Police, Crime, Sentencing and Courts Bill

Committee stage
Wednesday 24th November 2021 Lords Chamber

Committee (11th Day)

16:07

Relevant documents: 1st, 4th and 6th Reports from the Joint Committee on Human Rights, 6th and 13th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee

[Lord Falconer of Thoroton (Lab)]

My Lords, before my noble friend Lady Blake comes to move her Amendment 292H, everybody will have seen what the plans are for today by looking at the groupings. They basically involve five groups dealing with things that have stood over from the pre-protest section of the Bill, and then three or four groups dealing with all the protest sections in the Bill, including one group, I think, dealing with all the proposed new clauses that have been added.

On any basis, the grouping is inappropriate. The proposed new clauses have the additional feature that they have not been debated at all in the Commons, from where this Bill originated. They have had no Second Reading of any sort in this House and now, to have Committee stage with them all crammed in effect into one or two groups means that there will be no proper scrutiny in this House.

Can I make a suggestion and ask a question? In relation to the new clauses, could we treat, without any additional formality, the proceedings today as a Second Reading in effect and then have an additional day in Committee so that there is proper consideration? In addition to that, could one have more time to deal with these very important clauses?

My concern is that this marginalises the House of Lords in relation to considering these provisions in detail—although I am sure that was not deliberate on the part of the Whips. It may well be that these provisions are needed; our role is to look at them line by line. The effect of the way in which this has been done is that now that is not possible. The House as a whole was entitled to look for protection in that respect from the Leader of the House and the Government Chief Whip. Instead, they have just gone along with the Government, like so many institutions, in pushing the institution to one side—and it is not right.

[Lord Paddick (LD)]

I support the noble and learned Lord, Lord Falconer of Thoroton, in what he has just said. I have heard two rumours—one, that the Government Chief Whip is urging people to keep their comments on the Bill today short. I wish to declare to the Government Chief Whip that that is not possible, bearing in mind the number and complexity of issues that we are supposed to debate today. The other rumour that I have heard is that, if the House is still debating at 2 am, only then will the debate be adjourned. If that is right, looking at the timetable, that means that the most contentious parts of the Bill—the new amendments, as the noble and learned Lord said, which have not even been considered by the House of Commons—will be debated either side of midnight. That is no way for this House to be treated.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I have not heard the rumour about keeping comments short. We are about to begin the 11th day in Committee of this Bill. In total, this House has sat for 60 hours in Committee, including starting early and going beyond 10 pm, as well as allowing three extra days. By the time when we finish today—and we intend to do so—we will have considered and debated more than 450 amendments.

As for the new clauses, they have been agreed with the usual channels and with the noble Lord, Lord Kennedy. I would say to noble Lords who have spoken that we intend to finish Committee today.

[Baroness Jones of Moulsecoomb (GP)]

I support the noble Lords who have spoken. Quite honestly, this is no way to treat the House of Lords. Especially as we get older, we do not want to stay up until 2 am—and, quite honestly, this Bill should have been four Bills. I think that everybody on the Government Benches knows that. Therefore, the 60 hours of debate and 400 amendments is not that that unusual. Bringing in these amendments at the last minute is really scandalous, and very typical of an arrogant attitude towards your Lordships’ House.

[Baroness Williams of Trafford (Con)]

I no more want to stay until two in the morning than does the noble Baroness. We will get to the public order new measures later on. I understand that the Liberal Democrats wish to vote against them, and ultimately I shall introduce them but will withdraw them, so there will be another occasion on Report to discuss them as well.

[Lord Falconer of Thoroton (Lab)]

To pick up on that last remark, the Government are going to withdraw the new amendments—so how will they regard Report? Will it be treated like a Committee stage?

[Baroness Williams of Trafford (Con)]

Report will not be treated like a Committee stage, but I have no intention of moving amendments that this Committee intends to vote against, so I shall withdraw them.

[Lord Rosser (Lab)]

Can I confirm, though, that we will be going on until such time as we conclude the Committee stage—that is, as far as today and the early hours of the morning are concerned? So if it takes until 2 am to get through this list, we will be here until 2 am, and if it takes till 4 am, we will be here till 4 am. What the Minister said was a statement of hope that we would finish tonight; it is not an undertaking from the Government that we will not go on beyond midnight, even. Can I be clear on that?

[Baroness Williams of Trafford (Con)]

We will finish Committee today—and, yes, a statement of hope is certainly what it is.

16:15

[Lord Paddick (LD)]

Can the Minister then confirm, if the Government accept that it is unreasonable to force through these new amendments—these eighteen and a half pages of new offences and police powers— and that therefore they are going to withdraw those amendments, they also undertake to have the accepted gap between Committee and Report, which is 14 days, rather than the shortened period that has appeared in Forthcoming Business?

[Lord Ashton of Hyde (Con)]

If the Committee will allow, I can answer some of these questions. We intend to have an Order of Consideration Motion so that, on Report, items will be taken as much as they can be in the same order as they are in Committee—so there will be plenty of time to consider these matters. We have discussed, in the usual channels, how the arrangements for this Bill should take place. I completely accept that it might go quite late tonight. We have spent a lot of time on this Bill—I accept that. But this is the Committee stage, and it cannot go on for ever because, if it goes on and on, the House of Lords looks as if it is preventing the Bills that have been passed by the House of Commons from going ahead.

The noble Lord shakes his head. As my noble friend the Minister has said, there has been ample time to talk about this Bill—and all we are saying is that, after three extra days, we have to draw this to a conclusion at some stage. This is not an unreasonable number of amendments to deal with—we have often done this in the past. The key, of course, is that we actually get on with it and that noble Lords have a view to the rest of the Members of this House. None of us wants to stay up too late. It is perfectly doable to have this number of groups—we have done it before—if noble Lords are able to be brief and succinct and make their point.

On the government amendments, the idea of having them in Committee is that we can debate them today. My noble friend has said that she will withdraw them, and that allows Report to go ahead—and, if necessary, noble Lords can vote on them.

[Baroness Chakrabarti (Lab)]

My Lords, I do not want to elongate this procedural debate before a lengthy debate that we are debating the length of, but the protest provisions in this Bill have been some of the most contentious—and not just in your Lordships’ House but in the country. They are not the final provisions or the final part of this Bill, even, yet they have been saved for the latter stages of this Committee, and the later hours of this last day will include this raft of new and even more contentious amendments. That is the reason for this suspicion and the concern that your Lordships’ House has not been shown the appropriate respect of a second Chamber in a democracy, when dealing with provisions that are, arguably, contrary to the human rights convention, and are certainly thought to be very contentious and illiberal by many communities in this country.

[Baroness Jones of Moulsecoomb (GP)]

Something that we did last week was to start early. Why could we not start earlier today so that we did not need to go into the early hours of the morning? We could have started at 10, which would have been a reasonable start for most people.

[Lord Ashton of Hyde (Con)]

Because when we started three hours earlier, the usual channels asked us to finish three hours earlier—so it did not achieve anything.

[Lord Harris of Haringey (Lab)]

My Lords, I have listened to this with great fascination. I am afraid that the Chief Whip is being slightly disingenuous. He says that all this time has been spent in Committee in this House on this Bill. Nobody disputes that; it is a fact. But what is significant is that this is new material which has not previously been considered anywhere—except within the bowels of the Home Office perhaps. It is new material and that is why this House needs the opportunity to scrutinise it. Without that scrutiny, it will pass into law without there having been adequate discussion of what are clearly important provisions—they are important because, otherwise, I presume the Government would not have brought them forward.

[Lord Ashton of Hyde (Con)]

But they will be scrutinised, at the Committee stage and then at the Report stage.

[Lord Paddick (LD)]

My Lords, just because you cram 58 amendments, most of which are government amendments, into two groups does not shorten the debate.

Amendment 292H

Moved by

[Baroness Blake of Leeds]

292H: After Clause 170, insert the following new Clause—
“Offences under the Protection from Eviction Act 1977
(1) Where a local authority is investigating an offence under the Protection from Eviction Act 1977, the police must cooperate with the relevant local authority and provide relevant information to it. (2) Local authorities must review such information that they have received every year.”Member’s explanatory statement
This amendment would support procedure for dealing with illegal evictions.

[Baroness Blake of Leeds (Lab)]

My Lords, this amendment would improve enforcement against illegal eviction. It would provide for stronger partnership between the police and local authorities to combat this serious crime, requiring co-operation and the sharing of relevant information by police forces. In almost all cases, an eviction is legal only if it is performed by court-appointed bailiffs. Anything else is an unlawful eviction, and renters have been protected from these since 1977 under the Protection from Eviction Act. A landlord may seek to deprive a renter of their home through harassment, changing the locks, cutting off electricity or other utilities, and other tactics that circumvent the legal system. This is a criminal offence, with penalties including up to two years in prison. Although those protections have been in place for years, in reality tenants are far too often left unprotected. In effect, there is a failure to enforce the law. In 2019-20, local authorities across England reported 1,040 cases of homelessness caused by illegal eviction, yet there were only 30 prosecutions of offences under the Protection from Eviction Act.

We have to ask what is behind that exceptionally low prosecution rate. The impact of cuts to local authority budgets has meant that many local authorities do not have tenancy relations officers who are trained in this area of law. More crucially to today’s debate, this issue of training also applies to police forces, with significant problems arising because forces lack officers and call handlers who are fully trained to respond to such incidents. Where the police do not recognise the criminality of these tactics on the part of landlords, it leads to underreporting of incidents and to those reported being routinely classed not as a criminal offence but as civil matters or breaches of the peace.

Although London Councils reported 130 incidents of homelessness caused by illegal eviction in 2019-20, the Metropolitan Police recorded only a 10th of that number of offences. In addition, in recent evidence to a Senedd committee, Shelter Cymru explained that it had encountered police assisting illegal evictions of tenants from their homes.

Amendment 292H is a small step which builds on the principle of partnership between local authorities and the police, strengthening their ability to prevent illegal evictions, prosecute offenders and ultimately deter landlords from using such tactics. It would require the police to provide local authorities with the information they need to investigate suspected offences and, as part of that, to increase police forces’ awareness of the offence. As part of a much-needed package, these changes must also inform police training programmes to ensure that illegal evictions are recognised and responded to.

The key questions for the Minister are: what are the Government doing to improve the dismal prosecution rate of this offence and what is being done to find and replicate good practice by police forces on this issue? For example, South Yorkshire Police routinely provides Sheffield council with incident logs to help support eviction cases.

The process of being evicted is most likely to be a traumatic experience when done legally. Being evicted illegally, often with nowhere to go and with one’s belongings dumped on the street, can be devastating. Renters should know that, when they reach out for help, police and local authorities will both recognise and be able to provide support against illegal activity. Failure to do so erodes trust and paves the way for increasingly serious problems, including homelessness.

I look forward to hearing from my noble friends Lord Hunt and Lady Armstrong on their important amendment in this group, which addresses protecting children both from violence in their own home and from exploitation outside it. Since the delay from the other evening, there are two additional amendments in the group, Amendments 320 and 328. I look forward to hearing the contributions on those. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I want to speak to my Amendment 292J. This is a pretty heroic group of amendments in a bid to assist the Committee.

There is a connection between the amendment in the name of my noble friend Lady Blake and mine, because her amendment is about encouraging collaboration between the police and local authorities. I too want to see such collaboration. I want to add to that the NHS and other local bodies and, essentially, give a huge boost to support for services for vulnerable children. If we were able to do that, it would have a massive impact on the lives of those vulnerable young children but also ensure that far fewer of them went through our criminal justice system in later life, hence my justification for bringing this amendment to your Lordships today.

I am very much relying on the recently published report of the Public Services Select Committee. I am delighted that my noble friend Lady Armstrong, who excellently chairs the committee, is with me today, and I pay tribute to the members, some of whom will make a brief intervention in this debate, and the staff for their excellent work and the report.

The number of vulnerable children was increasing before Covid hit us, but, since March 2020, the crisis has accelerated. More than 1 million children are now growing up with reduced life chances, and too many end up in our criminal justice system. Despite this, the Government have not yet recognised the need for a child vulnerability strategy. Unfortunately, the results of not having one are readily evident. Our inquiry showed a lack of co-ordination on the part of central government and national regulators, which has undermined the ability of local services to work together to intervene early and share information to keep vulnerable children safe and improve their lives.

This poor national co-ordination means that many children fall through the gaps. In 2019, the Children’s Commissioner warned that more than 800,000 vulnerable children were completely invisible to services and receiving no support. We think this unmet need is likely to have grown during the pandemic. The Select Committee surveyed more than 200 professionals working with children and families and they reported increases of well over 50% during the past 18 months in the number of children and families requesting help with parental mental ill-health or reporting domestic violence and addiction problems in their home.

The problem is that public services are just too late to intervene before trouble comes. In our most deprived communities, too many children go into care and have poor health and employment outcomes. They are excluded from school or end up in prison.

16:30

We need to deal with these structural weaknesses. Part of that is to do with the way in which priority is given nationally and locally, but it is not divorced from cuts to local authority budgets, which in turn have contributed to a lack of support and collaboration and undermined efforts to improve life chances for deprived children. A particular problem we have identified is the silo working of so many national bodies; they seem to set different targets and funding mechanisms and often work to prevent collaboration between different public services. This is where a national strategy would really come into play. Even the sharing of data between agencies seems to be inhibited; at the end of the day, it is quite extraordinary that public bodies seem to be unable to share data that would improve the life chances of young people if only they could collaborate.

I am sure my noble friend will refer to many of the recommendations in the report, but the one that relates to our amendment is the requirement for a statutory duty on local authorities, the NHS and the police to improve children’s life chances. There is already a duty in the Children and Social Work Act placed on safeguarding partners—the police, the NHS and local authorities—to work together to safeguard and promote the welfare of all children in local areas. That is the foundation, but it does not compel authorities to co-operate and intervene early to support children at risk of poor long-term education, health or well-being outcomes. Barnardo’s told us that it would be a real advantage to have a statutory duty on the relevant public authorities to commission specific, specialist domestic abuse support for children who have witnessed domestic violence in the home, as one example of what could happen if we were to go down this route.

So there is a persuasive argument for the Government to introduce a statutory duty on local authorities, the NHS and the police to improve long-term outcomes for children in their areas and to ensure that early help is provided to children living in families with serious parental addiction or domestic violence concerns, or parental mental ill-health, to those who are at high risk of criminal exploitation and to young carers. When we think about what this Bill seeks to do, I can think of no better way to try to prevent people going into the criminal justice system than to invest more in vulnerable children. I hope the Minister can respond positively.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support Amendment 292H in particular. It is a bit of a stretch to have included Amendment 292J, which has been clearly explained, in this group, but I support it as well. I am afraid the inclusion of Amendments 320 and 328 has caught me out, because I know that my noble friend Lady Bennett would have liked to have spoken on those.

On Amendment 292H, it has been extensively reported that, despite the Protection from Eviction Act, the police routinely fail to assist tenants against illegal evictions. Part of this, as the noble Baroness said earlier, is lack of police, but it is also lack of training on this Act. Many police wrongly conclude that this is a civil matter and not a criminal one. As we know, this could not be further from the truth, and I hope the Minister can confirm that the police have power of arrest to prevent an unlawful eviction, so that we are all completely clear.

This has been a problem for quite some time, and it will only get worse in the coming months as winter comes on and Covid protections against evictions lift. Many frustrated landlords will want to kick people out of their homes, and some will knowingly or unknowingly try to evict without following the correct procedures. So I hope the Minister can confirm that police have power of arrest and that the Government will outline what is being done to ensure that the police properly protect tenants.

[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I support Amendment 292H and declare my interest as director of Generation Rent. I also add my voice in support of Amendment 292J in the name of the noble Lord, Lord Hunt of Kings Heath, and others. As my noble friend Lady Blake of Leeds said, it is a criminal offence under the Protection from Eviction Act 1977 for a landlord to try to evict a tenant themselves. Local authorities and police officers have a crucial role to play and have the powers to stop illegal eviction and to prosecute offenders. However, the law on illegal evictions is not enforced nearly as much as it should be. Generation Rent research has shown that less than 2% of cases result in a prosecution.

As the noble Baroness, Lady Jones, said, there are too many instances where a tenant calls the police for help with an illegal eviction, only to find that the police officer dismisses the issue as a civil matter, despite it clearly being a criminal act. This was highlighted very well in a 2020 report by Safer Renting, a charity which helps tenants enforce their rights. If the Minister has not read it, I urge her to do so. In London in 2018, for example, there were 130 cases of homelessness due to an illegal eviction, but only 14 incidents were recorded by the police.

We need a stronger partnership between the police and local authorities to combat this serious crime. Requiring co-operation and sharing of relevant information by police forces is necessary. This amendment will help secure that co-operation. In addition, more needs to be done to reset police attitudes to illegal evictions, with better training of police officers and call handlers so that they know how to respond correctly when a renter is being illegally evicted. We need better data recording and the publishing of that data on incidents between landlords and tenants. Authorities need the powers that currently exist with regard to enforcing safety standards and licensing to demand documents from parties of interest to cover investigations into illegal evictions. The sentencing guidelines should also be addressed; only two of the 10 fines handed down in 2019 were of more than £1,000. Fines can even be lower than the £355 it costs to make a legal claim for possession through the courts. They are far too low to act as any real deterrent to the crime.

Illegally evicting someone is a grave offence, and it affects the most vulnerable renters. Amendment 292H is a step forward. It will improve enforcement of this crime through ensuring that closer working relationship between the police and local authorities which is necessary for proper enforcement and prosecution.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I will intervene briefly to support my noble friend Lord Hunt of Kings Heath, who is a member of the Public Services Committee, which I chair. I am delighted to see other members of the committee in the Chamber this afternoon. We published our report only on Friday and I am sure the Minister will be relieved to know that I will not go through its recommendations in great detail. I am sorry the Chief Whip has gone; I was going to say that I hope we will get an opportunity to do that properly on the Floor of the House in the not- too-distant future.

The amendment, despite its length, is quite simple and straightforward. It arises from our report on vulnerable children, which was published last Friday. The report demonstrates very clearly that the country faces a crisis in the growing number of vulnerable children —or “children in need”, as the Government tend to say. The committee found that, since 2010, money at local level has been moved from early intervention and programmes of prevention to crisis intervention. I do not blame those at local level; they had to bear large cuts because of the austerity programme and, legally, they cannot avoid crisis intervention. If something goes wrong, they have a duty to remove a child from the home, exclude them from school or get them into the criminal justice system if they are in real trouble. We know that, as early support for families is reduced, there is evidence that children are more likely to end up in crisis and require being taken into care or excluded from school, or even ending up in the criminal justice system.

