conviction. If Members read the clause, however, they will see, now that we have accepted the amendment to clause 19, that it applies to circumstances in which there has been a conviction and the police wish to apply to the court for an SDPO at a later date, which will still be after a conviction has been made, so we have conceded the point that my hon. Friend is making. It is rather confusing because the title of clause 20 is a bit confusing, but we have conceded that point.
Mr David Davis
The Minister is quite right—that describes exactly what the Government are doing—but he has left out one thing: the conviction is up to five years before. Usually in British law, convictions are spent after a certain period. Non-violent convictions are all spent after one year, but the conviction for causing a nuisance will last five years.
Sir Charles Walker
We are so lucky to benefit from my right hon. Friend’s wisdom, which has been built up over a 30-year period, and I thank him for making that important point.
I know that you want Members to make brief contributions, Madam Deputy Speaker, so I will conclude. We are at this point, because we criminalised protest during the covid pandemic, and the Chamber did not push back when the Executive did that. We are paying the price. It is all very well being wise after the event. I have always believed that protest was a right, but I was mistaken because rights cannot be taken away from people. Actually, protest is a freedom, and we discovered that during the covid pandemic, when people up and down the country gathered in small town centres and village squares to protest at the restriction on their freedom, perhaps to earn a living as artists and performers. They were often rounded up by the police and arrested. At the time, many of us warned that once this poison was in the country’s bloodstream it would be difficult to get it out. I am deeply disappointed that the Chamber went missing in action for so long. We allowed the Executive, as I say, to get away with appalling abuses of our unwritten constitution, and we are now paying the price for that. I do not think that we should do that, and I will certainly vote against the Government’s attempts to strike out the Lords amendment.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
There is lots to consider today. I share the concerns that have been expressed about things like stop and search and locking in. Those things go too far. I want to concentrate on Lords amendment 5, which would introduce an
“Offence of interference with access to or provision of abortion services”,
which is a perfectly sensible thing to do. The Lords, particularly the Conservative peer, Baroness Sugg, have done a great job in tackling what are called, rather clunkily in clause 9, buffer zones, and making them into safe access zones. I therefore urge colleagues to support Lords amendment 5 unamended tonight.
Were it not for the actions of anti-choicers, the amendment would not be necessary at all, but something must be done when, every week nationwide, 2,000 women seeking lawful medical treatment find themselves impeded on their way to the clinic door by unwanted individuals. Now, those individuals would not call themselves protesters; they may just be silently holding a sign, lining the pavement with images or holding rosary beads, but given the slogans on those signs, and the ghoulish images of foetuses, and given that the whole intent of all of that is to shame these women, guilt trip them and stop them exercising their bodily rights—
Dr Huq
I know that the hon. Gentleman is jumping up and down, thinking, “Red light here,” but if he will allow me to develop my point, I will be happy to debate with him.
Okay, these individuals do not call themselves protesters—they are not those angry young radicals—but the whole point of these actions is to deter, to dissuade and to knock off course those women who have made a very difficult decision, and probably the most agonising decision of their lives. We could therefore call it obstruction.
In 2018 in Ealing, my home patch, I went and saw the evidence logs of our Marie Stopes clinic. It was not just women users of the clinic but women practitioners—medical professionals—describing how they had to run a daily gauntlet just to get to work or to have a completely legal procedure.
Five years ago, our council became the first in the country to introduce a public spaces protection order buffer zone, and protest still occurs every day. I heard the catastrophising of the hon. Member for Northampton South (Andrew Lewer), but he should come to Ealing and see that it has just moved a set number of metres down the road so that it is not right in front of the clinic gate and women can get in and have their procedure without people in their face and without any kind of influences.
Within that, I include Sister Supporter, a pressure group known for its members’ pink high-vis jackets. Towards the end of 2018, they were accompanying women into the clinic because people felt afraid to go on their own. It is an upsetting enough experience as it is without all these layers on top.
Ian Paisley
I thank the hon. Member for giving way. The issue of “for or against abortion” is really not what we are debating here today, but I want to know, loud and clear, whether the hon. Member believes that, if a person is engaged in silent prayer, that person should be arrested.
Dr Huq
Well, I would say to the hon. Gentleman that there is a time and a place for everything. Regarding prayer, does it have to take place literally outside the gates of the clinic at the moment that these women, in their hour of need, are seeking their treatment? Is it necessary for it to take place at that place at that moment? I would say that, no, it is not.
We had this argument over the vaccination centres, didn’t we? The anti-vax people would try to deter people from getting in the door. Everyone should be able to seek lawful medical treatment—this procedure has been legal in this country since 1967—without interference. That is what I believe. It is public highway issue as well.
As I say, Sister Supporter, our local campaign group, wishes that it did not have to be there—and it does not, now. The problem is that only three other local authorities have followed that PSPO route, because they have enough on their plate without that onerous process and without the threat of a legal challenge. In Ealing, it has been upheld three times—in the High Court, the Court of Appeal and the Supreme Court.
The other week, the Prime Minister was challenged at that Dispatch Box—I had a question that week as well—by someone raising a case from Birmingham. He said that, yes, we do accept the freedom of thought, conscience and belief, but that, at the same time, there are freedoms of women to seek legal treatment unimpeded and uninterfered with, and we have to balance the two.
Dr Huq
I want to carry on for a minute, actually.
Some of the tactics that such people employ include live-streaming, filming and uploading to Facebook, despite there sometimes being a violent ex-partner in the background. I do not disagree with praying or informing, as I think people call it, but there is a time and a place for everything. That informing should take place at the GP surgery down the line.
The hon. Member for Northampton South said that the police are being made into a laughing stock, but our police in Ealing welcome the measure because it frees them from patrolling two different groups outside the clinic, so they can fight real crime. There is real crime out there.
Anyone should be able to use medical services without navigating an obstacle course of people trying to impose their view of what is right on the process to dissuade and deter. Even the reviled Iranian regime got rid of its morality police, so why do we allow them here?
Christine Jardine (Edinburgh West) (LD)
The hon. Member is making a good and powerful point. Several people have written to me about the Bill with varying views. Does she agree that there is a huge contradiction in people saying, “We have a right to protest in buffer zones,” yet denying women the freedom of choice for themselves? At that point, it is not protesting but bullying and harassment. That is the difference.
Hannah Bardell (Livingston) (SNP)
The hon. Lady is making an excellent speech. Does she share my frustration at the number of men who have stood up in this Chamber and pontificated when they will never have to make that choice? They are telling women that they should put up with being harassed when they are just seeking healthcare. [Interruption.] I have heard a number of men in this Chamber shouting down women, but perhaps they should pipe down and listen to our perspectives, because none of them will ever have to go through it.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. It is important that we do not personalise the issue. That goes for everybody in the Chamber.
Dr Huq
I completely accept what the hon. Lady just said. As a woman, Madam Deputy Speaker, you know that, if any woman present in the Chamber were walking down a dark alley, they would shudder if someone was there. That feeling is magnified x amount of times for women having that difficult and distressing procedure when people determined to stop them having a termination are in their path. Those people can have their say, but let us move them away from the clinic door.
Buffer zones are not outlandish. They exist in France, Spain, Canada, Australia and some US states. In Ireland, they are legislating on them at the moment. We will be out of step with the rest of the UK, because a Bill is being brought in in Northern Ireland and a private Member’s Bill will become law this year in Scotland.
Sir Bernard Jenkin (Harwich and North Essex) (Con)
I apologise to my hon. Friend the Member for Northampton South (Andrew Lewer), because His Majesty the King was visiting my constituency today, so I arrived back too late to hear him propose the amendment. It is worth pointing out, however, that both Houses have now voted heavily in favour of the principle of buffer zones. We have to understand the passions behind what is proposed, but it is not really a relevant amendment that advances the argument. In fact, it tries to set the argument back against what both Houses have already decided.
Dr Huq
The hon. Gentleman and knight of the realm makes a completely incontestable point. When we last voted on it in this place, we voted in favour by almost 3:1. In the other place, the vote was taken on voices, because the support was overwhelming. Hon. Members should not fall for a wrecking amendment; they should reject it.
This is about not the rights and wrongs of abortion—that question was settled in 1967—but the rights of women to go about their lawful daily business. It is not even a religious issue: the Bishop of Manchester in the other place made a barnstorming speech on the day.
As we said after the tragic killing of Sarah Everard, she was only walking home. Women should be allowed to use our pavements unimpeded. We saw the re-sentencing of her killer yesterday, so it all came back, and sadly, Sabina Nessa and Zara Aleena have been killed since. We cannot stand by, do nothing and say, “This is all okay.” It is obviously not, when 10,000 women a year are affected. Who could argue with safe access? I urge hon. Members to support Lords amendment 5 unamended.
Sir John Hayes
I was elected to this place in a free and fair election, and I come here and say not what I am asked or told to, but what I believe. Similarly, my constituents make representations to me in a free and open way, fearlessly. They sometimes agree with me and they sometimes disagree. Part of the glory of our democracy is that we can exchange views, we can learn from others, and we can disagree openly, fairly and, as I have said, without fear. That would once have been taken as read as a way of describing not just this place and our representative democracy, but the character of a free society in which we are all proud to live.
Sir Julian Lewis
Surely the point that we have to be careful about is the use of words—which the hon. Member for Ealing Central and Acton (Dr Huq), whom I regard as a personal friend, did use—such as “impede”. Thinking and praying is not impeding. Actually shouting, livestreaming and doing offensive things to people who are going to have a procedure is impeding. If I understand correctly the amendment tabled by my hon. Friend the Member for Northampton South (Andrew Lewer), he is talking only about things that do not impede. I think that is right, and that is the only basis on which I could vote for his amendment.
Sir John Hayes
My right hon. Friend will be pleased—but not surprised, given that he knows me so well—to hear that I entirely agree with him. I would not support loud, aggressive protests outside abortion clinics. They do take place in some other countries, but the evidence that they take place in this country is extremely thin. Indeed, a previous Health Secretary conducted a review to establish that fact. If that was in any way likely or possible, or was made more possible by this amendment, I would not be speaking in support of it, so my right hon. Friend is entirely right. This is about peaceful, silent protests.
In moving this Bill at its inception, the Government rightly said they were doing so because they were against violent disruptive protests. They had in mind people gluing themselves to roads, and stopping ambulances that were rushing to save lives. I support this Bill. I support its objectives because that kind of disruptive and violent protest is incompatible with a free, open and peaceful society. But it is extraordinary that, simultaneously, having said that they were in favour of peaceful protests—the defence being, “We are in favour of an open society, different opinions, the right to put your case by protesting peacefully”—the Government are now failing to support an amendment, tabled by my hon. Friend the Member for Northampton South because the Government refused to table it, to protect people’s right to protest in the very peaceful and indeed silent way that a few weeks ago they were saying they were prepared to defend.
Sir Bernard Jenkin
It is not a matter of interpretation, because it seems to me that this amendment would create exactly the kind of conflict and disruption to public peace that it is intended to avoid? If somebody kneels ostentatiously to pray in front of someone on their way to an abortion clinic, what is that intended to do? This amendment says that
“such communication or prayer shall not, without more, be taken to be—
(a) influencing any person’s decision”,
but why else would somebody kneel down and pray in front of a woman on her way to an abortion clinic unless it was intended to influence that person’s decision? There is a balance to be struck between the rights of people who pray, like my right hon. Friend and me, and the rights of people trying to avail themselves of a perfectly legal service to which they have a right.
Sir John Hayes
I do not know how often my hon. Friend prays—maybe more often than I do, although my need to do so is probably greater—but he must understand that prayer does two things: it sends a message, one hopes, to the Almighty; and it provides solace for the person praying. So the person praying outside the clinic may well be sending a message, but that message is just as likely to be transcendental as to be intended for any individual in proximity.
The idea that we should interrupt the relationship between an individual and their God seems to me to be pretty monstrous, particularly as amendment (a) states specifically that any activity, communication or prayer shall not influence any person’s decision or, more especially, instruct or impede any person. This is not about interfering with another. Rather, it is about expressing a view to oneself, to the Lord and perhaps to others; but that could surely be said of any prayer at any time. Are we going to arrest people in other public places? Once this is allowed and the police are permitted to apprehend people for what they think and what they are praying about, why not arrest them in other public places? Why does this have to apply only to abortion clinics? Once we open this door, why would the police not arrest people outside mosques or temples, or in any other public space where they are praying to illustrate an opinion—or indeed, as I have said, to express it not horizontally but vertically, to a greater power above us?
Christine Jardine
This is an extremely important point. I do not think anyone in this House wants to restrict anyone’s right to pray, but we are trying to differentiate here and consider the impact of that action on the women who are going in for a very traumatic experience. Many of them will be grieving and many will have been through a traumatic experience to get them to this point, only to then be presented with someone telling them that what they are doing is wrong, increasing that trauma. Regardless of the intention of the person praying, which I would defend forever, the impact on the women is the problem.
Sir John Hayes
But in a free society the impact we make on others by our sentiments, by what we do, say and, indeed, by what we pray about, is the inevitable consequence of the openness that I would have thought all of us in this place would celebrate. In this case, the amendment states specifically that we should not influence or obstruct, but the more general context in which we are having this debate is a world in which the ability to express a view that others might find offensive or unreasonable is being curbed every single day as our freedom is being eroded, and all the things we hold dear put at risk.
Several hon. Members rose—
Sir John Hayes
I will not give way again; I see that you, Madam Deputy Speaker, if not yet on your feet, are edging forward in your Chair, and so asking me to bring my remarks to a conclusion.
Freedom is not just about the capacity to hear from others with whom we agree; a free and open society is one in which we hear from those with whom we do not agree. That freedom is at risk. Amendment (a) is most reasonable, and I urge the House to accept it with these final words from the author and statesman John Buchan:
“You think that a wall as solid as the earth separates civilisation from barbarism. I tell you the division is a thread, a sheet of glass.”
Today I will vote against barbarism by voting for this amendment. I mission everyone in this Chamber to exercise their conscience and vote for it with me.
Joanna Cherry (Edinburgh South West) (SNP)
I will confine my comments to the amendments that touch on the recommendations of the Joint Committee on Human Rights, which I chair. We did not look at the debate on abortion buffer zones because that was not part of the original Bill, so I will not comment on that. In general terms, some of the points made by the right hon. Member for South Holland and The Deepings (Sir John Hayes) could be carried across. I could very well ask of him why, if that is what he so clearly believes, he would support a power to stop and search without reasonable suspicion? So it cuts both ways.
However, I will confine my comments to support for Lords amendments 1, 6 to 9, 20, 21, 23, 27, 28, 31, 32 and 33, which can basically be grouped into suspicion and stop and search, serious disruption prevention orders, and the meaning of the phrase “serious disruption”. I will speak to the Joint Committee’s report on our legislative scrutiny of the Bill, which was published on 8 June last year. It was a unanimous report of our cross-party Committee, which of course contains both MPs and peers.
The right to peaceful protest is a cornerstone of our democracy, which should be championed and protected rather than stifled. The Joint Committee concluded that while the stated intention behind the Bill was to strengthen police powers to tackle dangerous and highly disruptive protest tactics, its measures went well beyond that to the extent that we feel the Bill poses an unacceptable threat to the fundamental right to engage in peaceful protest. We have heard speeches about the historic basis of that right, and of course it is also protected in modern times under article 10 of the European convention on human rights, which deals with freedom of speech, and article 11, which deals with freedom of association.
In our report, we recommended that the power to stop and search without reasonable suspicion should be removed from the Bill. Other hon. Members have spoken about that in some detail. Basically, what we said was that the power to stop and search without reasonable suspicion inevitably gives rise to a risk of arbitrary or discriminatory use, and that it is disproportionate and inconsistent with the right to engage in peaceful protest. As we heard from other hon. Members, the police themselves said it is counterproductive and I do not understand that it is a power the police actually want as a whole. Lords amendments 6 to 9 take that out of the Bill, and I think that should be supported by this House.
Chris Philp
I am extremely grateful to the hon. and learned Lady for giving way. On a point of clarification, clause 11, prior to amendment by the Lords, states that although an individual does not have to be subject to suspicion before an officer can activate this section, the officer has to “reasonably believe” that a number of offences may be committed. So it is not a wholly unconstrained power to search. That reasonable suspicion in clause 11(1) does have to be engaged.
Joanna Cherry
I am not sure the Minister is right about that. I think what he is trying to say is that the police officer could have a highly subjective view prior to stopping, and a highly subjective view is not a reasonable suspicion. We took all these matters into account in our report.
Stuart C. McDonald
I think what the Minister is trying to point out is that before the 24-hour period where the suspicionless stop and search can come into force, there has to be a reasonable belief that somebody somewhere in the locality may commit one of these wishy-washy offences. If that happens, then everybody in that locality can be subject to suspicionless stop and search. I am afraid that is just not an adequate answer to the fact that everybody in that locality could be subject to suspicionless stop and search. It is nonsensical.
Joanna Cherry
The Minister must know that we are still bound by the European convention on human rights. Clearly, from what the Home Secretary said earlier this afternoon, some Government Members are trying to find a pretext to take us out of the convention, but we are still bound by it just now. The Minister must know that in order to interfere with freedom of assembly or freedom of association, under article 11 the interference has to be lawful, necessary and proportionate. What my hon. Friend just described is not lawful, necessary and proportionate.
Joanna Cherry
The Minister will get to speak at the end. I do not want to take up too much time as I have already spoken for five minutes and I do not want to upset Madam Deputy Speaker. The Minister can take the tenor of the comments so far across the House, including from the Government Benches. People are not happy about the power to stop and search without reasonable suspicion. The cross-party Committee of MPs and peers shared that unhappiness.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
I have spoken in favour of this legislation in each of its stages thus far. I would like to continue to express my support for the Bill and the principles behind it, and also place on the record my appreciation for the work that so many colleagues have done. As a relative newbie, it has been a learning experience to hear the expertise that has been brought to bear to ensure that, as this legislation passes through Parliament, it has become more focused and more able to deliver the intended outcomes.
This morning I visited my constituent Mr Bhalla at his home because, for the second time, his car had been stolen from his driveway. He wanted to express his frustration at having been a victim of a serious and very costly crime for the second time. Often, when we debate in the House we focus on a great deal of the detail, but when constituents have been a victim of crime, we feel a great desire to ensure that Parliament takes advantage of every possible measure. My constituent certainly expressed his view robustly to me—he would like to see suspicionless stop and search for anybody on his road, wherever they might happen to live. He would like the strongest possible measures to be taken.
We need to achieve an appropriate balance between protecting the right to exercise free speech and to protest, on the one hand, and preventing unreasonable disruption to our constituents’ lives on the other. I represent an outer London constituency, and one of my reasons for speaking in favour of the Bill at previous stages was the disruption, frustration and difficulties that have been caused for my constituents while they are trying to go about their normal daily lives.
Personally, I have a great deal of sympathy with some protesters, such as those who have been camping out and seeking to disrupt work on HS2, which is causing huge difficulties in my constituency and which many of my constituents continue to oppose. However, I recognise that for the thousands of constituents who travel by car or on public transport and have found that as a result of peaceful but extremely disruptive protests they cannot get to work, attend medical appointments, visit family members or get their children to school, it is clear that the balance needs to be shifted. Their interests, and those of other law-abiding people who are perfectly reasonably exercising their rights and their need to go about their daily business, must be appropriately protected.
It seems to me that greater focus on the definition of serious disruption will make the powers in the Bill more legally effective and enforceable. We have all had experiences of supporting things and then discovering that in the real world they do not work quite as well as we had hoped, so I very much welcome amendment (a) in lieu of Lords amendment 1, which will bring such a focus and will ensure that the powers in the Bill work effectively to remedy the impact of serious disruption that is not reasonable, while maintaining free speech.
I also welcome amendment (a) in lieu of Lords amendment 17 on the protection of journalists. We all value the media’s ability to scrutinise the work of the Government and the various arms of the state, as we did during the covid era when it was difficult for this House to do so. It is enormously helpful that we now have greater clarity.
Let us consider what will happen once the Bill has made its way through this House. I was struck by what my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) said about the history of the right to peaceful protest. Most importantly, he pointed out that legislation is all interpreted by the courts.
As a magistrate in north-west London, I recall people being brought in who had been stopped and searched and were found to be in possession of bladed articles. I remember one case of a man who explained to the court that he was a carpet fitter, that the bladed articles were the tools he needed to fit carpets, and that he travelled around on public transport to appointments to fit them at various locations. He provided appropriate evidence to demonstrate it, so the court acquitted him. In other cases involving similar offences, it was clear that the individuals concerned were seeking to do harm to others, perhaps in connection with drug dealing, so the court took a different view. It is always valuable to remember that interpretation and enforcement will be down to juries of our peers, to magistrates or to judges. We have learned to place a great deal of faith in our judicial system’s ability to interpret “reasonableness” in a way that reflects the expectations and aspirations of all our constituents.
Finally, I join several colleagues in expressing my continuing support for Lords amendment 5 on buffer zones. I think it right that the House should agree to it. I have listened carefully to the views of many colleagues, and I understand the need to ensure that those of a religious faith have the freedom to express their views. None the less, access to medical and clinical services should be available to all our constituents without undue disruption. It seems to me that their lordships have done a good job of refining what we mean in the drafting of the Bill. This House would be wise to welcome the amendment; I shall certainly vote in support.
Ian Paisley
I commend the way in which the hon. Member for Northampton South (Andrew Lewer) spoke to the amendments; I think that he served the House extremely well.
Let me begin by saying that I am opposed to harassment. I think it intolerable for a woman to feel that she is being harassed, and indeed for a man to feel that he is being harassed. We were given a demonstration of harassment in the Chamber earlier today when a female Member came in, told male Members to “pipe down” because essentially this was none of their business, and then beetled out. That is harassment according to any definition of it, and it is wrong and should be called out as such. This is a good debate, and it is important for us to have it. Debate is what the Chamber is for, and we should not be afraid of combative ideas, but telling Members to pipe down just because they are male is not an argument that should be entertained in this place. So harassment should be called out, and we should not be afraid of doing that.
I object to, for instance, the harassment of women who go into abortion clinics if that is their free choice and they wish to do it. I am not advocating that in any way, but harassment cuts both ways. It is important that those who wish to pray, to express their identity or to make points that are fair in a non-combative way should be encouraged to do so. A Home Office review published in 2018 found that many protesters in the UK—it identified some of the places involved—were simply praying, sometimes displaying banners and sometimes distributing literature. Is the proportionate response to that introducing a law that essentially says, “You cannot pray silently in public”? That seems to be what the Government are saying today.
Ian Paisley
I will make this point, and then I will give way.
We are all aware of the Bible story about Daniel daring to pray and being put in jail—
Chris Philp
The Government are not saying anything about this matter. It is a free vote, and there is no Government position on the “buffer zone” amendment.
Ian Paisley
I look forward to the Minister joining me in the Lobby this evening.
Whenever we walk into the Palace of Westminster, we walk beneath a massive portrait of Moses by Benjamin West. We walk through St Stephen’s Hall, and what is St Stephen’s Hall? It is a church. We walk over the catacombs under which is another church. We come to this place—to the “mother of Parliaments”—and debate a piece of legislation that essentially says, “If you dare to pray in a certain part of this Christian nation, in silence, you will be arrested.”
Ian Paisley
I want to make this point. I will give way later.
I think that Members need to stop and seriously ask themselves whether that is the sort of law that they wish to pass. The Government have an opportunity here. Is the Minister willing to say—perhaps he will want to intervene at this point—that the Government would exclude silent prayer from the Bill as an indication that the liberty of freedom of thought, of the freedom to have an opinion in one’s head, will be allowed? That would be the moderate thing for them to do.
Freedom of thought is a right enshrined in article 9 of the European convention on human rights and in article 18 of the international covenant on civil and political rights, while freedom of opinion is enshrined in article 10 of the convention. These are international rights which we should all support and defend to the very end, because they are about our right to think, to express ourselves and to maintain an opinion that we hold dear. Even if it is an objectionable opinion—even if a person does not believe in the God to whom we are praying—we are entitled to have that opinion, and to prevent that in any way is to remove a legitimate right. However, we have heard a justification in the House, and I really had to pinch myself when I heard it. The justification was that we should limit our thought and limit our opinion.
Ian Paisley
I am going to make this point. I promise I will give way after that.
The hon. Member for Ealing Central and Acton (Dr Huq) stated very clearly that praying was not proper in certain places. The hon. Member is entitled to that opinion, but where is not the proper place to pray? Is here not the proper place to pray—will that be the next argument? Where ultimately is not the proper place to pray?
Ashley Dalton
I would like the hon. Member to help me understand why it is particularly important that prayer must be carried out openly, publicly and ostentatiously. Most often, if we pray, no one else will know that we are doing it. He briefly referred to the Bible and to Daniel in the lion’s den. I draw his attention to Matthew, chapter 6, verses 5 and 6:
“And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others…But when you pray, go into your room, close the door and pray to your Father, who is unseen.”
Is it not possible to do that privately, without intimidating others by doing it ostentatiously and publicly?
Ian Paisley
The gospel of Matthew is a wonderful gospel—as a son of the manse, I know a little bit about this—but the reference I made was to Daniel, who was praying privately in his home. I did not talk about ostentatious public prayer. Maybe the Member should have used their ears and listened to the point that I made, which was about silent prayer and about freedom of thought in someone’s head, not freedom of outward expression. If the Member had listened, she would have got the answer to her point.
Despite the level of crime across this society—I think there were over 500 knife crimes last year—are we actually going to ask the police to get engaged and be detained in questioning people about what they are thinking in certain parts of the United Kingdom? That is a complete waste of police resources and police time, and it should not be done. When hon. Members stand up in this House and demand more police action in the future, it should be pointed out to them that constraining the police in this way and saying that they must chase after people who are silently thinking things, silently worshipping or silently praying is a total waste of police resources.
In Northern Ireland we have brought in a safe access zone law. I do not like that law—it was brought in by the Northern Ireland Assembly while I was a Member of this House—but it states that there must not be an unnecessary or disproportionate response from the police. Unfortunately, what we are doing in this House is bringing in disproportionate actions by the police when we should be moving away from them. Northern Ireland’s law gives the police at the right to use discretion and take steps to calm a protest, as opposed to stopping a protest. It also says that the Department of Health must maintain and regularly publish a list of all potential premises where the clinics could be taking place, so that people are aware of where they are so that they cannot, for example, be caught out wearing a T-shirt or a badge, or driving a car with a bumper sticker on it, in an area where it might give someone offence.
Eddie Hughes
The point that the hon. Gentleman has just made is incredibly important. In the circumstances that I was talking about previously, the lady was arrested in Birmingham and the police arrive to interrogate and subsequently arrest her. Given the other crimes that were going on in Birmingham at that time, it is important to see that the police had clearly determined that the most important thing they had to do at that particular time was not to deal with knife crime or with people stealing tools out of other people’s vans to stop them earning a living, but to arrest and interrogate a woman who was silently praying outside a clinic that was closed. Surely that shows a sense of complete disproportionality on the part of the police.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. It is important that interventions are short, and I know that the hon. Member for North Antrim (Ian Paisley) will want to come to the conclusion of his remarks now, as he has been speaking for 10 minutes.
Ian Paisley
I will conclude now, Madam Deputy Speaker.