The amendment seeks to protect families and children through a duty on agencies at the local level to provide early intervention to help prevent that crisis and breakdown, and it encourages and puts within that duty collaboration between those local agencies. One of the quite shocking things we heard, given that this has been talked about for so many years, is that one agency would very often not know what was happening with the child or the family if they were directly involved with another agency. We think that that level of co-operation and collaboration at a local level is also essential.

This provision would protect what local agencies feel is necessary in order to have that early intervention, which, if it works well—and we know it can—will prevent necessary crisis intervention later on. In the long term, this would save us money as taxpayers and as a society. That is the problem: we never get to the long term, because since 2010, the money spent on early intervention has been slashed. In my own county of Durham, 66% of the funding they were spending on early intervention has now been switched to crisis intervention. In Sunderland that figure is 81%. We found in our inquiry that this had happened most in the areas of greatest need around the country. For us as a nation, that is unacceptable.

There are huge pressures on local authorities in relation to children, and even more have been flagged up since our report was published only last Friday. The County Councils Network report earlier this week predicted a rise in the number of children requiring care, and yesterday the Home Office said it was going to require more local authorities to accept unaccompanied asylum-seeking children. I approve of that responsibility being shared, but it tells us that the pressures at that heavy end are not going to lessen at this time. The only way to reduce those pressures is by giving families support at the time that will help them to avoid crisis down the line. I know that if a new duty is placed on a local authority, the Government have committed themselves to it and it is in legislation that they will fund—although certainly never as much as the local authority wants—that new responsibility. So, there is money attached to a new duty, and that is one of the reasons why we put this in the way we did.

As a nation, we cannot afford this continuing and escalating crisis in the number of children who are vulnerable and in need. This is spelled out in the amendment, so let us really back what we know can work in terms of early intervention. I ask the Government to signal that they understand what this amendment is about and that they are going to make sure that this sort of thing happens in the future.

[Baroness Wyld (Con)]

My Lords, I rise briefly to support Amendment 292J in the names of the noble Lord, Lord Hunt, and the noble Baroness, Lady Armstrong. It has been a real pleasure to serve on that committee with them, and it was brilliantly chaired by the noble Baroness, Lady Armstrong. I did not agree with everything she said this afternoon, but we always disagree well. I do agree with the terms of the amendment, and I think the arguments were tightly set out. The points around siloed working are critical, and if we do not do this, we will see more of the pretty harrowing examples that the noble Lord, Lord Hunt, referred to. I am pleased to give my support to this amendment.

16:45

[Lord Best (CB)]

My Lords, my Amendment 320 and the consequential Amendment 328 are—slightly surprisingly—in this group. Together, they would finally repeal the Vagrancy Act 1824, which makes homelessness a criminal offence.

I am grateful to the homelessness charity Crisis for devising these well-crafted amendments. I am most grateful to the noble Baronesses, Lady Thornhill and Lady Bennett of Manor Castle, the noble Lords, Lord Young of Cookham and Lord Sandhurst, and the noble and learned Lord, Lord Falconer of Thoroton, for adding their names to these amendments. They join the long list of distinguished parliamentarians, including William Wilberforce in the 1820s and Winston Churchill in the 1930s, who have opposed this objectionable legislation. Indeed, last month the Prime Minister himself spoke out, saying:

“No one should be criminalised simply for having nowhere to live, and I think the time has come to reconsider the Vagrancy Act”.—[Official Report, Commons, 20/10/21; col. 752.]


Since there can be no objection from the Treasury, as there is no expenditure involved, it seems, therefore, that the moment has arrived. After almost 200 years, the antiquated and misguided Vagrancy Act can at last be laid to rest.

Certainly, the importance of repealing the Act remains, although I will not repeat my Second Reading speech on this theme. Suffice to say, punishing people for being homeless is entirely the wrong approach. Fining people up to £1,000 for sleeping rough or begging and giving them a criminal record is surely a travesty, making their recovery and reintegration into society more difficult than ever. It inhibits the referral of those sleeping rough to the community and social services that can help them, and as long as being homeless is itself a criminal offence, homeless people are deterred from engaging with the law when they are the victims of dreadful violence and abuse, as they so often are.

I note that rough sleepers are 17 times more likely to be victims of crime than the rest of us. Among the examples provided by Crisis, I note the quote from a man in Oxford, who said that

“in my nine years on and off the street, I was violently attacked, shouted at and even urinated on by total strangers. Enduring this abuse was hard enough—I didn’t expect the law to hold my very existence against me.”

Other case studies from Crisis demonstrate just how counterproductive the Act is in blocking the chance for agencies to help and instead penalising and fining those least able to pay.

However, it is now clear that, to the highest levels of government, Ministers have accepted the case for repeal. Nevertheless, in case there are any lingering doubts or hesitations, perhaps I could offer some observations on possible objections to these amendments.

First, securing this repeal has been inhibited to date by the problem of finding the parliamentary time for the Government to do what they want to. Clearly, this obstacle is behind us now that the Police, Crime, Sentencing and Courts Bill provides the opportunity for this to be expedited right away. Indeed, it would absorb far more parliamentary time if the Government were to prepare a fresh Bill to be taken through its 10 stages in the two Houses. It would also take more time if the Government turned down the opportunity before us and required these amendments to go to a vote, with all the extra toing and froing that this would entail. Missing this moment now would surely mean a long, frustrating and pointless wait for the next legislative opportunity, which might be years away.

Secondly, there is the objection that the amendments themselves need revising. The Minister raised such an objection at Second Reading: she noted the devolution implication, given that it extends to Wales. This is an important point and has now been the subject of discussion with the key people in Wales. Welsh Government Ministers have themselves advocated a repeal, and the Ministry of Justice has now been notified that the Welsh Government have indicated their full support for the amendments to apply to Wales as well as England. The necessary legislative consent Motion from the Senedd is scheduled once further amendments are made to the Bill. A tweak to the amendments before us has been prepared to embrace this Welsh dimension, and this can be brought forward, I hope with government approval, on Report. The devolution issue here is one of extra support from Wales. I add that the Vagrancy Act has already been successfully repealed in Scotland.

Thirdly, it might be argued that there are still parts of the original legislation covering aggressive begging and anti-social behaviour which need to be preserved, complicating any repeal of the Act. However, this line of argument ignores the far more extensive powers now available under other legislation, notably the Anti-social Behaviour, Crime and Policing Act 2014, to which I believe the noble Lord, Lord Sandhurst, will draw attention.

There are compelling arguments for the police to use these powers very sparingly in so far as they embrace homeless people, but it cannot be said that the necessary powers do not exist. To support necessary action by front-line police, Amendment 320 includes the totally non-contentious but none the less valuable subsidiary provision for updated guidance on the 2014 Act to be disseminated, promoting the preventive approach now adopted by most police forces.

Fourthly, it is said that it is not worth bothering with repeal of the Vagrancy Act since the number of people charged under it has been declining. However, the Act is still used as a fallback, even though other, more appropriate measures are available. Under pressure from local members of the public, the Act is still deployed.

Moreover, the symbolism in this repeal should not be underestimated; it demonstrates a more enlightened understanding of homelessness. The Government could be rightly proud of making this symbolic gesture alongside their good work in responding to homelessness in the pandemic with their Everyone In initiative; their support for the Homelessness Reduction Act 2017, Bob Blackman MP’s Private Member’s Bill, which I had the honour of taking through your Lordships’ House; and their excellent funding for the Housing First projects.

The Government have the laudable objective of ending homelessness by 2024. Removing the barrier of the Vagrancy Act that still hangs over homelessness policy must be an essential step in this direction. I hope the Minister will agree that there really are no arguments for further delay. It has been over three years since the Government committed to look again at this issue and no difficulties have been uncovered. It is almost 200 years since this controversial measure was enacted; let us not kick the can any further down the road. At last, here and now, we have the opportunity to get this done.

I would be delighted to meet Ministers to discuss any further tweaks that could improve these amendments before Report, an offer I am sure goes for the other noble Lords supporting these amendments. Because of the way amendments have been grouped today, I will not be invited to sum up the position after the Minister’s response, so perhaps I can be clear now that I intend to take these amendments to a vote on Report if we are unable to agree a form of words to repeal the 1824 Act. However, I hope it will not come to this and I eagerly anticipate the Minister’s response.

[Lord Young of Cookham (Con)]

My Lords, first, I will say a brief word on Amendment 292J, proposed by noble Lords on the Public Services Committee, on which I and my noble friend Lady Wyld also serve. It backs one of the recommendations made in last week’s report and I support the case being made. Indeed, on 25 October, I tabled an amendment with the noble Baroness, Lady Blake, to help exactly the same group as mentioned in this amendment, namely children at risk of domestic violence and criminal exploitation. In that amendment, I argued for them to be given housing priority, so I hope the Minister will reply sympathetically to the case made by the noble Lord, Lord Hunt, and others.

I have added my name to Amendment 328, which is consequential to Amendment 320, tabled by the noble Lord, Lord Best. I add a brief footnote to what he said, in support of the campaign which he has long championed. On 23 April 2020, in an Oral Question about the Vagrancy Act 1824, I asked the Minister if he agreed that

“attitudes to those who sleep rough have softened over the past 200 years and that legislation which refers to ‘idle and disorderly’, ‘rogues’ and ‘vagabonds’ living in ‘coach-houses’ and ‘stables’ has no place in modern legislation”.

Later in that exchange, the noble and learned Lord, Lord Judge, weighed in, saying:

“If Section 4 of the Vagrancy Act, which was enacted after repeated harvest failures created an army of the dispossessed, were presented to us today, beyond the archaic language to which the noble Lord, Lord Young, has already referred, we should reject it as being vague and uncertain, and arguably tarnished with an improper reverse burden of proof.”—[Official Report, 23/4/20; col. 84.]


We have heard the Prime Minister’s words on this. The former Secretary of State at the then MHCLG said that, in his opinion, the Vagrancy Act, whose short title is

“An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in England”,


should be repealed. As the noble Lord, Lord Best, said, here we have an amendment that would deliver government policy. At Second Reading, the Minister said she was sure the House would hold her to account on her assurance that she was on the case—so here we are.

This is not the first attempt at repeal. On 17 August 1911, Sir William Byles asked the Home Secretary

“whether the new Recorder of Liverpool, Mr. Hemmerde, K.C., has just sentenced a young man, Edward Gillibanks, to twenty-five strokes with the birch, in addition to twelve months’ hard labour, for being an incorrigible rogue; and whether, in view of the effect of this form of punishment, he will consider the desirability of proposing the repeal of the Vagrancy Act”.

The Home Secretary, one Mr Churchill, replied:

“I cannot say that I think the punishment inflicted on him supplies an argument for repealing the Vagrancy Act.”—[Official Report, Commons, 17/8/1911; cols. 2103-04.]


Let us hope we fare a little better today.

It is now common ground that the Act does nothing to resolve or tackle the causes of homelessness. On the contrary, by directing rough sleepers down the criminal justice route, it risks isolating them from the very sources of help now generously provided by the Government, which can help them to rebuild their lives.

The right approach is set out in the thoughtful and comprehensive approach of Westminster City Council, detailed in its rough sleeping strategy, which outlines how rough sleeping can be sensitively handled in a borough to which the magnetism of the capital attracts so many. Every rough sleeper is offered a personalised and sustainable route away from the streets, based on their circumstances. The council has remodelled its services to accept women, who make up some 17% of rough sleepers, and can accommodate women who will not be parted from their dogs.

Westminster also makes it clear that it needs powers to deal with those who behave aggressively or anti-socially. The amendment contains the necessary provisions and my noble friend Lord Sandhurst will refer to other provisions on the statute book to deal with unacceptable behaviour. We have the perfect vehicle to bring our legislation up to date. I hope we are pushing at an open door and I look forward to the Minister’s gracious speech of acceptance.

[Baroness Thornhill (LD)]

My Lords, I give the support of our Benches to Amendments 320 and the consequential amendment, Amendment 328, to which I have put my name. We also support Amendments 292H and 292J. I ask for the indulgence of the Committee in allowing me to speak now, as I was unable to speak at Second Reading. I am also very conscious that time is short for the weighty matters that we are trying to achieve today, so I will try to be succinct in covering what should have been two separate interventions.

The noble Lord, Lord Best, has summed up only too well why the Vagrancy Act 1824 should be repealed, so noble Lords will be relieved to know that I will not repeat his arguments. That we still criminalise homelessness in 2021 is a stain on our societal conscience. Some 200 years ago, starving children were imprisoned for stealing bread, people hanged for petty theft and poverty was attributed—this is the key point—to individual fecklessness. The fact that vagrancy remains a crime is an anachronistic throwback to those times and repeal is long overdue.

Having dealt with several police chiefs in my 16 years as a directly elected mayor, I know that the very fact that begging and homelessness were in themselves crimes evoked different attitudes in different offices, in both the council and the police. This resulted in conflicting approaches to how we should work and how effective we were. We had to work together and go on a journey to find a truly multiagency approach. On that journey, we had to challenge some very firmly held views on the stereotypes of homelessness and what we believed might work. Repealing this Act would change this culture and ensure consistency of approach towards the homeless.

A concern that one might have in agreeing to the amendment is whether the police would feel that they would be unable to deal with some of the genuine issues that occur—I know because we have used some of these tools. When an area has a significant number of homeless people in the community, would they feel a loss of some powers? I am sure that the noble Lord, Lord Sandhurst, will expand on that. From my experience, I know that there are plenty of other arrows in the antisocial behaviour quiver to deal with such issues. Thus, we hope that the Government will give serious consideration to our amendments.

17:00

I have briefly mentioned the challenges of partnership working, and such working is at the heart of Amendments 292H and 292J. As was said by the noble Baroness, Lady Blake of Leeds, we have the Protection from Eviction Act 1977, which, in the vast majority of cases, works. It ensures that eviction follows due process and, very importantly, that anyone evicted has a right of appeal. It gives them more time to find somewhere to live. Most importantly, they are not deemed to have made themselves intentionally homeless, which is critical for being eligible for help from the local authority.

Cutting to the chase, in my experience, the police and local authorities play pass the buck this one—if they respond at all. A survey by the charity Safer Renting found widespread ignorance within police forces of the details of their powers in the Act, many wrongly believing that it was a civil matter. There was even some evidence of the police helping landlords to evict illegally. I am in no doubt that this amendment would strengthen those partnerships, obliging the police and local authorities to share information—a point well made by several noble Lords. The data issues on sharing information are mystifying. Most importantly, it would act as a deterrent against landlords who are quite willing to break the law. Almost inevitably, when it comes to light, they are breaking the law in other housing and tenancy matters.

The noble Baroness cited the 2019-20 figures. We should be concerned about the disparity between offences and prosecutions. It signifies that either the authorities are not taking it seriously or they are not gathering the correct information to enable a prosecution. This amendment addresses that. It is also true that it is usually the vulnerable and marginalised who are the victims of rogue landlords and they need and deserve our protection. The Act should be taken seriously. It is not at the moment. The amendment would ensure that that happens.

The amendment in the name of the noble Lord, Lord Hunt of Kings Heath, would also encourage greater co-operation and collaboration between the relevant authorities on the protection of children—surely there is nothing more serious than that. It is necessary, because I recognise from bitter experience that it is only by working together that we can begin effectively to challenge these ills in our society. But it is sometimes necessary for the Government to do their bit and insist on that co-operation, in order to drag the agencies to the table to start making a difference by changing lives in partnership.

[Lord Sandhurst (Con)]

My Lords, I will speak to Amendments 320 and 328, which would repeal the Vagrancy Act. This 197 year-old Act does nothing to tackle and resolve homelessness, and nor does it prevent antisocial behaviour. In fact, by criminalising rough sleepers, it prevents them accessing vital services to support them to move off the streets. This is important in the context of people trafficking—modern slavery. Its victims are those likely to end up sleeping rough on the streets to escape danger. They need our help. Criminalising rough sleeping marginalises the most vulnerable and may mean that rough sleepers move away from, not towards vital support. It does not address the underlying causes.

The Act now has only two effective provisions. Section 3 makes it an offence in any public place to beg or cause a child to beg. An offender can be locked up for one month. Section 4 addresses what we call rough sleeping. It also encompasses those who are in enclosed premises for an unlawful purpose. This is used to deal with people who are thought to be “up to no good”. The fact is that there are perfectly good ways of dealing with all those people both within and without the criminal law. Indeed, on 9 March the then Secretary of State said in answer to a Parliamentary Question that the Act should be repealed. In this amendment, we offer a fully drafted way forward. If minor changes are needed, they can be made—there is no problem there.

The number of convictions for rough sleeping and begging have fallen consistently in the past 10 years. Indeed, in 2019—the most recent year for which figures are available—only one person received a custodial sentence for begging, and only 16 received a custodial sentence for being in enclosed premises for an unlawful purpose. The numbers are tiny. Let us throw away the sledgehammer. The police, local authorities and other agencies have ample powers.

Let me explain very briefly. The Highways Act 1980, Section 137, makes it an offence wilfully to block free passage along the highway. That is punishable by a fine. The Public Order Act 1986, Section 5, makes it an offence to use threatening or abusive words or behaviour. That, too, is punishable by a fine. Moving to civil measures, the Anti-social Behaviour, Crime and Policing Act 2014 introduced a wide range of measures to deal with the different types of anti-social behaviour. Recourse can properly be made to those measures for people who are repeat nuisances. They are all available under the 2014 Act.

Taking it very summarily in the short time available, there are civil injunctions to prevent nuisance and annoyance. Breach of those civil injunctions gives rise to civil contempt, with all the remedies available for that—up to 2 years’ imprisonment for the worst offenders, but it is done properly. Secondly, there are criminal behaviour orders. These can impose requirements as well as prohibit certain activities. Thirdly, there are community protection notices. These can be issued by the police, a social landlord or a local council if behaviour is detrimental to the quality of life of a local community. Fourthly, there are dispersal powers, under which a local council, following consultation with the police, may issue a public spaces protection order to place restrictions or impose conditions on activities that people may carry out in the designated area.

In respect of that, since 2014 the Home Office has issued statutory guidance under the 2014 Act, recently updated this January. Our amendment, as noble Lords will see from its terms, will strengthen that. We propose a co-ordinated package. Where something has to be done, the police and local authorities have the powers to do it. We ask the House to act now to put an end to this prehistoric, unjust and inappropriate law. I commend the amendments.

[Lord Thomas of Cwmgiedd (CB)]

Briefly, I entirely support the repeal of the Vagrancy Act, and there is no point in repeating what have been compelling, eloquent and, I believe, unanswerable points. Long experience has shown that arguments do not get better by repetition.

What I wanted to do, however, was to make four quick points from my experience in support of Amendment 292J in the name of the noble Lord, Lord Hunt of Kings Heath. First, the category of person dealt with is easy to identify. Therefore, that is not an answer. Secondly, the evidence of the risk of future offending is compelling. That in relation to Wales is set out—I need not repeat it—in the report of the Commission on Justice that I chaired and there is masses of such evidence. Thirdly, the proposal is plainly value for money. One has only to look at the cost of what it takes to deal with those who have gone wrong. Fourthly—surprisingly, some may think—the proposal would have enormous public support. When we canvassed views about it, and when I did so as a judge, one always found that the overwhelming majority felt that these people deserved a chance and support.

[Lord Paddick (LD)]

My Lords, my noble friend Lady Thornhill has spoken comprehensively on these amendments, so I can be brief. I thank the noble Baroness, Lady Blake of Leeds, for introducing the amendment. She rightly points to the failure of the current legislation to adequately deal with this problem on the basis of the facts that she presented. Something clearly needs to be done to ensure that the police play their part. If South Yorkshire Police can do it, why cannot every force? We support this amendment.

I also thank the noble Lord, Lord Hunt of Kings Heath, for his Amendment 292J. Noble Lords may have seen the ITV “News at Ten” last night on how young people are increasingly being exploited, particularly by drug dealers. That is in addition to a 6% increase in reported domestic violence during lockdown, when many more children would have become vulnerable. There is too much emphasis on the criminal justice system as a way to deal with these vulnerable young people, rather than there being a statutory duty on local authorities, the NHS and the police, as this amendment suggests. We support it.

The noble Lord, Lord Best, introduced Amendments 320 and 328. I remember being told as a young constable about the antiquated legislation—the Vagrancy Act 1824—introduced to deal with soldiers returning from the Napoleonic wars. That was in 1976—not the Napoleonic wars, when I was a young constable; they were a bit earlier. People should not be criminalised simply for begging and sleeping rough. There is adequate alternative legislation to deal with anti-social behaviour and the Vagrancy Act is now redundant. As the explanatory note says, these amendments would require police officers

“to balance protection of the community with sensitivity to the problems that cause people to engage in begging or sleeping rough and ensure that general public order enforcement powers should not in general be used in relation to people sleeping rough, and should be used in relation to people begging only where no other approach is reasonably available.”

On that basis, we support these amendments as well.

[Baroness Williams of Trafford (Con)]

My Lords, perhaps I may begin by saying that I have great sympathy with the wish of the noble Baroness, Lady Blake, to firmly stamp out the illegal eviction of tenants. This distressing activity has no place in our society and it is an unacceptable practice carried out by rogue landlords, perpetrated on tenants.

I totally agree that the police and local authorities need to work together to tackle that. Many noble Lords have spoken in today’s Committee who have experience of this type of multiagency working. It is essential in terms of supporting the vulnerable, and there are many examples of that. I always talk about the troubled families programme, which is one such intervention but it is such an important one because some people have multiple problems. It is a fantastic way for agencies to sort them out together. Local authorities and the police also have mechanisms in place to work collaboratively to tackle criminal landlords. The police are also able to establish protocols for information sharing, which the noble Lord, Lord Hunt of Kings Heath, spoke about. We expect them to use those protocols to their full extent to aid investigations into illegal evictions and enforce the law.

If the noble Baroness, Lady Blake, has examples that suggest a lack of effective co-operation, I should be very happy to pass them on to my colleagues in DLUHC. As has been pointed out, there are lots of good examples of how interventions have worked well, particularly in Westminster. If there is an issue, the solution here is not more legislation. The existing powers we have are sufficient. But I accept that it is incumbent on the police and local authorities to work collaboratively to tackle crime in their areas, including on illegal eviction investigations. As regards the point about police saying that issues are a civil matter, which the noble Baronesses, Lady Kennedy of Cradley and Lady Jones of Moulsecoomb, mentioned, the police have powers of arrest and it is important that those powers are used appropriately, including on illegal eviction investigations.

17:15

As the noble Lord, Lord Hunt of Kings Heath, explained, Amendment 292J would provide for a new duty on specified authorities to collaborate to support children affected by domestic violence or those children at high risk of criminal exploitation. We touched on these issues when we were debating the serious violence duty. Some of my initial comments on the points made by the noble Baroness, Lady Blake, apply here as well.

Ensuring that vulnerable children remain protected is such a high priority for the Government and society. In 2017, we introduced significant reforms requiring local authorities, clinical commissioning groups and chief officers of police to form multiagency safeguarding partnerships. They were fully established in 2019, and we continue to work across government and with local partners to ensure that they are as effective as possible. With strategic oversight from health, policing and local authority leaders, those multiagency safeguarding arrangements can co-ordinate identification, protection and intervention for those at risk of harm in a way that best responds to local circumstances. I should say that the troubled families programme often identifies other interventions that are needed.

As safeguarding partners, local authority, police and health leaders already have a statutory duty to collaborate in their child safeguarding functions, which includes working together to identify and respond to the needs of children in their areas. These partners are able to name other authorities, as noble Lords will know, including representatives from the education and criminal justice sectors, as relevant agencies in their arrangements. Where named, these agencies are under a statutory obligation to comply with those arrangements. That duty to collaborate in supporting children at risk of, or affected by, these crimes therefore already exists on a statutory footing. However, we recognise the imperative to give focus to the twin issues that the noble Lord, Lord Hunt, raised in his amendment.

[Baroness Armstrong of Hill Top (Lab)]

Does the noble Baroness accept that there is a problem with that situation, which happens often at the crisis level and not the early intervention level? It also excludes any organisation, such as a voluntary sector agency, that may be working with a child if they are not one of the three official statutory agencies.

[Baroness Williams of Trafford (Con)]

What I was trying to say was that legislation is in place but, if it is not always followed in practice, it would be very helpful to know about it. However, I accept the final point that the noble Baroness makes.

I turn to the issues that the noble Lord raises in his amendment. If you consider first children impacted by domestic abuse, it is totally unacceptable that some children have to witness abuse carried out in their home by those whom they should trust the most. This Government have demonstrated their absolute resolve to tackle domestic abuse and its impact on children, both in legislation earlier this year—the Domestic Abuse Act—and through the upcoming domestic abuse strategy.

As part of the landmark Domestic Abuse Act, children are recognised as victims of domestic abuse in their own right where they see, hear or experience the effects of domestic abuse. This is an important step which will help ensure that locally commissioned services continue to consider and address the needs of children. Further, the Act created the role of the domestic abuse commissioner in statute to provide public leadership on domestic abuse issues and to oversee and monitor the provision of services for victims, including children. The provisions of the Act came into force on 1 November.

It is really important that young victims receive the right support at the right time—which was precisely the wording that the noble Baroness, Lady Armstrong of Hill Top, used—to help them cope and recover and to mitigate the long-term impact of their experiences. We are determined to continue to improve the standard of support for victims of crime. This year the Government will provide £150 million to victim support services, which includes an extra £51 million to increase support for rape and domestic abuse victims. That includes support for children and young people.

Through the children affected by domestic abuse fund we have provided £3 million this year for specialist services for children who have been affected by domestic abuse. This funding is enabling a range of therapeutic interventions for children, such as one-to-one or group support. In addition, the Home Office is this year providing £169,000-worth of funding to Operation Encompass, a scheme which connects the police to schools through a specialist support helpline for teachers concerned about children experiencing domestic abuse. The helpline was established during the Covid-19 pandemic, as noble Lords might recall, and we are continuing to fund it this year.

Turning to the matter of child criminal exploitation, the Government are investing in specialist support for under-25s and their families who are affected by county lines exploitation in the three largest exporting force areas—London, the West Midlands and Merseyside. The Government are also funding the Children’s Society’s Prevention Programme, which works to tackle and prevent child criminal exploitation, child sexual abuse and exploitation, and modern-day slavery and human trafficking on a regional and national basis. This has included supporting the #LookCloser public awareness campaign, which focuses on increasing awareness and encouraging reporting of the signs and indicators of child exploitation. We also fund Missing People’s SafeCall service, which is a national confidential helpline for young people, families and carers who are concerned about county lines exploitation.

Through cross-government efforts we are working to identify areas of learning with regard to child criminal exploitation and improving our response to it. The Home Office and the Department for Education are currently testing the effectiveness of how multi-agency safeguarding partnerships respond to serious violence and county lines through a series of deep dives. We have recently received the findings from those reviews and are considering the best way to share the learning and practice with local areas.

In the wider landscape, the noble Lord will be aware that the Government will be consulting on a victims’ Bill. As part of that consultation, we will seek views on the provision of community-based support services for victims, including children. The consultation will carefully look at how local bodies collaborate to support victims and will consider the evidence to determine where legislation could be used more effectively. Therefore, although I am very sympathetic to the aims of the noble Lord’s amendment, I hope that he is sufficiently reassured by the extensive ongoing efforts to tackle these two issues, the existing arrangements in place and, indeed, our plans to consider the duty to collaborate further as part of the victims’ Bill.

Finally, in relation to Amendments 320 and 328, I agree wholeheartedly with the noble Lord, Lord Best, that the time has come—

[Lord Paddick (LD)]

I am very grateful to the Minister for giving way. Before we get on to the Vagrancy Act and the other amendments, she talked about treating children as victims of domestic violence if they witness it, and about child criminal exploitation. There is a third group: children who witness violence, particularly in the home, and suffer adverse childhood experiences as a result which lead them into committing crime. I remember attending a juvenile detention facility in Scotland, where almost every child in custody had experienced violence in the home as a cause. The Minister talked about two issues, but there is this third issue of adverse childhood experiences leading to offending behaviour, which I believe the noble Lord’s amendment addresses in a way that the Minister has not.

[Baroness Williams of Trafford (Con)]

My intention was not to leave out that issue; we could have a whole debate on the effect of childhood abuse, trauma and witnessing violence on the future prospects of a person when they become an adult and their increased likelihood of going on to abuse, but my intention was not to dismiss it. I apologise that I did not mention it, but the intention certainly was not to dismiss it at all.

Finally, I move to the amendments in the name of the noble Lord, Lord Best. As I said, the time has come to reconsider the Vagrancy Act—some of the language that was used is so antiquated that it would perhaps be alien to some of this generation. I agree that nobody should be criminalised just because they have nowhere to live. Back in 2018, we committed to review the legislation following mixed views among stakeholders regarding the continued relevance of the Act, given that it is, as noble Lords have said, nearly 200 years old. I am sure that noble Lords can understand that announcing the outcome of this review has been delayed by several factors. One noble Lord mentioned the dedicated response for vulnerable individuals who are sleeping rough during the pandemic, which was outstanding.

It has been imperative to understand the full picture of how and why the Vagrancy Act is used, and what impact any change to or repeal of the Act will have. Rough sleeping and begging are complex issues, and the Act continues to be used. The review considered a range of factors and at its heart has been the experiences and perceptions of relevant stakeholders, including local authorities and the police. The Act continues to be used to tackle begging, and, if repealed, a legislative gap would be left that might impact on the police’s ability to respond to it.

The Anti-social Behaviour, Crime and Policing Act 2014 is not an alternative in this context. The powers in the Act are available to police and local authorities to tackle specific forms of behaviour that meet the legal tests in that legislation—for example, behaviour that is likely to cause harassment, alarm or distress to a victim or community. As I have said, begging is complex, but plainly it does not always come with these forms of accompanying behaviours.

[Baroness Chakrabarti (Lab)]

I did not speak earlier to save the Committee’s time and please the Government Whips, but I now have two short questions in relation to the Minister’s answer.

17:30

[Baroness Williams of Trafford (Con)]

I was just about to say that I have not finished my answer.

Begging is clearly complex but plainly does not always come with these forms of accompanying behaviours. We must ensure that there are no unintended consequences in repealing the Act. We carefully consider the operational impact for the police, who play a very important role in local partnership approaches to reducing rough sleeping, as well as ensuring community safety and tackling crime. Although the police will often not be best placed to provide support to vulnerable individuals, enforcement can form part of moving people away from the streets when working closely with other agencies and coupled with a meaningful offer of support. It is important that the police have effective tools to respond to behaviour that can impact negatively on communities.

The anti-social behaviour powers to which my noble friend Lord Sandhurst referred do not have the immediacy of a criminal offence. We need to consider further whether there is a continued place for criminal law in tackling begging.

As I have previously stated, the Government do not wholeheartedly agree that the Vagrancy Act is outdated and inappropriate—I am sorry; we do agree. I am quite tired today. The Government agree that the Vagrancy Act is outdated and inappropriate for modern-day society. However, as I have outlined, it needs to be considered alongside consideration of what more modern replacement legislation should look like.

To that end, in relation to subsection (4) of the proposed new clause, I share noble Lords’ ambition to make sure that those who are rough sleeping are supported appropriately. We know that not all individuals who are rough sleeping beg and that not all individuals who beg are rough sleeping. There is a range of circumstances in which an individual may beg, including forced begging; a perpetual cycle of begging can have a detrimental impact on the health of an individual, as well as impeding engagement with support. We also know that some people engage in begging with various motives. Where an individual is truly destitute, it is paramount that a multiagency approach is wrapped around them to provide the necessary support, but we must recognise that this does not always happen. We need to ensure that legislation creates the right environment in which to deliver effective services and engage with vulnerable people constructively.

In relation to subsection (5), I am not convinced that additional guidance is needed on the use of anti-social behaviour legislation beyond existing statutory guidance. The Anti-social Behaviour, Crime and Policing Act 2014 was introduced to provide simple and effective powers to tackle anti-social behaviour, and existing statutory guidance makes it clear that those powers are not there to target vulnerable people based solely on the fact that they are homeless or begging without there being accompanying behaviour that meets specific legal tests. Therefore, we believe that the position that subsections (3) to (7) of the proposed new clause seek to specify are an already-established position reflected in statutory guidance.

I accept that these are relative points of detail about the drafting of the noble Lord’s amendment. The central point is that the Government are committed to completing their review of the Vagrancy Act as soon as practicable. This helpful and timely debate will inform that process. I would like to extend an offer on behalf of Eddie Hughes, the Minister for Rough Sleeping, to meet the noble Lord, Lord Best, and other noble Lords who have spoken in the debate ahead of the next stage.

[Lord Young of Cookham (Con)]

Was the former Secretary of State, Robert Jenrick, speaking on behalf of the Government when he said that the Vagrancy Act should be repealed?

[Baroness Williams of Trafford (Con)]

When I voiced my support for something needing to be done about the Vagrancy Act, there was a general acknowledgement that something needs to be done about it. I extend the invitation to the noble Lord, Lord Best—and, indeed, to my noble friend as well if he so wishes—because it would be an important discussion ahead of the next stage. What I was trying to say in my rather long-winded explanation is that there are some complex things in the Vagrancy Act that need to be unpicked and understood, with consideration of the legislation on the back of that.

[Baroness Chakrabarti (Lab)]

I hope that this is an appropriate time for me to ask the Minister two questions in relation to her answer on this group.

First, in contrast with the Minister’s answer to the subsequent amendment in the name of my noble friend Lady Armstrong of Hill Top, the answer to Amendment 292H in the name of my noble friend Lady Blake seemed to be that there are adequate powers for local authorities and the police to work together to protect people from unlawful eviction. However, there is obviously a difference between powers and duties. The intention behind this neat and compelling amendment is to do what the Government have tried to do in other aspects of this draft legislation: create a duty for people who already have powers to prioritise a problem and work together. Why not prioritise protection from eviction in the way that other types of crime have been prioritised, with duties and not just powers, in other parts of the Bill?

Secondly, I listened carefully to the Minister’s answer on vagrancy. I do not understand why, if begging is not causing harassment to people, it is a crime at all. The Minister talked about two sides of the begging problem: it is bad for the person who has to do it and potentially bad for the people who experience it. If it is bad for the people who experience it, there are, as the noble Lord, Lord Sandhurst, set out, adequate criminal laws, whether in anti-social behaviour or in other legislation, that cover unwanted harassment. If it is just about protecting people from unhealthy behaviours, we do not do that by criminalising people for being desperate and poor. When she meets her noble friends to discuss this amendment, will the Minister look at whether this review cannot be speeded up in time for Report? The Government seem able to move very quickly when it comes to adding extra powers to suppress protests, but it takes hundreds of years to repeal the Vagrancy Act.

[Baroness Williams of Trafford (Con)]

I am sure that, when my noble friend and the noble Lord, Lord Best, meet Minister Hughes, they will cover some of the points made by the noble Baroness.

I do not think that this is about an acknowledgement that there are adequate powers; it is about the application of those powers. As I said to the noble Baroness, if there are deficiencies in collaboration at the local level, it would be helpful if they were brought to my attention.

[Lord Carlile of Berriew (CB)]

I did not want to interrupt or contribute to this debate because there have been many eloquent speeches, but I want to ask the Minister a granular question. This is going to turn into a shaggy dog story in which everybody agrees that this 200 year-old legislation is out of date unless somebody sits down and does something serious about it with the intention of bringing the discussion to an end. As a question of fact, has parliamentary counsel ever been instructed to produce, or try to produce, legislation to replace the Vagrancy Act? If not, why not? If so, can we know something about the result?

[Baroness Williams of Trafford (Con)]

I thank the noble Lord for trying to wrap the discussion up in that one important question. I will take it away. When my noble friend and the noble Lord, Lord Best, speak to Eddie Hughes, the Minister, we will see what progress has been made at that stage. But at this stage, I wonder whether the noble Baroness, Lady Blake, will be happy to withdraw her amendment.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting. We have had an hour and 19 minutes on this, but the answer that the Minister gave on the problems with Amendment 320, to which I have put my name, were difficult to follow. She made the point that begging or sleeping rough does not in itself amount to action causing alarm or distress in the absence of other factors under the 2014 Act, with which I agree and which the drafters of Amendment 320 explicitly reflect in subsection (3). I am simply unable to understand her reasons for not accepting Amendment 320.