I agree with the point that the hon. Member has made. The arrest of Isabel Vaughan-Spruce was atrocious. It sends out a terrible message to women and to anyone who wishes to engage in silent prayer in this nation. I am glad that that attempt at a conviction was overturned by the court and thrown out. It is unfortunate that she has been arrested again today by another police officer saying, “What are you thinking? What are you praying?” That is wrong, and we need to stand up against that sort of harassment.
Danny Kruger (Devizes) (Con)
I rise to speak to amendment (a) to Lords amendment 5.
I recognise that there is a genuine problem that the Bill and the Lords amendments seek to address, of harassment, intimidation and offensive behaviour directed at women going into abortion clinics. I recognise that this requires policing and that it is appropriate for the authorities to stop harassment and intimidation. This House and the other place have decided that additional legislation, on top of what is already on the statute book, is required to enable that additional policing. All the arguments made by the hon. Member for Ealing Central and Acton (Dr Huq), who has campaigned so hard on this issue for so long, have been accepted by the House, and I do not think there is any particular value in unpicking her arguments. That debate has been had.
The question now before us, and the purpose of amendment (a) to Lords amendment 5, is about what is to happen in these safe access zones, as they are now to be called. I recognise that is the intention behind the Lords amendment, and the intention behind the original clause, but my concern is that, in asserting a general principle of something we do not want, and couching that desire in very broad terms, we are taking a momentous step. We are crossing an enormous river. The Rubicon was actually a very small stream, but it was a momentous step. When we criminalise prayer, private thought or, indeed, consensual conversations between two adults, we are doing something of enormous significance in our country and our democracy.
Cherilyn Mackrory (Truro and Falmouth) (Con)
I agree with everything my hon. Friend says, but my concern is about the motivation for a person to silently pray there. What motivation do they have other than to be seen by a woman who is at her lowest ebb? It is not the best day of her life. In fact, it will be one of the worst days of her life.
Danny Kruger
I recognise that, but the difficulty is that none of us can know their motivation. I can accept that my hon. Friend’s judgment is that the motivation is pretty malign. The prayer might be well intentioned, but the attempt to dissuade a lady from accessing an abortion clinic is genuine. There is no doubt that is what is happening. My concern is about the principle of this law, how it will be applied and the precedent it sets in our democracy.
My concern is that the Bill authorises the police to ask exactly the question raised by my hon. Friend. It authorises them to go up to a private citizen standing on a street corner, not overtly harassing anyone, and to ask the question that the police asked the lady in Birmingham, “What are you praying about? What is in your head at this time?” They could see that she was not doing anything offensive, but they concluded that she was probably thinking something of which they disapproved, so they took steps to arrest her. I think we are taking a very concerning step as a country in authorising the police to act in that way.
Sir Bernard Jenkin
I utterly respect the sincerity with which amendment (a) to Lords amendment 5 was moved and why my hon. Friend is supporting it. I am pleased to hear that the hon. Member for North Antrim (Ian Paisley) is against harassment, but that is the point of amendment (a). It does not say that any person engaged in consensual communication or silent prayer shall avoid harassment; it says that it shall not be taken as harassment. However ostentatiously someone is praying, or however aggressively they are seeking to open consensual communication with an individual going to a clinic, it shall not be taken to be harassment. It is a blank cheque for a person to behave in a harassing way, because they can defend themselves by saying, “Oh, but it says here that what I was doing shall not be taken as harassment.”
Danny Kruger
The behaviour that will not be taken as harassment is private prayer. Other actions that may be taken—obstructing a person walking down the street was what my hon. Friend suggested earlier—will be in scope. What should not be in scope is a person thinking something in their head. That is the only defence on which we are trying to insist, and I invite Members to consider whether they want to pass a law that will ban people from thinking something. Other forms of harassment or obstruction will be in scope of the law. So I do not think the intention is to stop people praying—I do not think that is what the hon. Member for Ealing Central and Acton, the Government or indeed any of us want to do. We need to send a clear signal of the intention of Parliament through this amendment, and I commend my hon. Friend the Member for Northampton South (Andrew Lewer) for tabling it. I ask Members to consider that if they vote against it, they are voting to ban private prayer. Of course it is a special case and we are talking about tiny zones, and of course we can all sympathise with the intention of the clause, but the point is the principle of this—
Stella Creasy (Walthamstow) (Lab/Co-op)
When we legislate, being specific matters. So let us be clear: the amendment proposed by the hon. Member for Northampton South is not about private prayer, but about “silent prayer”. Silent prayer can be done in somebody’s face, can it not, whether or not what the person praying is thinking is private in their head? That shows the challenge here. This is not actually about prayer; it is about where it is taking place. So will the hon. Member for Devizes (Danny Kruger) clarify, for the avoidance of doubt, that he has no problem with recognising that somebody praying in another person’s face, silent or not, is unwelcome?
Danny Kruger
The difficulty is with the private prayer—the silent prayer; that is what we are trying to protect. If the person is standing offensively in somebody’s face and trying to obstruct their access, of course they will come within scope. We are trying to protect people such as the lady who was standing quietly at the side, praying to herself, as far as we know. She might have been thinking about her shopping, but that was what the police were interested in; she was asked, “What are you doing standing over here quietly?”.
I am afraid to say that there was always going to be difficulty with this new law, because the police are going to be required to make all sorts of strange interpretations and judgments about why somebody is doing something. Nevertheless, in passing a law to create these zones we must consider people who are doing this utterly inoffensive thing, standing quietly at the side praying.
Dr Huq
Let me just give the hon. Gentleman the example of Ealing, where we have had our zone since 2018—this is now its sixth year. Only three breaches have occurred and none has resulted in a conviction, because these people are usually law-abiding. Only one came close—I think it is still being legislated on and is probably sub judice—because it was done as a stunt. In reality, these things do not occur. People can pray elsewhere, and every royal medical college, including the Royal College of Obstetricians and Gynaecologists, as well as the British Medical Association and all medical opinion support this measure.
Danny Kruger
Okay, well, I will wind up now, because I think the point has been well rehearsed. My concern is with the principle we are setting here. Of course, everyone must have sympathy with these women, and we need to protect them from harassment, but where does this lead and what we are doing by saying that people should not be allowed to pray quietly on their own?
Wendy Chamberlain (North East Fife) (LD)
Policing by consent is central to how our criminal justice system works in the UK and the authority by which officers wield the power given to them. That is why this issue is challenging and why we are having this debate. It is seen as being about balancing the rights of protest in this situation with other rights to go about everyday legitimate business. It is important to take a balanced and sensitive approach.
Several legal minds here are much greater than mine. I am not a qualified lawyer, but I am standing here as the only former police officer participating in this debate. I know who the other two former police officers are and they are not here. I have approached this debate, these clauses and the Lords amendments by thinking about what would happen if I, as a police officer, went to attend a “spontaneous protest”, meaning that as a constable, the first person there, it would be on me to make the decisions about what was legitimate or not and about how I carried out my duties. I also thought about what would happen if I was part of a team of police officers policing a bigger protest, and about the instructions that I would be given by the silver and bronze commanders in relation to that protest and how they would tell me how to interpret the law.
I found it interesting when the Minister for Crime, Policing and Fire, who is no longer in his place, intervened on the hon. and learned Member for Edinburgh South West (Joanna Cherry) to say that he would explain that this is confusing. Police officers are dealing with an ambiguity in the moment all the time. If we create legislation in this place that is confusing and if we have not provided clarity, it is not surprising that police officers will be found not to be applying the law correctly.
Interestingly, the right hon. Member for Haltemprice and Howden (Mr Davis), who is also no longer in his place, talked about the interviews that His Majesty’s inspectorate of constabulary and fire and rescue undertook with police officers. I cannot totally repeat what the former silver public order commander to whom I am married called this Bill, but I can say that it was a pile of something. I will leave Members to speculate on what else he said. These are complex decisions to be made in real time, regardless of rank. Policing by consent is how we ensure that we carry out our duties safely.
Chris Philp
The Government accept that protection for journalists might helpfully be set out, and that is why Government amendment (a) to Lords amendment 17 will substantively do what the Lords request, albeit in slightly different language.
Wendy Chamberlain
I am pleased to hear that.
If Lords amendment 1 is disagreed to and Government amendment (a) to it is passed, I would disagree with the broadening of the definition of “serious disruption”. Whatever the Government may think of protesters, they are not terrorists, and applying similar legislation where no offence is committed is simply wrong.
Chris Philp
As I said in my earlier intervention, the Government have accepted that serious disruption prevention orders can only be handed out by a court, following a conviction. The title of clause 20 is somewhat confusing, but we have accepted the point that there must be a conviction first.
Wendy Chamberlain
I am grateful to the Minister for that clarification, but the point I made while he was not in his place still stands: this is confusing. We are presenting confusing legislation to police officers to apply and potentially to take away people’s liberty accordingly.
Policing needs to be done with consent. This is knee-jerk legislation, as I have said throughout, to replace powers that already exist and that the police say they can utilise now. It also prevents the important discussions that take place between protest groups and police officers; we are going to create a chilling effect not only on the right to protest, but on the relationships that help us to enable legitimate protest. I think that is why the Lords rejected these clauses outright in their previous guise in the Police, Crime, Sentencing and Courts Act 2022. The Lords have attempted to ameliorate the worst excesses of this Bill, and I will certainly vote in support of keeping the Lords amendments in place.
Nick Fletcher (Don Valley) (Con)
I rise to speak to Lords amendment 5 and the amendments to it put forward by my hon. Friend the Member for Northampton South (Andrew Lewer).
Buffer zones are basically public spaces protection orders, extending a distance of 150 m. PSPOs, as they are called, are generally used for antisocial behaviour. We have three in Doncaster, apparently, and I have personally applied for one in Conisbrough in my constituency. We have a set of seating in the middle of town where we have people under the influence of drugs and alcohol, and beggars, and they make a nuisance of themselves with antisocial behaviour. They are killing the town centre. I have been refused a PSPO there, but I will continue, because I think it is the right thing to do.
Lords amendment 5 will put a mandatory buffer zone, a PSPO, around every single clinic in the country. Regardless of what we think about that, I want to tell people in this House and in my constituency what that will look like. The drunks and the people under the influence of drugs in Conisbrough are going to continue to be able to make a nuisance of themselves, damage the local economy and scare old and young people who want to go to the shops; yet a lady or a gentleman who has a real strong faith and believes they can help the people coming in to a clinic is not going to be able to do that.
The hon. Member for Ealing Central and Acton (Dr Huq) talked about people praying and standing in front of people, and my hon. Friend the Member for Truro and Falmouth (Cherilyn Mackrory) asked why they have to do it there. Well, if that is the worst day of a woman’s life, and I accept that it probably is one of the worst days of a woman’s life, if she saw somebody there who was praying respectfully, who was there to help, and she knew they were there, she could ignore that lady or gentleman who was praying and just walk in—but, if it was the worst day of her life, she might want somebody just to turn to for that second. Also, if somebody is being coerced into going into one of those places to have a forced abortion, that lady or gentleman could be somebody who is there to help.
I agree with everybody else in this House that shouting, screaming and holding up placards is an awful thing to do and should not happen, but silent prayer and consensual conversations should not be banned. The papers will get hold of this in a year’s time: we are the party of law and order, but we will be arresting people for prayer and for conversations, while letting the people who are harassing the public in our towns and our shops continue to do so.
I ask all Conservative Members in this House to think about amendment (a) to Lords amendment 5, which my hon. Friend the Member for Northampton South has put forward. It simply asks for people to be allowed to pray and to have those consensual conversations. Amendment (b) provides that, before we put this law in place, we carry out a review on it. That is what I am asking for.
Stella Creasy (Walthamstow) (Lab/Co-op)
I have immense respect for many people who have spoken in the debate. I am sorry that the right hon. Member for Haltemprice and Howden (Mr Davis) is no longer in his place. He and I might be in different political parties, but on issues of civil liberties, we often find common cause. I am not sure that my 15-year-old self would have thought that possible, but it is certainly true—for example, we are working, as Back-Bench Members of Parliament, to raise concerns about the restrictions on parliamentary sovereignty in the Retained EU Law (Revocation and Reform) Bill.
I have been very struck by the debate, which I believe crosses party political lines. I pay tribute to the hon. Member for Harwich and North Essex (Sir Bernard Jenkin), who I knew as the hon. Member for Colchester back when I was that 15-year-old who could not conceive of points on which I might find common ground with Government Members. But there are such points, and this—speaking up for freedoms—is one.
I am very struck that the concept of freedom that has been articulated in the Chamber so far is a myopic one. That myopic freedom comes from a blind spot that I believe most of the Members in this Chamber must recognise when talking about access to abortion, which is exactly what we are talking about. By definition of who they are, they will never have been in the position of the women for whom those buffer zones make a difference, so their experience of the human rights at stake in the legislation, and of the issues that we face, is inevitably tempered by their own understanding, in which they focus on the idea that this is purely an issue of freedom of speech and fail to recognise that other, much-cherished right in this country: the right to privacy. My remarks will be very much about that and about how we cannot be a free society if women, just as much as men, are not able to exercise those rights equally.
I am very taken by the fact that it is International Women’s Day tomorrow. I have to say that I have become increasingly cynical about that day. It deflates me. We spend a year talking about how we are going to celebrate women, but precious little time working on advancing their rights. Well, I see Lords amendment 5 and opposition to amendment (a) as being about advancing women’s rights and doing what the suffragettes told us to do: “Deeds, not words”. Why do I see that? I see that because I think we must start by clarifying some of the myths that have been presented to the Chamber.
I listened respectfully to the hon. Member for Northampton South (Andrew Lewer) because this is the time and place for him to exercise that most important democratic right of freedom of speech. I have listened to many speakers talk about how we are somehow criminalising prayer. Let us be very clear for the avoidance of doubt: no prayer is being criminalised. Nothing in the Bill will do that, except, perhaps, for a gardener who is carrying a spade because they are praying that their carrots or green-sprouting broccoli will grow but who is stopped by the police—as clause 2 will allow—who argue that the gardener’s intent in carrying the spade is to dig a tunnel. The gardener’s prayer for the vegetables is secondary when they explain to the police why they were carrying a spade.
Let us be very clear: nothing in Lords amendment 5 criminalises prayer. It says what most people would recognise: that there is a time and a place for everything and a balance in those rights—in the freedom of speech to tell a woman that you do not think she has a right to make a choice over her own body, and her right to privacy. When she has made her choice, she should not be impeded.
Let us be honest about this: the people praying outside abortion clinics are not finding the right time and place for it. That is not just what I think; it is what the vast majority of the British public think because they recognise that when a woman has made that choice, she should not face someone trying to change her mind right up to the wire. She should be respected for her choice.
Stella Creasy
I have no doubt that the right hon. Gentleman will intervene with some rhetorical flourish about the purpose of freedom in this place. What about the freedom of a woman to make her choice in peace? That is what the Lords amendment does. I will happily give way because I am sure that he wants to come in on that point.
Sir John Hayes
The hon. Lady has provoked me to intervene and to be rhetorical as well, but I simply say this to her. She suggests that someone could be impeded by silence. Given that that is entirely irrational, will she answer this question: does she support the arrest and charging of a woman, as has happened? Does she endorse that, and does she want to see more of it?
Stella Creasy
It is an irony to me that Members of the party that once claimed to be the party of law and order are trying to argue against the law and order that a PSPO establishes.
For the avoidance of doubt, let me be clear that I am not arguing for the criminalisation of silence. My argument is about the location. The right hon. Gentleman is being disingenuous if he does not recognise the effect of somebody who disagrees so passionately with a woman’s right to privacy in making that choice standing there while she does it. He talked about some of the literary greats, so let us talk about Margaret Atwood and “Under His Eye.” That is what these people praying represent by being there at that most tender moment for a woman making that choice. It is their physical presence, not their praying, that is the issue.
If we respect people having different opinions on abortion when it comes to free speech, we also have respect that when someone has made that choice, they should not be repeatedly challenged for it. The Members who want to challenge those women by praying outside and supporting others who do so have no idea why those women are attending the clinics; they have no idea of the histories and stories. They can only listen to the countless testimonies that the women attending the clinics do find this harassing. That is why so many have called for the PSPOs. They do find it intimidating. That is not the right time and place.
In tabling the amendment, the hon. Member for Northampton South is attempting to complicate something that is very simple. I pay tribute to Baroness Sugg for tidying up our original amendment and clarifying where the 150-metre zone will be. In a very small zone around an abortion clinic, that is not the right time and place. People can pray—of course they can. Although I might disagree with the hon. Gentleman on whether that is still intimidating, I will defend to the hilt people’s right to pray. What I will not do is place that ahead of a woman’s right to privacy and say that a woman who has made the decision to have an abortion must continue to face these people, because somehow it is about their freedom of speech unencumbered.
We need to be honest and recognise that there will never be a point at which the people praying agree with the choice that a woman has made, so there is never going to be a point at which their prayers are welcome. There is never going to be a point at which those prayers are not designed to intimidate or to destabilise a very difficult decision. Look at the widespread evidence that shows that the people conducting these prayer marathons outside our abortion clinics are not acting simply to help women, and that they are not well intentioned. I think we can all make our own decision on what is well intentioned. The hon. Member for Devizes (Danny Kruger) says it is not offensive, but I disagree. I think that when a woman has made a choice, to have someone try continually to undermine that choice is offensive. We both have a right in this place to make our argument. Where we do not have a right to make that argument is right outside an abortion clinic with a woman who just needs her right to privacy to be upheld.
The hon. Member for Northampton South talked about consensual contact, but that is very unclear. What if a protester walks up to a woman and asks her the time, and she tells them? Does that mean she has engaged in conversation with them, which will allow them to start talking to her about their views on abortion? What if they ask for directions? Will that undermine the provision? The people protesting outside clinics, especially the “40 Days for Life” people, boast about how their presence reduces the number of women having abortions. They say it makes the no-show rate for abortion appointments as high as 75%. This is not benign behaviour. They also claim that those of us who support a woman’s right to choose are “demonic”, and increasingly they suggest we are “satanic” in our support for a woman’s right to privacy. Let us be clear: amendment (a) would not make an abortion clinic buffer zone clearer; it would sabotage a buffer zone by introducing uncertainty about behaviour and about the simple concept of there being a right time and place.
I am conscious of the time available, so I just want to put on the record my gratitude not only to Baroness Sugg, but to my hon. Friend the Member for Ealing Central and Acton (Dr Huq) for all her work, the hon. Member for Harwich and North Essex, and organisations like Sister Supporter. They have stood up for the silent majority—the people who think it is not right to hassle a woman when she is making these choices. That is ultimately what we are here to say. When the vast majority of the public support buffer zones, and when those of us who will be in this position cannot speak freely, as a Scottish colleague raised, then we have a challenge in this place. Freedom of speech is not freedom of speech if 50% are living in fear of what might happen next. Margaret Atwood taught us that. She said that men are worried that women will laugh at them, and women are worried that men might kill them. Do not kill a woman’s right to her freedom. Do not kill a woman’s right to privacy. Let us not sabotage at the last minute abortion buffer zones by supporting amendment (a). We should support Lords amendment 5 and let everybody else move on with their life.
Sir Edward Leigh (Gainsborough) (Con)
It is worth looking at what amendment (a) states. It states:
“No offence is committed under subsection (1) by a person engaged in consensual communication or in silent prayer”.
For the avoidance of doubt, amendment (a) goes on to say that nothing in it should allow people to be harassed or their decision to be changed, such as kneeling down and praying right in front of somebody’s face, or blocking the pavement, or indulging in any kind of harassing.
Sir Edward Leigh
I am not going to give way to my hon. Friend, who has intervened many times already. I have been asked to speak very briefly.
It is worth looking at what this amendment is, and it is worth considering the question put by the police officer to the lady. The police officer asked her, “Are you praying?” In other words, there was nothing she was obviously doing that was harassment or in any way objectionable. The police officer had to actually go into her mind—she was just standing there; I do not think it is even clear that she was kneeling—and that is surely what is dangerous about the measure.
In speaking to this Chamber, I am going far beyond what that lady was doing. Of course I am not indulging in any objectionable behaviour by expressing my thoughts. I am not harassing anybody, but everybody in this Chamber in a sense is being forced to listen to me, and I have spent 39 years no doubt irritating people and even boring them. They cannot shut their ears, but this lady was not actually saying anything, and the policeman had to go up to her and ask what she was doing. If we are going to have a law—a criminal law—it has to be capable of being effective.
The reason George Orwell’s novel “1984” resonates so much with all of us is that the state was trying to regulate not just people’s actions but what goes on in their minds. That is why, ever since that novel was written, people have felt that probably the most advanced form of totalitarianism is one where the state is trying to regulate not simply people’s behaviour, but their minds. What the debate is about is that those who oppose my hon. Friend the Member for Northampton South (Andrew Lewer) are determined to stop anybody indulging in any kind of protest, if it could be deemed to be some sort of protest, even if it is entirely silent.
The whole point of the Public Order Bill, as I understand it—this is why I support it—is that it does not outlaw peaceful protest. What the Government are addressing is people making that protest who are deliberately trying to obstruct the rights of other citizens by blocking roads or whatever. That is the point of the Bill. It has now been hijacked by people who want to stop completely silent peaceful protest.
The case of Livia Tossici-Bolt has not yet been mentioned. In the past few days she was told by council officers in Bournemouth that she would be fined simply for holding up a sign saying, “Here to talk if you want” inside a buffer zone. She was not holding up a sign with any graphic images, and she was not trying to intimidate anybody; she was simply saying, “Please, if you want to talk, I am here if you want any advice. This is a very difficult day for you.” For that she was stopped by the police. In other words, that lady was told that she could not offer other women who might, in some circumstances, be coerced into attending an abortion clinic, or who felt that they lacked the resources to complete a pregnancy, the opportunity to talk if they wanted to do so.
We must not criminalise such peaceful activity. Where are we going? Where will this stop? I believe—this is how I will conclude; I think that this is the shortest speech—that this is an entirely worthwhile, harmless, moderate amendment, and I hope that Members will support it.
Rebecca Long Bailey (Salford and Eccles) (Lab)
I remain of the view that the Bill is draconian and anti-democratic, and represents a frightening lurch towards authoritarianism. Whether or not Members agree with me, most of us will accept that the concept of what constitutes serious disruption is central to the sweeping liberty-curtailing powers and offences that it contains.
The matter of protest banning orders rests on that definition, and the peaceful and often innocent conduct that the police would seemingly be able to criminalise as a result is breath-taking in its range. The Bill says that those orders can apply to people without a conviction—the Minister explained the Government amendment earlier—if someone has carried out activities or contributed to the carrying-out of activities by any other person related to a protest
“that resulted in, or were likely to result in, serious disruption”,
among a range of other scenarios, on two or more occasions. Justice has stated:
“Given the extent of the powers contained within the Bill, it is essential that any definition should be placed at such a threshold as to minimise the possibility for abuse.”
I agree. The term “serious disruption” should be defined. Despite requests even from senior police officers for clarity in the Bill’s early stages, the Government had to be dragged to this point today. Looking at the Government’s vast and vague amendment on this issue, the reasons for not defining the term in the first place are clear. It would appear that their intention was always to set the bar at a frighteningly low level—and the bar could not be lower.
Serious disruption is “more than a minor” hindrance. That is a paradox if ever there was one. Apart from being dangerously vague, “more than a minor” hindrance is not serious disruption by any stretch of the imagination. More than a minor hindrance, as suggested by the Government, is having to cross to the other side of the road because someone is protesting on the pavement. It is a Deliveroo takeaway arriving 15 minutes later than someone would like. Those things might be annoying, but they are not serious disruption and they certainly do not warrant arrest.
I want to set this in context, as the Lords have attempted to do. The comparison in English common law is the definition of civil nuisance, which involves “substantial interference”. That is a very high bar, which has been defined by decades of case law on the matter. It is a world away from the low threshold that the Government propose in this measure.
I should make it clear that on the issue of blocking emergency vehicles—the Minister might try to cite that as a reason for the Government’s vague and dangerous amendment—of course that should be an offence, but it already is. The Emergency Workers (Obstruction) Act 2006 contains two offences. First, the Act makes it an offence to obstruct or hinder certain emergency workers who are responding to emergency circumstances. Secondly, it makes it an offence to hinder or obstruct those who are assisting emergency workers responding to emergency circumstances. The Lords amendment provides a much more sensible definition of serious disruption. It states that serious disruption
“means causing significant harm to persons, organisations or the life of the community, in particular, where…it may result in significant delay to the delivery of a time-sensitive product…or…it may result in a prolonged disruption of access to any essential goods or any essential services”.
That complements “significant delay” in the delivery of goods and “prolonged disruption” of access to services, as set out in the Public Order Act 1986, as well as measures in the Emergency Workers (Obstruction) Act.
On stop and search, which colleagues have already mentioned, of course the police must have the ability, sometimes, to stop and search when people are reasonably suspected of various crimes. However, the danger of abuse lies in the threshold of “reasonable suspicion” being low or, worse, as in the case of this Bill, non-existent.
Robin Millar (Aberconwy) (Con)
Thank you for selecting the amendments to Lords amendment 5, Madam Deputy Speaker. I would first like to thank my hon. Friend the Member for Northampton South (Andrew Lewer) for bringing his amendments forward. He has put his finger on a couple of important principles about how we do law in this country and how we legislate in this House.
I should start by saying that this debate is absolutely not about abortion. My hon. Friend’s amendments also do not change the legislation regarding buffer zones. As has been said, that debate has happened in this House; they are in place. In fact, the powers providing for buffer zones around abortion clinics already exist. That point was made very well, I may say, by the hon. Member for Ealing Central and Acton (Dr Huq). She is not in her place, but she highlighted how, where buffer zones have been challenged, their presence has been upheld and people protesting within them have been moved on. They are both legal and, it would appear from her description, effective for their purpose.
We therefore have not only laws that provide for buffer zones around abortion clinics but some evidence of what those mean in practice. We have the evidence that there are laws that allow for people to be moved on. However, we also have something rather more disturbing: evidence of the way that law is being interpreted.
I would like to make two points about the law and how we approach it. As a Member coming to this House tasked with understanding the issues that we debate—a wide range of issues on all sorts of things—one of the first questions I ask myself, and often one of the first questions asked of me, is, “What evidence is there of the need for this?” I think that that question of necessity and proportionality is an important one, particularly in relation to amendment (b) to Lords amendment 5 tabled by my hon. Friend, which seeks a pause in the legislation until we have established such a need.
Certainly, before any kind of national provision is introduced, it is reasonable to ask, “What is the necessity, and is this proportional?” In 2018, it was established that that necessity was not there, so I have to ask myself how that has changed and why the measure is felt to be necessary now. Is there a material difference? I must confess that I am struggling to understand the objection to providing or securing that evidence to have the confidence that we are acting proportionally and out of necessity.
My second point on my hon. Friend’s amendments is about, effectively, the carve-out or provision for silent prayer. There is no support in this place, nor has there been throughout the passage of the Bill, for any intimidation or harassment of women seeking the services of an abortion clinic. That is an important point, because that is not what the amendments seek to achieve and we already have laws to deal with that.
We have evidence of an arrest that took place for the act of silent prayer. Amendment (a) seeks to make it clear that that is an inappropriate interpretation of our laws.