This is important. It is not possible to say, “Well, here are some incomprehensible reasons that nobody in the Chamber understands, therefore we need the completion of a review.” I did not follow whether the review is part of the way through, whether it is finished or whether there is an expected date for its conclusion. Will the Minister answer two questions? First, what is wrong with Amendment 320 if it precisely reflects what she said? Secondly, where has the review got to? When did it start and when will it finish?

[Baroness Williams of Trafford (Con)]

As for what is wrong with Amendment 320, I explicitly said to the noble Lord, Lord Best, that the Government agree that the time has come to consider the Vagrancy Act. There is an opportunity to speak to the appropriate Minister before Report to answer some of the questions that have been asked this afternoon. I do not know the answer to the second question, but I will write.

[Baroness Blake of Leeds (Lab)]

My Lords, I pay tribute to the contributions that we have heard this afternoon. They have been incredibly thoughtful and based on evidence. On my Amendment 292H, we have heard many examples supporting the words that I used: there is evidence out there of what works, in the same way that there is evidence of what does not work. This is a real opportunity to get to grips with this issue for the sake of the victims of eviction and their families. I assure the Minister that everyone who has access to evidence will be extremely happy to supply it, with the expectation that it will be considered as we make further progress with this Bill. This is a real opportunity to get things right.

I thought that I was going back a long way, to 1997, not back 200 years, but it clearly is not good enough that, where there are powers, they are not being used. My noble friend Lady Chakrabarti put it well: there must be an express duty to focus minds. It is not enough for us to say that in certain parts of the country this is being done. I can attest from my time as leader of Leeds City Council that there was incredible progress in this area and a real expectation that everyone would come to the table. Not sharing data was never an excuse. It was expected and supported by all the partners. It can be done everywhere but it is not being done everywhere. The resources are not there within the police or local authorities—they are diminishing—to ensure that enforcement is seen through. We are talking about innocent victims who suffer from the lack of enforcement. I made the point that all we are asking for is a simple change, through the amendment, that would bring to an end so much misery for people that does not need to happen.

17:45

I pay tribute to my noble friends Lord Hunt and Lady Armstrong for the work that has gone into their Amendment 292J. I support all the comments that were made about appropriate intervention at the right time. I get incredibly disappointed standing here and raising points while being told that millions of pounds are being spent. If they are not being spent properly and appropriately to have the necessary intervention to deal with the problem up front, then we all have some responsibility for accounting for that.

I hope that everyone agrees that more thought needs to be put into this. I sensed that the Minister had some sympathy with our expressions of frustration in both these areas and I hope that we can come to some accommodation, because it seems to me that we will miss a real opportunity if we do not bring this forward. The Public Services Committee, chaired so ably by my noble friend Lady Armstrong, has made the case clearly, as supported by other members today, for the early intervention model. This focuses on children. We know that when you get that early intervention right, not only do you get better outcomes for children and young people, as well as their families, but the resource that you spend can effectively be ploughed back and reinvested in supporting the early intervention that we know works. I am sure that all of us will supply any amount of evidence to demonstrate those points.

I am grateful for the interventions from my noble and learned friend Lord Falconer and my noble friend Lady Chakrabarti on Amendments 320 and 328. I feel that we will be forced to come back to this issue. Again, this seems an incredibly wasted opportunity. We need to get this right and move on because, as we know, the opportunities to get a grip of this issue are few and far between. I hope that we will continue these discussions and that my noble friends will be included in those further discussions, particularly around the review and other matters. I also hope that we can move to some sensible, timely changes in what has been proposed. With that, I beg leave to withdraw my amendment.

Amendment 292H withdrawn.

Amendment 292J not moved.

Amendment 292K

Moved by

[Baroness Brinton]

292K: After Clause 170, insert the following new Clause—
“Desecration of a corpse
(1) A person (‘D’) is guilty of an offence if—(a) D acts with severe disrespect to a corpse, and(b) D knows that, or is reckless to whether, their acts are one of severe disrespect.(2) In subsection (1)(a), disrespect to a corpse includes but is not limited to—(a) dismembering a corpse, including—(i) removing or attempting to remove identifiable body parts such as teeth, or fingers;(ii) decapitation or attempted decapitation;(b) destroying or attempting to destroy a corpse by means or burning or the use of chemicals.(3) For the purposes of subsection (1)(a), whether an act is one of severe disrespect is to be judged according to the standard of the reasonable person.(4) A person is not guilty of an offence under this section if—(a) the act would otherwise be criminal under section 1 of the Human Tissue Act 2004,(b) the act is also a criminal offence under section 70 of the Sexual Offences Act 2003 (sexual penetration of a corpse), or(c) the act is a lawful cremation under the Cremation (England and Wales) Regulations 2008.(5) A person guilty of an offence under this section is liable—(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 3 years.”Member’s explanatory statement
The current common law offence of preventing a lawful and decent burial is rarely used. This amendment therefore creates a specific criminal offence of desecration of a corpse to address intentional acts of disrespect towards a deceased person’s remains.

[Baroness Brinton (LD) [V]]

My Lords, Amendments 292K and 292L in my name seek to create a criminal offence of desecration of a corpse and concealment of a corpse. At present, there are only common-law offences of preventing a lawful burial and obstructing a coroner by concealing a body.

Marie McCourt, the mother of Helen McCourt, still does not know what happened to her daughter who disappeared on 9 February 1988, or where her body was hidden or disposed of. Marie is one of those extraordinary women who absolutely refused to stop looking for her daughter, even though Helen’s murderer, who was convicted on clear DNA evidence, has not only served his term in prison but been released on licence. Despite being pressed repeatedly by the authorities over the years, he has refused to say where Helen’s body was left or what happened to it.

Marie has been arguing for decades that the desecration and concealment of a corpse is an extra-heavy sentence on the victim’s loved ones. She has supported the families of many other victims who have seen their loved ones murdered but have no remains to bury, or have heard of unspeakable desecration of their bodies.

In 2015 Marie started to campaign for a change in the law for these killers, seeking to require them to reveal where their victims’ remains were before being considered for parole. In July 2019, she was successful in getting that law changed—but not in time for her daughter’s killer. Marie was not doing it just for her, her family or Helen’s friends. She does not want anyone else to go through the agony they have faced for over three decades.

Others have also spoken out: Coral Jones, Tony Cox and Lesley Rees are the parents and family members of April Jones, Lorraine Cox and Michael O’Leary, who were also not just murdered but had their bodies desecrated by their murderers. Some remains were dismembered and some were burned. These families have had the extra distress of not knowing what happened to part or all their loved ones’ bodies. For these families there is no closure. More recently, Sarah Everard’s remains were burned by her murderer—although in her case police were able to find her remains.

At present, with the common-law offence of preventing a lawful burial, and these days with excellent forensic skills such as those used by police and forensic staff in the Sarah Everard case, it is possible to identify not just remains but also links with the murderer. The common-law offence of obstructing the coroner by concealing a body is rarely used, and there are no consequences for a convicted killer who continues to conceal the whereabouts of a body. Some killers enjoy having this last part of control over their appalling acts. They know that most families will never have a day without reliving the distress of their loved one being murdered. Refusing to disclose what they have done with the body, or where they have concealed a corpse or partial remains, is a form of control.

I thank Marie McCourt, Fiona Duffy and Claire Waxman, the London victims’ commissioner, and her office, for helping to brief me this. There can be few things worse for a family than hearing that a loved one has been murdered. To then learn that their remains have been further abused or have never been found causes unimaginable distress. The current laws are inadequate and mostly not used by prosecutors. These amendments say that these two offences should become criminal offences where an offender has done an intentional act of disrespect towards the deceased person’s remains. The second amendment makes it a criminal offence for an offender to refuse to co-operate in the recovery of their victim’s remains. These offences will punish an offender who has committed these unspeakable acts beyond murder, and also perhaps begin to bring closure to grieving families. I beg to move.

[Lord Paddick (LD)]

My Lords, I thank my noble friend Lady Brinton for introducing these amendments, which we support. The “Helen’s Law” campaign has achieved a great deal by persisting in campaigning for victims and their families by ensuring that failure to disclose the whereabouts of a victim’s body can increase the killer’s time in custody. These amendments go further, as my noble friend has explained. She has worked with Helen’s mother, Marie McCourt, and others on these amendments, proposing to create specific offences of desecration of a corpse and concealment of a body.

These amendments address serious and real human suffering caused by preventing a victim’s family from recovering the body of their loved one, whose life has already been cruelly snatched from them. The proposed offences would respond to that cruelty in a way that may be inadequate in reducing the hurt, but at least they reflect the justified anger we all feel when killers compound their inhuman actions with further callousness and inhumanity. As my noble friend explained, the existing legislation is not only inadequate but rarely used. We support her amendments.

[Lord Falconer of Thoroton (Lab)]

My Lords, I pay tribute to the noble Baroness, Lady Brinton, for the clarity with which she has put this forward. The driving force behind this amendment is Marie McCourt whose daughter Helen McCourt was murdered by Ian Simms, and the body was never found. Ian Simms never indicated where the body was, refused to acknowledge what had happened, and was eventually released on parole. Prior to him being released on parole, Marie had campaigned successfully for a change in the law, which said in effect that if you did not indicate where the body was, parole should normally be refused.

Now, very effectively and with great understanding, Marie McCourt has pressed for a change in the law to make sure that there is, in effect, a crime of desecrating the body of somebody you have murdered. This is a greater problem than previously. In recent times, 54 murder trials have taken place without a body. We on this side of the Committee strongly support this offence. It might be asked whether this matters if you are being charged with murder. It matters to the victims’ families and therefore it should matter to the law. That is why we support this amendment.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I will address the two amendments in reverse order, starting with Amendment 292L. This creates a new offence of concealment of a body and repeals the existing offence of obstructing a coroner. As it stands, to obstruct or prevent a coroner’s investigation of any body found, when there is a duty to hold one, is to commit an offence. That offence is a common-law one, triable only on indictment, and carries a maximum penalty of life imprisonment. The common-law offence is therefore wide-ranging. Proof of the offence does not require a person to conceal or attempt to conceal a body, or proof of a specific intent to obstruct a coroner—only that the coroner’s inquest is obstructed or prevented.

Amendment 292L replaces that wide-ranging offence that covers several ways in which a coroner is obstructed with a more narrowly defined offence which relates to obstruction by concealing a body or to facilitate another criminal offence. The specific offence proposed by the amendment also has a maximum penalty of three years—less than the life sentence that can be imposed under the current law. This approach, in our view, creates gaps in the coverage of the law compared with the existing common law and reduces the ability of the court to sentence for the full range of the offences.

We agree that concealing a body in this context should always be recognised by the law, and it already is in several ways. First, in the circumstances where an offender is responsible for a homicide, the fact that they concealed or mutilated a body is a clear aggravating factor in sentencing. As a result, the sentence will be increased to reflect the additional harm caused. Noting what the noble and learned Lord, Lord Falconer of Thoroton, said about the increasing number of trials that take place without a body, we acknowledge that as forensic techniques have improved, so has the determination or ingenuity of the criminal to try to erase traces.

Secondly, where the concealment of a body is part of a course of action that includes the killing, the sentence for murder—or for manslaughter, I imagine—will include that aggravating factor in deciding on the starting point from which the sentence should be imposed.

18:00

Thirdly, where an offender is convicted for murder or manslaughter and then considered for release by the Parole Board, the Prisoners (Disclosure of Information about Victims) Act 2020 may apply. That legislation was brought into being under the impetus of the campaign by Marie McCourt, to whom this side of the House joins the Benches opposite in paying tribute. That is where a person who has declined to disclose the whereabouts of a body goes before the Parole Board. As a result of that legislation, in such cases, the Parole Board must take into account any failure on the part of the offender to disclose the whereabouts of a victim’s remains as part of its assessment of the offender’s risk to the public.

For these reasons, the fact that this amendment will replace a wide-ranging common law offence with a more narrowly defined one with lesser sentencing powers and that concealment is already reflected as an aggravating factor in offences, the Government do not think that this new offence is necessary and cannot accept this amendment.

Amendment 292K seeks to deal with the desecration of a body. The meaning of acting

“with severe disrespect to a corpse”,

to use the language of the amendment—desecration—could, under the clause, include several circumstances such as mutilation, hiding or concealment, which could also lead to obstruction of the coroner, unlawful burial or cremation, or otherwise preventing the lawful burial of a body. It could also mean taking photographs of bodies where it is inappropriate or unnecessary so to do. We understand the sentiment behind this amendment and agree that it is paramount that the bodies of those who died should be treated with dignity and respect.

The amendment is, I think, designed to address the issue of where a person desecrates a corpse to avoid detection for an offence. As I have said in relation to the other amendment, the desecration of a body is thus likely to be connected to another offence and, as such, is also likely to amount to a clear aggravating factor in sentencing. It is hence liable to lead to the imposition of a more severe penalty. The criminal law can intervene by way of a number of offences that may apply, such as the common law offence of perverting the course of justice and others in statute, for example the disposal of a child’s body to conceal a pregnancy or burning a body other than in a crematorium. Depending on the circumstances, other offences can include misconduct in public office where, for example, the offender is a police officer who came into contact with the body in the course of his duties.

However, we know that the offence proposed here is not limited to desecration that is connected to avoiding detection. It can cover a much wider range of inappropriate behaviours, including unauthorised photographs, causing injury to bodies and non-penetrative sexual activity. The Government have already announced an inquiry into the disturbing events that took place in Tunbridge Wells. I refer the Committee to the Statement on 8 November by the Secretary of State for Health and Social Care in the other place. We also specifically said that we would look at the existing penalties for the offence of sexual penetration of a corpse. It may be that those reviews will highlight other issues that need to be considered, including the coverage of existing offences that deal with desecration. In that sense, we see this amendment as a helpful starting point, even if it was not intended for that wider purpose.

I do not say that the Government will adopt the specific approach taken in this amendment, nor am I ruling out further future changes to the law on the desecration of a corpse after consideration of the evidence that emerges following recent events. I hope that the Committee acknowledges the ongoing work that is taking place to establish the facts to be learned from these recent events but that, given the reassurance that these matters are being considered, the noble Baroness feels able to withdraw her amendment.

[Baroness Brinton (LD) [V]]

I thank all speakers for their thoughtful and moving responses to the difficult issues covered by these amendments. I particularly thank my noble friend Lord Paddick for his support; he was absolutely right to talk about the devastating, inhuman and callous behaviour that these two amendments attempt to codify. The noble and learned Lord, Lord Falconer, reiterated the key legal arguments and had information that I did not—that there have been at least 54 murder cases where this is relevant. I thank them both for their support.

The Minister says that Amendment 292L narrows the area from the common law equivalent and that the sentence is less. The problem is that the common law equivalent is never used. The reality is that many prosecutors do not recognise it, and noble Lords know that there are a number of times when prosecutors do not go for more serious charges to ensure that they get something through a court that a jury recognises. But it is important to understand that we are not proposing to repeal the common law offence. It is vital to understand that. The amendment deliberately did not propose repealing the common law offence expressly to keep it on the statue book and therefore give the courts full discretion to use it, if they so wish.

On Amendment 292K, the Minister said it is paramount that bodies should be treated with respect, and he is absolutely right. He also said that desecration to facilitate the hiding of the body is an aggravating factor, but too rarely has that been recognised. I am grateful that he used the word “may” in possibly considering these issues as part of the inquiry into the Tunbridge Wells case. I spoke on the Statement on this matter in your Lordships’ House, when it came up two or three weeks ago, and one of the problems with the current crime of necrophilia, which, from memory, has been on the books since either 2013 or 2003—I apologise for not remembering which—is that it has never been used. We have these cases that either are too embarrassing to deal with or have concerns from prosecutors that they will not get past a jury.

Will the Minister have a meeting with me to consider changing that word “may” and to see whether it is possible to include this in the inquiry? Despite the acts of the Tunbridge Wells case being different, the consequences remain the same for the families of the bereaved. In the meantime, I am content to withdraw the amendment and will consider whether to bring both back on Report.

Amendment 292K withdrawn.

Amendments 292L and 292M not moved.

Amendment 292N

Moved by

[Lord Russell of Liverpool]

292N: After Clause 170, insert the following new Clause—
“Strategy on stalking
(1) The Secretary of State must, before the end of the period of 12 months beginning with the day on which this Act is passed, prepare and publish a document setting out a strategy for—(a) detecting, investigating and prosecuting offences involving stalking,(b) assessing and managing the risks posed by individuals who commit offences involving risks associated with stalking, and(c) reducing the risk that such individuals commit further offences.(2) In preparing the strategy, the Secretary of State must—(a) seek to adopt a multi-agency stalking intervention programme;(b) seek to ensure that risk assessments for stalking victims are carried out by trained specialist stalking professionals;(c) seek to ensure that any judge, police officer or other relevant public official involved in an investigation or legal proceedings involving stalking has attended and completed relevant training.(3) The Secretary of State—(a) must keep the strategy under review;(b) may revise it.(4) If the Secretary of State revises the strategy, the Secretary of State must publish a document setting out the revised strategy.(5) In preparing or revising a strategy under this section, the Secretary of State must consult such other persons as the Secretary of State considers appropriate.(6) Subsection (5) does not apply in relation to any revisions of the strategy if the Secretary of State considers the proposed revisions of the strategy are insubstantial.(7) In this section—the references to “acts associated with stalking” and “risks associated with stalking” are to be read in accordance with section 1 of the Stalking Protection Act 2019;“multi-agency stalking intervention programme” means a programme through which public authorities, including police forces, probation services and the National Health Service, collaborate with each other and stalking advocacy support services to intervene on those carrying out acts associated with stalking, whether or not convicted of an offence, depending on the level of risk they pose to the victim and the public.”Member’s explanatory statement
This amendment aims to promote the early identification of and intervention on stalking, and better investigation and prosecution of the crime, by requiring the Government to develop a strategy that includes: the adoption of a multi-agency intervention programme, risk assessments for victims to be carried out by trained professionals, and training for relevant public officials.

[Lord Russell of Liverpool (CB)]

My Lords, I rise to propose this amendment, because the noble Baroness, Lady Newlove, is suffering from an extremely painful frozen shoulder. She has had an injection of cortisone, which I hope is having the desired effect and, if she is listening to this debate, I hope she is seated in a comfortable chair, because she deserves a good rest. I thank in advance the noble Baroness, Lady Brinton, and the noble Lord, Lord Hunt, who have also kindly added their names to this amendment.