Stella Creasy
That seems to be the nub of the challenge. Does the hon. Gentleman accept that, although he does not feel that silent prayer would intimidate him, plenty of users of the service feel that it is intimidating, so it is right that it is in scope?
Robin Millar
The hon. Member has clearly read my notes, because I am coming to that exact point. In response to her earlier comments, I also say that I do not seek to put myself in the place of a woman who is seeking the services of an abortion clinic. I respect the fact that that is an incredibly difficult moment—a sensitive and vital moment—and I cannot seek to understand that from my lived experience, as she said.
Equally, however, as the hon. Member said, it is the presence of the person in that place that is objectionable, because we cannot know what silent prayer is. Hon. Members may well be silently praying that I wrap up my remarks so that we can move to the votes; I have no way of knowing. Prayer is not necessarily marked by a folding of hands, a closing of eyes, a bowing of the head or a thumbing of a rosary, and it is not necessarily marked by kneeling.
Indeed, the evidence from the abortion clinic with a buffer zone around it where the arrest took place is that the person was standing. When challenged, she was arrested on the basis that she was praying silently. There were no placards or graphic images, as mentioned by the hon. Member for Ealing Central and Acton, and there was no shouting—there was nothing. That is the point of concern, because what is the basis for the arrest if it is just the presence of someone who is perhaps in the habit of praying silently?
The importance of the issue comes down to three things: thoughts, words and deeds. If our freedom to think, our freedom to speak and our freedom to act exist on a continuum, where we put the marker of where a freedom ends is a statement about our society. Do we place that marker just beyond the freedom to speak, effectively saying that we must watch our speech and what we say? I think we have already established through the laws of the land that we do that, because we do not allow people to speak freely without consideration.
What we have seen, however, through the implementation of existing local laws that the Bill seeks to make national, is an interpretation that says that we do not have freedom of thought. That is the point of my contribution and of the amendments of my hon. Friend the Member for Northampton South. Specifically, I support them because first, they are a helpful and sadly necessary clarification that we in this country enjoy freedom of thought and the freedom to practise silent prayer; and secondly, when we make laws, it is incumbent on us to pause to test the need for further legislation before introducing unnecessary legislation.
Sarah Jones (Croydon Central) (Lab)
I rise to speak on Lords amendments 1, 5, 6 and 20, beginning with the definition of “serious disruption”.
Before I go into the detail, let me mention the publication in 2021 of Her Majesty’s inspectorate of constabulary’s now widely debated report looking at protests and how the police response was working. Matt Parr, Her Majesty’s inspector of constabulary, called for a “modest reset” of the balance between police powers and the right to protest in order to respond to the changing nature of the protests we were seeing, which were sometimes dangerous; people were taking more risks. The suggestions included far more measures that were non-legislative than legislative, such as better training for police, better understanding of the law and a more sophisticated response to protests. What has followed has been a series of escalations of more and more unnecessary legislation that the police have not asked for and that will not have an impact on the actual challenge.
We have gathered to debate public order legislation many times in this House, and while there have been numerous Ministers, I have been here every single time. For our part, we suggested a modest reset of the laws, as suggested by Her Majesty’s inspectorate, with amendments making injunctions easier for local organisations to apply for and with stronger punishment for obstructing the highway. Our sensible amendments were rejected by the Government in favour of this raft of legislation, which now finds itself in ping-pong, because the House of Lords is quite rightly saying that these proposals are not necessary.
What do the Government think their amendments to the Lords amendments will actually deliver? Their impact assessment is quite clear. Let us look, for example, at the new offence of locking on, which is going to change everything, we are told. Let me quote:
“the number of additional full custody years”—
the number of prison years that will result from this new offence—
“lies within the range of zero to one”.
That is the impact this Bill will have: zero to one years of custodial sentences.
What about the serious disruption prevention orders we are debating today? How many custodial cases will they amount to? The answer is three to five. Well, that is all worth it then! The rights to be taken away, as Conservative and Opposition Members have so eloquently described, will be for three to five cases with custodial convictions a year.
The impact assessment is extraordinary.
Matt Parr of Her Majesty’s inspectorate clearly said that there was
“a wide variation in the number of specialist officers available for protest policing throughout England and Wales”,
and that
“Non-specialist officers receive limited training in protest policing.”
He made several recommendations about increased and better training. Have the Government listened to these sensible concerns? Not a bit. Their impact assessment states that the police will need seven minutes to understand this entire new Bill and to implement it fairly—seven minutes. The truth is that they do not listen to the police and they do not listen to what is actually needed; they just want a headline.
To pause for a minute, today we have all been appalled by the offences David Carrick was guilty of in the run-up to the murder of Sarah Everard, and these appalling sexual crimes and this epidemic of violence against women and girls needs a proper response, yet the Government are prioritising this legislation over a victims Bill.
Laws already exist to tackle protest that the police use every day. Criminal damage is an offence, as are conspiracy to cause damage, trespass, aggravated trespass, public nuisance, breach of the peace and obstruction of a highway—I could go on. In April 2019, 1,148 Extinction Rebellion activists were arrested and more than 900 were charged. In October 2019, 1,800 protesters were arrested. Many have been fined, and many have gone to prison. The impact assessment for this Bill suggests a few hundred arrests; the police are already making thousands. The powers are there for the police to use.
Turning to the definition of “serious disruption”, we must be clear about the history. The Opposition asked for a definition of “serious disruption” long ago in debates on what is now the Police, Crime, Sentencing and Courts Act 2022. The Government said no, but then agreed to a definition in the Lords. It was not a very good one, and we tried to amend it. The police have asked us for greater clarity on the definition of “serious disruption” because the Government have drafted such poor legislation that it is important for them to interpret how and when they should and should not intervene. But the new definition appears to include as serious disruption situations such as if I have to step aside on a pavement to avoid a protestor. The police do not want to diminish people’s rights through this definition—they have said that time and again, and privately they think the Government are getting this wrong.
Sir Charles Walker
Does the shadow Minister agree that this provision is extraordinary, because there is often disruption around the Houses of Parliament when there is a protest and people march around Parliament Square and up to Trafalgar Square? That is a disruption, and is more than a minor disruption, but it is the type of disruption that most people in a free and democratic society can live with.
Sarah Jones
The hon. Gentleman has made many good points already this afternoon, and I entirely agree;
“more than a minor degree”
is way too low a bar to allow these interventions. Many Members and many watching the debate would have fallen foul of this law.
The amendment is drawn so widely that it is almost meaningless. As the hon. Gentleman said, when there are protests on Whitehall, near Parliament Square, there can be large crowds, and banners and speeches, so they are noisy. In 1 Parliament Street, where my office is, we have to shut the windows, which is irritating, but we are not hindered to the extent that we expect police interference. There are so many scenarios that could come under the scope of this definition that would render it ludicrous.
If I chain myself to a tree to protest at a new road and a couple of people are unable to cross a road to go to the supermarket, is that more than a minor disruption, or not? We have to remember that serious disruption, however it is defined—and I argue that here it is defined without any legal certainty—does not have to happen for offences under the Bill to be committed. This sloppiness and breadth of drafting is unacceptable, and the police do not want it. They just want clarity, and this will not bring clarity.
Turning to suspicionless stop and search, the Government have tabled a motion to disagree with Lords amendment 6. The motion would reinsert wide-ranging powers for the police to stop and search anyone in the vicinity of a protest, for example shoppers passing a protest against a library closure, tourists walking through Parliament Square, or civil servants walking to their office. If there is a large crowd in Parliament Square and a tourist gets caught up in it, they could be stopped; they could have no idea what is going on, and would be an offence to resist.
Stop and search is disproportionately used against black people in this country. Do Members on the Government Benches really want to pass legislation for powers that risk further damaging the relationship between the police and our communities? Instead of actually targeting serious gun crime, serious knife crime or terrorism, the Government are choosing to focus on stopping and searching people who may or may not be taking part in a protest. That is not proportionate.
Former police officers have warned that these powers risk further diminishing trust in public institutions. That will put the police in a difficult position, and it risks undermining the notion of policing by consent. Members of the other place were right to remove the powers to stop and search without suspicion, and the Government are wrong to put them back in.
We agree with what the Government have done with regard to the journalists clause and amendment (a) in lieu of Lords amendment 17. The right to protest is a hard-won democratic freedom that many have fought for in our history, and many are fighting for it in other parts of the world. A free press is another hallmark of our democratic society. The amendment will not prevent the police from responding to someone who is causing trouble and happens to be a journalist, but, crucially, it will allow reporters to observe and report to the wider public about the happenings of a protest. Considering the scope, breadth and low bar of most of the powers in the Bill, reporting on their potential misuse or wrong application is even more important. That is a power that must be protected, so we welcome the Government’s amendment in lieu of Lords amendment 17.
We are fundamentally against the principle of serious disruption prevention orders. We do not agree with them on conviction and we certainly do not agree with them not on conviction. The Government have tabled a motion to disagree with Lords amendment 20 and tabled their own amendment in lieu. That reinstates but limits the ability to apply an SDPO to someone without a protest-related conviction. We welcome the fact that the Government have accepted that their initial draft was overreaching and unnecessary. However, we do not support the five-year conviction compromise that they suggest. Problems remain, in that police could still apply for a SDPO to prevent a person from carrying out activities that are merely likely to result in serious disruption to two or more individuals or an organisation. The Met police commissioner said that
“policing is not asking for new powers to constrain protests”,
but SDPOs on conviction unfortunately remain in the Bill. An SDPO treats a peaceful protestor like the Government treat terrorists. Does the Minister really want to treat peaceful protestors, however annoying they may be, as serious criminals?
On buffer zones, the Opposition do not agree with amendment (a) to Lords amendment 5. It is important to remember that we have already voted on this issue in this place. We voted to introduce buffer zones and in the other place the Conservative peer Baroness Sugg did a very good job of tidying up the Bill. We have already voted in both Houses to introduce what we now call safe access zones. Lords amendment 5 is really important, creating a 150-metre safe access zone around abortion clinics to stop the intimidation and harassment of women and healthcare professionals. The proposed changes to the amendment would risk preventing people from getting the medical support they need.
Robin Millar
Does the hon. Lady accept that the evidence from the abortion buffer zones that exist at present is that people are being arrested for silent prayer? That is a fact. If she does, does she then accept that amendment (a) to Lords amendment 5 is necessary to provide a provision for silent prayer?
Sarah Jones
I do not agree with that interpretation at all. We have public space protection orders around some abortion clinics now, and we are broadening that out. That has been voted for twice, in this House and in the other place. I believe very firmly that the changes proposed in amendment (a) would risk preventing people from getting the medical support they need. Let me explain why.
I am a person of faith. I have also walked into an abortion clinic. I pray, but I also know how intimidating it is to walk past people silently standing there with signs trying to communicate, trying to pray, trying to persuade women to change their mind. It is a balance that we strike in this place between a woman’s right to privacy and healthcare and everybody’s right to go about their business and do what they choose. This place has already struck that balance.
I will explain why I also believe the proposal would not work. It goes way beyond silent prayer. Amendment (a) states:
“No offence is committed under subsection (1) by a person engaged in consensual communication”.
What is “consensual communication”? How on earth can we define it? Members have said women should not be harassed. Everybody agrees with that, but one person’s consensual communication is another person’s harassment. We have taken some legal advice on the amendment. The Government, when considering whether to support it, should look at the wider implications it might have.
Sir Bernard Jenkin
Just to make the obvious point, the whole purpose of the buffer zones legislation is to create an exclusion zone around abortion clinics so that people with views they want to express about the subject of abortion clinics will not be in contact with people going to use those services. Amendment (a) would drive a coach and horses through that whole process. The way it is worded would mean that people would be protected from accusations of harassment, because their actions
“shall not…be taken to be…harassment”
whatever they may actually be doing, so long as they can call it silent prayer. That drives a coach and horses through what the House of Lords compromised on and what the House of Commons originally agreed to vote for and approve.
Sarah Jones
The hon. Member is completely right. The amendment also risks driving a coach and horses through all the protests legislation. If I am standing outside Parliament protesting and being annoying and loud, the police may want to intervene, but I might say, “Actually, I’m silently praying. Are you going to tell me I’m not?” How far does the amendment ride roughshod over all our definitions of protest? That is a question that the hon. Members who support it have not considered.
Nick Fletcher
What the hon. Lady just said is completely and utterly wrong—the chuntering on the Government Benches proves that. We are banning people from praying—silently—in a Christian country. Can we let that sink in? This is ridiculous. I want all colleagues on the Government Benches to think about this: within a 150-metre zone of a clinic, people will not be allowed to silently pray. Regardless of the reasons behind that, we need to think carefully about what we are doing.
Sarah Jones
I remind the hon. Gentleman that we have voted in this House and the other place for the safe access zones. As someone who prays, I understand why we need to introduce that legislation. However, the amendment mentions not just silent prayer but “consensual communication”. How on earth do we define consensual communication? There is no definition.
Stella Creasy
We must be clear that nobody is banning praying. We are saying that there is a time and a place to do it appropriately, which balances with people’s human rights. There has been some concern that, somehow, the buffer zones will take up police resources. Does my hon. Friend agree that, actually, amending the buffer zone legislation—as the amendment intends—would mean that more police resource would be needed, because it would become so unclear what was and what was not harassment, even when women repeatedly say that praying in their face is not acceptable?
Sarah Jones
I completely agree. Having talked to the police for nearly three years in this role, I know that they want clarity. The amendment provides not clarity but unbelievable confusion, whereas a 150-metre zone provides clarity, and that is what the police want.
The Bill remains an affront to our rights. The Government’s own impact assessment shows that it will not have much effect. It is our job as parliamentarians to come up with laws that solve problems and really work. The Bill does not do that, so the Opposition will vote against the Government tonight. We agree with the Lords, and I urge every Member to look to their conscience and do the same.
Chris Philp
As always, it is a great pleasure to follow my constituency neighbour, the hon. Member for Croydon Central (Sarah Jones). She has faced a number of Policing Ministers in her time, and I hope she faces many more during what I hope will be a very long tenure as shadow Minister.
We have heard some extremely thoughtful and well-considered contributions from both sides of the House on quite profound issues, touching as they do on conscience, free speech and a woman’s right to choose in relation to an abortion, as well as slightly more prosaic questions on policing protests. The objective of the Bill is to better balance the rights of individuals to protest—which this Government respect—with the rights of individuals to go about their daily lives without suffering from disruption. Those include the rights of parents to get their children to school, of people to get to hospital for vital treatment and of people to go to work without having their way impeded.
We have seen so many protests impeding the rights of the law-abiding majority, particularly in the latter half of 2022. There were 10-mile tailbacks on the M25. People glued themselves to roads in London and it took a long time to remove them. In December, we saw protesters walking slowly down streets, deliberately trying to cause as much disruption as possible—not so much exercising the right to protest as seeking to make a point by deliberately inconveniencing their fellow citizens. That is not something that this Government support, which is one reason why we are now legislating. The Metropolitan police have confirmed that between October and December last year they spent 13,600 officer shifts policing such protests, at a cost of nearly £10 million. That is time and money that would be much better spent elsewhere.
Sir Julian Lewis
Will the Minister confirm something for the sake of clarity? In the past, major peaceful demonstrations such as anti-nuclear demonstrations have blocked roads, but it was done with the permission of the police. That would continue, would it not?
Chris Philp
Yes, it would. My right hon. Friend pre-empts my next point, which I think an Opposition Member raised earlier. Where a protest has been authorised and licensed in advance by the police, of course these provisions will not be engaged. Protests such as the Iraq war protests aimed at the former Labour Government would, of course, be licensed. Protests against this Government would no doubt be licensed as well and could properly be held.
The hon. Member for Hemsworth (Jon Trickett), who I see is back in his place, made a point about whether the Bill could be used to disrupt strike action. I draw his attention and that of the House to the Bill’s original clauses 6 and 7, which as a result of the Lords amendments have been renumbered as clauses 7 and 8. Subsection (2)(b) of each clause makes it clear that it will be a defence to offences under the Bill that the act in question was undertaken
“in…furtherance of a trade dispute”,
so trade union protests and anything to do with strikes are exempted from the provisions of the Bill.
I think that the definition we have set out is reasonable. The police have asked for it, the former Deputy President of the Supreme Court supports it, it backs up the case law and I strongly commend it to the House.
Lords amendments 2, 3 and 4 deal with tunnelling. They are clarificatory amendments, making it clear that the offence of causing serious disruption by being present in a tunnel, as defined by clause 4, is committed only if the tunnel has been created for the purposes of a protest. Lords amendments 10 and 16 relate to some clarifications involving the British Transport Police which we think are important. Lords amendments 6,7, 8, 9 and 36 pertain to so-called suspicionless stop and search.
Sir John Hayes
Before my hon. Friend moves on to this subject, will he give way?
Chris Philp
In just a moment.
As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) correctly said in an intervention, these so-called suspicionless stop and searches can only take place in the absence of personal suspicion, when an officer of the rank of inspector or above believes, or has reason to believe, that in the next 24 hours a number of offences may be committed in the locality. That reasonable belief is required before any suspicionless stop and search can take place, and even then it is time-bound to a period of 24 hours. We think that that is proportionate. We have heard some views from the police and, in particular, from the His Majesty’s inspectorate of constabulary, which has said: “On balance, our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency and effectiveness in preventing disruption and making the public safe.” So this is something that HMIC has supported.
Stuart C. McDonald
I think we all accept that suspicionless stop and search can be triggered quite rightly, for example if there is a danger of terrorism, but the Bill now allows it to take place when, for instance, there could be a danger that someone somewhere might commit a public nuisance or lock themselves to a fence. That could lead to hundreds or even thousands of suspicionless searches, which is surely disproportionate.
Chris Philp
I do not accept that. When there is a reasonable suspicion that in the next 24 hours offences may be committed which may themselves have a profoundly disruptive effect on members of the public, it is reasonable to prevent that. Let me point the hon. Gentleman to the example of the protests on the M25 last November, when a 10-mile tailback was caused. I suggest that preventing that would be a reasonable thing to do.
Lords amendment 17 deals with the question of journalists. As I have said previously, although the law as it stands does protect journalists—in fact, an apology rapidly followed the arrest of the journalist in Hertfordshire —the Government accept that clarification and reaffirmation of journalistic freedom is important, so we accept the spirit and the principle of the amendment. We have improved the wording slightly in our amendment in lieu, but we accept that journalists need special protection.
Lords amendments 18, 19 and 20 deal with serious disruption prevention orders. There has been some confusion over this, on both sides of the House, so I will reiterate the point for the purpose of complete clarity. The Government have accepted the point made in the Lords that a conviction is required before a serious disruption prevention order can be made. That is a significant concession. However, we do not accept Lords amendment 20, because clause 20—as formerly numbered —simply allows for an application to be made at a time after conviction, but a conviction must previously have taken place. We have therefore tabled an amendment in lieu.
I think it important to emphasise that there will be a free vote on buffer zones, at least on the Government side, because it concerns an issue of conscience, namely abortion. There is no Government position on this matter, and Members will vote according to their consciences. We have heard Members on both sides of the House speak about this issue passionately and with conviction.
Sir John Hayes
I hear what the Minister says about that, and he has heard the strong opinions expressed from this side of the Chamber in favour of the freedom to pray silently. Speaking personally and for the guidance of the House, will he tell us whether he will be supporting the amendment tabled by my hon. Friend the Member for Northampton South (Andrew Lewer), which allows free and silent prayer?
Chris Philp
My right hon. Friend is putting me on the spot a little bit. I would like to reiterate that the Government are neutral on this position. It is a free vote and there is no Government position, and in my capacity as a Government Minister I do not have a view. Obviously, as a Member of Parliament, I will be voting as an individual on this question. I do think, speaking personally, that women should be free to use these services without intimidation or harassment, which is why I voted for the amendment from the hon. Member for Walthamstow (Stella Creasy) when it was first tabled, but I do not think the amendment moved by my hon. Friend the Member for Northampton South undermines that, particularly given the words in proposed subsection (3B), which say that prayer
“shall not, without more, be taken to”
influence a person’s decision. So, personally, I will vote for that, but I emphasise again that the Government do not have a position and this is a free vote. We have heard some extremely thoughtful, well-considered, well-argued and sincerely held views on both sides, and Members will no doubt make up their own minds. up.
Stella Creasy
I respect the fact that the Minister has his own personal opinion. For the avoidance of doubt, can he confirm to the Chamber that this legislation, as amended in the Lords, is compliant with the European convention on human rights and that it does not criminalise praying but sets out boundaries for where it should occur?
Chris Philp
I think we will ultimately have to defer to the Attorney General, but my understanding is that the legislation, as amended by the Lords and if amended by my hon. Friend the Member for Northampton South’s amendment, would in both cases be compliant with the European convention on human rights. Indeed, it is our opinion that the entire Bill is consistent with the European convention on human rights.
I think I have probably spoken for long enough—[Interruption.] Did someone say, “Hear, hear”? This Bill strikes the right balance between protecting the right to protest and making sure that our constituents can go about their day-to-day business without unreasonable hindrance, that parents can get their children to school, that patients can get to hospitals and that people can get to their place of work. That is the right balance, and I commend the Government amendments to the House.
Question put, That amendment (a) to Lords amendment 5 be made.
Public Order Bill
Tuesday 14th March 2023
(1 year, 8 months ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 116-I(a) Revised Version of Motion B2 (Supplementary to the Marshalled List) - (14 Mar 2023)
16:23 - Division on Motion A1 - Ayes: 222 / Noes: 233 - Motion A1 disagreed.
17:19 - Division on Motion B2 - Ayes: 242 / Noes: 196 - Motion B2 agreed.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 1 and do agree with the Commons in their Amendment 1A in lieu.
“Meaning of serious disruption
(1) For the purposes of this Act, the cases in which individuals or an organisation may suffer serious disruption include, in particular, where the individuals or the organisation—
(a) are by way of physical obstruction prevented, or hindered to more than a minor degree, from carrying out—
(i) their day-to-day activities (including in particular the making of a journey),
(ii) construction or maintenance works, or
(iii) activities related to such works,
(b) are prevented from making or receiving, or suffer a delay that is more than minor to the making or receiving of, a delivery of a time-sensitive product, or
(c) are prevented from accessing, or suffer a disruption that is more than minor to the accessing of, any essential goods or any essential service.
(2) In this section—
(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them;
(b) a reference to accessing essential goods or essential services includes in particular a reference to accessing—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a transport facility,
(v) an educational institution, or
(vi) a service relating to health.”
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, with the leave of the House, I shall speak also to Motion C.
Amendment 1 provides a definition of “serious disruption” which is the trigger for a number of offences and powers contained in the Bill. As I explained when this was first considered on Report, the Government do not believe that the amendment is appropriate. First, it does not read compatibly with the measures in the Bill—a point made by several of your Lordships during that debate. Secondly, it does not set an appropriate threshold for what constitutes serious disruption, which is why, on Report, the Government supported the definition proposed in the amendments tabled by the noble and learned Lord, Lord Hope of Craighead. The Government have brought an amendment in lieu to more closely align the definition with that proposed by the noble and learned Lord and to address these two issues. The new proposed threshold is rooted in case law from both the Court of Appeal and the Supreme Court. It now has the support of the other place.
The noble Lord, Lord Coaker, has tabled Motion A1, which replaces the “more than minor” threshold in this amendment with “significant”. I will paraphrase the noble and learned Lord, Lord Hope of Craighead, who, when this was debated on Report, expertly argued why “more than minor” was an appropriate threshold. There is no question that minor disruption is not only acceptable but is a constituent part of the right to protest. However, when disruption exceeds this, the police should intervene. The use of “more than” implements this concept in law, which is why the Government continue to support the formulation of the noble and learned Lord. We encourage your Lordships to support Amendment 1A.
Motion C relates to journalists. This group concerns Amendment 17, which seeks to establish a specific safeguard for journalists and bystanders during protests. It is in response to the unlawful arrest of the LBC journalist, Charlotte Lynch, and others by Hertfordshire Constabulary in October 2022. The Government are clear that the role of members of the press must be respected. They should be able to do their job freely and without restriction. However, we remain of the view that the amendment is unnecessary. The police may exercise their powers of arrest and powers to maintain public order and public safety only in limited circumstances specified in law. Therefore, there is no need whatever for carve-outs of circumstances where these powers cannot be used.
However, we recognise the strength of support for this amendment. Sometimes there is a need to send a signal as to the values and principles we stand for; this is one of those times. That is why the Government brought forward an amendment in lieu in the other place. It accepts the principle of the amendment while also minimising the risk of unintended consequences. We make it explicit that the police may still use their powers on those reporting and observing protests when it is necessary and lawful to do so. The police must still be able to exercise their powers on journalists and observers who break the law or who put public safety at risk.
Amendment 17A was supported by the other place, including by the Opposition Front Bench. I hope that it will now also be accepted by your Lordships’ House. I beg to move.
Lord Coaker
At end insert “and do propose the following amendments to Amendment 1A—
Lord Coaker (Lab)
My Lords, the Minister said that the noble and learned Lord, Lord Hope, proposed his amendment for “more than minor” and that was why the Government reintroduced it in the Commons and were supporting it again. Of course, that was lost when it was debated in your Lordships’ House and the Government have inserted “more than minor”—admittedly, with some flowers and curtains around it. I keep saying to noble Lords that it goes to the heart of the debate as to the threshold we wish to set where we start to undermine the right to protest. I still contend that the Government’s “more than minor” threshold is too low. Hence my Motion A1 would insert in subsection (1)(a) “significant” instead of “more than a minor”; in subsection (1)(b), it would leave out
“delay that is more than minor”
and insert “significant delay”, and in subsection (1)(d), it would leave out
“disruption that is more than minor”
and insert “significant disruption”. The point of that is, of course, to raise the threshold.
First, because I think it is important for noble Lords to understand, I want an assurance from the Minister that whatever we decide will be respected by the Government. To refer back to the Police, Crime, Sentencing and Courts Act 2022, Sections 73 and 74 define public nuisance and impose conditions on public processions, public assemblies and various sorts of activities, including defining what activity may result in serious disruption. Tucked away in those sections is the power for the Government to change any of that by regulation. I want a categorical assurance from the Minister that, were the Government to lose the amendments before us today, and they may win, and the Bill went back to the other place, or if the amendments that could not be reinserted in the Commons because they had been introduced in the Public Order Bill only in the Lords—namely, what we called the “slow walking” clause and the “reasonable excuse” amendments—were lost, the Government will not seek to overturn the expressed will of this Chamber and, I hope, eventually the will of the other place by using Sections 73 and 74 of that Act, which they could do. I would appreciate that.
The debate today centres on thresholds. At what level should we restrict the right to protest, above the laws that we already have? We already have a number of laws that restrict the right to protest and allow us to deal with protests as they occur. Indeed, many chief constables, including the chief constable of Manchester, have asked why we do not use the existing legislation. Notwithstanding that, the Government have panicked and come forward with the Bill to try to deal with what they perceive as a problem.
To make this real, I spent Sunday afternoon looking at various protests that have taken place around the country that, I contend, with a “more than minor” threshold would under the Bill be something that the police could arrest people for and stop. I ask everybody in this Chamber whether that is what people want, because I contend that it is what the “more than minor” threshold will mean, rather than the “significant” threshold that I am seeking to replace it with.
Let me quickly go through some of these protests that made the headlines, which would be illegal under the Bill. The first is “Protest in Oxford blocks major road in both directions”. I suggest that, before a court, that may not be significant but is more than minor. Next we have a “No HS2” protest. Some people may have more sympathy with that, but lots of protests have taken place with respect to that. “No nuclear power station” protests have taken place in Suffolk. Are they covered by the Bill? They come under “more than minor”, and I contest that offences would be committed under the Bill. East Sussex residents protested outside the housing department at the treatment of a road and blocked access. That is an offence under the Bill, and certainly above the “more than minor” threshold. Next is “Furious parents block road to protest poor enforcement of school street in north London”. I contend that that is an offence under the Bill. In the case of “Wellingborough: Protesters halt tree-felling plans”, they blocked the diggers and the cutters, which is not allowed under the Bill and is certainly more than minor. Two more are angry mothers blocking drivers over school drop-offs and unhappy Trowbridge residents turning out to block tree cutting. Under the Bill, some of these protests would be illegal and the police could potentially have the capacity to arrest.
We also saw the massive protests that took place last July when summer holidays were affected. Thousands of lorry drivers across the country blocked the M4, the M5, the M32 and the A38 in protest at the cost of fuel. My contention is that under the Bill that is more than minor and those protesting against the cost of fuel would be liable to arrest more than they are now. If you are blocking five or six motorways, that is certainly more than minor. What else did I find? Farmers blocked roads in protests; tractors were used in response to falling milk prices. That would not be allowed under the Bill. Blocking a major road is certainly more than minor. There is example after example showing that the Bill puts at risk the rights of people to protest. It puts at risk one of the democratic traditions of our country.
I do not hold with the idea that the Minister seeks to ban protests. That is ridiculous: I have never said that. What I have said is that the Bill unnecessarily restricts the right to protest and unnecessarily causes uncertainty about what is allowed or not. Lowering the threshold would mean that activity that is currently allowable in some of the examples I have given would not be. That is because of the phrase “more than minor”.
I am sure that many noble Lords will wish to comment on that, but all I ask is for noble Lords to reflect that if a tractor turns up, a mother turns up or a group links arms, before anything has happened it could be illegal under the Bill—this is the point made by the noble and learned Baroness, Lady Butler-Sloss. It does not even have to have caused disruption; it simply has to be capable of causing disruption. You can turn up with five tractors and park in a car park, and if the police think you are going to do something, even if you have not done anything, they could stop it because it is capable of causing disruption.
The Government will say, “Of course, this is ridiculous —an overreaction. Stupid nonsense. Why on earth is that going to happen? Our police will not act in that way. Ridiculous. People will be shaking their heads in disbelief that anybody could posit that anything like this would happen in our country.” All I say is: why would you pass legislation that creates the potential and the risk for it to happen?
It is not the way to legislate. Existing laws are appropriate and satisfactory and could be used. They are not being used as effectively as they could be. The Government’s answer to Just Stop Oil, Extinction Rebellion and all that is to seek to pass a totally disproportionate piece of legislation. Through my Motion I am trying to mitigate the impact and effects of that. I beg to move.
Lord Hope of Craighead (CB)
My Lords, since the noble Lord was kind enough to mention my name, I should perhaps briefly explain the thinking behind the form of words the Government have introduced to this debate.
Before I do, I remind your Lordships of what the noble Lord, Lord Coaker, said at Third Reading—words that are worth listening to again. He said that
“the debates here and the changes made reflect a genuine attempt to address where the line should be drawn between the right to protest and the right of others to go about their daily lives.”—[Official Report, 21/2/23; cols. 1560-61.]
Those are valuable words and were worth saying again because they encapsulate exactly the dispute between us, which has been conducted with a great level of courtesy, certainly on the other side of the House and, I hope, on my side too, in trying to find a solution to the problem.
The words I chose were designed specifically to deal with the two groups of offences in the Bill, locking on and tunnelling. Those offences differ from the other kinds of protest activities. The noble Lord, Lord Coaker, has reminded us of a lot of examples of these. The whole purpose of those conducting these activities is to disrupt. That is their method of making their views known. That is quite different from people who assemble with flags, shouting, singing and so on, or who walk in a procession as their method of making their views known. If you make your views known by disrupting, the position is that you cross a line.
That line was identified by the Court of Appeal in the Colston case. It used the words “minor or trivial”. If that kind of activity goes beyond what is minor or trivial, you lose the protection of proportionality available under the European Convention on Human Rights—you have moved to something different—because the activity you are conducting is deliberate and the consequences of what you have done in the exercise of that deliberate decision are properly described as more than minor.
I was looking for a definition of the threshold because I took the view, rightly or wrongly, that when you are dealing with those categories of offences, there is a point—at a fairly early stage, as the Court of Appeal is indicating—where it should be available to the police to stop the activity. Tunnelling, for example, is designed to inflict economic harm on the body that is conducting the railway. We are talking about HS2, which has parliamentary backing. To inflict economic harm should not be allowed to continue for any longer than a minor interference.
Locking on is the same thing. Once it reaches a stage of going beyond minor, the sooner the police are free to take the necessary action, the better. It is their judgment, but the point of my amendment was to identify a threshold. The problem with “significant”, which is a perfectly respectable word for describing a state of affairs, is that it does not define a threshold. It defines a state of affairs. The police need a threshold to be clearly identified, which my words were designed to do.
The problem, and it is part of our debate with each other, is that in legislation we cannot use algorithms or numbers. We are driven to use adjectives, which are quite malleable creatures. They have a shade of meaning, and some people have different views as to what words such as “significant” mean. I would say that once you move beyond “minor” you have reached something that is significant.
That is the point: it is a state of affairs that you have reached, whereas my wording is to identify exactly the stage at which the threshold is crossed. As I said last time, “more” is absolutely crucial. I can well understand that “minor” excites fear and alarms but, with great respect, I do not think that is really justified. “Minor” has to be given full weight. In my submission, it achieves the object that I was trying to achieve and which I think that the Government have now accepted. It is the difference between a state of affairs and a threshold. In the end, that is the crucial point.
Baroness Chakrabarti (Lab)
My Lords, I thank the Government for Motion C—yes, I did say that. In very turbulent and polarised times in our country, it is a real pleasure to be able to welcome it. Noble Lords will notice that there is a fairly minor tweak to the original amendment passed by your Lordships’ House. We said that a constable should not exercise powers for the principal purpose of preventing someone reporting, and the Government have replaced “principal purpose” with “sole purpose”. I for one am convinced that the precious and vital protection for journalists and others reporting on protests, rather than participating in them, is provided. The Minister wrote and said that they do not think that this is necessary but are doing it anyway. That is not ungracious. It is gracious, because I happen to think that this protection is vital. The Government disagree but they are doing it, so I am happy to thank them.
I remind noble Lords, as the Minister did, that the provision is in response to real cases: real journalists were arrested and detained last November, some for many hours, just for doing their job. The offence used when it was suggested that journalists were giving the oxygen of publicity to protesters was the fairly vague conspiracy to cause a public nuisance. While the Government have been consistent in their position that additional protection is unnecessary, no one at any stage of proceedings on the Bill could point to a single legislative provision on the current statute book that gives this protection. Therefore, I am grateful to the Minister for the way in which he has engaged with this and responded, not least to what I think was the largest defeat that the Government suffered on the Bill last time.
I am particularly grateful to Charlotte Lynch, the LBC reporter who visited us last time, having experienced the really quite traumatic incident of being arrested, handcuffed, put in a police van and detained for seven hours. This causes her some anxiety even to this day. She carried on and reported on that experience, and that has been very important for future journalists in this country, I hope that noble Lords will agree.
I am grateful to the all-party group, Justice, and Tyrone Steele, who worked with us on this amendment. I am especially grateful to the five distinguished Conservative Members of your Lordships’ House, including the former governor of Hong Kong and a former leader of the Conservative Party, who did the very difficult thing of coming through the lobbies with Her Majesty’s Opposition. I give my absolute respect to them.
I am, of course, grateful to my noble friends, the Liberal Democrats and many Cross-Benchers who supported this vital protection. I give especial thanks to the co-signatories of the original journalists’ protection amendment, including the noble Baroness, Lady Boycott. It was a great comfort and support to have such a distinguished journalist and former newspaper editor on my side in this.
My enormous thanks also go to the noble and learned Lord, Lord Hope of Craighead. We disagree about some things, but not about this. In particular, I thank my co-signatory, the noble Lord, Lord Paddick, not only for co-signing this amendment and bringing his noble friends with him, but for a lifetime of public service in policing and in your Lordships’ House. He is the most diligent and distinguished face of the police service in this country. When we reform that service, it will better reflect his values. That career of public service could not be better demonstrated than by him being here today, after suffering such unspeakable loss in recent weeks.
I do not want to take your Lordships’ time on the next group, so will say now that I support the noble Lord, Lord Paddick, and my noble friend Lord Coaker in the remarks that they will make about suspicionless stop and search. Stop and search is always difficult and challenging for police community relations, but suspicionless stop and search is positively toxic and not something that we should be increasing in these troubled times in our country.
Finally, I come to the difficult question of the meaning of “serious disruption”, not for the purposes of some offences, but for the whole Bill. We have the narrow policy question of what the threshold should be before a number of criminal offences and intrusive police powers impugned what would otherwise be totally peaceful and innocent dissent. That is the narrow question.
We also have a rather deeper and broader—almost philosophical—question of common sense and the English language. Is “serious” significant, as I believe, or simply more than minor? Is it a simple binary, like a child’s 18th birthday that turns them from a minor into someone who has majority; or is there a whole range of disruption that one can face in one’s life from something that is minor to something that is really quite a lot more than minor—that is significant?
This is a serious question and the threshold should be high. I am reminded of George Orwell’s famous essay “Politics and the English Language”—my favourite writing of his—in which he reminded us that distortion of language can quickly lead to abuses of power. This is a Public Order Bill and this ought to be a very serious threshold. However, if noble Lords prefer their literature to be accompanied by music, I will invoke not George Orwell but Cole Porter:
“There’s no love song finer, but how strange the change from major to minor”.
I urge all noble Lords who care about these things, who take a bipartisan approach to fundamental rights and freedoms in our country, as those distinguished five Conservatives did last time, to support Motion A1 in the name of my noble friend Lord Coaker.
Baroness Butler-Sloss (CB)
My Lords, I have been reflecting on the speeches which we have just heard. Listening to the noble and learned Lord, Lord Hope, and his point about the threshold, I have been thinking about what would be more than minor that was not significant. Looking at the examples that the noble Lord, Lord Coaker, gave, it seems to me that if one discovered people tunnelling under an area that was going to be HS2, that is not only more than minor; my goodness me, it seems to me to be significant. I was also thinking about the closing of four or five motorways. So far as I am concerned, that seems to be both more than minor and significant. I just wonder, rather hesitantly, whether we are arguing about a position where the difference between “more than minor” and “significant” is extremely small. I cannot at the moment think of a word that I would use that was more than minor but not significant. That is where I stand—a slightly different position, I confess, from what I said on the last occasion.
Baroness Jones of Moulsecoomb (GP)
My Lords, I hope I do not cause offence here, but I disagree strongly with the noble and learned Lord, Lord Hope of Craighead, and the noble and learned Baroness, Lady Butler-Sloss. I shall give the House a few words that would be more than minor but less than significant: it could be “reasonable”, “measured, “limited” or “tolerable”. There are all sorts of stages between “more than minor” and “significant”. As a veteran protester, I have probably passed quite a few red lines in the past, although I have never committed violence—so far.
I turn to Motion A1. Obviously I am upset, along with other noble Lords, I hope, at the fact that the other place immediately whips out all our good work and indeed our hard work. We spend time reading the Bill and thinking about it, which obviously the majority of people in the other place do not; they simply do whatever the Government tell them. I feel that the Government are trying to stop protest of virtually every kind—almost any protest imaginable—and that is so deeply oppressive that I could not possibly support it, so I wholeheartedly support Motion A1.
If the House will indulge me, I will mention the other two Motions as well so that I speak only once. I am horrified by Motion B2. I regret that Labour feels it cannot support Motion B1 in the name of the noble Lord, Lord Paddick. Sitting here, I have been thinking that I would vote against Motion B2, but that is probably too difficult. I do not even think I can abstain, so I think I am going to vote for it—but it will be through gritted teeth as it goes against all my libertarian views, and I am really annoyed with Labour for putting it in.
To finish on an upbeat note, there is Motion C. The Government make endless bad decisions. We are wallowing in an ocean of bad decisions nationally because of this Government, and some extremely unpleasant scenarios, with poverty and deprivation, are playing out because of them. But here they have done the right thing. It is incredible that the Government have come back with not just something that we generally asked for but with a slightly improved version of the Lords amendment, which I have to thank them for and say “Well done”—if that does not sound too patronising, or matronising. It is a win for civil liberties and the right of the public to be informed about protest and dissent.
On a final note, I have been saying that I am the mother of a journalist. That is a slight twist of the truth, because actually I am the mother of an editor, and I just know that she will be absolutely delighted with what the Government have done today.
Lord Wolfson of Tredegar (Con)
My Lords, I declare an interest: I generally pay my mortgage by debating the difference between “significant” and “more than minor”, so I am on very familiar territory.
The problem with the word “significant” is this: what is the opposite of significant? It is insignificant. There is therefore a constant debate in the courts when something, generally a contract, is said to be significant. Does it mean substantial—that is, quite a lot—or does it mean not insignificant, in other words more than de minimis? That is the problem with a word such as “significant”. For those reasons, I respectfully endorse the approach of the noble and learned Lord, Lord Hope of Craighead. We need a test here that is easy to apply.
Elsewhere in the law, we have the concept of significant risk. Of course, that is even more difficult, because there you are talking about risk—something that might happen—whereas here, in Motion 1A, we are talking about something that has happened or is happening. The noble and learned Baroness, Lady Butler-Sloss, asked what the difference was between “more than minor” and “significant”. In the Court of Appeal case of R v Lang, Lady Justice Rose, who is now in the Supreme Court, said in her judgment:
“The risk identified must be significant. This is a higher threshold than mere possibility of occurrence”—
that is, a risk case—
“and in our view can be taken to mean … ‘noteworthy, of considerable amount or importance’”.
Even in that definition, there is a difference, I would suggest, between “noteworthy” and “of considerable amount”—and that is in the context of a risk, not something that is actually happening.
Lord Faulks (Non-Afl)
My Lords, I respectfully agree with what the noble Lord has just said. The House may remember that the whole question of the definition of “serious disruption” emanated in part from a recommendation of your Lordships’ Constitution Committee. I supported an amendment put down by the noble and learned Lord, Lord Hope. I think the Opposition then accepted that it would be useful to define “serious disruption”. So, there was a measure of agreement, and what we were concerned with was where the threshold lay.
It is clear that the amendment the Government are seeking to put into the Bill is lawful. There had been some doubt, but various decisions, including the decision on Ziegler and the subsequent decision in the Northern Ireland case, show that this is well within the legality required by the European Court of Human Rights. The question is: how do you balance the undoubted right to demonstrate—I do not think there is any doubt that everybody in this House accepts the fundamental importance of that right—against the rights of others to go about their business, to go to hospital, to go to school and to do all the other important things? They must put up with inconvenience, but whether their lives should be seriously disrupted is a different question.
What worries me about the amendment put forward by the noble Lord, Lord Coaker, is that, for example, it would require there to be a “prolonged disruption” before we get to the stage that an offence has been committed or, more realistically, that the police can do anything about it. Imprecision in adjectives is of course inevitable, but “prolonged” worries me. We have to achieve a difficult balance in this legislation, and it seems to me that that put forward by the noble and learned Lord, Lord Hope, is the right one.
Baroness Fox of Buckley (Non-Afl)
My Lords, one thing that is significant is when the noble Baroness, Lady Chakrabarti, congratulates the Government. I think that is a significant and not minor moment. But she was right to do so; the importance of journalistic freedom cannot be overestimated, and I would like to thank the noble Lords who put that amendment forward on this Bill and turned something which has been discomfiting into something positive at the end of it all. So that is very positive.
I also want to note that, when I was considering how I was going to intervene today, I actually said to colleagues that it was terrible that the noble Lord, Lord Paddick, would not be with us, because I would have been relying on him to give us a steer. Then I walked in and he was in his place, and I would like to pay tribute to his courage for being here and the reassurance it gives many of us. That really takes some courage.
On the substantive point, I think that the noble Lord, Lord Coaker, did us a great service when he spent his weekend not demonstrating but looking at everybody else’s demonstrations on an average weekend, as it were, and laying them out for us. They were not particularly big, glamorous or headline-grabbing demonstrations, but all of them undoubtedly caused disruption to the people in the local area, in the way that he explained, and blocked roads quite substantially.
That is important because, throughout the discussions on this Bill, it has always felt as though we have had in our sights the likes of Extinction Rebellion and Just Stop Oil. The noble and learned Lord, Lord Hope, explained well that their aim is to disrupt, not even to protest. That is their tactic and their raison d’être. It has caused a lot of problems for me as somebody who supports the right to protest very strongly, and it has certainly aggravated the British public in all sorts of ways.
The reason the intervention from the noble Lord, Lord Coaker, was so useful was that it remembered the laws of unintended consequences. I say to the Government that those groups are not the only people who are going to be caught up by this law, which is why I would like us to make the threshold higher. The Government will not always be the Government—if we are talking about things being “prolonged”, it might not be that long. There will be all sorts of different people out on streets protesting. Sometimes it might even involve members of the Government at the moment and their supporters.
All the protests the noble Lord described covered all types of members of the British public who felt the need to take to the streets one way or another. They are voters of all parties and voters of none. They might well be disruptive, but they are certainly not using disruption as a tactic. My concern, straightforwardly, is that they are not criminalised by this law in an unintended way because we had one group of protesters in mind and forgot the wide variety of protesters who support all parties across the board. I anticipate there will be more protesters in turbulent times ahead.
My final point on Motion A1 is, as the noble and learned Lord, Lord Hope of Craighead, said, when you are making laws, you cannot use algorithms or numbers, so you are using words. We are having an argument about words. It is tricky and I cannot pretend that, when I hear the noble and learned Lords speak, I always understand the way language is understood by courts. However, I was thinking about how language might be understood by the police. They are the people who will potentially, as has already been explained, look at a bunch of tractors or what have you and say, “That is capable of causing disruption which is more than minor”. This seems to be a much lower threshold than thinking it will cause “significant” disruption. I would like the word “significant” there so that the police pause and do not just say “It’s more than minor: let’s stop it”. They should pause and think that something has to be quite serious. Is that not the way the language will be understood? As a consequence—maybe I am wrong, and they are all legal scholars—my fear is that they will read those words and see it in a particular way. Therefore, there will be the unintended consequences of sweeping up people who, after all, are democratically demonstrating.
Finally—because I realise that this is what is done and so that I do not speak on Motion D—despite supporting wholeheartedly the Labour amendment, I am disappointed with Motion D1 from the Labour Party. I think I understand what is meant by conduct which is
“frivolous or vexatious, beyond a genuine expression of their right to protest.”
However, it seems to be an unnecessary concession and I will find it very hard to vote for. Beyond that I urge everyone to support the amendment in the name of the noble Lord, Lord Coaker, in this group.
Lord Cormack (Con)
My Lords, I will be very brief. I want to thank my noble friend on the Front Bench for the way in which he reacted to what I will always refer to as the Charlotte Lynch amendment. It was moved very elegantly by the noble Baroness, Lady Chakrabarti, and the Government listened.
This amendment is an illustration of the value of your Lordships’ House and of the fact that there is no point or purpose to your Lordships’ House unless, from time to time, the Government are indeed defeated, are obliged to take a very serious view of a serious defeat and react accordingly. My noble friend has reacted accordingly and graciously, and, for that reason, I am extremely grateful that a most important amendment is now part of a very important Bill.
Lord Paddick (LD)
My Lords, with the leave of the House, before I start, I thank all noble Lords from all sides of the House, the doorkeepers, the attendants, the security and the police officers, who have shown such kindness towards me following the sudden, unexpected and so far unexplained death of my husband. I am very grateful.
As the Minister and the noble Lord, Lord Coaker, have explained, the definition of “serious disruption” underpins the entire Public Order Bill. It is an element of many of the new offences and the trigger for the use of new draconian police powers, which we will debate in the next two groups. The police asked for clarity, as there was no definition of “serious disruption” in the Bill that originally came to us from the other place, and we joined forces with His Majesty’s Official Opposition to provide a reasoned and reasonable definition of “serious disruption” that gave clear guidance to the police—Lords Amendment 1—which was agreed by this House. The Commons disagreed with our amendment and substituted Amendment 1A as an amendment in lieu.
On the point made by the noble Lord, Lord Wolfson of Tredegar, about the problem with ambiguity around the word “significant”, the fact is that the original amendment this House passed had examples clearly explaining to the police what we meant, so that ambiguity was not there in the original amendment passed by this House.
Instead of defining “serious disruption” as causing
“significant harm to persons, organisations or the life of the community”,
which would include, for example, preventing an ambulance taking a patient to a hospital, the Government have substituted, as we have heard,
“more than a minor degree”
for “significant harm”. With the greatest respect to the noble and learned Lord, Lord Hope of Craighead, and to address the concerns of the noble and learned Baroness, Lady Butler-Sloss, I will repeat what I said on Report: on a spectrum of seriousness, “minor” is at one end and “serious” is at the other. I say that as a former police officer speaking about how the police might interpret the legislation. For example, a minor injury is a reddening of the skin, and a serious injury is a broken limb or inflicting a fatal injury. My interpretation, as a former police officer, of what is being said in the Bill is that disrupting to
“more than a minor degree”
cannot reasonably be said to be “serious disruption”; it is far too low a threshold. While I understand that the noble and learned Lord wanted to establish a threshold—the exact point at which the law would be broken—our argument is that that point is far too low. We therefore support Motion A1 in the name of the noble Lord, Lord Coaker, and we will support him if he decides to divide the House on his Motion A1.
I join the noble Baroness, Lady Chakrabarti, in saying that I am grateful to the Minister for Amendment 17A, mentioned in Motion C, which we support. It is right to protect observers of protests from being prevented from carrying out their work by the police.
Finally, I thank the noble Baronesses, Lady Chakrabarti and Lady Fox of Buckley, for their kind words about my public service, but I reassure the House that this is not my valedictory speech.
Lord Sharpe of Epsom (Con)
My Lords, again, I thank all noble Lords for participating in this debate and for the scrutiny they continue to bring to bear on these important measures.
Before I get on to the amendments, the noble Lord, Lord Coaker, asked about the Government’s intentions for Section 73 of the PCSC Act. For the benefit of the House, Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act contain delegated powers which allow the Secretary of State to amend the definitions of
“serious disruption to the life of the community”
and
“serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession”
for the purpose of Sections 12 and 14 of the Public Order Act 1986.
Lord Coaker (Lab)
My Lords, I join others in thanking the Minister for listening, and my noble friend Lady Chakrabarti and the noble Baroness, Lady Boycott, for the amendment on journalists. The Government are to be congratulated for moving on that and for responding to people’s very real concerns.
I thank the noble and learned Lord, Lord Hope, for saying that there is a genuine attempt within this Chamber to deal with what is clearly quite a difficult issue, with genuine differences between people. It has been well argued and well debated. That has never been an issue. There is an issue about where the threshold is but there has never been an issue about the genuine nature of that and I welcome his point.
I also thank the noble and learned Lord, Lord Hope, the noble Lord, Lord Wolfson, and many other noble Lords practised in the law for my speed course in trying to understand what some aspects of it mean. I think the point made by the noble Lord, Lord Paddick, the noble Baroness, Lady Fox, and my noble friend Lady Chakrabarti, and indeed by the Minister in his response just now, goes to the heart of it. The Minister said—and I have not got this completely right so I hope he will correct me if I am wrong—that in the end there will be an element of subjectivity in the police and the courts.
That is the very point made by the noble Lord, Lord Paddick, the noble Baroness, Lady Fox, and my noble friend Lady Chakrabarti. If there is an element of subjectivity, if a police officer or Vernon Coaker is walking down the street and you said that something is “significant”, I would see that as more serious than something that is “more than minor”. I cannot argue it with all the case law that the noble Lord, Lord Wolfson, used. I cannot use the legal terminology that the noble and learned Lord, Lord Hope, and many others would use. But I absolutely defy anybody to prove to me that 130,000, or however many there are, police officers across our country would not see “more than minor” as a lower threshold than “significant”. I just do not believe it.
The Minister himself said that there would be subjectivity. Of course, there will be subjectivity, which is why I raised the examples that I did. The Government have panicked. It was outrageous what happened with Just Stop Oil and Extinction Rebellion—and none of us supported the disruption caused by that. Many of us in this Chamber asked why the police were not using the powers on obstruction that they had and quickly sorting it out by using those powers. They should have had the confidence to use them and to know that this Chamber and the other place would be behind them, sorting those protesters out and dealing with the issue in the way it should have been done.
The Government’s response through the Public Order Bill and some of these measures will impact on people who should not be impacted on in any way, especially if you have a definition of “more than minor”. A police officer will go to those people who are driving tractors and protesting about milk, they will go to people slowing lorries down on the motorway because of fuel prices, and they will go to parents blocking roads because of school playgrounds—they absolutely will. If people start getting cross, as they inevitably will, the police will say, “Well, this is more than minor”, and do something about it—rather than what they would do if they had a threshold of “significant”. That will be the practical reality of the legislation that this Government are asking this Chamber to pass, supported by the other place. It is simply not tenable, and simply not good legislation; it will have consequences that the Government do not intend for it.
There was one thing on which I disagreed with the noble and learned Lord, Lord Hope, when he talked about disruption. I have not been on many protests that have not caused disruption, and I suspect that not many noble Lords have been on protests that have not caused some sort of disruption. I do not want to be controversial, but sometimes the point is to cause some disruption—that is the absolute point. I am sure that there are many noble Lords, not just behind me but on other Benches, who have been on demonstrations and protests and have caused disruption. The argument is over whether that is serious disruption—and according to the Bill it has to be serious; well, “more than minor” —whereas I am saying that it should be “significant”. At the end of the day, that is the point of difference between us.
All I say in closing is that the police, in policing the Public Order Act, as it will become, will treat “more than minor” at a much lower level in dealing with protests than they would if “significant” was in the Bill. For me, that trumps any arguments of case law or that the courts will have problems defining it. The courts always have problems defining things, and that is why, in the end, you have courts, because they will use their best judgment to define it—but I would rather they had to define “significant” than “more than minor” in dealing with protests. I wish to test the opinion of the House.
The Deputy Speaker (Baroness Watkins of Tavistock) (CB)
Before I call Motion B, I draw noble Lords’ attention to the revised version of Motion B2, published today on a supplementary sheet. The difference is that Amendment 6E has been added.
Motion B
Lord Sharpe of Epsom
That this House do not insist on its Amendments 6, 7, 8, 9 and 36 to which the Commons have disagreed for their Reasons 6A, 7A, 8A, 9A and 36A.