This is déjà vu all over again. We keep returning to stalking, because we have not yet been able to take all its complexities on board, for all our attempts to deal with this bit and that bit, this piece of revised guidance and a bit of training, and this new perpetrator system to replace ones that have manifestly failed; for all the admonitions for different agencies and statutory bodies that are not co-operating as they are meant to, and despite pilots here and there, X millions of pounds spent here and new resources there. Despite all this effort and the extensive time that Ministers have spent at the Dispatch Box, the headlines keep on coming up with new cases of victims who are being failed, despite all the time, effort and resources expended to try to protect them.

It is not working. Just ask the elected Members of another place, particularly female MPs, what it feels like to be stalked, targeted, and even to require personal protection. What price democracy when its representatives are being systematically intimidated to the point that it inevitably begins to impact on their mental health—and even, as we have tragically seen recently, their personal safety?

I know that the Minister and Her Majesty’s Government are serious and well intended in their attempts to deal with stalking, but our contention is that the evidence suggests that they are not doing this well enough to make a tangible difference for the estimated 892,000 female victims of stalking for the year ending March 2020. That is according to the Crime Survey for England and Wales.

The Minister will not be surprised that, in evidence to back up the case I am putting forward, I will refer to Zoë Billingham’s September 2021 HMICFRS report, Police Response to Violence Against Women and Girls. Its findings are worrying. Its findings on the much-vaunted use of stalking protection orders, introduced in January 2020—18 months before this report—are on pages 56 to 59. The report found that the application of stalking protection orders by police forces is very inconsistent. Some are using them carefully and effectively, but others are doing little or nothing. One force had failed to issue a single stalking protection order, because its legal department thought that every case had to be approved in person by the chief constable. In fact, statutory guidance makes it very clear that decision-making can and should be delegated to superintendents.

The report examined 25 stalking protection orders in detail. Two findings stand out. A majority of the orders did not contain any positive request to be placed on the person subject to the order. The report rather dryly remarks:

“This is disappointing and may indicate that forces aren’t familiar with this important change of practice.”


The second finding was that the details of 16 out of the 25 protection orders and their conditions have not been circulated and communicated within the relevant police force, so the offices within the police force were not even aware that an SPO had been issued to somebody within their jurisdiction. What happens if and when SPO conditions are breached? The report says:

“We conclude that some forces do not pay enough attention to breaches of orders, the effect they have on victims and how well they”—


the police forces—

“perform in this important area.”

Enough of this report, but I strongly recommend that it should be required reading for anybody interested in or charged with the responsibility for reducing violence against women and girls.

Although it is often a significant factor in many domestic abuse cases, stalking is broader and more complex. Fifty-five per cent of stalkers are ex intimate partners, which would therefore be regarded as domestic abuse stalking, but that means that 45% are not. The latter group could be an acquaintance, a neighbour, a friend, a stranger or even a colleague. Surely it is imperative that all stalking victims are offered the same level of protection, regardless of their relationship, and sometimes no relationship at all, to the stalker. For all its many excellent new laws and guidance, the Domestic Abuse Act does not support the victims of this enormous group of 45% of stalkers.

18:15

This amendment has a straightforward aim: go back to the drawing board; look at the totality and complexity of stalking of all kinds; look at what we have tried and has worked, at least in part; acknowledge where we have tried and failed; look at the entire ecosystem within which stalkers sometimes seem to act with impunity; come up with an all-embracing plan to anticipate, prevent, intervene and even mitigate as appropriate; and deliver a solution that prioritises the protection of the stalked, prosecutes effectively when justified, tries to understand and work with perpetrators who could benefit from tailored prevention programmes, and creates a trained and educated set of voluntary and statutory agencies that are properly equipped to be proactive, rather than endlessly reactive.

In other words, it is to act swiftly to consider whether, for example, some of the very effective initiatives, such as the multiagency stalking intervention programme, known as MASIP, which is funded by the Home Office’s own police transformation fund, can be rolled out with alacrity. The early findings of the pilot schemes are extremely positive, so there is something ready— I hesitate to use the word “oven-ready”—to be rolled out very quickly.

This is what the amendment is asking the Government to do. If we do not do it, stalking will stalk us and the Government Front Bench into the foreseeable future. The Minister is already very familiar with the shock troops who support the noble Baroness, Lady Lister of Burtersett, on the issue of immigration and citizenship fees, known under the banner of the “Lister terriers”. I give the Minister fair warning that the Royall-Brinton group—the noble Baronesses, Lady Royall and Lady Brinton—are gathering under the banner of “Stalk the stalkers”. There is far too much talking about stalking and not enough effective action, however genuinely hard Her Majesty’s Government have tried. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, the noble Lord, Lord Russell of Liverpool, has very ably set out the reasons why this amendment has been tabled, so I will be brief. Let me put it politely: the House will know that a number of us remain concerned that stalking is still not taken seriously by the Home Office, the Government and some parts of the criminal justice system. We know that training remains patchy, and that victims are still told they should be grateful for the attention of their stalker. That is why we tabled this amendment to create a stalking strategy—not for the first time; I have been tabling amendments on a stalking strategy for a decade—for training in recognising, and working in a truly multidisciplinary way to recognise, possible stalking perpetrators, and to let MAPPA professionals become involved at an early stage as soon as the possibility of fixated and obsessive behaviour emerges.

The noble Baroness, Lady Williams, told your Lordships’ House during the passage of the Domestic Abuse Bill, on consideration of Commons’ amendments, that the Government were consulting with different key parties in the criminal justice system to amend the guidance on MAPPA and to recognise and manage stalking. I thank her for sharing the proposed revisions to the statutory guidance. She said:

“Once the revised guidance is settled, we will promulgate it through a Written Ministerial Statement, and this will provide an opportunity to update the House on the delivery of the other commitments I have set out. Noble Lords talked about having some sort of debate in this place, perhaps after the Summer Recess.”—[Official Report, 27/4/21; cols. 2180-81.]


When will this be brought back to your Lordships’ House for such a debate?

The noble Baroness also said:

“We are also legislating already in the Police, Crime, Sentencing and Courts Bill to put beyond doubt the powers of duty to co-operate agencies to share information under MAPPA by clarifying existing information-sharing provisions. We are investing new resources to tackle perpetrators, with an additional £25 million committed this year.”—[Official Report, 27/4/21; col. 2182.]


I understand that that is not just stalking perpetrators but perpetrators of a range of serious crimes.

Despite her encouraging us to bring back stalking-specific matters to this Bill because they were not appropriate for the Domestic Abuse Bill, it is noticeable that there is still no sign of a stalking strategy. It is as if stalking protection orders, now passed, are the magic answer, when actually they are part of the toolkit for managing fixated and obsessive perpetrators who may not come under domestic abuse legislation. As the noble Lord, Lord Russell, demonstrated, the patchy application of SPOs is real evidence of the old problem continuing. The choice about how to apply the stalking laws remains with people inside the police and courts system.

In a case in Wales in the last two weeks, a man was charged with two incidents relating to stalking his ex-partner, but she had already moved home twice and it is evident from the case that this stalking had been going on for a considerable time. Can the Minister say what training is happening within all police forces and all the courts—family as well as criminal—and for social workers, among others involved in MAPPA?

It is 13 years since my stalker was convicted—after 100 incidents had happened—and close to 10 years since stalking was created as a separate offence from harassment, but people being stalked still have to face many issues in the system because there is no overarching strategy for dealing with stalking. It is time that there was.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Baroness, Lady Brinton, has eloquently and bravely described on a number of occasions and brought home to us just how important it is to tackle stalking in an effective way. I also pay tribute to the noble Baroness, Lady Newlove, who has been an inspiration during our discussions on these issues.

I will make just two points to emphasise the excellent speech by the noble Lord, Lord Russell. First, he mentioned the huge number of women who are victims of stalking and the disgracefully low number of prosecutions. The problem is not just the inconsistencies to which he and HM Inspectorate have referred. It is also clear that in too many police forces stalking is seen as a low-level nuisance behaviour issue rather than the serious crime it often is.

We know that a number of stalking perpetrators who potentially pose the highest risk to victims would not meet the threshold for the assessment and management of risk for a relevant domestic abuse or stalking perpetrator, as proposed under the MAPPA model. This is a big problem. As the Suzy Lamplugh Trust, which does so much fantastic work in this area, has identified, stalking is often not recognised as a crime. The level of risk to a victim is therefore inadequately identified and addressed, and this has the potential to put many lives in serious danger.

I refer the Minister to Dr Jane Monckton Smith’s 2017 study of 358 homicides, all of which involved a female victim and a male perpetrator. It revealed stalking behaviour as an antecedent to femicide in 94% of those cases. That demonstrates why it is so important to work on prevention and action in relation to stalking.

The noble Baroness responded at great length to our previous debate in Committee, setting out the proposals and the actions her department is taking. As the noble Lord, Lord Russell, said, in the end they do not really amount to a cohesive strategy that will actually start to take this seriously. I hope the Minister will perhaps agree to reflect on this between now and Report to see whether we can take this any further.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I believe the case for this amendment has already overwhelmingly been made from all sides of this Committee. The Green group would have attached our name to it to make it even more cross-party, had there been space.

I go to the words of one victim that, I believe, sum this up. They are taken from an article in the popular mainstream magazine Vogue, published this week. They are from a single victim whom it called “Chloe”, whose stalker was jailed after breaching protective orders more than a dozen times, even though he had never been convicted of stalking. Chloe told Vogue:

“The system designed to protect us is broken and reactive. It waits for harm … I will live in fear until the day he dies.”


Those are the words of lived experience. The system is broken. I believe the case for this amendment and for a strategy has been overwhelmingly made.

[Lord Paddick (LD)]

My Lords, I thank the noble Lord, Lord Russell of Liverpool, for moving Amendment 292N on behalf of the noble Baroness, Lady Newlove; I wish her well.

Victims of stalking, including female Members of Parliament, are being failed, as the noble Baroness has just said. As the noble Lord, Lord Russell, set out in his opening speech, there were 892,000 victims of stalking in the year to March 2020, according to the crime survey. The noble Lord pointed out the findings of the HMICFRS report on violence against women and girls regarding the inconsistent approach across different police forces to stalking protection orders; that the majority of orders had no positive obligation on the perpetrator; and that officers in force areas were unaware that the perpetrators were even subject to the orders, so there was no enforcement of the orders.

There is clearly a need to address perpetrator behaviour, in addition to protecting victims. My noble friend Lady Brinton said—and I agree—that stalking is not being taken seriously enough. That is as much a cultural issue for the police and courts as it is for society as a whole. There is clearly a need for a stalking strategy to ensure a consistent and effective response from all the authorities involved, as the noble Lord, Lord Hunt of Kings Heath, just said—not just the criminal justice system but charities and others that offer services to address the behaviour of offenders. We support this amendment.

[Lord Rosser (Lab)]

I will be very brief as the case for this amendment has been so eloquently put by the noble Lord, Lord Russell of Liverpool, and other noble Lords who have spoken. I take this opportunity to pay tribute to the noble Baroness, Lady Newlove, who unfortunately cannot be in her place tonight, and to the other noble Lords who are signatories to the amendment, for their tireless work on this issue. In that context, I also pay particular tribute to my noble friend Lady Royall of Blaisdon, who cannot be in the Committee today, for her dedication and years of leadership on this issue.

I know the Minister is also passionate about this issue, but for years the House has found itself returning to this debate, as the noble Lord, Lord Russell of Liverpool, said, and each time the answer from the Government is largely that the current system is adequate although improvements are needed in how it is delivered. Yet each time we come back to it, more women have been killed and more lives devastated. This amendment has our wholehearted support, and I hope we can now look forward to a clear and encouraging response from the Government.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Lord, Lord Russell of Liverpool, for setting out this amendment calling for a strategy on stalking. As the noble Baroness, Lady Brinton, pointed out, this can have a devastating impact on the victims that are pursued. I actually have much higher figures than those that noble Lords talked about today: an estimated 1.5 million people were victims of stalking in the last year. I assure noble Lords that this Government are utterly committed to protecting and supporting victims of stalking, as some of our work in the last few years demonstrates. We will do everything that we can to ensure that perpetrators are stopped at the earliest opportunity.

18:30

I sympathise with the aim of the amendment. I am less persuaded that we need a separate strategy on stalking to achieve that aim. Tackling stalking is already a key part of our new strategy, Tackling Violence Against Women and Girls, which was published this July. Work is already under way to deliver the commitments made in relation to stalking in the strategy, and it would not be the best approach to have a separate strategy for each crime type that falls within the ambit of that strategy.

The VAWG strategy will help us better target perpetrators and support victims of these crimes. In order to support victims and reduce the risk of perpetrators committing further offences, the strategy confirmed £11.1 million for police and crime commissioners to run programmes to address the behaviour of domestic abuse and stalking perpetrators. The noble Lord, Lord Russell, made a comment about money being spent here and spent there, and I accept that point, but, actually, money here and there helps to increase the capacity and capability of those agencies that are trying to tackle this problem. Since the publication of the strategy, eight PCCs have been awarded funding to provide programmes for stalking perpetrators. The aim of the programmes is to encourage behavioural change—one noble Lord mentioned that—in order to reduce the frequency and gravity of abuse presented by the perpetrator and to improve the safety and protection of the victim.

The Domestic Abuse Act of this year placed a duty on Ministers to publish a domestic abuse perpetrator strategy that aims to bring more perpetrators to justice and reduce reoffending. This will be published in the new year, as part of a holistic domestic abuse strategy, and it will help transform our response to domestic abuse, which also includes the risks associated with stalking.

As the noble Lord, Lord Russell, pointed out, in January of last year the Government introduced new civil stalking protection orders to protect victims of stalking at the earliest possible opportunity and help to address the behaviour of perpetrators before it becomes entrenched or escalates. I recall the valuable contributions of the noble Baroness, Lady Brinton, on this during the passage of the legislation that established those orders. Stalking protection orders can be used in relation to stalking carried out in any circumstances and have the flexibility to impose both restrictions and positive requirements on the perpetrator.

We have made very good progress on the recommendations from the review into stalking protection orders. The Committee will want to know that the Minister for Safeguarding recently wrote to all chief constables whose forces applied for fewer stalking protection orders than might be expected, to encourage them to always consider applying for them. The NPCC’s stalking lead also sent a letter to all police forces to the same effect, as well as outlining some of the findings from the review. The NPCC has identified examples of good practice to share with police forces and their legal teams.

Her Majesty’s Courts & Tribunals Service—HMCTS—has also issued a targeted point of guidance for magistrates’ legal advisers, outlining the conditions that can be included on an SPO and emphasising that conditions relating to monitoring or prohibiting cyber-related activity should be used, if appropriate. Furthermore, HMCTS has sent a notice to heads of legal operations to encourage early listings for stalking protection order hearings within magistrates’ courts to enable quick and early protection for victims. On looking at the hard numbers, we are working with the MoJ towards some figures being available for publication.

On progress that the Government are making on refreshing the MAPPA guidance, which the noble Baroness, Lady Brinton, talked about, during the latter stages of the passage of the Domestic Abuse Act, the Government gave certain undertakings in response to a Lords amendment regarding the management of high- harm and serial domestic abuse and stalking offenders under Multi Agency Public Protection Arrangements—MAPPA—such as updating the MAPPA statutory guidance and developing a threshold document. Good progress has been made on these commitments.

The Ministry of Justice expects to publish shortly a separate chapter of MAPPA guidance, entitled “Domestic abuse and stalking”, to raise the profile of this type of offending. The new chapter will highlight the importance of agencies making use of MAPPA to strengthen the effective management of serial and high-harm domestic abuse and stalking offenders. Once we have issued the guidance, officials will work closely with local strategic management boards to support implementation at a local level.

The Ministry of Justice has also made good progress on developing a thresholding document to guide practitioners in deciding upon the most appropriate level of management under MAPPA. The different levels ensure that resources are focused on offenders who pose the highest risk and that multiagency meetings are focused on the most complex cases. Stalking will be included in the supporting materials to illustrate the importance of considering all relevant cases for MAPPA management. We expect to publish this by the end of this year, which is not far away.

A new policy framework was published on 16 August this year, setting out clear expectations of the probation service’s management of all cases at MAPPA level 1, where formal MAPPA meetings are not held, including those of stalking perpetrators. The aim is to help to improve consistency in the quality of information sharing, the regularity of reviews and the identification of cases where additional risk-management activity is required.

The VAWG strategy also includes a commitment for the Home Office to work with the police to ensure that all forces are making proper use of stalking protection orders. As I have just said, the Minister for Safeguarding recently wrote to all chief constables whose forces applied for fewer SPOs than might have been expected.

With regard to a debate in this place, we in your Lordships’ House are very lucky that we are self-regulating, and it is in noble Lords’ gift to secure debates on issues such as stalking. I would be very happy to respond to one in due course, should noble Lords bring one forward.

I understand and appreciate the rationale behind the amendment, but I respectfully suggest that a separate strategy on stalking is not required because the new VAWG strategy addresses many of the issues that have been raised, and tackling stalking sits as a vital part of the strategy. Therefore, I ask the noble Lord to withdraw the amendment on behalf of the noble Baroness.

[Lord Russell of Liverpool (CB)]

My Lords, I thank the Minister, as usual, for her comprehensive reply and praise the fact that, unlike some incumbents on the Front Bench from time to time, she actually listens to the debate and tries to respond to points, which can be a refreshing change. I thank all noble Lords who have taken part in this mercifully short debate.

The noble Baroness, Lady Brinton, pointed out that there is still no sign of a comprehensive stalking strategy. We have heard that elements of it are coming together, but I am not sure that it would meet the requirement to be regarded as a completely comprehensive strategy—but we shall see when it happens. The noble Lord, Lord Hunt, made an extremely good point about the contrast between the extraordinarily high number of victims of stalking—nearly 900,000 women in one year—and the derisory level of prosecutions. There are echoes of what is happening with rape convictions, and that parallel is worrying.

The noble Baroness, Lady Bennett, pointed to the case of Chloe. The phrase that resonated with me from that case was when Chloe said that she will probably live in fear for the rest of her life. That is the effect stalking can have on an entirely innocent individual. I sometimes think that not only do we not realise it; given the evidence from a lot of the agencies and individuals charged with trying to arrest or identify perpetrators, and to do something about it, I am not sure whether they understand the real effect stalking can have on people. That is where effective training comes in, to make them understand what they are dealing with and to help them deal with it in a much more proactive and sensitive way.