Lord Sharpe of Epsom (Con)
My Lords, your Lordships’ Amendment 6 and the related consequential amendments remove the power to stop and search without suspicion from the Bill. While I recognise the strength of feeling expressed by noble Lords when considering these amendments during Report, the Government cannot accept the removal of the suspicionless stop and search powers from the Bill. The other place has also disagreed to these amendments for their reasons 6A, 7A, 8A, 9A and 36A. I therefore respectfully encourage the noble Lord, Lord Paddick, to reflect on Motion B1, which seeks to overturn this wholly and which I do not think appropriate.
Suspicionless stop and search is a vital tool used to crack down on crime and protect communities, and we see it as entirely appropriate that these measures be extended to tackle highly disruptive protest offences. These are much needed proactive powers. Large protests are fast-paced environments where it is difficult for the police to reach the level of suspicion required for a suspicion-led search. The police should not have so sit by idly where there is a risk that someone will commit a criminal offence, and this is why suspicionless stop and search powers are necessary.
This view is shared HMICFRS, which found that suspicionless search powers would act as a deterrent and help prevent disruption and keep people safe. I want to be clear that the power to conduct a suspicionless search does not mean that anyone at a protest will be at risk of being searched without suspicion. The vast majority of protests in this country are peaceful and non-disruptive. These powers will be used only in the exceptional circumstances where it is likely that people at a protest will go on to commit criminal offences that cause serious disruption to others.
I also want to assure your Lordships, as I have sought to do throughout the passage of this Bill, that the safeguards on existing stop and search powers will apply to these powers, both for suspicion-led and suspicionless stop and search, and that includes body-worn video and PACE codes of practice. The Home Office also publishes extensive data on the use of stop and search to drive transparency. We expect the police to operate in a legitimate, fair and transparent manner, which includes decisions surrounding their use of this power.
The noble Lord, Lord Coaker, has tabled Motion B2. I want to remind the House that the power to conduct a suspicionless stop and search in a public order context will only be used in limited cases where a police officer of or above the rank of inspector reasonably believes that protest-related offences will occur and therefore authorises its use. In such cases, suspicionless stop and searches are limited to a specified locality for a specified period, but no longer than 24 hours. This can be extended for a further 24 hours to a maximum of 48 hours by an officer of or above the rank of superintendent, but it cannot be in place for more than 48 hours.
The reason why we have set out the thresholds and time limitations in this way is that we wanted to keep the legislation as consistent as possible for officers who will be using suspicionless stop and search powers. The amendments put forward by the noble Lord, Lord Coaker, would set a higher authorisation threshold for suspicionless searches than if officers are searching for a weapon, and limit the initial window that officers would have to use these powers, which has the potential to confuse officers with the well-established Section 60 legislation that we have discussed previously.
Suspicionless stop and search can be authorised only if specific protest-related offences are likely to be committed. These are the offences in this Bill and the offences of obstructing the highway and public nuisance. As the offence of public nuisance is committed so frequently by those who use disruption as a protest tactic, it is nonsensical to remove it from the list of relevant offences. Doing so would completely undermine this power.
The Government recognise that communication is a fundamental element of building trust and confidence between the force and the community it serves. As good practice, most forces already communicate their Section 60 authorisations, and I know that communities appreciate knowing detail on the geographical area, time limits and the background of the issue. Therefore, although I am sympathetic to the final proposed new subsection in the proposed amendment, which would establish in statute a requirement for the force to communicate when the powers are used, I do not think we want to introduce an inconsistency between the Section 60 legislation framework, which does not carry a communication requirement, and the proposed powers in the Bill. I therefore ask that your Lordships’ House does not insist on these amendments.
The Deputy Speaker (Baroness Watkins of Tavistock) (CB)
I must inform the House that if Motion B1 is agreed to, I cannot call Motion B2 by reason of pre-emption.
Motion B1 (as an amendment to Motion B)
Lord Paddick
Leave out from “House” to end and insert “do insist on its Amendments 6, 7, 8, 9 and 36.”
Lord Paddick (LD)
My Lords, police stop and search is an intrusive power that is used disproportionately against visible minorities. As I said on Report, you are seven times more likely to be stopped and searched by the police if you are black than if you are white if suspicion is required, and 14 times more likely to be stopped and searched if no suspicion is required. The facts show that the police have been targeting black people for stop and search, the overwhelming majority of those stopped and searched having done nothing wrong.
In 2020, 25% of eligible black people in the UK were not registered to vote, compared with 17% of eligible white people. Black people, even more than the population as a whole, have little or no confidence that the political system represents them. Protest is therefore more important to them than the population as a whole. Giving the police powers to stop and search in connection with protests will deter black people from exercising their human rights to freedom of assembly and freedom of expression. We cannot and will not support the inclusion of new stop and search powers for the police in connection with protests for these reasons, whether with or without suspicion.
However, at this stage of the Bill, if this House again insisted on removing stop and search without suspicion from the Bill the other place would have to move. That is something that many noble Lords around the House, for constitutional reasons, would be reluctant to do. I therefore do not intend to test the opinion of the House on my Motion B1.
On the basis that the perfect should not be the enemy of the good, we support Motion B2 in the name of the noble Lord, Lord Coaker, which, as he will no doubt explain, would restrict the circumstances in which the police can invoke stop and search without suspicion in relation to protest. We will support the noble Lord should he divide the House. I beg to move.
Lord Coaker (Lab)
My Lords, I will speak primarily to my Motion B2, which I will move and seek to test the opinion of the House on. In doing so, I very much agree with some of the points made by the noble Lord, Lord Paddick. We have arrived at a place where I and, I suspect, many in this Chamber would not wish to be. In other words, frankly, suspicionless stop and search should not be in the Bill.
Lord Hogan-Howe (CB)
My Lords, the noble Lord, Lord Coaker, has not disappointed me. I am sorry for the Lib Dems and Labour that they have not tested the opinion of the House on Clause 11, although I understand entirely why: constitutionally, it is fairly straightforward. What the noble Lord, Lord Coaker, said is exactly correct: stop and search without cause can be useful when there are dangerous conditions. We have had Section 44 of the Terrorism Act to protect certain places, so that rather than going through a great process of “Can I look in your jacket?” and all the rest of it, at Parliament, a nuclear defence establishment or wherever you happen to be, you could search without cause. Now, under Section 60 of the Public Order Act, you can stop and search without cause where there has been serious violence; when a senior officer declares it for a certain period of time, you can stop and search without cause.
There are two reasons for doing it. The principal reason is to deter—to stop the carrying of knives in a certain place—and the other is to detect, if somebody is silly enough to carry on doing it. On the point that the noble Lord, Lord Coaker, picked up, for which I am grateful, my view is that communicating to the public, at the point at which they enter an area, that they are liable to be stopped and searched without cause can help the conversation. This is never easy when you are a police officer because you have to say to someone, “I am going to stop and search without cause”, which causes you two problems: “Why did you stop me?” and “Why do you want to search me?”. Your short answer is, “I don’t know. I am trying to deter other people if you have done nothing wrong.” It can be useful at the most dangerous times if it is limited by time and properly monitored.
When people are protesting in a democracy, it is quite often when they are at their most emotional and they can get angry. They do not want the police to interfere in that at all. Usually, they are people who have never had any contact with the police in any way, so it really leaves the police officer in a pretty vulnerable place. These are generally the people you want to keep onside, not the criminals you have to challenge because that is what the law says.
It is a contentious power and we should be really careful before we give them that power, but not because I think the police are waiting to go out and have a go at people. As the noble Lord, Lord Paddick, said, there have been times—I acknowledge this—when the power has been disproportionately used against minorities, particularly in this city. That history alone is a reason why I would be very careful, particularly in London; this is the place where this power is most likely to be used, because people will be protesting outside Parliament. Of course, they will be protesting in other places as well, but this place is probably more likely than most to see it used as a power and to be challenged to be able to use it.
I accept that it will not go any further. The changes proposed by the noble Lord, Lord Coaker, are reasonable attempts to restrict it. I worry a little about the practicality of 12 hours, as opposed to 24. Quite often people start travelling, particularly to London, at very early hours, usually by coaches or however they travel. That could be at 4 am if you are going to have the stop and search power. They do not usually leave the street until probably 6 pm to 8 pm, so it is getting a bit tight. You may say that we do not want it to be allowed to be used at all, but if you are going to have it, it has to be practical, and 24 hours is probably more sensible.
I say this again about some senior officer colleagues: you cannot always get hold of chief superintendents 24 hours a day. You are supposed to be able to, but they are not quite as available as inspectors, who are always there. I have seen at least one or two people who have had that experience in the past. They are the ones who are always there, 24 hours a day. They are the senior people, particularly around the rest of the country—probably less so in London—whom you would probably be able to get hold of to exercise the power. For that reason, I dispute using the chief superintendent, but I understand why that proposal was made.
Lord Deben (Con)
My Lords, it would be a great mistake for us to ignore the views that have just been put before us. I was one of those who did not want this clause at all, because I find the definition of stopping people without suspicion an extremely difficult one. There must be few occasions on which a policeman cannot claim that he has some suspicion when he stops a person. The fact that he cannot even claim that seems to be a very curious position to be in.
I have taken seriously what the noble Lord, Lord Hogan-Howe, said about certain circumstances—not those referred to in the Bill but other circumstances where this has proved to be necessary—but it would be very dangerous for this House to accept, unamended, what the other House has passed back to us. I could also argue about the amendments that the noble Lord, Lord Coaker, has tabled, but they do begin to bring this into a much more proportionate situation. I say to my Conservative colleagues that we have to be very careful, as what is supposed to be the party of law and order, not to change the law in such a way that sections of the community increasingly find it unacceptable.
Lord Sentamu (CB)
My Lords, I declare an interest because I am going to follow the noble Lord in talking about young people. I am the president of the YMCA. A lot of those young people would have been caught up in the language the noble Lord referred to. I find it extraordinary.
When I was Bishop of Stepney, I was stopped and searched. The police officer who stopped me and searched my car asked me who I was. When I said that I was a bishop, he did not believe me. He then saw my dog collar and said, “Whoops”. The matter was of course taken up by the then leader of the city police. Thankfully, the gentleman acknowledged that it was him.
It is not just young people. It is not just black people. Your Lordships have heard the noble Lord, Lord Deben, telling us about his children. The power to stop and search somebody without a very clear definition gives me a lot of bother. I am a believer, and I love belief. The Bill says that the section of powers
“to stop and search without suspicion … applies if a police officer … reasonably believes”,
but how do you work that out? Was it in your head? Was it in your heart? Was it in the things you had read or seen on television? Friends, the word “belief” is so dangerous. The old “reasonable grounds for suspecting” is in there too. I would rather this section of the Bill did not exist.
I was on the Stephen Lawrence inquiry. I am sorry to mention it because the noble Baroness, Lady Lawrence, is in her place. We went around the country, and people had been stopped and searched so many times when the police did not have reasonable grounds to suspect them yet believed they were about to commit a crime.
The Stephen Lawrence inquiry gives a definition of the grounds on which you can suspect. The Bill is about public order and, therefore, some of the exceptions that the noble Lord, Lord Hogan-Howe, was talking about cannot be extended to it. Those are there, but they are not for this Bill. Do noble Lords seriously want a police officer to “reasonably believe” and then do it? How will you question that? They will simply say, “I believed it”. That cannot be good for a country of this kind.
I want noble Lords to read the Stephen Lawrence inquiry again—about the failures of the different ranks. Inspectors did not do too well during our inquiry. They are the de facto junior rank. I hear again that there are not many superintendents about. If the Bill is built on that, you need a much higher rank of police officer, not an inspector. If not many are about and this is what the Government want to do, increase the role of the chief superintendent to deliver this clause, which I think is unnecessary.
My dear friends, it is for those reasons: for the many young people of YMCA, and many like them who would have to think twice before going on a demonstration. For a country that believes that there is a right to protest—not a right to violence—you are really cutting them off. If the Minister really insists that this must go in, then the rank of a chief superintendent is a must. A police officer acting on the grounds of their beliefs, however reasonable they may be, is not a protection for the police officer or for the person being stopped and searched.
Lord Berkeley of Knighton (CB)
My Lords, I lived in Notting Hill for many years, near All Saints Road, on the route of the carnival. During the carnival especially, it was a joy to often see police officers entering into the spirit and dancing. That was absolutely wonderful. We must not paint this one way or the other. But, more often than not, I saw examples, especially not during carnival, where stop and search was used in an incredibly provocative way. Having lived there for many years, I would say that there was no more socially divisive thing about policing than stop and search. I beg noble Lords to think very carefully about inflaming this position.
As I said, I met many police officers who behaved wonderfully, but there were and still are some who stop and search far too often and, as we have heard, it is on black people on the whole. If we want a socially cohesive society, we must not make laws that threaten and may undo that. I would really counsel caution about this. Anything that can help us not go too far, such as the amendments by the noble Lord, Lord Coaker, should be supported.
Lord Harris of Haringey (Lab)
My Lords, I will intervene very briefly to make two points. I spent about eight years overseeing police work on counterterrorism in London and more generally. The use of the Section 44 power, which gives the police the power to stop without suspicion, was one that most people, when they thought about it, would say was acceptable: they understood that they were in an area where there was an obvious terrorist target and heightened concern.
When that power was exercised, was it without controversy? I am afraid that the answer is no. There was enormous resentment towards it, precisely because of the issues about disproportionality that have already been referred to and the complications that ensued from that.
That was in circumstances when most people might understand it, when they had it quietly explained to them—which does not usually happen during the course of a normal stop and search—that, “We’re stopping you, because we’re in this area, you are close to this and we are stopping people at random, just to make sure that they are not carrying explosives or a bomb”. But this is about circumstances where people are engaging in a demonstration or exercising their civil rights. That is of a completely different order and what makes this disproportionate.
My second point may sound trivial by comparison. We have had the point made about what rank of officer should look at this. It was suggested by the noble Lord, Lord Hogan-Howe, that it might be quite difficult to find a chief superintendent at the right moment. All I would say is, if this is a matter of such seriousness that we are being asked to approve these extraordinary, disproportionate powers, then there should be a chief superintendent or people of equivalent rank overseeing and supervising what is happening.
Lord Anderson of Ipswich (CB)
Before the noble Lord sits down, I should say that he refers to the Terrorism Act power of stop and search. Of course, Section 44 is now replaced by Section 47A, which adopts a similar model to Clause 11. Has the noble Lord noticed and does he have any comment on the provision that the power to authorise no-suspicion stop and search under Section 47A, which can be exercised only when there is a reasonable suspicion that an act of terrorism will take place, may be taken only by a senior police officer—in other words, a commander or an assistant chief constable?
Lord Harris of Haringey (Lab)
The noble Lord interrupted me before I sat down, although I regarded myself as having sat down. The noble Lord, Lord Anderson, is absolutely correct. The reason Section 44 was changed was because of the concerns that I have expressed. The conditions on that, in circumstances when most sensible people would regard it as appropriate, perhaps, to have in your back pocket the power to stop without suspicion, were tightened in a way which this Bill would not allow.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have partaken in another fruitful debate. It has long been the Government’s view that suspicionless stop and search powers are necessary and much-needed proactive powers for tackling highly disruptive protest offences. This view remains unchanged.
I will endeavour to answer some of the points that were raised. First, on why, in its report into the policing of protests HMICFRS concluded:
“On balance, our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency and effectiveness in preventing disruption and making the public safe”.
It is worth reiterating that last point “making the public safe”.
On the disproportionate use of the powers with people of colour, nobody should be stopped and searched because of their race. Extensive safeguards, such as statutory codes of practice and body-worn video exist to ensure that this does not happen. The Home Office publishes extensive data on police use of stop and search in the interests of transparency and will expand this publication to the use of the new powers provided for in this Bill.
On the subject that was just under discussion about the appropriate level of officer who may authorise a suspicionless stop and search, I take the points that noble Lords have made about Section 47A, but this replicates existing powers within Section 60 of the Criminal Justice and Public Order Act 1994, as I said in my opening remarks. Wherever possible, to ensure consistency, officers of inspector or higher may give an authorisation for up to 24 hours. Any extension must be made by an officer of superintendent rank or higher and no authorisation can last for more than 48 hours.
With regard to the geographical extent of a no-reasonable-suspicion stop and search order, it is for police forces to determine how and, indeed, whether to communicate the geographical extent of a search order under Section 60. This will also be the case for the new suspicionless powers in the Bill. Forces are no longer required to communicate that a Section 60 order is in place, but many continue to do so, where they judge it operationally feasible. Obviously, that in itself helps to deter criminals and enhance community trust and confidence. It is common for forces to use their social media channels or websites to communicate the extent of a Section 60 order.
I do not think there is a great deal more I can usefully say or add. I therefore invite the noble Lords, Lord Coaker and Lord Paddick, not to press their amendments.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this debate, particularly the noble Lord, Lord Coaker, for his comprehensive and convincing explanation of his Motion B2, and the noble and right reverend Lord, Lord Sentamu, who, from his personal experience and from the experience of the people he works with and has talked to and whose experiences he has shared, has said that we should listen very carefully. I thank the noble Lord, Lord Hogan-Howe, who feels that Clause 11 should not be part of the Bill but, regrettably, as I said before, probably accepts, as do I, that constitutionally we cannot take it out at this point.
Lord Coaker
As an amendment to Motion B, at end insert “and do propose the following amendments to the words so restored to the Bill—
“(12) The chief superintendent must take reasonable steps to inform the public when the powers conferred by this section are in active use.””
Lord Sharpe of Epsom
That this House do not insist on its Amendment 17 and do agree with the Commons in their Amendment 17A in lieu.
“Exercise of police powers in relation to journalists etc
(1) A constable may not exercise a police power for the sole purpose of preventing a person from observing or reporting on a protest.
(2) A constable may not exercise a police power for the sole purpose of preventing a person from observing or reporting on the exercise of a police power in relation to—
(a) a protest-related offence,
(b) a protest-related breach of an injunction, or
(c) activities related to a protest.
(3) This section does not affect the exercise by a constable of a police power for any purpose for which it may be exercised apart from this section.
(4) In this section—
“injunction” means an injunction granted by the High Court, the county court or a youth court;
“police power” means a power which is conferred on a constable by or by virtue of an enactment or by a rule of law;
“protest-related breach”, in relation to an injunction, means a breach which is directly related to a protest;
“protest-related offence” means an offence which is directly related to a protest.”
Lord Sharpe of Epsom (Con)
My Lords, I have already spoken to Motion C. I beg to move.
Lord Sharpe of Epsom
That this House do not insist on its Amendments 20, 21, 23, 27, 28, 31, 32 and 33 and do agree with the Commons in their Amendments 33A and 33B in lieu.
“(c) P’s conduct in relation to each occasion mentioned in paragraph (a) has not been taken into account when making any previous serious disruption prevention order in respect of P.”
Lord Sharpe of Epsom (Con)
My Lords, your Lordships’ Amendment 20 removes Clause 20—“Serious disruption prevention order made otherwise than on conviction”—entirely from the Bill. The Government listened carefully to the concerns expressed by this House regarding the conditions that could be considered when applying an order to an individual. That is why the Government have accepted the Lords amendment tabled by the noble Lord, Lord Anderson of Ipswich. Making this change means that an order could be given only on the basis that an individual has been convicted of a protest-related offence or been found in contempt of court for a protest-related breach of an injunction on at least two occasions. I believe that this is the issue with which your Lordships were most concerned, so we listened and we acted.
We still believe it is important that the police have the opportunity to apply for an order at a later point following conviction. Without this measure, it would not be possible to place an order on individuals who have already been found guilty of multiple protest-related offences until they reoffend and are convicted of yet another offence. Removing the ability to impose an SDPO otherwise than on conviction undermines this proactive element. That is why we disagreed with Lords Amendment 20 and tabled amendments in lieu, which reintroduce this clause but tailor the list of conditions, so that upon application an order can be made only where individuals have been convicted of protest-related offences or breaches of injunctions, thereby aligning this with the Lords amendment tabled by the noble Lord, Lord Anderson of Ipswich.
There has been some confusion about the nature of this clause, quite possibly due to its title, which should more accurately be defined as “Serious disruption prevention order made on application”. I assure noble Lords that we will look to make that change following the passage of the Bill.
For the avoidance of doubt, updated Clause 20 will not allow an order to be applied to an individual without a conviction. It will simply allow for an order to be made by a magistrates’ court on application by a relevant chief officer of police at a later point following two or more convictions.
The noble Lord, Lord Ponsonby, has tabled Motion D1, which, with respect, I cannot support. To be subject to a SDPO, a person must be convicted of two protest-related offences or found in contempt of court for breaching two protest-related injunctions. Being found guilty by a court for these acts inherently means that their conduct was beyond a genuine expression of their right to protest. Additionally, it creates an inconsistency between this provision and SDPOs made on conviction, which have already been accepted by Parliament. With that in mind, I respectfully ask that the noble Lord does not move his Motion.
Motion D1 (as an amendment to Motion D)
Lord Ponsonby of Shulbrede
At end insert “and do propose the following additional amendment to the words so restored to the Bill—
“(d) P’s conduct was frivolous or vexatious, beyond a genuine expression of their right to protest.””
Lord Ponsonby of Shulbrede (Lab)
My Lords, I appreciate the significant concessions the Government have made on serious disruption prevention orders. I believe that the clause is in a better place than when it was introduced, in part thanks to the efforts across this House; in particular, those of the noble Lord, Lord Anderson.
My amendment to the Minister’s Motion D seeks to make it explicit in the Bill that a magistrates’ court may issue an SDPO only if it reasonably believes that a person’s conduct has been frivolous or vexatious, to the extent that it has gone beyond a genuine expression of their inalienable right to protest. This criterion is in addition to, not instead of, that which requires that a person must have been convicted of two or more protest- related offences or contempt of court over breaches of an injunction. We believe that this is an important safeguard to the flawed clause, which we accept that the other place has voted to keep in the Bill. This change will ensure that the courts, when assessing whether someone’s behaviour warrants a prevention order of this kind, will have to rule explicitly that they have gone further than what can reasonably be interpreted as genuine protest. We hope this will protect those exercising their democratic freedoms in good faith.
I have spoken to colleagues across the House, and I will not seek to test the opinion of the House on my Motion, but I will listen with interest to other noble Lords’ contributions to this very short debate. I beg to move.
Lord German (LD)
My Lords, we on these Benches accept that the amendments have been made in the Commons but are still concerned that they do not go far enough. Taking the matter back to the beginning, the bar set on which people can be convicted or the orders can eventually be issued is based on the balance of probabilities. That matter was the source of a great deal of discussion in this House. A bar has been set which is basically non-evidential, because no evidence has to be proven of what has happened. Any amendments which would raise that bar just above a zero threshold are to be commended.
Having made the orders less draconian and brought them in line with the terrorism prevention and investigation measures, the SPDOs are to be imposed on protesters, taking away their rights to freedom of speech and freedom of expression, on the balance of probabilities. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported, in its review of public order policing, that it doubted that these orders are workable, even with a breach of the order occurring. A person attending a protest peacefully, in breach of an SPDO, is unlikely to be treated by the court in the same manner as a potential terrorist. Courts would look at the effect of an order and measure that against the breach of human rights legislation, and, in the end, the effect of an order breaching a person’s human rights could well override the effect of the order.
As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights, but only if a court was satisfied, on the balance of probabilities, that depriving people of their human rights on the weakest of evidential tests was sufficient. Therefore, there is an expectation that the courts would use a breach of human rights legislation to override the effect of the SPDO.
In seeking to raise the bar from zero—the bar is sitting on the floor, as no evidence is required—these amendments at least provide an evidential activity. They require an officer to have observed the evidence behind the requirement. The requirement in the amendments before us may not be sufficient, but it certainly lifts the bar, in relation to evidence, off the floor. In fact, we need to help police officers. Police officers may be faced with situations without evidence, such as listening to somebody’s hearsay about a protester. Alternatively, they may have it in their mind that possible action will take place if they assume that a protester, who is standing peacefully and undertaking a peaceful activity, could well jump across the road, lie on the ground and stop the traffic. In those cases, they would not have any evidence that the person was about to conduct themselves in a dangerous manner, so it would be effective to introduce provisions for that. This set of amendments could provide for those matters, but, as I have said, in a very limited way.
As the noble Lord will not press his amendment to a vote, it seems to us that the Government have to consider how the courts will deal with these matters when they are placed before them, when we have human rights legislation guaranteeing freedom of speech, freedom to join together with others and freedom of expression. When all those rights are being harmed, what will the courts say and are the Government sufficiently ambitious that they think that their evidence based on these rules will give the human rights opinion any credence whatever?
Lord Sharpe of Epsom (Con)
My Lords, again, I am grateful to both noble Lords for their thoughtful and considered contributions to this debate. As I have already detailed, the Government listened carefully to your Lordships’ concerns regarding the serious disruption prevention order measures. Orders will now be applied only where individuals have been convicted of protest-related offences or breaches of protest-related injunctions on at least two occasions.
The noble Lord, Lord German, argued that serious disruption prevention orders contravene the European Convention on Human Rights. They do not. The right to protest is fundamental and despite sensationalist claims such as that, that will not change. These orders will ensure that individuals who deliberately cause serious disruption more than twice will face justice. Articles 10 and 11 of the ECHR set out that everyone has the right to freedom of expression, assembly and association. However, these rights are not absolute and must be balanced with the rights and freedoms of others.
I hope your Lordships will be satisfied that the Government have responded with a very significant offer that addresses the key concerns expressed throughout the passage of this Bill. The Bill will better balance the rights of protesters with the rights of individuals to go about their daily lives free from disruption and address the ever-evolving protest tactics we have seen employed by a selfish minority of protesters. Blocking motorways and slow walking in roads delays our life-saving emergency services, stops people getting to work and drains police resources. The British people are rightly fed up with it and are demanding action from their lawmakers.
It is time for this Bill to become law. I thank the noble Lord for saying that he will withdraw his Motion.
Public Order Bill
Wednesday 22nd March 2023
(1 year, 8 months ago)
Commons ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 22 March 2023 - (22 Mar 2023)
15:15 - The House divided: - Ayes: 296 / Noes: 229 - Question accordingly agreed to.
The Minister for Crime, Policing and Fire (Chris Philp)
I beg to move, That this House disagrees with Lords amendments 6B to 6F.
The Bill is about giving the police the tools they need to tackle the highly disruptive protest tactics that we have seen in recent months, which have blocked ambulances, delayed passengers making important journeys, stopped children getting to school and prevented patients from receiving critical medical care. We have seen our capital city, London, being held to ransom. It cannot be right that a selfish minority committed to causing as much disruption as possible continue to get away with it. These actions are not only impacting the public, but diverting the police away from the communities they serve; in October and November last year, something like 10,000 hours of Metropolitan police time were taken up. That is why the Bill is so important.
We have had some back and forth with the other place, but there is now only one remaining issue to resolve between us. It concerns the power to stop and search without suspicion, which has been extended through the Bill to enable the police to search for and seize articles related to protest activities. It is worth saying that, before that power can be exercised, it requires a police officer of the rank of inspector or above to have a “reasonable” belief that a number of offences may be committed in the area concerned. It further requires that officer to believe that the conditions being imposed, and the authority to carry out these searches, are necessary to prevent the commission of offences. Moreover, the power lasts for only 24 hours and is capable of extension for another 24 hours at the most. Therefore, the power is to be used only where it is reasonably suspected an offence may be committed, only where it is believed to be necessary, and only for a time-limited period. Those are important restrictions on the way the power can be used.