The noble Lord, Lord Paddick, speaking from direct experience of his time in the police force, once again put his finger on a critical problem. There is a cultural issue within the police force and some other statutory agencies that deal with stalking in understanding what it is in all its myriad guises, recognising it and knowing what to do about it—both for the victims and the perpetrators.

The noble Lord, Lord Rosser, echoed my déjà vu all over again by reminding us that the issue keeps stalking this House. It recurs again and again. The contributions have indicated just why that is the case.

I thank the Minister very much for her reply. I am pleased to hear of the different initiatives being undertaken, so the positive side of me welcomes that. The slightly more sceptical—and stalked—side of me thinks, “Here we go again.” Here we have a range of initiatives which may or may not be as joined up as we passionately believe they should be. Unless they are completely joined up, and unless one is clear about what they are there to do and how all the bodies and individuals involved are meant to act in pursuit of these initiatives, I have a horrible feeling. If Zoë Billingham’s successor did a similar report looking at the effect of all these initiatives in about two years’ time, I personally have no high degree of confidence that the findings would be different. That is a cause for concern.

I take the point that if we want to have a MAPPA debate, it is for this House to choose it. I am sure we will stalk the usual channels to try to ensure that it takes place. If the Minister is open to discussing this, in the extremely long time we have between now and Report, that would be very helpful. What I take away from this is that I understand all the initiatives taking place, particularly those focused on domestic abuse, for obvious reasons, but what about the other 45% of stalked women? I come back to those who are not in domestic abuse situations. Most of these initiatives are aimed at the domestic abuse arena, and I laud them, but what about the 45%? If we are to have a cohesive strategy—frankly, that is why we need one—the 45% have to be included so that we are looking at 100% of the problem. In the meantime, I beg leave to withdraw the amendment.

Amendment 292N withdrawn.

Amendment 292P

Moved by

[Lord Thomas of Gresford]

292P: After Clause 170, insert the following new Clause—
“Royal Commission on criminal sentencing
(1) Within six months of the passing of this Act, the Secretary of State must establish a Royal Commission to carry out a full review of criminal sentencing.(2) In particular the Commission must make recommendations on—(a) how to reduce the prison population;(b) how to reduce violence and overcrowding in prisons;(c) addressing the particular needs of young people in custody;(d) addressing the particular needs of women in custody;(e) how to ensure that sentencing for offences is focussed upon reform and rehabilitation of offenders and reducing reoffending;(f) how to reduce the over-representation of people from Black, Asian and minority ethnic backgrounds in prison; (g) the imposition and management of non-custodial sentences; and(h) the abolition of some mandatory or minimum prison sentences.”Member’s explanatory statement
This amendment would establish a Royal Commission to review criminal sentencing.

[Lord Thomas of Gresford (LD)]

My Lords, I move this amendment in my name and that of my noble friend Lord Marks of Henley-on-Thames, who regrettably cannot be with us today. In the Conservative Party manifesto for the 2019 election, there was a promise to set up a royal commission on the criminal justice system within the first year of government. Of course, that did not happen; instead, we have this enormous Bill, which covers police, crime, sentencing and courts, with bells and whistles attached. It is a great pity that the Government did not carry out their manifesto promise, which might have produced much better and more targeted reforms.

18:45

Although the United Kingdom already locks upmore of its people, and for longer, than any other country in Europe, the direction of the Bill is to criminalise more activity and to lengthen sentences. Meanwhile, the state of our prisons gets worse and worse. There are too many prisoners, too few experienced staff, too many drugs and too much violence.

I illustrate the problem by referring once again in this House to Berwyn prison, some three miles from my home in Wrexham, north Wales. It is the largest prison in this country and the second largest in Europe. It opened in 2017: a modern, big prison to house 2,200 prisoners, although, despite overcrowding throughout the prison estate, the inability to recruit prison officers in north Wales means that no one has ever succeeded in filling it with more than 1,750. Some 80% of the prison staff in Berwyn prison have under two years’ experience in the Prison Service, and the pool of labour in north Wales has been exhausted. Although sold as a prison for Welsh offenders, 70% of the prisoners come from England and the purpose that was so trumpeted—rehabilitation—has been lost.

Dr Robert Jones of Cardiff University carried out a survey in 2020 and found that prisoner attacks in the previous year had jumped by 143% to 561 and assaults on prison staff were up 25% to 257. Over the same period, assaults in all UK jails had actually fallen by 8%. In Berwyn prison, there were 39 incidents per 100 inmates, compared with three in 100 in the open prison at Prescoed in Usk. On average, five weapon discoveries were made every week and there was an 84% increase in incidence of self-harm. All this is set alongside a continuing drug problem which caused the former police commissioner for north Wales, Mr Arfon Jones of Plaid Cymru, to call last February for prisoners to be given cannabis to tackle addiction and curb violence. The judges in the Crown Courts in north Wales have expressed their alarm at the number of prison officers who come before them for smuggling drugs.

A royal commission on sentencing is needed. In March of last year, the Government allocated £3 million for the royal commission on criminal justice in their manifesto, so the money is secured. While such a commission lacks statutory powers to summon witnesses and papers, it has prestige, which leads to change. I well remember the Kilbrandon royal commission, perhaps the last big one that we had. This was the Royal Commission on the Constitution, to which I gave evidence in 1973. Dr Gary Wilson of Liverpool John Moores University wrote of it, in 2017, to show its influence:

“Its report gave the first significant consideration to the case for devolution and advanced proposals which do not diverge radically in the most part from the devolution settlement eventually implemented in 1998.”

He said that it should be remembered

“for its importance in helping to get the ball rolling with the development of the devolution agenda in the 1970s which to some extent paved the way for the eventual successful introduction of Scottish and Welsh devolution”.

That is the effect of a royal commission: it calls for evidence from individuals and organisations, within and outside government, and produces a report. It is not tied to the policy of any political party. It may also undertake its own programme of research. The evidence is heard in public, and transcripts of oral and written evidence that it receives are published. Royal commissions address high-profile social concerns, issues that may be controversial or matters of national importance. They have been used, for example, to advance divorce law, police powers and procedures, the regulation of the press and even capital punishment.

Noble Lords will observe that Amendment 292P covers how to reduce the prison population and how to reduce violence and overcrowding in prisons; addresses the particular needs of young people and women in custody; seeks to find out how to ensure that sentencing for offences is focused on the reform and rehabilitation of offenders and on reducing reoffending—which we all talk about when we talk about penal policy but nothing happens; how to reduce the overrepresentation of people from black, Asian and minority ethnic backgrounds in prison; the imposition and management of non-custodial sentences; and, lastly, the abolition of some mandatory or minimum prison sentences.

On that last point, the sentence inflation in my professional life has been incredible. That inflation springs from Parliament and the way that this place works. When judges see sentences being doubled, they feel they have to respond and put up the sentences accordingly. However, I maintain that a long and objective look at how we deal with offenders, free of rhetoric and populism, is essential for the safety and security of the people of this country. I beg to move.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the noble Lord, Lord Thomas of Gresford, for moving this amendment. I had not realised, until he mentioned it, his own critical role in the constitution of the UK as it is now through the evidence that he gave to the Kilbrandon royal commission, rightly described as important. Now we know where to look when we see problems in relation to the constitution.

I wholeheartedly agree with the underlying point that drives the way the noble Lord put his case. The criminal justice system is in a terrible mess. He described the position of the prison system, which is also a terrible mess and is not delivering on its aims, particularly to protect the public from crime and reoffending. However, it does not just go to imprisonment; the whole range of sentencing is now in a terrible mess. It goes even beyond that, to the way that the criminal justice system operates in terms of both its procedures and its effectiveness. Surely the time has come for a long hard look to be taken at the criminal justice system.

This is not remotely a criticism of the noble Lord, Lord Thomas of Gresford, because a royal commission is a worthwhile thing, but I can imagine no more profound exercise in futility than a royal commission promoted by your Lordships’ House, moved by the marvellous noble Lord, Lord Thomas of Gresford, and the wonderful noble Lord, Lord Marks of Henley-on-Thames. Can your Lordships imagine this Government —the Government who approximately an hour and a half ago wagged their finger at us and told us we had to finish the consideration of this Bill by the end of tonight, no matter what time it ended—listening to a royal commission’s proposal for an objective look at sentencing? My own judgment is that, sadly, although the noble Lord, Lord Thomas, makes a very powerful point, the same finger of this Government would be waved at the royal commission and no attention would be paid to it. I share the noble Lord’s feeling and analysis but I fear that, because of the nature of this Government, it would be a waste of time.

[Lord Thomas of Cwmgiedd (CB)]

May I add a more hopeful note? It has been wonderful to see this Government bring forward Professor Ormerod’s work on the Sentencing Code and bring it on to the statute book, and in this Bill—this is a good point—the code is being amended rather than there being any new proliferation of legislation. So one ought to say thank you for that.

However, the Sentencing Code shows the problem. I do not know how often the Minister looks at it but it is a fiendishly complicated set of sentences that we have accumulated over the years. Although we have seen a lot of criticism of the 2003 Act, I would say in its defence that an awful lot of thought was given to it. It may not have been quite right, and there was one area which has gone badly wrong. As I complimented one side, I now compliment the other: when we looked at the 2012 reforms to sentencing, a huge amount of thought went into that. A lot of sentences that were thought to be apposite were brought forward or modified, but at least there was some thinking.

We have now reached a stage where we need—on, I hope a nonpartisan basis—to think again. Is it too complicated? The answer must be yes. Have we got the sentencing regime right in terms of its outcomes and, equally importantly, its cost and whether the money can be spent better? There can be no better mechanism for that than a royal commission. I would hope that the initial thoughts of those who drafted the manifesto could be taken forward, at least in that respect. I would hope, though maybe I am being optimistic, that when it was all laid out what an awful state our sentencing regime is in, logic would prevail and we would see some reform. However, that is just an expression of hope by a person who is not a politician.

[Lord Beith (LD)]

My Lords, I support the amendment. My support goes back to the time when I served as chairman of the Justice Committee in the House of Commons. I became utterly convinced that the absence of a coherent strategy or policy for the use of custody and other disposals was extremely damaging and distorted the use of resources in the criminal justice system to an amazing extent, leading to unsatisfactory outcomes in reducing reoffending and many other respects.

If I had not been so convinced, even during the passage of this Bill we have seen further examples of an incoherent approach to sentencing. In the course of the Bill, it was announced in the press, but by a Minister, that there would be a mandatory life sentence for the manslaughter of emergency workers. The Daily Mail reports today that that provision will be included in the Bill, although it is not clear to me how that can be accomplished—it is not even in the government amendments tabled for today—but that would be a very significant change.

We are also told that the Government intend to provide for an offence of the theft of a pet animal with a sentence of up to five years’ imprisonment. So you could get up to five years for stealing your neighbour’s cat by putting out a dish of milk and some bread because the cat seems a little underfed because your neighbours do not look after it as well as you think you would. It is absurd that we should get into that situation of sentence inflation—and there will be sentence inflation, as my noble friend referred to, because then you have arguments where legitimate organisations come to us and say, “There should be at least seven years for this offence because you get five years for stealing your neighbour’s cat.” That is how the parliamentary and political side of sentence inflation works. My noble friend has pointed to how it influences the judiciary as well, when minimum sentences cast—I was going to say “a shadow” but, rather, a particular colour of light on decisions about offences that fall short of the maximum sentence.

The reason I think a royal commission would be appropriate—notwithstanding the belief of the noble and learned Lord, Lord Falconer, that no one in government would take any notice of what it said, whoever had appointed it—is that there are different kinds of issue that need to be considered. Some are philosophical issues and issues of principle while others are practical, but they all affect sentencing and all lead to the misuse of custody, either in its extent or, in some cases, in its use at all, when other disposals could be more effective in preventing crime and dealing with offenders.

19:00

One reason we get in such a mess over sentencing is that sentencing to custody is used as the main sign of disapproval of criminal behaviour. This is independent of any argument about its potential deterrent effect, which is almost invariably exaggerated beyond any reality. People look to the length of the prison sentence that can be given for something as a way of setting out how much society disapproves of that thing. Society needs to have ways of showing its disapproval of things but using custody inappropriately and expensively is not necessarily a particularly good way of doing so. It has very serious and damaging consequences. A royal commission needs to look at the whole issue of how society communicates its disapproval and whether that has to be by length of custody, rather than by some other means. It is quite clear that the politics of this is that Ministers start to believe that if society wants to show how bad it thinks something is then they as Ministers must introduce longer prison sentences for it. They fall into the same trap themselves.

I now mention a different kind of problem—I am simply giving two examples in what will be a brief contribution to this debate. I have given an example of principle and philosophy, but the other issue that strikes me forcibly is that the use of custody is influenced by it being, in effect, the default option. If a court sentences someone to custody, a van will appear and take the sentenced person away, and a place will be found somewhere in the prison or youth custody system. If what the court considers to be a better alternative is available, then the court may have regard to it, but the court must establish that the alternative is indeed available in that locality and in a form that meets the needs of the offender and is likely to have the right influence on the offender, turning them away from their criminal behaviour.

The resourcing of the two systems is of course quite different. The sort of disposal that might turn someone away from crime without using custody depends on a series of local agencies. Attempts have been made in recent years—very welcome attempts—to bring these agencies together, so that they can plan together. But the resources for custody are quite separate; they come out of central government. That has unreasonably influenced in favour of the use of custody because it has an availability that does not apply to some of the alternative disposals.

There are philosophical and practical questions that need to be carefully considered outside the heated atmosphere of the Commons and the atmosphere in this place when we are reduced to debating these things in far too short a time. I strongly support my noble friend’s amendment; we have to move in this direction somehow, and soon.

[Lord Berkeley of Knighton (CB)]

My Lords, I fear that I am going to venture still further on to the shores of Utopia. Having listened to the amendment of the noble Lord, Lord Thomas, and indeed earlier amendments, and recalling my days, many years ago, working in a hospital and then for the Koestler Trust—which takes art into prisons—I could not help thinking of how both in hospital and in prison, and for police officers, huge time is taken up dealing with people who should simply not be there. This has been said a lot, and it will go on being said.

My Utopian contribution to this debate is that, really, we need another agency to deal with people who are mentally ill, thus taking time off the work of the police, who are often tied up for hours trying to sort out what to do with somebody who is mentally ill. Think of the doctors and nurses in A&E who are constantly dealing with mentally ill people and people who are addicted to drugs or alcohol, and also of the prison officers who are trying to deal with similarly afflicted people. My feeling is that maybe, one day, it will happen. It probably is Utopian, but we need a third agency to take the stress off police officers, prison officers and those working in the National Health Service.

[Lord Ramsbotham (CB)]

My Lords, I support Amendment 292P, so ably introduced by the noble Lord, Lord Thomas of Gresford. As the noble and learned Lord, Lord Falconer, bleakly pointed out, the history of royal commissions under this Government is not particularly promising, which will not give much hope to the mover.

In the 2019 Queen’s Speech, as the noble Lord, Lord Thomas, said, it was announced that there was to be a royal commission on the criminal justice system, towards the cost of which £3 million was made available. But it has yet to materialise, as the noble Lord, Lord Wolfson of Tredegar, can testify, because I regularly ask questions about the discourtesy to Her Majesty the Queen of asking her to announce something that the Government had no intention of implementing, judging by their continued failure to announce either its terms of reference or the name of its chairman.

I say this in the certain knowledge that the Minister will ask for this amendment to be withdrawn, as different Ministers have throughout Committee on this Bill, notwithstanding the obvious degree of consensus throughout the House in favour of one amendment after another.

[Lord German (LD)]

My Lords, this has been an interesting debate, and it is so interesting to see such support around all parts of the House. I pay particular tribute to the noble Lord, Lord Ramsbotham, and his dogged determination to find out what happened to the royal commission that the Queen announced and that the Government have put on ice. We will talk about that perhaps a little later.

In thanking all those who have contributed, my only other comment goes to the nay-saying of the noble and learned Lord, Lord Falconer, whose argument is that there is no point in having it because we are fearful of the Government. I believe that politicians need to be strong, and I think that, in this instance, there is a case for us all together being strong in our determination. If we can do that then we can carry this forward.

The Bill does not simplify or streamline the process of sentencing. It adds to the piecemeal and confusing history of sentencing legislation—of which, perversely, the Government themselves are most critical—and guarantees the continuation of general sentence inflation, which has stretched our prison and probation services to the limit. Several of the proposals in this Bill have been inspired by exceptional individual cases, but law made on the basis of reacting to exceptional cases has contributed to the piecemeal approach to sentencing for many years. It is time to step back and rethink in a rational way. I suspect that, later this evening, we will be confronted with exceptional casework.

Over the last two decades, the nature of the prison population has changed considerably, precisely because Parliament has increased the severity of sentencing. The Prison Reform Trust estimates that sentencing changes alone have added around 16,000 people to the prison population since 2003. The Government’s own figures show that average sentence lengths are now over two years longer than they were in 2007. We are now faced with an increase in the prison population, giving rise to more self-harm, violence and overcrowding, and for an increase in family breakdown, which in turn affects prisoner mental health and the risk of increased reoffending. There are, of course, some good things in this Bill, but the pendulum has swung to the retributive side away from the rehabilitation side of our justice system. The balance between these two has been further eroded.

In practice, all Governments since 1990 have produced laws which seek to change the way in which we punish offenders. Being “tough on crime” has always been delivered but only rarely has being “tough on the causes of crime” been delivered. If this Bill does not achieve the balance between these two phrases, we certainly need a fresh look at what needs to be done. It is absolutely right to ask this question, one I think the noble and learned Lord, Lord Thomas of Cwmgiedd, was hinting at: how can the Sentencing Council be expected to advise on the right period for retribution between different categories of crime, when the punitive part of different sentences has changed so dramatically?

The Government have told us that the reason for this legislation is that current sentencing policy is complex, ineffectual, difficult to understand, insufficiently focused on public safety, and guilty of tying the discretion of judges. Those are all taken from government statements. I agree with these characterisations—so does the evidence stand up that this Bill will turn these factors round? Will it make sentencing simple, effective and easy to understand? Will it have a focus on public safety, and untie the hands of judges to increase their judicial discretion? If not—and I shall demonstrate why not in a moment—we most certainly need an independent inquiry into our sentencing policy. We need to understand the elements which would provide the legal and moral principles to underpin the sentencing regime.