Stop and search is a vital tool used to crack down on crime and protect communities. We see it as appropriate, in the face of large, fast-paced environments where it can be difficult for the police to reach the level of suspicion required for a suspicion-led stop and search, for them to have this power available as well.
Jim Shannon (Strangford) (DUP)
I am old enough to remember when a policeman used his initiative and intuition to suspect that a crime was probable, or could be caused or had been caused. Does the Minister feel that the Bill ensures that a policeman can still use his initiative to ensure that those who are carrying out crimes can be detained with the suspicion of cause, rather than without evidence?
Chris Philp
My hon. Friend makes a good point. Police will often suspect that crimes may be committed, but in a particular case an individual may not reach the suspicion level and, in those circumstances, these rules will apply. I completely agree with his point.
Kit Malthouse (North West Hampshire) (Con)
Can the Minister confirm, as an illustration, that, if a demonstration is about to take place by a group who use a particular tactic—gluing themselves to the road, for example—the police may use this power to intercept individuals with glue in their pockets, before they carry out an activity such as gluing themselves that occupies enormous amounts of police time, often puts them and police officers in danger, and causes enormous inconvenience? In those circumstances, will the police be able to use this power to get ahead of the problem?
Chris Philp
The way my right hon. Friend puts it is good. It is in exactly those circumstances, where the police are concerned that one of the specified crimes may be committed, that they can use this power. Those crimes are specified in clause 11(1), and include offences under section 137 of the Highways Act 1980—that is wilfully obstructing the highway—offences under section 78 of the relatively new Police, Crime, Sentencing and Courts Act 2022, which involve
“intentionally or recklessly causing public nuisance”,
and various offences under the Bill, which include causing serious disruption by
“tunnelling…being present in a tunnel… obstruction etc of major transport works”,
interfering with critical national infrastructure, as well as “locking on”, which I think is the point made by my right hon. Friend.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
This was raised the last time we had this debate, but the Minister mentioned the crime of nuisance. The threshold for that is incredibly low. An inspector could be concerned that there was a chance that someone would commit this offence by being seriously annoying or inconveniencing somebody, and then we let loose suspicionless stop and search of hundreds, potentially thousands, of people, for no further reason than that. Is that not a ludicrously low threshold for triggering these search powers?
Chris Philp
I am not sure I entirely agree. The offence of intentionally or recklessly causing public nuisance is set out in section 78 of the Police, Crime, Sentencing and Courts Act 2022, and I do not accept the characterisation of that offence as simply a minor one. Causing huge inconvenience to other members of the public is not something that this House should treat lightly, particularly as we have seen examples in recent protests of ambulances not getting through, and of people unable to get their children to school or to attend medical appointments. I am not sure I accept that characterisation.
A number of changes have been proposed in Lords amendments 6B to 6F. They first propose a higher level of authorisation for suspicionless searches. By the way, the other place is not disputing the principle; it is simply seeking to change some of the thresholds, one of which would involve changing the authority level in a way that would be inconsistent with the use of searches under section 60 of the Criminal Justice and Public Order Act 1994 in other contexts.
Another change relates to the time periods. As Lord Hogan-Howe, a former commissioner of the Metropolitan police, pointed out, the use of the power has to be practical and reducing the time threshold to just 12 hours would limit the ability of police forces to use these powers in a meaningful way. We should take seriously the opinion of the noble Lord who used to be the Met commissioner.
The changes proposed in the other place would also require a chief superintendent to provide authorisation for this matter, when an inspector is acceptable under the existing section 60. I think that overlooks the urgency and speed with which these protests can unfold, and the speed at which decisions need to be made. It also has potential to cause confusion if there is a different level of seniority here, compared with the well-established section 60.
Finally, the amendments proposed in the other place would set out in statute a requirement for the forces to communicate the geographical extent of an order. The Government recognise that communication of any power is important for understanding and transparency. I am aware that most forces already communicate their section 60 authorisations—I have seen that happen frequently in Croydon and it is gratefully received when it happens. But, for consistency, it is important to keep these new powers as close as we can to existing legislation, although the Government encourage forces to communicate any use of this power, in the way they already do for a section 60 order, where it is operationally beneficial to do so. There is a lot to be said for consistency, which is why I respectfully encourage Members of this House to gently and politely disagree with the other place in their amendments 6B to 6F.
Sarah Jones (Croydon Central) (Lab)
Stop and search is a crucial tool, as we all agree. Its normal usage is based on intelligence around a crime or a potential crime, based on proper suspicion, and applied for the right reasons. In our country, we use stop and search with suspicion to look for weapons, drugs and stolen property. Under particular circumstances, we use suspicionless stop and search—a section 60, as we call it—to search people without suspicion when a weapon has been used, or where there is good reason to believe there will be a serious violence incident. The Government are introducing suspicionless stop and search for potential protests, an overreach of the law that the police have not asked for and which pushes the balance of rights and responsibilities away from the British public.
Yesterday, we debated Baroness Casey’s report into the Metropolitan police. It is an excoriating report that, among much else, calls for a fundamental reset in how stop and search is used in London. I was pleased to hear the Prime Minister today accept all the findings and recommendations in the report. The report states:
“Racial disparity continues in stop and search in London. This has been repeatedly confirmed in reports and research. Our Review corroborates these findings.”
It is ironic that the day after the report was published the Government are trying to pass laws that risk further damaging the relationship between the police and the public by significantly expanding stop and search powers way beyond sensible limits.
Kit Malthouse
The hon. Lady says these measures may damage relations with the public. The vast majority of the public feel very strongly that their lives have been severely impacted by these protests, so giving the police the tools to get ahead of them may in fact command widespread public support, notwithstanding the issues of protest. I wonder what her solution might be to the problem of people who persistently come to protests and glue themselves to all sorts of surfaces, thereby causing enormous disruption to other people’s lives, disproportionate to the issue they are protesting about.
Sarah Jones
I thank the right hon. Member for his intervention. We do not disagree on some of the struggles here—we never have. We have never said that it is not a problem in terms of major infrastructure, getting around the country and so on. Our argument has always been, first, a series of existing laws is in place that enables the police to do their job. Secondly, the use of injunctions could have been made easier—we put that case forward in earlier stages of the Bill—so that we could get ahead of some of these problems. But fundamentally, we disagree with the premise that extending these powers, which are used at the moment for serious violence, to this loose definition of potential protest is helpful, or anything the police will necessarily want or use.
Clause 11 will introduce wide-ranging powers for the police to stop and search anyone in the vicinity of a protest, including any of us who happen to walk through the area. The Government’s knee-jerk reaction to introduce sweeping powers that will risk further damaging policing by consent is not the way forward. Members in the other place passed very sensible changes to raise the threshold for the powers in clause 11 to be used. To the Minister’s point that they are not disputing the principle, they have already disputed the principle—we have had that argument and they have, rightly, as is their role, moved on. So they are trying to contain what they think are the problems with these measures. All we ask is that the Government accept these sensible minor tweaks to clause 11.
Lords amendments 6B to 6F would raise the rank of the officer able to authorise the power to stop and search without suspicion for a 12-hour period to a chief superintendent. The Minister argued that we need consistency. I do not accept that argument. There are all kinds of different levels of all kinds of different things across the law that we can all understand. Because this is a more significant intervention for potentially a lesser crime, the amendment is relatively reasonable.
Lords amendment 6C removes “subsection (ii)”, which means the power could be used for the anticipation of “causing public nuisance” such as merely making noise. Without this change, every time music is played outside Parliament anyone could be stopped and searched without suspicion. Baroness Casey suggests that
“as a minimum, Met officers should be required to give their name, their shoulder number, the grounds for the stop and a receipt confirming the details of that stop.”
Lords amendment 6F would insert:
“The chief superintendent must take reasonable steps to inform the public when the powers conferred by this section are in active use.”
That is important because communication failures are a common factor in problematic stop and searches.
A recent report from Crest Advisory, examining the experience of black communities nationally on stop and search, found that 77% of black adults support the use of stop and search in relation to suspicion of carrying a weapon. So, in the poll, the black community absolutely agrees that we need the power to stop and search. But less than half of those who had been stopped and searched felt that the police had communicated well with them or explained what would happen. That less than half of those who had been stopped and searched felt that the police had communicated well to them or explained what would happen shows how important it is to make sure people are communicated with when these strong and impactful powers are used by the police. If we imagine that in the context of clause 11, where anyone can be stopped, including tourists who might have got caught up in a crowd and not know what is going on, there is a risk of a chaotic invasion of people’s rights to go about their business.
We have discussed previously and at length the definition of “serious disruption”. The Minister considers it
“more than a minor degree”.
Would being stopped and searched for simply walking through Parliament Square when a protest is taking place disrupt his day more than a minor degree? The suspicionless stop and search powers being applied to protests are extreme and disproportionate. We have raised many times in this House the warnings from former police officers that they risk further diminishing trust in public institutions.
After the devastating Casey report, it is hard to see how public trust in the Metropolitan police could suffer more. Ministers were unable to offer any solutions to bring the reforms we desperately need in policing, but they could at least try not to pass laws that would risk making trust and confidence in the police even worse. Clause 11 will create powers that risk undermining our Peelian principles even further. When Ministers say that it would only be in very unusual circumstances that the powers would be used, I want to stress, why bother? Why bother, when to deal with disruptive protests the police could already use criminal damage, conspiracy to cause criminal damage, trespass, aggravated trespass, public nuisance, breach of the peace and obstruction of the highway? The Minister knows I could keep going. Many protestors have been fined and many have gone to prison using those powers. Thousands of arrests are already made using existing powers, but the Bill is apparently justified by an impact assessment that says it will lead to a few hundred arrests only. The powers are there for the police to use.
Disruptive protests have a serious impact on infrastructure and on people’s ability to go about their daily lives. Over the course of the passage of the Bill, we have spent many hours on new ways to ensure the police have all the levers they need. We tried to introduce sensible amendments on injunctions. The Government’s response to the problem is a totally disproportionate headline-chasing response that is, depressingly, what we have come to expect. Gone are the days when the Government were interested in passing laws that could fix problems or make things better. The truth is that the Government’s disagreement with the sensible narrowing amendments from the other place will create more problems than it will solve. I urge the Government to think again and to back these common-sense amendments from the other place.
Mr Deputy Speaker (Mr Nigel Evans)
I can now announce the result of today’s deferred Division on the draft Criminal Justice Act 2003 (Home Detention Curfew) Order 2023. The Ayes were 290 and the Noes were 14, so the Ayes have it.
[The Division list is published at the end of today’s debates.]
Mr David Davis (Haltemprice and Howden) (Con)
I will be brief because much of what I have to say agrees with the Opposition spokesperson, the hon. Member for Croydon Central (Sarah Jones).
I remind the House that the biggest curtailment of stop and search in modern times was in 2010, when my right hon. Friend the Member for Maidenhead (Mrs May) was Home Secretary. The reason she did it, in large part, was the feeling that nearly all the stop and searches were in the Met—there were only about 50 in Scotland one year, but thousands down here—and ethnic minorities felt that they were targeted at them. The way they were pursued made race relations in the capital worse.
Sarah Jones
On that point, I remind the right hon. Gentleman that every year that the former Prime Minister, the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), was Mayor of London, the number of stop and searches went down.
Kit Malthouse
I am grateful to my right hon. Friend. What he says is incorrect. At the time, we were dealing with a huge spike in knife crime in London, which was disproportionately reflected in the black community. Young black men were dying on an almost daily basis and, sadly, the vast majority of the perpetrators were also young black men. There was definitely a campaign to try to eliminate weapons from within that community, which worked. In 2008, 29 young people were killed in London, and by 2012 that was down to eight, so the campaign was successful. During that period and up to about 2016, confidence in the Metropolitan police rose to an all-time high of 90%, including rising confidence among minority communities in the capital. I am afraid that my right hon. Friend’s basic premise is not correct.
Mr Davis
I have allowed my right hon. Friend to make his point, but the simple truth was that the reason for the Home Secretary of the day curbing stop and search was concern about its impact on ethnic minorities. He is also right that the biggest number of victims of knife crime came from ethnic minorities, so I take his point. My answer to him—and the general concern here—is that bad policing is not improved by bad law, which is what I think this is.
That brings me to the Casey report. The hon. Member for Croydon Central was right to cite the criticism of the Metropolitan police. The report said that there were numerous examples of stop and search being carried out badly. There were examples where officers
“justified carrying out a search based on a person’s ethnicity alone”.
That should not apply under any circumstance. There were examples where officers
“Had been rude or uncivil while carrying out a search”
and
“had used excessive force, leaving people (often young people) humiliated, distressed, and this damaged trust in the Met”.
Those are all bad things from our point of view.
We all want—I include the Opposition—the disgraceful trend in modern demonstrations brought to an end. It is designed not to demonstrate but to inconvenience—there is a distinction. But the Bill is a heavy-handed way of doing that. The Minister tried to say that the Lords had accepted the principle. They had not. What they have sought to do with these amendments is leave the tool in the hands of the police but constrain it in such a way that it is used more responsibility.
The Lords amendments will change the level of seniority required to designate an area for suspicionless search from inspector to chief superintendent or above. Whatever Lord Hogan-Howe says, that is not a crippling amendment. Changing the maximum amount of time for which an area can be designated from 24 hours to 12 hours is not crippling but practical. While my right hon. Friend the Member for North West Hampshire was doing his job in London, I was on the Opposition Benches as shadow Home Secretary, dealing with a number of Metropolitan Police Commissioners. That is a perfectly practical change. Changing the level of seniority required to extend the authorisation by a further 24 hours to chief superintendent is, again, a practical change.
We talk about suspicionless stop and search. What does that mean? It means the right to stop and search innocent people who have no reason to be stopped and searched whatsoever. We are handing the discretion to a police force that has been called upon to reset its approach to stop and search. The Government are doing almost precisely the opposite of what Casey is calling for. The final amendment states:
“The chief superintendent must take reasonable steps to inform the public when the powers conferred by this section are in active use.”
Those are all practical changes. The smart action of the Government is to accept them, carry on and try to improve on the Metropolitan police that we have today.
Stuart C. McDonald
I will be brief because I agree entirely with the two previous speakers. There should be no suspicionless stop and search powers anywhere near a Public Order Bill. It is pretty grim that removing clause 11 entirely from the Bill is now off the table. All we are debating, in essence, are a few inadequate safeguards, yet still the Government are not listening to or understanding the concerns of those who will be stopped and searched.
As we have heard, yesterday the Casey report spoke about the UK’s largest police force needing a fundamental reset on stop and search, because it was being deployed at the cost of legitimacy, trust and therefore consent. Among the report’s stark conclusions was that enough evidence and analysis exist to confidently label stop and search a racialised tool.
Suspicionless stop and search is a counterproductive, disruptive and dangerous police tactic for a whole host of reasons. Yet here we are, the day after Casey, and the Government still insist on handing out a ludicrously broad and totally disproportionate power to do just that. It is not good enough for the Government to say that the use of the powers will be restricted, as the Minister in the other place sought to do. The same Minister said that the whole reason for keeping public nuisance in the scope of clause 11 was that it was an offence committed so frequently. Suspicionless stop and search to prevent the possibility of someone being seriously annoying or inconveniencing someone would almost be funny if it was not so deadly serious. The Government should at least get public nuisance out of the scope of the clause.
The Minister said that he was trying to seek consistency on the rank of the authorising officer, but it is comparing apples and oranges if the Government think that a power to tackle nuisance has to be consistent with the power to tackle serious violence. It is also selective because, as was pointed out in the other place, no-suspicion stop and search powers in relation to terrorism require a far higher rank before they can be authorised.
I will finish my brief contribution with the Casey report, which states:
“We heard that being stopped and searched can be humiliating and traumatic. Yet we could find no evidence of the Met considering how this would impact on how those who had been stopped would use the police service”.
The Government’s insistence on this power means that exactly the same criticism can be levelled at them. They do not recognise the serious disruption caused by suspicionless stop and search. The fact that they have been so tin-eared to concerns raised is pretty worrying. The Lords amendments are the barest minimum that we can do to restrict a severe and draconian power, and we should support them.
Wendy Chamberlain (North East Fife) (LD)
It is three in a row, as I agree and associate myself with the remarks of the previous speakers. It is important to look at the Lords’ amendments in the light of yesterday’s Casey report. Throughout my involvement with the Bill, I have always tried to look at it as a former police officer, although not a former Metropolitan Police Commissioner. I have always tried to think about the Bill from the perspective of the police officers who will be required to carry out the powers in it, and from the capacity perspective—the capacity of officers to go and do these duties and to be trained to carry them out.
On the first point, I refer to page 86 of the Casey report, which states:
“The lack of comprehensive workforce planning and prioritisation…throughout this report also makes for a weak approach to learning and development. Officers regularly said that they had to keep their own records and that they were not held centrally.”
Can the Met say how many officers it has currently trained in public order, whether in basic command units doing aid training or in tactical support groups? When the Bill is enacted and police come to court, the defence will ask officers what training they had in these powers, so that is a valid point.
The second bit is about capability. If officers have not attended the training but are then abstracted to attend a protest, do they actually have the skills at all? I want to pick up on page 131 of the report, which mentions tactical support groups and their use across London. It states:
“While they can be tasked to carry out policing functions in a BCU area, they are not accountable to the BCU chain of command. This can undermine a BCU’s attempts to own its very extensive patch, and to be fully accountable for policing there, both to the Met and to the public.”
It goes on to say:
“We were told that specialist teams tended to have rigid attitudes to their style of policing. ‘TSG come here not knowing the area…they come late, allegedly go to the gym on job time…they annoy the community, and arrest people who probably didn’t need to be arrested anyway… My colleagues think it suppresses crime. I don’t think it’s worth the community upset, it poisons the relationship with the community.’”
Those comments have been made by some of the core teams that will be enacting these powers.
My third point goes back to the comments I made last time we discussed these Lords amendments. Whether a police officer is attending an incident or a spontaneous protest, and whether they are a police constable attending by themselves or taking directions from a silver public order commander in relation to a planned protest, they are still exercising those powers and making those decisions. We must look at the stress placed on police officers who are juggling all those multiple demands. Again, I refer to page 90 of the Casey report:
“The reality of policing means that most of the time, police officers are in threat perception and threat management mode.”I suggest that when people are policing in those kinds of modes, the strain they are under means that making good decisions, potentially about complex legislation, becomes more challenging.
I agree with the comments have been made about clause 11 being removed in its entirety; indeed, my colleagues in the other place continued to support that. We also support the new amendments that we are considering. In terms of arguing whether they are reasonable or not, I say this: they reflect the safeguards and the BUSS—best use of stop and search—scheme, which was introduced in 2014 and scrapped by the former Home Secretary in May 2022. What is proposed in the amendments has previously been utilised by the police, so I do not see why they cannot continue to do so.
Chris Philp
I do not wish to repeat everything I said at the beginning, but I want to pick up on one or two points made in the course of this short debate. The first point relates to policing’s position on this power. The shadow Minister, my constituency neighbour the hon. Member for Croydon Central (Sarah Jones), said that the police had not been calling for this. I politely draw her attention to what was said by His Majesty’s inspectorate of constabulary and fire and rescue services, which is run by a former chief constable:
“On balance, our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency and effectiveness in preventing disruption and making the public safe.”
I do not want to reiterate yesterday’s extensive debate about the Casey report, which has been referred to, but I will say one or two things about the use of stop and search in that context. First, when I discussed stop and search with Sir Mark Rowley, the commissioner, a few days ago, he pointed out that between 350 and 400 knives are removed every month from London’s streets using stop and search. I think that is an extremely important contribution to public safety.
In her report, Baroness Casey referred to academic research from the United States that found that the use of stop and search led, on average, to a 13% reduction in crime. For the sake of balance, it is important to keep those points in mind.
It is fair to say that a very small proportion of stop and searches result in complaints. That has been the case particularly since body-worn cameras have been used, because the officer knows that when conducting a stop and search the whole thing is being recorded. Some of the bad practice that may have been prevalent 10 or 15 years ago is much less likely to occur when both parties are aware that the stop and search is being recorded.
Rehman Chishti (Gillingham and Rainham) (Con)
Of course stop and search has a role to play, but it has to be applied appropriately and under the right criteria. As a barrister who has prosecuted and defended cases, and having been a member of the Home Affairs Committee, may I ask the Minister a question specifically about stop and search? How many individuals from diverse communities who have been stopped should not have been stopped in the first place? We need to have that data to know how to look at legislation moving forward. At the end of the day, we have to carry communities with us and ensure there is appropriate community cohesion. What is the figure?
Chris Philp
In whatever context, stop and search has to be done in a respectful and appropriate way. That is why body-worn cameras are so important. As I pointed out a moment ago, only a tiny fraction of stop and searches result in a complaint these days.
To conclude, we have recently seen protesters use tactics, often covertly, that are deliberately and exclusively designed not to protest as a way of communicating a message, but to cause intentional disruption to other members of the public going about their daily business, including children trying to get to school and patients trying to get to hospital. These well-designed and proportionate measures will help the police protect the public and allow them to go about their daily business, while also allowing the right to protest. Therefore, I respectfully invite colleagues to disagree with Lords amendments 6B to 6F.
Question put.
Public Order Bill
Tuesday 28th March 2023
(1 year, 7 months ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 123-I Marshalled list for Consideration of Commons Reason - (27 Mar 2023)
16:25 - Division on Motion A1 - Ayes: 246 / Noes: 201 - Motion A1 agreed.
Lord Sharpe of Epsom
That this House do not insist on its Amendments 6B, 6C, 6D, 6E and 6F to which the Commons have disagreed for their Reason 6G.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the Public Order Bill is about giving the police the tools they need to tackle the highly disruptive protest tactics we have seen in recent months which have blocked ambulances, delayed passengers from making important journeys and held the capital to ransom. We have had a fruitful debate over the course of the last few months about the contents of the Bill. Your Lordships have undoubtedly given the Bill the scrutiny the British public want and expect, and important compromises have been made along the way which I hope have satisfied the House. I do not intend to detain noble Lords for longer than necessary by repeating those debates. The British people are fed up with inaction and it is time that the Bill became law.
As your Lordships will be aware, this House voted to amend Clause 11—
“Powers to stop and search without suspicion”—
in a variety of ways. As I explained when those amendments were first considered, we cannot support them. This has been reiterated by the other place, and it is why we have brought Motion A. The amendments, among other things, vary the timescale and authorisation threshold for the powers, thereby creating inconsistency with the Section 60 stop and search powers which the Bill’s measures are modelled on.
I understand the argument put forward by the noble Lord, Lord Coaker, in seeking these changes—that by limiting the scope of the power you can attempt to address the disproportionality attached to it—but as the noble Lord, Lord Hogan-Howe, pointed out during the previous debates, this power “has to be practical”. With respect, I cannot see how not establishing parity with existing Section 60 powers supports that, with the unintended consequence likely to be confusion for the officers who will be using them.
Turning to Motion A1 in the name of the noble Lord, Lord Coaker, which seeks to further alter the Bill’s powers to stop and search without permission, first, I remind the House about the legal framework that already exists for all stop and search powers. Under Section 3.8 of PACE Code A, the code of practice for powers to stop and search, officers have to give their name or identification number, police station to which they are attached and grounds for every search. These criteria are also covered in the “GOWISELY” mnemonic drilled into every officer.
Secondly, concerning the requirement for police forces to establish a charter on the use of powers, it is our view that this would cause unnecessary burden on police forces and officers. Plenty of long-established safeguards already exist for stop and search powers. Additionally, we have supported the National Police Chiefs’ Council in its publication of national guidance on the use of body-worn video. This includes encouraging forces to share footage with external scrutiny groups to support transparency and reflective practice and learning.
On the reporting on the use of stop and search powers, I reassure all noble Lords that the Home Office already publishes an annual statistical bulletin. This outlines in detail the information gathered during each stop and search incident. This reporting will be conducted for the use of the new stop and search powers, both suspicion-led and suspicionless, so I would argue that such a measure is unnecessary.
Finally, on publishing a statement giving reasons for the use of powers, as I said in our last debate, the Government recognise that communication on their use is a fundamental element of building trust and confidence between a force and the community it serves. The majority of forces, including the Metropolitan Police Service, already communicate their Section 60 authorisations, and I know that communities appreciate knowing detail on the geographical area, time limits and justification for the authorisation. Those forces will continue this practice for these new powers. Nevertheless, I recognise the merits that establishing this communication requirement in statute could bring. I commit now, on the Floor of the House, that the Government will amend PACE Code A to require that, where it is operationally practical to do so, forces communicate the extent of the area authorised for the suspicionless stop and search, the duration of an order and the reasons for the order.
The Home Office already publishes an annual statistics bulletin which analyses the data from forces across England and Wales. We will also amend PACE Code A to place data collection within the legislative framework. This will include a breakdown of both suspicion-led and suspicionless searches, cross-referenced with protected characteristics such as age, sex and ethnicity. I hope that will satisfy the noble Lord, Lord Coaker, and—respectfully—persuade him to withdraw Motion A1.
The other place voted to disagree with this House’s previous amendments to Clause 11. This matter has been considered and the other place has expressed its will. I believe it is now time that this Bill becomes law.
Motion A1 (as an amendment to Motion A)
“(7A) Officers exercising the powers conferred by subsection (6) must give to the subject of a search—
(a) their name,
(b) their badge or shoulder number, and
(c) any details of the stop the officer considers relevant.”
“(9A) Within one year of the passage of this Act, all police forces must establish a charter on the use of the powers in this section, setting out how, when and why they will be used.
(9B) The charter must—
(a) be drawn up in consultation with local communities,
(b) be evaluated independently, and
(c) explain how Body Worn Video footage will be used.
(9C) Each police force must produce an annual report on the use of the powers over the year, broken down by location.
(9D) Within one month of the powers in this section being used, the authorising officer must publish a statement giving reasons.””
Lord Coaker (Lab)
My Lords, I thank the noble Lord, Lord Sharpe, for his continued engagement over this difficult issue and indeed the further concessions that he has clearly made. I am sure they are very welcome as part of the deliberations between us.
We need to start by considering why we are here and what today’s debate is about. First, it is not about not having suspicionless stop and search. We believed, as did many in this Chamber, that the whole of Clause 11 should have been taken out—that suspicionless stop and search for protests should have been taken out of the Bill. But we lost that; that vote was lost. With this being a revising Chamber, we believed it was necessary to consider whether further mitigation of Clause 11 was therefore needed, given that it was going to stay in the Bill.
But the Government threw out our mitigation completely, although the Minister has now come back with some words about communication. We wanted that point about communication in the Bill and said that the seniority of the officer allowing the suspicionless stop and search should be increased, but that was thrown out. The noble Lord, Lord Hogan-Howe, can no doubt speak for himself but I remind the Minister, who prayed him in aid, that the noble Lord voted for my amendment at our last debate—the Minister can check Hansard. He ought to recognise that. After the Government threw out our mitigation, the Casey review and the report from the Children’s Commissioner into stop and search of children came along.
Let me deal with some of the things that I think the Minister will say in response. He will throw up smoke—when in trouble, the Government always do. I suspect there has been a huge debate in the Home Office on suspicionless stop and search at protests, and the Government have conceded that they perhaps ought to communicate a bit better. As he has said when we have debated this before, the Minister will no doubt say that the public support stop and search for knife crime, gun crime and so on. This Bill has nothing to do with that at all. Of course I support suspicionless stop and search if it stops stabbings, murders and serious violence, but Section 60 of the 1994 Act is completely irrelevant to the Bill. Yet the Minister in the other place used the public support for stop and search because it stops serious violence as a reason for including suspicionless stop and search in the Bill. It is completely irrelevant.
As was raised in a previous debate, even the Conservative- led Government in 2012 changed suspicionless stop and search in respect of terrorism because they believed that the power in the 2000 Act went too far. To their credit, the then Prime Minister Cameron and Home Secretary Theresa May said that it had gone too far and that they would restrict it, narrowing the criteria even for terrorism. I have not checked who was in the Committee that passed it, but some noble Lords sitting on the Conservative Benches will have voted for it in the other place—quite rightly; it should be a matter of pride that they did so, even for terrorism.
This suspicionless stop and search power does not relate to terrorism or serious violence. It relates to protest —whether someone has a padlock or some glue. If it has been agreed by an inspector, not the chief superintendent, you can search people without suspicion on the basis that they may have those things in their pockets. It is a complete overreach of the law, one of the most serious powers that this Parliament can give the police to use on the streets. I cannot believe that anybody thought it would be used for protests. If the British public, all of sudden, not just around Parliament but in the middle of another city or wherever, find themselves being searched on the basis of suspicionless stop and search, they will just not believe that it is because they are at a protest, and neither will their friends, parents or family.
The Minister will no doubt say that this is all covered by PACE Code A, and indeed he has said that there will be some changes to that code. That is a complacent response to the scale of what we are facing. It ignores the evidence that those two recent reports have put before your Lordships; it flies in the face of those reports.
Lord Sentamu (CB)
My Lords, I stand only to amplify what the noble Lord, Lord Coaker, has said. Anybody who reads the Baroness Casey Review: Final Report will find it a great shock. The noble Lord, Lord Coaker, has tried to put her words very simply. Paragraph 10 in one of her recommendations says:
“The use of stop and search in London by the Met needs a fundamental reset.”
We cannot simply go back and say, “We’ve been doing it this way”. She goes on:
“The Met should establish a charter with Londoners on how and when stop and search is used, with an agreed rationale, and provide an annual account of its use by area, and by team undertaking stop and searches. Compliance with the charter should be measured independently, including the viewing of Body Worn Video footage. As a minimum, Met officers should be required to give their name, their shoulder number, the grounds for the stop and a receipt confirming the details of the stop.”
At the end of our Stephen Lawrence inquiry, we talked about stop and search. We said that stop and search should be retained because it is a useful tool for preventing crime, but we had a similar attitude and gave similar statements to the noble Baroness, Lady Casey. John Grieve was tasked by the then commissioner of the Met to carry out work on how this could be done. There was a pilot. It worked, but of course some newspapers did not like it and saw it as bureaucracy that prevented the police’s work too much, and it was then stopped. This has now come home to roost. Had we sustained what was started by Sir Paul Condon, we would be in a very different place, but we are not. We have a review suggesting that what is in Motion A1 would be a good thing. I do not see how that could go wrong.
Finally, as I said in the last debate on this, if the Bill is about public order, we have extended stop and search beyond belief. People are protesting—let us say young people—about climate change, injustice and unfairness. There is really no need for it; I cannot see why they should be stopped and searched. Most of all, these protests are at the heart of being in a free society. Most of us did not want Clause 11 but, now that it is in there, these provisions would be a safeguard so that the extension of stop and search does not do greater damage and hurt to our young people, who really want to protest.
Remember when they left school for a day to protest about global warming. If you stopped and searched them because you believed there was a reason to do so, most parents would have been offended. I would have been. Stop and search has been extended in the Public Order Bill and not for the rest of crimes, which I would wholeheartedly support. In many ways this amendment would limit the abuse that could occur because we went for believing as opposed to having grounds to suspect.
Baroness Chakrabarti (Lab)
My Lords, this Bill was always about political signals, not sensible policy. Finally, even signals must change. I respect the Minister, but others in the Home Office have been slow to respond to the concerns of the British public about abuses of broad police powers.
Much has happened and even more has been exposed since this Bill began its passage last May. Last July Wayne Couzens lost an appeal against a whole life sentence for the abduction, rape and murder of Sarah Everard while he was a serving police officer, after a purported stop and arrest for breach of lockdown laws in March 2021. Last month David Carrick was imprisoned for 30 years for an unrestrained 18-year campaign of rape and abuse while he was a serving police officer.
Also last month, YouGov reported that 51% of Londoners do not trust the Metropolitan Police very much or at all. Last week, as we have heard, the noble Baroness, Lady Casey, called for a “fundamental reset” of the use of stop and search, which she said is
“currently deployed by the Met at the cost of legitimacy, trust and, therefore, consent.”
Just yesterday the Children’s Commissioner, Dame Rachel de Souza, found that nearly 3,000 children aged between eight and 17 had been strip-searched under stop and search powers between 2018 and 2022. Nearly 40% of them were black. Half of those strip searches had no appropriate adult present.
All this relates to the use and abuse of current police powers. Still, today we are being asked yet again to green-light new powers to stop and search peaceful protesters without even a reasonable suspicion of criminality. When trust in policing and the rule of law is in jeopardy, if this House does not exercise its constitutional duty to say “enough”—no more power without at least the modest statutory responsibilities set out in Motion A1 in the name of my noble friend Lord Coaker—what are we for?
Lord Sandhurst (Con)
My Lords, I had not planned to speak, but it is important to remember that we are not dealing simply with peaceful protests. I remind the House of what I said on a previous occasion in respect of these amendments. We are dealing with organised, large-scale disruption, using implements. The purpose of the disruption, as the disrupters make plain, is not simply to protest but to stop citizens going about their lawful business for a disproportionate length of time. As I reminded the House previously, the European Court of Justice in Strasbourg has said more than once that such activity is unlawful and that protests that go beyond merely protesting can legitimately be stopped by government.
Baroness Jones of Moulsecoomb (GP)
My Lords, what a pity the noble Lord does not care about what the Government are doing to the country, because I say that what they are doing is a lot more illegal than what these protesters are doing. The noble Lord has to understand that disruption is part of protest and that, as we have heard throughout the debate, the police have enough powers to arrest people who do anything that is not peaceful. Disruption on the roads and within our cities does not necessarily stop people going to hospitals or schools; it is the Government who are stopping people going to hospital because they are underfunding the NHS and stripping out our doctors and nurses by not paying them properly. They are responsible for a lot more damage to our society than these protesters are. Thank goodness the noble Lord, Lord Coaker, has brought this back so that we can say to the Government that they do not know what they are talking about.
The Lord Bishop of Manchester
My Lords, I declare my interest as co-chair of the national police ethics committee, but obviously I am not speaking on behalf of it today. I had hoped not to have to speak at all this afternoon but after the contributions of other noble Lords I feel I must say a few words.
I want to get us back to the focus of this amendment. Although I have much sympathy for what I have heard around the Chamber of late, this is an amendment around how police use suspicionless stop and search powers. I wish we had had the Casey report and the report we have just received on the strip-searching of children earlier in the consideration of the Bill. They would have informed our deliberations very helpfully at that stage. However, we have them now. I feel that we need to put something in the Bill that recognises that we have heard what was said by the noble Baroness, Lady Casey, and in the other report that came out in these last few weeks. We need something to say that we are putting down a marker—a signal, as the noble Lord, Lord Coaker, said a few moments ago—that, whatever we have done in other legislation, now we are in a different world.
I am passionate about the confidence that we have as the citizens of this land in our police force, about good and effective policing, and about the country having respect for its police. However, I worry that, if passed unamended, this legislation will further damage that relationship. It will not lead to public order but to further public disorder. Therefore, I support the amendment in the name of the noble Lord, Lord Coaker.
Baroness Fox of Buckley (Non-Afl)
My Lords, the noble Lord, Lord Sandhurst, gave us a passionate reminder of the reason why there is so much public hostility to a lot of the types of tactics that have been used by protesters over the last year, which have undoubtedly fuelled support for the headlines associated with this legislation. As it happens, those arguments have been well rehearsed in this Chamber by all sides. It seems that, despite that, the demand for stop and search without suspicion will do absolutely nothing to tackle the problems that are described. I want to state that again: stop and search without suspicion. It seems extraordinary to me that anyone would imagine that that would have any impact whatever on the protesters that the noble Lord, Lord Sandhurst, described, but it will definitely have a chilling impact on protest in general.
As it happens, the amendment of the noble Lord, Lord Coaker, is incredibly reasonable. It does not fly in the face of anything the Government are trying to do. It asks for some checks and balances, which, having read the report of the noble Baroness, Lady Casey, you would think that the Government would welcome. In all seriousness, anyone reading that would have to think, “Oh my goodness—what happened?” To have a balancing amendment, which is what Motion A1 is, seems very sensible.
Finally, on Sunday, a group of women, some of whom I know, went to Speakers’ Corner as part of the Let Women Speak campaign. They were kettled and mobbed by hostile opponents. Regardless of what you think of that event, I mention it because the police stood by and did nothing. At one point, when things got really hairy, they walked off, leaving those women facing a lot of aggression.
The difficulty is that the police have acted inconsistently, erratically and almost in a politicised fashion when policing different demonstrations. I would like the police to use the powers they have—goodness knows, they have plenty of them—to police this country and protect those under attack. We do not need to give them new powers that they do not need to police this country or to police any aggressive demonstration that disrupts the lives of everyone, as noble Lords have said. We just need the police to do the job that they are paid to do. They do not appear to be doing so, and that is what the Casey report shows.
It is worse than that. We will do damage to the reputation of the police if this House, just for headlines, thinks that the Government will improve things—they will not. I urge your Lordships to support the police by not being disproportionate, and to support the public by asking the police to do their job without bringing in suspicionless stop and search, which is draconian in any country.
Lord Hogan-Howe (CB)
My Lords, having been mentioned by both Front Benches, I thought I ought to speak for myself, just to make clear my position.
We are not debating whether there is suspicionless stop and search but the amendment proposed by the noble Lord, Lord Coaker. To make clear my position, I support smart, effective stop and search, done according to the law, but it can cause problems, as the noble and right reverend Lord, Lord Sentamu, mentioned, and sometimes it causes a problem disproportionate to the benefit it produces. For as long as I was involved—certainly in London, but wherever I have worked—I have always supported its being used wisely.
In 2017, after the riots London experienced, one of my conclusions was that one of the causes or aggravating factors was the amount of stop and search being carried out. Over the two preceding years, people had either been stopped and searched or, as the noble and right reverend Lord, Lord Sentamu, mentioned, stopped and accounted around 2.6 million times. Bearing in mind that, at the time, there were only 8.4 million people in London and the vast majority stopped were men, that was an awful lot of times that some people were getting stopped. For that reason, we reduced stop and search by about two-thirds, and Section 60 searches—the suspicionless option—by 90%, and yet we arrested more people and reduced crime. So it is entirely possible to do it better and less. I support stop and search when done properly; that is my broad point.
On the back of what I just described, I introduced 23,000 officers with body-worn video. It can make a difference. It reduces complaints and proves that either the officer was performing badly or there was a lie being told about the officer. Either way, it should improve police behaviour, and on the whole it has. I go on to say that, at the moment, it is being switched on when there is an event to be filmed. I think there is a growing argument for it to be on all the time.
There are consequences to that, not least in cost and intrusion into privacy, particularly, perhaps, when an officer talks to a family or anybody with a child. The first thing they have to say is just that straightforward discussion that they are going to film it. It is not the best introduction anybody could have, but I think that the wider use of body-worn video is probably wise.
On a point that the Minister raised, I am glad to see the acknowledgement that there might be more communication of this suspicionless stop and search at protests. I do not support suspicionless stop and search in the Bill, and I voted against it, but that was not the amendment that was brought back, so I could not do anything about that. My point in that debate was that the communication should happen at the border of an area that people are about to enter where suspicionless stop and search is about to be exercised. Currently, whether it is a Section 60 or a protest, if you walk into that area, you just do not know. I do not think it is good enough to say, “Well, if you’d consulted the website, you’d have found out. Somebody has published a notice”. It is entirely possible, either digitally or by putting up posters—there are any number of ways. If you say to someone, “If you go into this area, there’s a protest or we have got Section 60 as there’s a lot of violence, and you run the risk of a without-cause stop and search”, I think you assist the officer in carrying out their job. So my point is about communication at the boundary at which you cross and where the suspicionless stop and search might be exercised.
That said, I do not entirely agree with the amendment of the noble Lord, Lord Coaker. There is one part of it which I do, but I am really not sure that this is the right way. I take the point of the noble Baroness, Lady Fox, that this might be a way to send a signal, but I am not sure that this is the way for me.
In terms of officers exercising the powers conferred by subsection (6), the noble Baroness, Lady Casey, has made the point that she would prefer these particular amendments. Actually, within the Bill and the code, I think there is a stronger set of rules for the officer. They have to say what they expect to find, give a reason, explain why they are legally allowed to use the searches—Section 1 or Section 60—and that you can have a record of that search at that time or subsequently, within a year. Now, it seems to me that these are strong powers, and if you want to amend the things the Government have said they want to, the way is to amend the code. If you put these conditions in the Bill, you will end up with Section 1 and Section 60 searches going by the code and the protest ones being covered by the Bill. I think that there is at least a risk of confusion, and there needs to be consistency. The code might be amended in the way described but I am not sure that these powers alone form an awful lot of additional powers or, frankly, reassurance compared with what is already in the code.
The amendment says:
“Within one year of the passage of this Act, all police forces must establish a charter on the use of the powers in this section”
and that must
“be drawn up in consultation with local communities”.
My concern is that that runs the risk that it will be inconsistent across the 43 police forces that cover this country. Then you are going to end up with confusion: if you protest in Birmingham or London, you end up with a different set of charters. I do not think that is a very wise thing; if there is to be a charter, it is perhaps wise to have a national charter. But to have different circumstances in different parts of the country about protest, I just do not understand how that is going to work for the protesters or the police officers.
The amendment also says:
“Each police force must produce an annual report on the use of the powers”.
I think that could be put into the police’s annual report, which is produced each year anyway, but it could be more bureaucracy if we have another report to publish every year. What I do think is a good idea is:
“Within one month of the powers in this section being used, the authorising officer must publish a statement giving reasons”.
That seems entirely reasonable and something that I do not think anybody could object to. In fact, I think it should be published at the time that the power is declared. If you are going to tell the public that this power is going to be used, you can explain why you are going to use it. I think that is a perfectly reasonable thing, but I do not necessarily think that this amendment enhances what is already in place. I accept that it could send a signal, but I am not sure that it is a wise signal to send at the moment.
Lord Morgan (Lab)
My Lords, I had not intended to intervene in this fascinating discussion, but I will make one point and one point only. We are talking about the possible dangers of stop and search.
We have every opportunity of examining what is happening right now, not in this country—although we would if we proceeded with this Bill—but in France. In France, the use of extreme stop and search by an undisciplined police force, somewhat similar to our own, has accelerated and accentuated the problems that they have had, with the result that what were in themselves perhaps not objectionable practices turned into something very much worse—gender conflict, class conflict and, of course, very sadly, racial and religious conflict. So we do have on this continent examples of the dangers that could occur. We are choosing, in effect, the most extreme option of how to deal with civil disturbances and, indeed, with the exercise of human rights. I urge the House to act wisely and temperately and show the restraint and scrutiny for which it is justly honoured.
Baroness Meacher (CB)
My Lords, I did not plan to speak and do not have notes to speak from, and I will speak briefly, but I want to express my strongest possible support for the amendment in the name of the noble Lord, Lord Coaker. I regret that the noble Lord, Lord Hogan-Howe, who I respect a lot, has nitpicked through the amendment. The principle of the amendment is that stop and search without suspicion is a completely exceptional step to be taken in a democracy. If we were standing here in Moscow, or Beijing, we might well expect this sort of power to be given to the police in relation to public demonstrations. It is not for this country to be introducing these powers for the police, and I am so shocked, frankly, that our Government are attempting to do that.
The amendment is incredibly modest. It is saying that police officers do not take these powers and use them thoughtlessly without proper care, attention and, ideally, consultation with the community. This is an incredibly serious step for any police officer to take. That is the point of this amendment. Yes, we can say it should say this or that or something else. That is not the point. The point is that this power is outrageous; the police already have the powers they need to deal with demonstrations—they really do. Those police officers need the commitment of the community and to work with the community. This power will interfere with policing and reduce the safety of our communities up and down the country.
I hope that the House will support the amendment in the name of the noble Lord, Lord Coaker, as a clear statement that we know this power to be the dangerous step that it is and that police officers need to take the most extreme care in using it.
Baroness Butler-Sloss (CB)
My Lords, I say briefly that I am concerned about the use of these powers and I support the amendment in the name of the noble Lord, Lord Coaker.
Lord Paddick (LD)
My Lords, I will not repeat what I said last time, but since last time, as the right reverend Prelate the Bishop of Manchester, said, we have had the Casey review. The noble Baroness, Lady Casey of Blackstock, is quite clear about what she thinks about stop and search. In that review, she says, as the noble and right reverend Lord, Lord Sentamu, has already said:
“The use of stop and search in London by the Met needs a fundamental reset. The Met should establish a charter with Londoners on how and when stop and search is used, with an agreed rationale, and provide an annual account of its use by area, and by team undertaking stop and searches”.
It is unfortunate that the noble Lord, Lord Hogan-Howe, disagrees with the noble Baroness, Lady Casey, in coming to that conclusion. Elsewhere in the report she says:
“Stop and search—”
Lord Hogan-Howe (CB)
I think I am entitled to my opinion and to make the point which I made. I explained that I could live with a national charter, but I dispute the need for a local one, which ends up with the possibility, even if it is nitpicking, of inconsistency across the country, where we expect consistency. That was merely my point.
Lord Paddick (LD)
The noble Lord is of course entitled to his opinion, and so am I. I said it was unfortunate that the noble Lord disagreed with the noble Baroness, Lady Casey. That is my opinion.
Elsewhere in the report, the noble Baroness says:
“Stop and search and vehicle stops are justified
—she meant by the police—
“through their compliance with the law, ignoring how such incidents are perceived, the impact on individuals, and the wider corrosive impact of trust in the police.”
The Minister mentioned body-worn video and so does the noble Baroness, Lady Casey. She says that the police want to use body-worn video to justify continuing to do what they have done in the past rather than what she says is needed, which is a fundamental reset. Body-worn video is not the answer. That should not be used by the police to justify continued disproportionality in their use of the power.
The noble Baroness further states:
“Black Londoners are under-protected—disproportionately the victims of homicides and domestic abuse; and over-policed—facing disproportionate use of stop and search and use of force by the Met. A huge and radical step is required to regain police legitimacy and trust among London’s Black communities.”
“Overpoliced and underprotected” is what a black policeman said to the Macpherson inquiry 25 years ago. It was not the noble and right reverend Lord, Lord Sentamu, but another black churchman giving evidence to that inquiry; here we are with another inquiry saying exactly the same thing 25 years later.
The noble Baroness, Lady Casey, cites a Home Affairs Select Committee report from 2021, which reported that, in the previous year, the equivalent of one in four black males aged 15 to 24 in London were stopped and searched in a three-month period. The noble Baroness says:
“The facts relating to stop and search are … around 70 to 80% lead to no further action … the more stop and searches are done, the greater the proportion of no further actions.”
The noble Baroness cites a 2019 research study that questioned the efficacy of stop and search as a tactic of policing. She quotes from that report, as do I. It says:
“Overall, our analysis of ten years’ worth of London-wide data suggests that, although stop and search had a weak association with some forms of crime, this effect was at the outer margins of statistical and social significance.”
The Minister repeatedly says that the power that we are debating today—the power to stop and search without suspicion—is based on the existing power under Section 60 of the Criminal Justice and Public Order Act 1994. The 2019 research goes on to say:
“When we looked separately at S. 60 searches, it did not appear that a sudden surge in use had any effect on the underlying trend in … violent crime.”
The noble Baroness, Lady Casey, concludes:
“Stop and search is currently deployed by the Met at the cost of legitimacy, trust and, therefore consent. … It has damaged trust. If the Met is unable to explain and justify its disproportionate use and the impacts of these, then it needs a fundamental reset.”
The majority of stop and search nationally—between 50% and 60%—is carried out in London. The majority—over 60%—of protests happen in London. The majority of times these powers are used will be in London. Stop and search in London needs a fundamental reset, and yet this Government have ignored this House and are giving the police even more opportunity to undermine their legitimacy, trust and, therefore, consent, by giving the police more powers to stop and search.
Without consent, the whole system of policing in this country is undermined, and that is what this Government risk with this legislation. We support the Motion in the name of the noble Lord, Lord Coaker, and will vote for it, but we believe these new stop and search powers should not be part of the Bill. That is what we have always said and what we maintain.
The noble Lord, Lord Sandhurst, cited various examples of what I think he called “disproportionate protests”. All the examples he gave are of criminal offences for which people can be arrested. The police do not need stop and search powers in addition to those powers of arrest.
The noble Lord, Lord Hogan-Howe, cited the 2017 riots and his view, his opinion, was that they were aggravated by the police use of stop and search. Lord Scarman said exactly the same thing about the 1981 Brixton riots. Will we never learn? I urge this House to vote for Motion A1.
Lord Dear (CB)
My Lords, I had not intended to speak in this debate today, but I find myself totally in agreement with the noble Lord, Lord Coaker, and with the last remark about Lord Scarman. I worked very closely with him in 1981 and after that and agreed wholeheartedly with his findings then. They are still good today.
The noble Baroness, Lady Meacher, spoke very eloquently and I found myself nodding all the way through her speech. I agree entirely with what she said and will not weary this House by repeating those very wise words, save to say that I think that this is the wrong time for this projected policy. What we need now is temperate and measured policing and this is not going to help that. I support the noble Lord, Lord Coaker.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for another fruitful debate. As I said at the beginning, this Bill has undoubtedly been given the scrutiny the British public want and expect.
Before I go on to more substantive remarks, I should say that I fully support the Casey report. The Government and the Met Police have taken this report very seriously. Guidance on the use of stop and search is statutory and is set out in PACE. It is the law. That is the place for it, as the noble Lord, Lord Hogan-Howe, pointed out, if nothing else to ensure consistency. There are safeguards and considerable scrutiny of stop and search and I will come back to that.
The noble Lord, Lord Coaker, and others will no doubt accuse me of semantics but as my noble friend Lord Sandhurst reminded us, these powers relate to serious disruption—ambulances should not be stopped from getting to hospital, as the leader of the Opposition has pointed out in the past.
On the comments from the noble Lord, Lord Paddick, about the effectiveness of stop and search, I was reminded of a pack that I still have in my folder. I was giving some statistics yesterday, and every knife seized through stop and search, I think, is a potential life saved. In 2021-22, stop and search removed around 14,900 weapons and firearms from our streets and resulted in almost 67,000 arrests. I appreciate that we are on a slightly different subject, but none the less this is an important and powerful illustration that, used appropriately, stop and search can work.
Recent protests have been clear in their aim of causing as much disruption as possible through the use of guerrilla tactics. These measures give the police the proactive powers necessary to respond to those dangerous and disruptive tactics quickly. We will work closely with our partners in the police to ensure that they have the support and resources in place to use these powers.
I have heard what the House has said about the potential disproportionality involved in this and we acknowledge that nobody should be stopped and searched because of their race. Extensive safeguards such as the statutory codes of practice to which I have referred and the use of body-worn video exist to ensure that this does not happen. The Home Office publishes extensive data on police use of stop and search in the interest of transparency and we will expand the publication to the use of the new powers provided for in this Bill, as I have already outlined.
I referred to GOWISELY earlier, which is a mnemonic. This follows, and frankly supports, many of the recommendations from the noble Baroness, Lady Casey. I will go through them. The G stands for grounds for the search. These are the minimum bits of information which should be given to the person detained for the purpose of the search. O stands for the object of the search. W is for the warrant card to be shown to the person searched. I is for the identity of the officer—that is usually the officer’s name unless the officer thinks that giving their name would put them in danger, in which case an identification number can be given. S is the station to which the officer is attached. E is the entitlement to a copy of the search form. L is the legal search power being exercised. Y means that you, the officer, must tell the person stopped that they are being detained for the purpose of the search.
The noble Lord, Lord Morgan, referred to the situation in Paris. As I understand it, much of that is a consequence of the activities of the gendarmerie, which is not a police force with any equivalent in this country.
Lord Baker of Dorking (Con)
Would the Minister answer a question? In a situation where there is a protest preventing traffic, which is very grave and serious, and there are two people young people involved in it, if the police decided to use their power to strip and search, what would they expect to find on those two young people?
Lord Sharpe of Epsom (Con)
My Lords, we are debating stop and search. I am not quite sure where strip and search came into this, I am sorry.
Baroness McIntosh of Hudnall (Lab)
With respect to the Minister, that was not an entirely adequate answer. He was probably quite clear on what the noble Lord, Lord Baker, was asking him.
That said, the Minister has relied very heavily in what he has said to the House this afternoon on existing protocols that the police are expected to use. We have just been told through the Casey report, using very recent evidence, that those protocols are substantially ignored by the police. Does he have an answer for that?
Lord Sharpe of Epsom (Con)
I apologise if I misunderstood my noble friend. I was basing my answer on the fact that a report was published yesterday by the Children’s Commissioner that specifically related to young people and strip search. If I misunderstood, I apologise. With regard to stop and search, I would argue that all the criteria for establishing the cordon and the area and so on would mean that the circumstances described by my noble friend would be highly unlikely.
With regard to the Casey report, as I have already said, both the Government and the Met police are taking it very seriously. These are rules that we expect to be followed.
Lord Coaker (Lab)
My Lords, I thank the Minister for his response and also thank all noble Lords who have participated in this further discussion between us on this incredibly important matter. For the avoidance of doubt, I will be testing the opinion of the House on my amending Motion A1.
At the very beginning, I said to the Minister that one of the things he would do in his remarks was send up smoke. What did he do in his reply? He sent up smoke. What on earth has praying in aid that 14,900 weapons were seized under existing legislation got to do with the legislation we are currently debating? I am delighted that 14,900 weapons have been seized under stop and search powers—as every single Member in this Chamber will be—but they are nothing to do with suspicionless stop and search under Clause 11; I guess they are probably to do either with stop and search with reasonable suspicion, or with Section 60 suspicionless powers, where needed. I said that I support those powers, and I suspect that nearly everybody, if not everybody, here supports them. What I object to, and what is wrong, is using that to somehow speak against my amendments, because it is irrelevant: we are talking not about weapons or terrorism but about protests and using suspicionless stop and search with respect to protests.
I say to the noble Lord, Lord Sandhurst, that we lost the debate about taking Clause 11 out: it is in the Bill. So the things that he wants to do—confiscate without suspicion various objects that are used for protest—are not what this debate is about: people continue to be able to do that. We lost that debate: we agreed it here, but it was put back in in the other place, and, given that we respect the will of the elected House, I revised what we were doing to seek to mitigate. That is what my amendment seeks to do: to mitigate this further. It does not stop it in any way.