Does this Bill meet the Government’s own ambitions? I hope the Minister will answer these questions. Does it reduce complexity? It is quite obvious to me from sitting through this Committee and seeing the Bill’s progress through this House that that is a big no—it has actually made it more complex, not less. Will it ensure effectiveness? The Bill dwells on public protection and reconviction; it does not dwell on whether sentencing policy can best deliver improvement in public protection and reconviction matters. That is the bit that is missing.

Will it make sentencing easier to understand? The additional complexity introduced by this Bill means that it will be less, not more, likely that this ambition will be met. Will it improve public safety? Longer sentences may do so, but the regime does little to ensure that the levels of reconviction are reduced.

The last test that it sets for itself is whether it is going to increase the judicial discretion of our judges. That is probably one of the most surprising ambitions that I have heard about this Bill. The Government are anxious to make one of the key aims of their policy to remove judicial discretion in relation to repeat offences. Added to this are the prescriptive sentences proposed in this Bill. Mandatory minimum sentences are a distortion to the sentencing process, as the Bar Council states, because they

“fetter a judge’s discretion to impose a sentence that is commensurate to the offence”.

Alongside that, of course, we need better data; the noble and learned Lord, Lord Falconer of Thoroton, moved an amendment to get better data. We need to understand the effectiveness of rehabilitation activity, and to do that we need data—this in turn will have an effect on the sentences handed down by the courts. This is a key area for the proposed royal commission. It will also need to examine a policy of having a sentencing policy based on the evidence of danger and harm—for example, a crime/harm index of the kind used in Canada.

This amendment provides an opportunity for a detailed look at our whole sentencing policy, set apart from the political maelstrom so amply exampled by my noble friend Lord Beith, a maelstrom of which we are all a part. Set apart from us, it can make recommendations for a coherent policy underpinned by a sound philosophical base.

19:15

The Government will tell us that they already have a proposal for a royal commission but, as the noble Lord, Lord Ramsbotham, said, it has been put on ice. There are no terms of reference and, although it has appointed staff, they have been seconded to other duties, and there is no timescale for its reappearance. Given that we were only given 12 months for it to be announced, clearly we are out of time.

When this proposal was first announced, the then Lord Chief Justice said that the royal commission, as foreshadowed in the Conservative manifesto, was a royal commission into the criminal process, so it is not a general royal commission into the criminal justice system. Even if the Minister were to unfreeze today the Government’s proposed royal commission, it would not address in full the issues laid out by my noble friend Lord Thomas and outlined in this amendment. I look forward to some clarity on this matter when the Minister replies.

The last royal commission on the justice system, the Runciman commission, was established in 1991 and reported in 1993. Over the last 30 years, much has changed in the justice system. We need a root and branch review. This amendment puts the need for a deeper understanding of our sentencing policy, the factors which influence it and the consequences which result from it firmly back on the agenda, and I commend it.

[Lord Stewart of Dirleton (Con)]

My Lords, just at the very moment when the noble and learned Lord, Lord Falconer of Thoroton, was admonishing the Government for wagging their finger at this Committee of your Lordships’ House for seeking to impose upon it that it should finish this evening, a message popped up on my phone saying that there is to be no dinner break tonight. Lest that be taken as a sign of this Government’s authoritarian tendencies in action, I assure the Committee that I am told that that has been agreed via the usual channels.

I thank the noble Lord, Lord Thomas of Gresford, for introducing this interesting debate and all noble Lords for their contributions. The noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord German, addressed themselves to the fiendishly complex nature of sentencing. As is appreciated across the House, I think, the business of sentencing is in many respects a collaborative project, involving not only this Parliament but the Bench as well as the profession. On the topic of sentence inflation, referred to again by the noble Lord, Lord German, as well as by the noble and learned Lord, Lord Thomas of Cwmgiedd, I have noted at least in the neighbouring jurisdiction that, as we monitor or study sentencing patterns, we see that, as some sentences over time appear to have extended, sentences in other areas appear to have diminished. I go back to the notion that it is not simply Parliament that sets these trends but the judges independently of Parliament—albeit I accept the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that there must necessarily be some degree of influence on the Bench coming from this place and the devolved Administrations.

In his thoughtful contribution, the noble Lord, Lord Beith, described an incoherent approach, and made the point that there was too much emphasis on the retribution side of sentencing as opposed to the rehabilitative. In that regard, I note that the principles of sentencing as set out in statute are fivefold; as well as rehabilitation and the reduction of crime, they also include punishment, reparation and public protection.

The noble Lord, Lord Berkeley of Knighton, setting sail for Utopia, in a compassionate contribution, proposed or floated before your Lordships the possibility of an additional service dealing with the mentally ill, whose difficulties, problems and tortures are so often seen by the medical profession, hospital staff and the emergency services. I regret that I am not in a position to address that thoughtful contribution tonight. Perhaps a royal commission is needed.

[A noble Lord]

Hear, hear!

[Lord Stewart of Dirleton (Con)]

The noble Lords, Lord Ramsbotham and Lord German, also referred the Committee to the lack of progress on the royal commission on criminal justice. The noble Lord, Lord Ramsbotham, chided the Government for having been discourteous to Her Majesty by having her make in this place a commitment on behalf of the Government which the Government had no intention of fulfilling. As I understand it, with the onset of the Covid pandemic and with resources being limited, a decision was taken to slow the work in that regard. There certainly has been no departure from the manifesto commitment.

[Lord German (LD)]

In answer to a question—I cannot remember whether it was asked by me or by the noble Lord, Lord Ramsbotham—I was told that all the staff who had been allocated to the royal commission had been reallocated to other duties. Rather than slowing it down, it has been stopped, surely.

[Lord Stewart of Dirleton (Con)]

The noble Lord makes a useful point. I did not have the fact, to which he referred your Lordships’ Committee, that all staff had been reallocated, but, as I do not have that fact, with the noble Lord’s leave, I will make inquiries and commit myself or my colleagues to write to him.

I commend the noble Lord, Lord Thomas of Gresford, for his commitment in relation to these important and difficult issues, expressed today as they have been on many other occasions in the past, but I offer the Committee the assurance that the Government are already pursuing a range of programmes and reforms in these areas and therefore consider a royal commission unnecessary.

A sentencing White Paper published last year set out the Government’s proposals for reform of the sentencing and release framework. Work is under way on the non-legislative commitments made there, and legislative proposals are being delivered by the body of the Bill. The White Paper was clear that the most serious sexual and violent offenders should serve sentences that reflect the severity of their offending behaviour—that, of course, is nothing more than the object of all sentencing exercises.

In answer to the point raised by the noble Lord, Lord German, about minimum sentences, we consider that there is room for minimum sentences in the overall statutory framework. I note that proposed new subsection (2)(h) acknowledges this, in that it seeks to review

“some mandatory or minimum prison sentences”

but not the overall principle by which Parliament dictates that some sentences will be mandatory. Minimum sentences have a place in the sentencing framework, particularly to deal with persistent behaviour that blights communities. These sentences are not technically mandatory; they are a mandatory consideration that the court must make before passing a sentence, and it is important to note that the court retains the discretion to ensure that individual sentences are commensurate with the seriousness of the offence. Clearly, there are appellate procedures relating to sentences which do not adequately reflect the seriousness of the offence.

However, the White Paper also makes it clear that properly robust, effective and trusted community-based sentencing options are equally as vital to protecting the public and to supporting confidence across the system and are a way of breaking a cycle of reoffending, which often will lie with these community solutions. It sets out a number of community sentencing measures to support rehabilitation, and it is made clear that this was a fundamental aim of its more targeted approach to sentencing, diverting low-level offenders away from criminality, whether this be with treatment for mental health issues, drug or alcohol misuse, more effective use of electronic monitoring, or problem-solving approaches to address offending behaviour. This work will also be supported by our recent reform of probation services, bringing together the management of offenders of all levels of risk into one organisation and delivering a stronger, more stable probation system that will reduce reoffending, support victims of crime and help keep the public safe, while helping offenders make positive changes to their lives.

The royal commission that the amendment sets out would look to address the particular needs of young people and women in custody. I again recognise the noble Lord’s laudable intention with regard to these cohorts of offender, and I commend him for this. I reassure the Committee that we are already taking action to support these vulnerable offender groups.

The youth justice sentencing framework already makes it clear that custody should be used as a last resort for children, and measures in this Bill make more rigorous community sentences available with the intention that those sentencing should have more confidence to give community- rather than custody-based disposals, where appropriate. We are also continuing to reform youth custody so that children are safer and better able to lead positive, constructive lives on their release from the penal system.

The aims of our female offender strategy are to have fewer women coming into the criminal justice system and fewer women in custody, with more female offenders managed in the community and better conditions for those in custody supporting effective rehabilitation. Publication of the strategy was the start of a new and significant programme of work intended to deliver better outcomes for female offenders, and we are making good progress.

The noble Lord’s amendment also seeks to address the overrepresentation of ethnic minorities in the criminal justice system. The Government recognise that this is a deep-rooted issue and that the reasons behind these disparities in the representation of different ethnic groups in prison are complex. We have a broad programme, intended to draw together the wide discourse on disparities, such as the findings of the Lammy review, the Commission on Race and Ethnic Disparities report and the inspectorate’s race-thematic reports. We are clear that we wish address race disparity wherever it appears.

Finally, as to the state of prisons, illustrated by the noble Lord by reference to the Berwyn prison but intended generally, the royal commission proposed would also make recommendations to reduce the prison population, overcrowding and prison violence. In one of the largest prison-build programmes since the Victorian era, we are delivering an additional 20,000 prison places by the middle of this decade through the use of around £4 billion of funding. We will continue to monitor the need for prison places over the coming years to ensure that there is capacity to meet demand.

In relation to the important matter of prison violence, to which the noble Lord made reference, we have increased staffing levels in prisons and are improving how staff identify and manage the risk of violence. We will continue to deliver our £100 million investment in security to reduce crime in prison, seeking to clamp down on the weapons, drugs and phones that fuel prison violence.

In July, we also announced our intention to publish a prisons White Paper. It will set out our ambitions for prisons, considering information learned during the pandemic and setting out a longer-term vision for a prison system that fulfils its objectives of being safe and secure and cutting crime.

I regret that the specific matters of recruitment of prison staff to which the noble Lord referred are outwith my ability to answer at this stage. However, as with other noble Lords, if he will permit, I will have the relevant department write to him on the topic. I hope that the Committee is assured of the Government’s work and commitment on these areas. I therefore urge the noble Lord to withdraw the amendment.

19:30

[Lord Thomas of Gresford (LD)]

My Lords, I first acknowledge my place in devolution history. For the purposes of the footnote in that history, I should say that the place where I gave my evidence was, as I recall, the Grand Hotel on the front in Llandudno.

The noble and learned Lord asks whether they would listen. That is really the purpose of this amendment: a royal commission is and should be listened to. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, there must be thinking about sentencing—thought must be given to the policy that the Government are pursuing. I listened to the noble and learned Lord, Lord Stewart, and I do not doubt that his Government are pursuing these various courses, policies and whatever he is talking about, but they are failing. He said that they are building capacity to meet demand, but who is demanding? I can tell him that people in north Wales are not demanding to go to the sort of prisons that exist, with their dreadful conditions.

As I understood it, the noble and learned Lord conceded the need for a royal commission to meet the point made by the noble Lord, Lord Berkeley, on his utopian idea that there should be a separate agency for the mentally ill. We can pursue that idea in all sorts of ways.

My noble friend Lord Beith referred to the most recent offence to be created—stealing a cat, for which you get five years. But he got it wrong. It is not stealing, because you do not have to prove an intent permanently to deprive; all you have to do is show TWOC—taking away the cat without the consent of the owner. Do not give Tiddles from next door some milk without telling your neighbour, or you might get five years for it.

[Lord Beith (LD)]

I remind my noble friend that it is worse than that. All you have to do is induce the animal to accompany you.

[Lord Thomas of Gresford (LD)]

All those people yearning for a cat now know where they stand with this Government.

I pay tribute to the noble Lord, Lord Ramsbotham. For decades we have listened to him in this House with great attention on all these subjects. He has been a beacon in the attempt to reform prisons, with his great knowledge in having been Chief Inspector of Prisons over that period. I am grateful for his support for this amendment.

My noble friend Lord German pointed to the way in which sentencing has inflated over the years. I know from personal experience—from the other side of the Bar, not in the dock—that that has happened and continues to happen.

The Minister said two contradictory things: that there is no departure from the manifesto commitment for a royal commission and that the Government are already pursuing these ideas, so a royal commission is unnecessary. It is still their manifesto commitment, but they think that it is unnecessary. With these ideas being pursued in some secret corner of Whitehall, are there public hearings? Is there a call for expert evidence? Is there a publication of the results? It is not the same thing as a royal commission at all; it is simply the Government squirrelling away in the background, trying to make the best they can of the resources they will put to it. What we need is this royal commission acting not for any political reason but trying to put a real problem right. I will return to this matter, while asking to withdraw the amendment, when we get to Report.

Amendment 292P withdrawn.

Amendment 292Q

Moved by

[Lord Coaker]

292Q: After Clause 170, insert the following new Clause—
“Fast-track public space protection orders
In the Anti-social Behaviour, Crime and Policing Act 2014, after section 61 (variation and discharge of orders) insert—“61A Fast-track public spaces protection orders (1) A local authority may make a fast-track public spaces protection order where the following conditions are met—(a) the public space to which the order will apply is a school within the local authority area,(b) activities carried on, or likely to be carried on, in the vicinity of the school have had, or are likely to have, a detrimental effect on the quality of life for pupils and staff,(c) the local authority has provided for a five-day consultation period, and consulted—(i) the leadership of the school to which the order will apply,(ii) a chief officer of police of the police area in which the school to which the order will apply is located, and(iii) other such persons as the local authority considers appropriate, and(d) consent for the order to be applied has been granted by—(i) the leadership of the school to which the order will apply,(ii) a chief officer of police of the police area in which the school to which the order will apply is located, and(iii) the leader of the local authority which will make the order.(2) A “fast-track public spaces protection order” is a public spaces protection order which immediately imposes prohibitions or requirements as provided for under section 59.(3) A fast-track public spaces protection order may not have effect for a period of more than 6 months unless extended under this section.(4) Before the time when a fast-track public spaces protection order is due to expire, the local authority that made the order may extend the period for which it has effect if satisfied on reasonable grounds that doing so is necessary to prevent—(a) occurrence or recurrence after that time of the activities identified in the order, or(b) an increase in the frequency or seriousness of those activities after that time.(5) A fast-track public spaces protection order under this section may not be—(a) extended for a period of more than 6 months(b) extended more than once.””Member’s explanatory statement
This probes the need for fast-tracked exclusion zones around schools, in response to anti-vaccination protesters targeting schools, pupils and teachers.

[Lord Coaker (Lab)]

My Lords, it is a pleasure to move Amendment 292Q in my name. Before I speak to it, I will refer to the other amendments in the group, particularly Amendment 292S in the name of my noble friend Lord Bassam. It deals with an incredibly important issue: he seeks to change the relevant offences for footballing banning orders. I think that we all remember the horror when we witnessed the racism that English football players, in particular, experienced at the end of the Euros. We all condemned it and thought it disgraceful. I say this to my noble friend: I hope that the football world and the public more generally hear about the amendment that he has tabled, because sometimes they think that we do not get the world in which they live. We abhor the racism that our professional footballers, in this instance, face, as well as the racism often experienced in many other spheres of life. It is totally and utterly unacceptable to everybody in this House and beyond. My noble friend’s amendment is very good. I know that it is late in the evening, but it is an important amendment and I wish him well with it.

I wish my noble friend Lord Faulkner well with his Amendment 229U. Including it in this group is an interesting selection—having scrap metal included here makes for an interesting group of amendments. Can the Minister perhaps explain how that happened? I think that we would all be interested in the answer.

To move on, the purpose of Amendment 292Q in my name is to express

“the need for fast-tracked exclusion zones around schools, in response to anti-vaccination protesters targeting schools, pupils and teachers.”

As the Minister will know, this builds on the public space protection orders already legislated for in Section 61 of the Anti-social Behaviour, Crime and Policing Act 2014, so the principle of the need for public space protection orders has already been agreed by the Government. However, as I pointed out with reference to certain figures, this amendment seeks particularly to say, regarding the way in which those orders operate under the law at the moment, that they need to be fast-tracked. I know that the Minister will have read the various parts of the new clause that we are proposing, but it is the fast-tracking that is essential. Whatever the rights and wrong of the existing legislation, it simply cannot be applied with the speed necessary to allow school leadership, the police and local authorities to deal with some of the many problems that they have had.

In moving this amendment, I thank my friend Peter Kyle MP for his work. As the Minister will probably be aware, in Westminster Hall in the last day or two he has highlighted the particular problems that schools in his constituency in Brighton have faced and the need for something to be done about it. In particular, he talked about anti-vax protesters outside schools spreading dangerous information to children—something that we all agree is utterly unacceptable.

I looked for figures, and the ones I managed to find are from the Association of School and College Leaders. I think noble Lords will forgive me for a minute if I read out some of the statistics, because they are pretty shocking; I was shocked by them. According to the ASCL survey, nearly eight in 10 schools had been targeted by anti-vax protestors. I add that most of that was by email, but the fact remains that they have been targeted. Protests outside schools have been reported in Glasgow, Cardiff, London, Telford, Leicester, Manchester and Dorset, so this problem has been experienced right across the country. I ask noble Lords to imagine for a moment the teachers and members of staff at these schools, the parents and grandparents of children attending them, and the children themselves. Some of these children are very young—admittedly, many of them are in secondary school—and are having to deal with some of the misinformation and protests going on in the immediate vicinity of their schools.

The Association of School and College Leaders found that 420 schools had experienced protests. Of 526 responses from schools eligible for the Covid vaccination programme for 12 to 15 year-olds, 13% had reported seeing demonstrators outside their school, in the immediate vicinity. I think there is a point to be made about it being in the immediate vicinity. Eighteen schools said that demonstrators had gained access to the school, which is obviously particularly worrying, and 20 had received communications threatening harm.

What my amendment seeks to do is to say that this is unacceptable. There is legislation available, but it has taken too long for that legislation to be enacted. Even where the police, school leaders and local authorities want to take action to deal with this problem, it is taking far too long, and the children, parents and pupils at those schools are experiencing that difficulty.