However, I say to the noble Lord, Lord Sandhurst, that the bigger problem is that the police do not have the confidence to use the existing powers to do the things he wants. Nobody in this House supports the protests we have seen on our streets in the last couple of years. But the Government put up this sort of mirage of “This is what people who oppose what we are suggesting are for”. So people who are for the sort of amendment I am talking about are somehow on the side of protesters who are stopping ambulances, or on the side of people who want to take protests too far. That is a nonsense. What I am against is allowing the unmitigated use of Clause 11 without the safeguards needed.
Every single report from the inspectorate, the police complaints authority or whoever says that, if you are going to use this sort of power, which is the most severe power you can give the police, to stop people without suspicion going about their lawful business—that is the power you are going to give to these people—you have to build in safeguards. My contention is that, even with the concessions that the Minister made, the Government’s safeguards are not sufficient and need to be in the Bill. Why do I say that? I use the evidence in the Casey review. I do not just make it up and say, “Oh, that’d be a good idea”; I use the evidence from somebody who has researched and understood this, talked to people, been out to communities, and said, “This is what needs to be included. If you don’t, you risk carrying on with some of the problems that we’ve got”. The noble and right reverend Lord, Lord Sentamu, talked about disproportionality, and my noble friend Lady Lawrence and others with experience of this are here. The disproportionality is, frankly, a scar on our society, and now we are now going to extend that suspicionless power, with all that that may entail, without the necessary safeguards in the Bill.
It is not people like you and me who will be stopped and searched; it will be some of the most deprived people in some of the most difficult communities, who already have problems with trust and confidence in the police. We have the opportunity here, through the Casey review, to draw a line in the sand and set the agenda to support our police by saying that we will help them regain the trust and confidence they need. But we cannot do that if the Government are hiding behind saying, “Oh well, we are in favour of getting weapons off the street and stopping these awful protests”. We are all in favour of that, but this is an overreach of legislation which will potentially have very serious consequences for our society.
My amendment simply seeks to mitigate the impact of the suspicionless stop and search power. I agree with the noble Lord, Lord Paddick, that it should not be in the Bill anyway, but, as we have lost that argument, all we are seeking to do is to mitigate its impact. That is a perfectly sensible and reasonable thing to do.
I finish by saying that we are giving our police the most severe power that they can be given: suspicionless stop and search. Just by walking down the street, you could be stopped and searched. We have said that the power is fine with respect to terrorism—but even there we have mitigated it—and we accept that it is fine if it stops murder, gang warfare and all those sorts of things. But it is a totally different set of circumstances to talk about using suspicionless stop and search for protests. That is a step too far and, as such, we should at least mitigate its impact by supporting the amending Motion I have put forward.
Public Order Bill
Monday 24th April 2023
(1 year, 7 months ago)
Commons ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 24 April 2023 - (24 Apr 2023)
18:27 - The House divided: - Ayes: 270 / Noes: 200 - Question accordingly agreed to.
The Minister for Crime, Policing and Fire (Chris Philp)
I beg to move,
That this House disagrees with Lords amendments 6H and 6J.
The Public Order Bill is about giving the police the tools they need to tackle the highly disruptive protest tactics we have seen in recent months, and indeed today, which have blocked ambulances, delayed passengers making important journeys, prevented children from getting to school and patients from getting to hospital, and at times held the capital city to ransom. I do not wish to detain the House for any longer than necessary, because we have debated this Bill numerous times in recent months and it has undoubtedly been given the scrutiny the British people want and expect. It is time for that delay to end and for this Bill to become law.
The other place has once more voted to amend clause 11, the power to stop and search without suspicion—although it is worth saying that that power can only be used if a police officer reasonably believes that certain protest-related offences will happen in the very near future, so it is not a power that can be used wholly arbitrarily. It is most disappointing to see that vote after this elected Chamber disagreed with their Lordships in their last amendments.
As my noble colleague explained in the other place, it is our view that the changes are unnecessary. First, a legal framework already exists for all stop-and-search powers. Under section 3.8 of Police and Criminal Evidence Act 1984 code A, the code of practice for powers to stop and search, police officers have to give their name or identification number, the police station to which they are attached and grounds for every single stop and search, essentially replicating the proposal in their Lordships’ motion 6H. Those criteria are covered in the GOWISELY mnemonic drilled into every police officer.
Secondly, it is our view that the requirement for police forces to establish a charter on the use of powers would cause unnecessary burdens on police forces and officers, something the Opposition have been concerned about throughout this Bill’s passage. Plenty of long-established safeguards already exist for stop-and-search powers. Additionally, we have supported the National Police Chiefs’ Council in its publication of national guidance on the use of body-worn video, which includes encouraging forces to share footage with external scrutiny groups to support transparency and reflective practice and learning.
On reporting on the use of stop-and-search powers, I would like to reassure the House that the Home Office already publishes an annual statistical bulletin, which outlines in detail the information gathered during each stop-and-search incident. That reporting will be conducted for the use of the new stop-and-search powers, both suspicion-led and suspicionless.
Finally, on publishing a statement giving reasons for the use of powers, as the Government reiterated in the other place, we recognise that communication on the use of these powers is a fundamental element of building trust and confidence between a force and the community it serves. The majority of forces, including the Metropolitan Police Service, already communicate their section 60 authorisations, and I know that communities appreciate knowing the details of the geographical area, time limits and justification for the authorisation. Those forces will continue that practice for these new powers.
Nevertheless, as the noble Lord Sharpe of Epsom committed to in the other place, the Government will amend PACE code A to require that, where it is operationally practical to do so, forces must communicate the extent of the area authorised for the suspicionless stop and search, the duration of an order and the reasons for that order. This Government commit to the spirit of what their Lordships are asking for, in their proposed new subsection (9D) of clause 11, through amendments to PACE code A. We will also amend PACE code A to place data collection within the legislative framework. It will include a breakdown of both suspicion-led and suspicionless searches cross referenced with protected characteristics such as age, sex and ethnicity.
I hope that those clear commitments—made in this House and in the other place, and reiterated here today—will satisfy hon. Members. Making changes to PACE code A is the right way to address those issues. The amendments to PACE code A will ensure consistency across all stop-and-search powers and allow for a full and robust consultation with external stakeholders, providing the right balance between tackling disruptive protesters and protecting the rights of each citizen where the powers are used. For those reasons, I hope that the House will agree with the Home Secretary in respectfully disagreeing with their Lordships’ amendments 6H and 6J.
Sarah Jones (Croydon Central) (Lab)
I rise to speak against the Government’s motion to disagree with Lords amendments 6H and 6J, which we support.
The amendments seek to do two things: first, to instruct officers to give their name, badge number and reason for stopping anyone they search under the new suspicionless stop-and-search powers, and secondly, to compel all police forces to set up a charter—which they would have to consult on, publish and independently evaluate—on the use of their suspicionless stop-and-search powers. To be clear, the amendments have nothing to do with patients not getting to hospital; nothing to do with blocking roads; nothing to do with whether stop and search without suspicion actually takes place. They are to do with the manner in which suspicionless stop and search is conducted.
The amendments are direct recommendations from Louise Casey’s report—although she would go further and apply them to all stop and searches. Baroness Casey’s review of the standards of behaviour and internal culture of the Metropolitan Police Service is a 300-page tour de force. The Home secretary welcomed the review and said:
“Accepting Baroness Casey’s findings is not incompatible with supporting the institution of policing and the vast majority of brave men and women who uphold the highest professional standards.”—[Official Report, 21 March 2023; Vol. 730, c. 165.]
The Prime Minister said:
“There needs to be a change in culture and leadership, and I know that the new Metropolitan commissioner will no doubt reflect on the findings of Louise’s report, but is already making changes and that's right, because what was happening before is simply shocking and unacceptable.”
He is right. Officers right across the Met are desperate to see those improvements put in place and action taken to rebuild the confidence of Londoners.
Labour tabled Lords amendments 6H and 6J to clause 11 to help put into legislation some of the improvements recommended by Baroness Casey, and it is very disappointing and surprising that the Government have tabled a motion to disagree. Clause 11 brings wide-ranging powers for the police to stop and search anyone in the vicinity of a protest, including anyone who happens to be walking through the area. The Government’s proposals risk further damaging the delicate relationship between the police and the public by significantly expanding stop-and-search powers to a protest context.
We agree that stop and search is a really important tool. The Minister has said on many occasions that stop and search is important for looking for weapons, and of course, we absolutely support that. We support suspicionless stop and searches—or section 60s—when serious violence, or terrorism, has occurred. But it is important to reflect that we are talking about using the suspicionless stop-and-search power not for terrorism or serious violence, but for protests—it is about searching for glue, a padlock, a microphone or a speaker. That will not have been agreed by the chief superintendent but by an inspector, because the Government rejected our amendment to make that change. Really, clause 11 should have been removed from the Bill, but we are not here to debate whether we should have suspicionless stop and search because that debate has concluded. Today, we are debating sensible, important changes to the Government’s clause to insert some safeguards into a wide-ranging power and mitigate some of its potential adverse impacts.
Chris Philp
Why do the Opposition object to implementing some of the key elements of the Lords amendments in PACE code A, where most regulations relating to this issue already sit? They can be updated relatively easily if necessary, so is not PACE code A the right place to do this? In relation to Louise Casey’s recommendation, she did not specify that these changes should happen in primary legislation. We are doing these things, just in PACE code A.
Sarah Jones
My understanding is that the agreement to include some aspects of the amendments in PACE code A does not go the whole way towards what we are suggesting in this legislation. The attitude from the Government—that plenty of long-established safeguards already exist, as the Minister said at the start of his contribution—is wrong. We have lots of regulations in PACE code A and other places that are clearly not always adhered to. Louise Casey has identified this as a problem, she has made a suggestion and we suggest putting it in the Bill, which I think is a reasonable response.
We know that stop and searches can go wrong when there is a communication failure from the officers carrying out the search. We welcome the changes announced in the Lords, although we do not know exactly what the changes to PACE code A will be, or how or when they will happen. Our colleagues in the other place tried to add points about communication into the Bill and suggested increasing the seniority of the officer allowing a suspicionless stop and search, but both amendments were rejected. Baroness Casey suggests as a minimum that Met officers should be required to give their name, their shoulder number, the grounds for the stop and a receipt confirming the details of the stop. Lords motion A1 built on Louise Casey’s recommendations and attempted to add them to the legislation.
It is worth remembering that a recent report by Crest Advisory examining the experience of black communities nationally of stop and search found that 77% of black adults support the use of stop and search in relation to suspicion of carrying a weapon, but that less than half of those who have been stopped and searched felt that the police had communicated well with them or explained what would happen.
It would be helpful to understand whether the Minister agrees with Baroness Casey’s recommendations in full and, if he does not, whether he thinks she is wrong or believes that something else should be done instead. The Casey report was devastating, and Ministers have so far been unable to offer any solutions to make the reforms we need in policing. Here is an opportunity for the Minister to signal the Government’s intent to make those reforms. We have heard the warnings from former police officers that some of the powers in the Bill risk diminishing trust in public institutions. The Peel principles on policing by consent said that
“the police are the public and the public are the police”.
The Home Secretary said in her statement to the House on the Casey review:
“When it comes to changing the law or introducing any frameworks that are necessary, we in the Home Office will do that”.—[Official Report, 21 March 2023; Vol. 730, c. 167.]
Here is a chance for the Home Secretary to keep her word. It will not change anything in terms of who can be stopped; it will just make the process more transparent and better for everyone. On the 30th anniversary of the murder of Stephen Lawrence, wouldn’t that be a good thing to do? I urge Members across the House to back the Lords amendments and reject the Government’s motion tonight.
Mr David Davis (Haltemprice and Howden) (Con)
I find myself, I am afraid, in agreement with the Opposition spokesperson. I also support the Casey recommendations, based as they were on a horrifying report about the behaviour of the Met over the years. Let us be clear: no Government of any persuasion have managed to get the Met to behave—and not just the Met; other police forces, too—in a manner that is acceptable to the public, bearing in mind that there have been Governments of both orientations since Stephen Lawrence.
The second point I would make very quickly is that when the Home Secretary in 2010—my right hon. Friend the Member for Maidenhead (Mrs May), for those who do not remember—limited stop and search, she did not do so out of an excess of liberal sympathy. She did so because, at that point in time, stop and search was being used in such a way that it caused serious race relations problems in several parts of the country. That was because stop and search was largely targeted at stopping violence, and at that point—it may well still be true today—the perpetrators of knife crime and the victims of knife crime mostly came from minority communities. Although minority communities themselves were not happy about the operation of the system, they understood why it was there. That was a different order of magnitude from using suspicionless stop and search to control demonstrations.
Don’t get me wrong: I think that we should have some fairly fierce legislation—which we do have now—for dealing with people who deliberately destroy the lives of the public, or uproot and disrupt the lives of the public. I am a great believer in the right of demonstration, but I do not think it should go beyond a certain level. That is why I support the Lords amendment to put this provision on the face of the Bill.
To respond to the Minister’s question to the Opposition spokeswoman, we should turn the question on its head: why should it not be on the face of the Bill? After all, that would broadcast in clear terms what we want to happen. We want the police to behave in a respectful and careful manner when they use this power. Indeed, I am slightly surprised that the Lords amendments did not also include making sure that video footage from the body cameras was available, including to the lawyers of the people who were stopped and searched after the event, if need be.
I think this is a worthwhile amendment. As has been said, I think it is very much in line with the Casey report, and we as a Government have to set our minds to ensuring that every recommendation of the Casey report is put in place and to returning the Metropolitan police and other police forces to the level of public respect that we wish they had now.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I, too, rise to speak in support of the Lords amendments. These are amendments about suspicionless stop and search, and we need to draw a breath and remind ourselves that suspicionless stop and search really is a significant power. It is a hugely invasive, intrusive and arbitrary police tactic that causes incredible inconvenience for those who are impacted, and that is something that has not seemed to register at all with the Government throughout the entire process of discussing clause 11.
From the Casey report, we also know of the hugely significant impact that these powers can have on black and minority ethnic communities in particular, so it is plain wrong to be pressing on when trust has been undermined by a series of horrendous stories, particularly regarding the Metropolitan police, but far from exclusively. Nobody in this Chamber is saying that suspicionless stop and search powers are never, ever appropriate, but there must be serious justifications for them. Of course, there are serious justifications when it comes to terrorism or serious violence, but the powers in the Bill apply in circumstances that do not come remotely close to justifying their use. In some circumstances, we are talking about an inspector having a suspicion that somebody somewhere might commit a public nuisance. That is absolutely no basis for setting up a suspicionless stop and search regime, so this is an appallingly inappropriate expansion of such powers at a time when Casey has called for a reset of practice with regard to them.
As such, we support these Lords amendments. The arguments in favour of them have been set out comprehensively in the last two speeches that we have heard. If anything, the amendments are very limited and do not go anywhere near far enough, but they are just about better than nothing, and they may provide some reassurance for those who are going to be at the sharp end of such searches. We therefore support them and disagree with the Government motion.
Wendy Chamberlain (North East Fife) (LD)
I return to trust, which is the basis of policing by consent. We need trust in the police, not just so that when people pick up the phone they get assistance, but from an intelligence perspective as well. One concern that I have had consistently throughout the debate on the Bill is that, in eroding that trust, we will fail to get the intelligence that we need in order to prevent some of the offences that the Government are attempting to stop via the Bill.
The Minister has pointed out the additions to the PACE code, but I wonder whether, if those in the other place had not persisted in their course in relation to suspicionless stop and search, we would have got that climbdown from the Government. I agree with the right hon. Member for Haltemprice and Howden (Mr Davis) that we need this provision on the face of the Bill. The reality is that when we look separately at section 60 searches—again, this is from the Casey report—it does not appear that a sudden surge in use had any effect on the underlying trend.
I have deep concerns that if the Government are successful in disagreeing with the Lords amendments today, which I suspect they might be, we will miss the opportunity of the Casey report and, several years from now, we will be standing in this place debating the fact that—we told the House so—stop and search does not work.
Chris Philp
I do not want to rehearse at great length points I have made previously, but I reiterate in response to the shadow Minister, the hon. Member for Croydon Central (Sarah Jones), that the Government believe that these powers, which are to be used in limited circumstances, are necessary pre-emptively to prevent people who are going equipped to disrupt the day-to-day lives of fellow citizens, whether it is with equipment to allow them to lock on to pieces of critical national infrastructure, to glue themselves to roads or to climb up gantries and attach themselves to equipment over the M25. They go equipped—it is an intentional, planned activity—and there are occasions when it will be necessary for the police to conduct stop and searches where they reasonably believe that a crime may be committed, even when no suspicion attaches to a particular individual.
I reiterate my point that the substance or key points of the amendments either are covered or will be covered by PACE code A. In relation to Lords amendment 6H, as I said, the officer giving their name and their badge number, the details of the stop they consider relevant and the grounds for the search are already covered by paragraph 3.8 of PACE code A. It is in there already, and officers do it already. In relation to issuing a statement giving the reasons for these particular powers, we will make sure that PACE code A sets that out even more clearly. The amendments have either been implemented already, or we are committed to implementing their substance and spirit using PACE code A.
Why are we using PACE code A, rather than putting the amendments in the Bill? First, it is for consistency. These sorts of conditions are set already in PACE code A, and we want to be consistent with how things operate already. Furthermore, when setting out guidelines, it is generally better to use instruments such as PACE code A or regulations, because where changes or updates are needed, it is much easier to do that by amending secondary legislation, guidelines or codes of practice, rather than by going back and amending primary legislation, which can happen only infrequently.
Those are the reasons we have taken the approach we are taking. There is a good rationale for that, and I therefore urge the House to join the Home Secretary in respectfully disagreeing with their lordships on Lords amendments 6H and 6J.
Question put, That this House disagrees with Lords amendments 6H and 6J.
Public Order Bill
Wednesday 26th April 2023
(1 year, 7 months ago)
Lords ChamberRead Full debate Public Order Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 131-I Marshalled list for Consideration of a Commons Reason - (25 Apr 2023)
Lord Sharpe of Epsom
That this House do not insist on its Amendments 6H and 6J to which the Commons have disagreed for their Reason 6K.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords for their engagement throughout the passage of this Bill. As I have already said, the Bill has undoubtedly received the scrutiny that the British people would want and expect, and it is only right to acknowledge that, through the scrutiny of this Chamber, important compromises have been made along the way.
I do not wish to detain noble Lords for longer than necessary. We have debated the contents of this Bill scrupulously and there remains just one disagreement. It is still the Government’s position that we do not support the changes proposed by your Lordships to Clause 11 on the power to stop and search without suspicion. This has been reiterated by the other place, which voted to disagree with your Lordships’ Motions 6H and 6J. Our position has been, and remains, that these changes are unnecessary.
As I mentioned in the previous debate, I remind noble Lords that a legal framework already exists for all stop and search powers. Section 3.8 of PACE Code A requires an officer conducting a search to give the following information to the person being searched: that they are being detained for the purposes of a search; the officer’s name and the name of the police station to which the officer is attached; the legal search power that is being exercised; the grounds for the search; and that they are entitled to a copy of the record of the search and can ask for this within three months from the date of the search. I have already committed, as has the Policing Minister in the other place, to amending PACE Code A to further improve transparency of the use of all stop and search powers. We will make it a requirement to communicate the extent of the area authorised for the suspicionless stop and search, the duration of an order and the reasons for the order where it is operationally practical to do so.
There is a good reason for these changes to be made to PACE Code A and not to the Public Order Bill, which is consistency. We want these changes to apply across the board to all stop and search powers, not just those being debated today. Placing them in the Bill would create one rule for stop and search for protests and another for stop and search for other purposes. This would inherently complicate officers’ training, increasing the chance that these powers are misused. I am sure that all noble Lords agree that this is something we must minimise.
I would also like to reassure all noble Lords that amending PACE Code A does not deny these changes to the principle of stop and search-appropriate scrutiny. Changes to the code require a full consultation with external stakeholders, such as the APCC, MOPAC, the NPCC, the Bar Council, the Law Society and others on the proposed changes and must be brought back to the House for us to consult upon before they are enacted into law.
Finally, on the requirement for a charter, it remains our view that this would be unnecessarily burdensome. The legislation already makes it clear when these powers can be used, and this is bolstered further by the additional requirements for the use of stop and search contained within PACE Code A. This will provide the right balance between tackling these disruptive protesters and protecting the rights of each citizen when these powers are used, so I call on all noble Lords not to insist on their amendments and to pass the Bill as presented. I beg to move.
Lord Paddick (LD)
My Lords, the Minister said that there is only one disagreement remaining. He was, of course, referring formally to what the House as a whole disagrees about; but we on these Benches have opposed police stop and search in relation to protest from day one, as any stop and search power will have a chilling effect on those wishing to exercise their rights to freedom of expression and freedom of assembly. These are fundamental human rights that are even more important to those who feel excluded from the parliamentary process, such as black and other minority-ethnic people. These groups are less likely to be registered to vote, less likely to have the correct form of voter ID even if they are registered to vote, and more likely to be stopped and searched by the police. Black people, for example, are between seven and 17 times more likely to be stopped and searched by the police than white people, depending on whether the power used is with or without suspicion. That is despite the legal safe- guards the Minister referred to.
The Commissioner of the Metropolitan Police, in response to the Baroness Casey Review, accepts the fundamental need to reset relationships between the police and the public, especially on the back of the findings of racism, misogyny and homophobia. Sir Mark Rowley acknowledges the past tendency of the police to impose tactics, rather than collaborate with, listen to and engage with communities. That is exactly what the noble Baroness, Lady Casey of Blackstock, said needed to happen, and the wording of the Lords amendment that we should insist on today is taken exactly from the Baroness Casey Review.
On the one hand, we have the Commissioner of Police for the Metropolis and the noble Baroness, Lady Casey of Blackstock, both pulling in one direction, wanting stop and search to be based on collaboration, listening and engaging. On the other hand, we have this Government pulling in the other direction, rejecting the Lords amendment that would require police forces to draw up a charter on the use of stop and search, in consultation with local communities. This House should insist on the implementation of the recommendations of the Baroness Casey Review and not reject them.
I understand that some noble Lords have been concerned about the precise wording of the amendment. But as the commissioner has found to his cost, not accepting the exact wording of the Baroness Casey Review can result in diverting attention away from actually getting on and doing things instead of debating the meaning of words. However, with other important votes to come this afternoon, and without the support of the Labour Opposition, we appear to have reached the end of the road.
Lord Coaker (Lab)
My Lords, I thank the Minister for his response and the noble Lord, Lord Paddick, and many others for the detailed scrutiny and the way this Chamber has tried to hold the Government to account. To be fair, the Government have made one or two changes with respect to suspicionless stop and search, and I will go to them in a moment. But before we do, it is important to reiterate that the Bill is about giving powers to the police that the Government say they need, where—I think it is worth repeating—many of us believe they have the powers necessary to deal with the protests that have caused such alarm in government and beyond over the last few months.
In the last couple of months, it has come down to stop and search without suspicion—for the avoidance of doubt, to deal with protest rather than knife crime, terrorism or serious offences such as those. I welcome what the noble Lord, Lord Sharpe, has agreed to in the amendments to PACE Code A: to require, where operationally practical, to communicate the extent of the area authorised for suspicionless stop and search, the duration of the order and the reasons for it. I think the noble Lord, Lord Hogan-Howe, said that this would be important to include in any change to the PACE code, so I thank the Government for listening and including it, as well as for placing data collection in the legislative framework of PACE Code A and therefore including a breakdown of suspicionless stop and search by age, sex and ethnicity. Can the Minister confirm my understanding of the changes that the Government are proposing?
While it is welcome, it is to say the least a missed opportunity, as the noble Lord, Lord Paddick, said, to respond to the Casey review. If noble Lords refer to page 22 of that review when they return to their offices, they will find that the amendments we put forward, which were supported by the House, are a complete lift from what the noble Baroness, Lady Casey, recommended. My contention is that, given their significance, it was and should have been a real necessity for the Government to put them in the Bill. If things were working with respect to PACE Code A, why was she so insistent that, to restore trust and confidence in the police, this needed to be placed in the Bill? The Government have rejected that, saying that it is fine because of what is in PACE Code A.
Let me share the view expressed on Monday in the other place by David Davis MP:
“why should it not be on the face of the Bill? After all, that would broadcast in clear terms what we want to happen”.
Many noble Lords said this, including the noble Lord, Lord Paddick, and I. That was precisely the point: not to tuck it away in regulation but to say clearly that, such is the significance of suspicionless stop and search related to protest, the Government would put it in the Bill and demonstrate to everyone what they believe should happen. They rejected that for what I consider to be no good reason. It was not only David Davis; Wendy Chamberlain MP said that, in line with the Casey review,
“we need this provision on the face of the Bill”.—[Official Report, Commons, 24/4/23; cols. 550-51.]
The Government say that they absolutely agree with the Casey review and accept its recommendations. Why then do they choose to ignore what the noble Baroness believes is one of the most important things that the Government need to do to restore trust and confidence in the operation of suspicionless stop and search? It is a real missed opportunity and chance for the Government to demonstrate how serious they are about the use of this power and the need to restore that confidence.
Baroness Chakrabarti (Lab)
My Lords, I will not detain your Lordships by repeating my profound concerns about this Bill at a time when peaceful protest is under attack all over the world, and policing is in such a parlous state in our own country. I must thank all noble Lords who supported the modest improvement that includes some protection for journalists who report on protests, without fear or favour. It is a small but vital protection, and came about because of the biggest defeat of the Government in this House, by about 100 votes that included many incredibly senior and distinguished Conservative noble Lords. I am grateful to everyone who supported that provision, which will now pass into law as a result of this otherwise terrible Bill. I must thank the Minister for the way he has engaged inside and outside the Chamber, and for perhaps helping the Government to see a little sense on that vital protection for journalists.
Baroness Jones of Moulsecoomb (GP)
Just for the record, I am absolutely furious about the Bill. I think the Government have panicked. It is unworthy of any Government who think freedom of speech is important. Shame on you all.
Lord Sharpe of Epsom (Con)
My Lords, I thank almost all noble Lords for their contributions to another fruitful debate. As I have already said, there is no doubt that the Bill received the scrutiny it deserves. I will not go on at great length, but noble Lords have raised the subject of the Casey review. To remind the House I point out that the review said that, as a minimum, Met officers should be required to give their name, their shoulder number, the grounds for the stop and search and a receipt confirming the details of the stop. As I outlined in my opening remarks, it is fairly clear that our amendments to Section 3.8 of PACE Code A go beyond that. I accept the point the noble Lord made about the face of the Bill, but PACE codes are statutory.
The noble Lord, Lord Coaker, asked about the data that we will collect. I refer to a previous debate and reiterate what was said then:
“The Home Office already publishes an annual statistics bulletin which analyses the data from forces across England and Wales. We will also amend PACE Code A to place data collection within the legislative framework. This will include a breakdown of both suspicion-led and suspicionless searches, cross-referenced with protected characteristics such as age, sex and ethnicity”.—[Official Report, 28/3/23; col.131.]
The British public are rightly sick of the disruption that has been caused by a very selfish minority and expect the Government to act. That is what this Bill does, and it is time for it to become law.
Royal Assent
Tuesday 2nd May 2023
(1 year, 6 months ago)
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