I finish by saying that many media outlets have started to pursue this campaign, particularly the Mail, but it is sickening that anti-vax protestors in protests outside schools are spreading dangerous misinformation to children. The uptake of the vaccine among children is far too low, and the Government would wish to accelerate the rollout. Everything must be done to get those who are eligible to be vaccinated as soon as possible—and who knows where that will go in the coming weeks and months as the Government roll out their vaccination and booster programmes, wherever that takes us.

We are facing a public health emergency, and the last thing we need is for our children to be targeted by the irresponsible activities of a few people. I think the Government need to act to fast-track the existing legislation. I beg to move.

[Lord Bassam of Brighton (Lab)]

My Lords, I thank my noble friend Lord Coaker for congratulating me on my amendment before I have spoken to it. I think that is a bit of a rarity in your Lordships’ House, but I will take it from wherever it comes.

My Amendment 292S covers racism in football and, in particular, online offences. As the explanatory statement to the amendment says:

“This would add online offences, specifically posting racist abuse aimed at football players, to the list of relevant offences for which a football banning order can be made.”


It would add offences under Section 127 of the Communications Act 2003 to Schedule 1 to the Football Spectators Act 1989, which controls banning orders, where these messages are sent to a member of a football team and involve racial hatred.

In speaking to my amendment, I should enter a bit of history. Back in 2000, I was the Home Office Minister, sat where the noble Lord is this evening, and I had to introduce to this House what was effectively emergency legislation covering football-disorder related offences. The banning order regime that it brought in was aimed at dealing with violent and disorderly behaviour and racist activity at football matches. This was on the back of extremely poor behaviour by England football fans at the Euro 2000 competition. Such was the international outrage at the behaviour of our own fans, I believe that if we as a Labour Government had failed to act firmly, England would have been banned from competing in the subsequent World Cup in 2002.

19:45

The legislation was linked to a brilliant campaign led by Kick It Out, which rightly attacked the racist behaviour then prevalent on the terraces in many football clubs. The Home Office played a supporting role and worked closely with the football leagues and clubs to link the legislation and anti-racist campaigning to try to change the whole culture and atmosphere in and around football. A report, authored under my name, brought forward a whole range of proposals and measures which clubs responded to positively. This led to widespread changes in behaviour over time.

The legislation was hugely successful in driving out violence at football grounds and games. Since then, English teams competing in European competitions as national sides and club teams, and on the wider international stage, have been largely trouble-free. Banning orders work and have been instrumental in making going to watch one’s favourite team a pleasure, not a pastime in which you fear for your personal safety. They have also had an impact on the incidence and reporting of racist hate crime for football matches, not least because clubs now have a weapon in their armoury when tackling racists and racist thuggery in their communities.

Of course, back in 2000, we did not have Twitter, Instagram, TikTok and Facebook in the way we do now. The legislation we framed then to deal with racist abuse and violence was not designed to cope with the digital age and online abuse, hence my amendment today, which is long overdue and which many of my colleagues across all parties and in both Houses have been urging on the Government.

Indeed, back in the summer, after England footballers suffered appalling abuse, the Prime Minister, responding to a question from Sir Keir Starmer, the leader of the Opposition, during PMQs on 14 July, said:

“Today we are taking practical steps to ensure that the football banning order regime is changed, so that if a person is guilty of racist online abuse of footballers, they will not be going to the match—no ifs, no buts, no exemptions and no excuses.”—[Official Report, Commons, 14/7/21; col. 362.]

On 20 October, when pressed about the online harms Bill, the Prime Minister said that the Government would ensure that the Bill

“completes its stages in the House before Christmas”,

and then corrected himself by saying that they would

“bring it forward before Christmas”.—[Official Report, Commons, 20/10/21; col. 746.]

My honourable friend Jo Stevens has raised the issue of this online abuse directly with the new Secretary of State at DCMS, but has yet to receive a response. I make it plain that we on our side stand ready to support the online harms Bill, which should include this measure.

I hope the Minister can simply say that he will accept today’s amendment into the Bill. If the argument against it is that it is in the wrong place or Bill, I say simply that there can be no harm in putting it in this Bill now, given that the sort of abuse we are looking at here goes on week in, week out, in, around and after football games, and needs to be stopped. By adopting the measure here and now, the Government would be sending a strong message that would be well received across the sporting world and particularly in football.

Moreover, it would be achieved on the back of cross-party agreement and with a high degree of public unanimity. It would also bring to a close the wavering uncertainty that surrounds this issue and the Government’s intentions. Finally, it would go some way to repairing the damage caused by the mixed messages that emanated from the Government and Ministers in the summer, when some were quoted as saying that fans were right to boo players taking the knee as part of their campaign against racist abuse.

This amendment gives the Government and the Minister the opportunity to deliver on the Prime Minister’s own promise that there would be no ifs, buts, exemptions or excuses when bringing forward football banning orders which focus on online racist abuse of footballers. This evening is the Government’s opportunity to deliver on that promise.

[Lord Faulkner of Worcester (Lab)]

My Lords, like my noble friend Lord Coaker, I was a little surprised to find my amendment grouped with two very different amendments, both of which I am happy to support. If I were not such a collegiate person, I would probably have asked for my amendment to be degrouped and debated separately, but I suspect that the Government Front Bench and your Lordships would not have regarded that as a particularly friendly gesture at this time of night and at this late stage in the Bill.

I wholeheartedly support my noble friend Lord Bassam’s amendment. He will recall that I was a very new Member of this House in 2000, and, having previously been involved in tackling football violence, I was very pleased to give him every possible support in the measure that he took. His description of the difference it made was absolutely correct.

My amendment is something completely different. It introduces an offence of receiving cash for scrap metal by amending Section 12 of the Scrap Metal Dealers Act 2013 and would effectively close a loophole in that Act. Noble Lords with longer memories will recall that cash was removed as a means of payment with the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Its provisions created a criminal offence which prohibited all scrap metal dealers from paying for scrap metal in cash. This was reinforced in 2013, with the introduction of the SMDA—the Scrap Metal Dealers Act—and that was a significant step forward in tackling the scourge of metal crime, which was having a devastating effect on our national infrastructure, heritage, transport operators, public undertakings and communities across the country.

That legislation made it more difficult for criminals to convert stolen metal into cash and removed the opportunity for sections of the scrap metal industry to avoid taxation and launder money. Serious attention was paid to enforcement by the metal theft task force and Operation Tornado, led by the British Transport Police, and in the face of falling commodity prices, levels of offending fell and generally remained fairly low until about 2019. But then values of commodities increased significantly, and enforcement was switched to other priorities.

The National Police Chiefs’ Council metal crime lead is Assistant Chief Constable Charlie Doyle of the BTP. He requested a review of the 2013 SMDA to see how it could be improved to meet the new challenges that did not exist when the Act was written. He set up a group of representatives from all the sectors hit by metal theft and drew up a priority list for updating the legislation. The one suggestion that was universally supported was the introduction of an offence of receiving cash for stolen metal. The introduction of an offence of receiving cash would discourage those who would not normally be involved in any form of criminality, and make it more challenging for those who are.

I am afraid that metal crime is now on the rise again. It is being fuelled by ever increasing commodity prices: copper is at an all-time high, and the projections are that it will continue to rise over the coming years as demand increases. Catalytic converter theft has also emerged as a growing problem, with rhodium rising sixfold in value during the last couple of years. We know that cash continues to be used within sections of the industry and, because of reduced enforcement activity, its use has increased in line with these rises in commodity prices.

As with football violence, referred to by my noble friend Lord Bassam, the emergence of social media marketplaces and online platforms has given rise to an explosion of criminal activity linked to metal crime. A quick search on these platforms reveals page after page of adverts offering to purchase metal, catalytic converters and other items linked to metal crime for cash, with effectively no questions asked.

This amendment would allow a greater degree of leverage with the online platforms to have listings and accounts removed because they would be operating in contravention of the law. The money launderers would find it much more difficult to convert their cash into legitimate assets and it would add an additional layer of difficulty for those who continue to deal in cash.

The Minister, who I am pleased to see back in her place on the Front Bench, will recall that I raised the issue of metal theft in an Oral Question which she answered on 14 October. She was good enough to follow that up with a meeting on 9 November, also attended by the right reverend Prelate the Bishop of Bristol and the noble Lord, Lord Birt, who I am also delighted to see in his place. I thank him for signing my amendment this evening.

Last Thursday, I attended a demonstration in Worcestershire, by the West Mercia Police, of a number of sophisticated initiatives to track stolen items as varied as farm trailers, four-wheel drive tractors and bicycles. I discussed this amendment with the new chief constable, Pippa Mills, who wishes me to tell your Lordships that she supports a change in legislation that acts as a further deterrent to metal thieves or dealers in stolen metal and enables the prosecution of those involved in metal theft.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, despite being an anti-racist—

[Lord Faulkner of Worcester (Lab)]

I have not quite finished.

[Baroness Fox of Buckley (Non-Afl)]

I do apologise.

[Lord Faulkner of Worcester (Lab)]

In view of the very positive nature of the Minister’s comments at our meeting a couple of weeks ago, I hope her noble friend can give some hope that the law will be changed in line with the terms of my amendment.

[Lord Birt (CB)]

My Lords, I shall speak briefly in support of the amendment tabled by the noble Lord, Lord Faulkner. He and I sit together on the APPG. This is a highly organised crime committed by gangs and it has a devastating impact not only on our national infrastructure but on many—primarily rural—communities. In the year to March 2020, 36,000 metal thefts were recorded by the police. Just last week the Countryside Alliance, as a result of FoI requests from police forces, identified that 1,500 lead and metal thefts since 2017 were from churches. Theft of lead from church roofs can have a devastating impact on local communities. I have had direct experience of that, which is why I joined the noble Lord’s group.

As the noble Lord said, adverts offering “cash for scrap” are now widespread. The 2013 Act made it illegal to pay cash for scrap metal but not to receive it. This amendment closes that glaring loophole. I very much hope that the Government will support it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I apologise for taking the instruction to hurry up rather too literally.

Despite being an anti-racist and a football fan, I have serious free speech concerns about the amendment tabled by the noble Lord, Lord Balsam—

[Lord Bassam of Brighton (Lab)]

It is Bassam, actually.

[Baroness Fox of Buckley (Non-Afl)]

I am making too many mistakes and I am sorry. As the noble Lord, Lord Bassam, suggested, online abuse will be thoroughly debated in the online safety Bill, when I will lay out my concerns and listen to further discussion on this.

For now, I want to focus on Amendment 292Q, tabled by the noble Lord, Lord Coaker, which I am rather concerned about. Civil libertarians have warned us recently about public space protection orders increasingly being used to carve out more and more public space away from the public, effectively privatising it and excluding citizens from the public square. Therefore, I am concerned about an amendment that tries to fast-track these very orders. I was struck by the explanatory statement from the noble Lord, Lord Coaker, that the amendment is aimed at anti-vaccination protestors who target schools, pupils and teachers.

I, too, worry about hardcore anti-vax sentiment in society. However, in the interests of accuracy and not to allow misinformation to flourish, some protests at schools have comprised fully vaccinated parents who were specifically worried about the use of the Covid vaccine on children, a sentiment echoed by some in the JCVI at least. It would be wrong to characterise these protests as anti-vaxxers per se. Also, while the amendment was discussed in relation to anti-vaxxers, it could be used against any protest. Would other protests be targeted by the amendment?

I am rather worried about education authorities having to make politically contentious decisions about who is allowed at the school gates. I am thinking of the instances in the build-up to COP 26 when there was a lot of leafleting of schoolchildren by environmental activists advocating eco school strikes. Personally, I have qualms about encouraging political truancy but, none the less, I support their right to leaflet, and I know that many young people appreciated talking to those campaigners.

20:00

What about the scenes last year at Batley grammar school with some Muslim parents and religious activists? Not only were those protests supported by a range of politicians, the protesters’ demands were conceded to, which has led to a de facto blasphemy law being allowed to interfere in the school curriculum and a teacher being driven into hiding. I do not support those protesters’ aims at all, and have spoken out against them a lot since, but I am minded to defend their right to demonstrate—although I appreciate that it is tricky.

I suppose my question to the noble Lord, Lord Coaker, is: who decides which political demonstration outside a school is acceptable? Would he ban all parents’ demonstrations, or just the ones he disapproves of? These are morally and politically delicate dilemmas, and I argue that legislative changes should not be rushed through.

[Baroness Chakrabarti (Lab)]

In response to that and in support of the broad thrust of my noble friend Lord Coaker’s probing amendment—I think it is fair to call it that—I have long had concerns about public space protection orders in general, and I defer to no one as a civil libertarian, but there is a great tradition in human rights thinking for child protection. So my instinctive response to the noble Baroness is that it is not because the protesters are anti-vaxxers and I disagree with them, it is that it is at school. They are young and potentially vulnerable people, and it does not seem proportionate or fair to me that we as grown-up legislators in this place take greater protection for our immediate vicinity than we give to even primary school children up and down the country, regardless of the nature of the protest.

The point about free speech and freedom to protest being a two-way street is incredibly important, and I suspect that we will return to it in a forthcoming group, but on this issue, for me, at least, the principle is not that I think that this is dangerous speech or disinformation—it is out there anyway online, et cetera—it is that no young person, particularly a very young person, should be subject to an aggressive demonstration, whether or not it is one that I would approve of, on their way to or from school.

Some of us remember the Holy Cross school dispute in Northern Ireland some years ago. The reason why Her Majesty’s Government had to intervene with soldiers, and so on—it was tragic—was not to take sides in the dispute, it was to protect young children, who do not have the same robustness as an older person and should not feel scared on their way to or back from school. I would take that view whether or not the protest by adults from outside the school community was one with which I agreed—about the climate catastrophe or whatever else it happened to be.

It is so important at this stage in the evening, before we get to the next group, to introduce the concept of the two-way street in relation to free speech. So I support my noble friend Lord Coaker in the thrust of his amendment, about schools being special—particularly primary schools, but possibly also secondary schools; that will be up for more detailed discussion—and needing some level of protection from whatever kind of protest by people from outside the school community.

I add that caveat because I think children should be able to protest themselves if they want to. I would not want inadvertently to do anything that caused criminal sanction for children and young people who chose to launch their own protest about whatever it was.

I see this very much as a probing amendment, but the status quo, whereby we have these protections as legislators in the vicinity around the Palace of Westminster —and companies have greater protections from pickets than primary school children have from aggressive demonstrations from whatever quarter—does not seem right. Human rights principles are: always protect children first, and any interference then has to be necessary and proportionate. But equal treatment and the two-way street, particularly in relation to freedom of speech and the right to protest, are crucial.

[Lord Paddick (LD)]

My Lords, I thank the noble Lord, Lord Coaker, who moved the amendment, which is about the need for fast-track exclusion zones around schools to prevent, in particular, anti-vaccination protests in the vicinity of schools.

If she will allow me, I said to the noble Baroness, Lady Fox of Buckley, I think after we finished on Monday night, how important it is to have her voice in the Chamber to test these sorts of issues. All I would say to her on this occasion is that the amendment talks about “activities carried on” that have

“a detrimental effect on the quality of life for pupils and staff”.

So it is not simply a question of banning any demonstration in the vicinity of a school. It would have to have that detrimental effect. I understand that that is a subjective judgment, but at least there is something there, rather than just a blanket ban on anybody protesting about anything at all.

Noble Lords will not need me to tell them that this is not about protecting children, perhaps older school-age children, from not being vaccinated. It is about protecting the whole community because, as we know from previous times in the pandemic, there is a risk of schoolchildren infecting vulnerable parents and grandparents. We also know from the health data that being double-vaccinated does not necessarily protect you completely from the worst effects of Covid, and in particular long Covid, although it gives you much better protection. On the news yesterday, an expert was talking about the fact that, although Covid has mild effects on children, it is not known how much they could be affected by long Covid. So this is not simply about a demonstration outside a school; this is a wider public health issue. However, I understand that, although that is what the noble Lord, Lord Coaker, is aiming at here, the amendment, if passed, would have wider implications than just for anti-vaccination protests.

Amendment 292S, from the noble Lord, Lord Bassam of Brighton, relates to online racism against footballers and enabling football banning orders to be made against those guilty of online racial hatred directed at a member of a football team. He is probably the best-qualified noble Lord to talk on this issue, bearing in mind his experience on the Front Bench in the Home Office under the Labour Government who introduced the banning orders in the first place, and the beneficial effect that they have had in rooting out racism in football. It is a serious problem.

Talking about a hierarchy of diversity is fraught with danger. But, as a gay man, I have always considered racism to be a far more serious issue than, say, homophobia. Some people might argue against this; but I could conceal my sexuality if people from a different planet did not know who I was or what my background was. But you cannot hide your colour; you cannot avoid racism in the way that some gay people, at least, could avoid homophobia; it would not be obvious to people.

I do not know of any professional footballers who have been open about their sexuality, because of their concerns about being open about it. Hopefully, as years go by and social attitudes change, some professional footballers will be open about their sexuality. They should be able to benefit from similar protection, so this legislation should not exclusively provide protection for racism, which is the major issue at the moment, while professional footballers’ sexuality is not. This is a good idea, and hopefully the Government will discuss how this can be taken forward.

This group is diverse—not in the sense of “diversity,” but in terms of the different subjects covered. Amendment 292U, in the name of the noble Lord, Lord Faulkner of Worcester, highlights a loophole in the law. My understanding—although I am not sure as there was no explanatory note—is that it is unlawful for scrap metal dealers to pay cash for scrap metal, but it is not against the law to sell it on for cash. That is the loophole. A scrap metal dealer who surreptitiously acquires stolen metal could sell it on for cash, and the noble Lord’s amendment would disallow that. The payment would have to be made by a traceable means, thus clamping down in the other side of the transaction, which makes sense.

We have debated the issue of scrap metal and the impact on the railway system and churches, for example, and the problem with catalytic converters. As shortages of resources are exacerbated by countries coming out of lockdown and the demand for raw materials grows, scrap metal will become an increasingly important issue. Therefore, closing this loophole regarding the other side of the transaction seems sensible, and we support it.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for taking part in this debate. The noble Lord, Lord Coaker asked if I could shed any light on the grouping methodology. No, I cannot, but I salute the collegiate nature of the noble Lord, Lord Faulkner.

I am grateful to the noble Lord, Lord Coaker, for explaining what he describes as a probing amendment to tackle the issue of disruptive anti-vaccination protests outside schools. Like him, I stand by people’s right to protest, but as I am sure we will debate when we get to Part 3 of the Bill, this is not an unqualified right, and there is a line to be drawn. When crossed, it is right that the police or, in this case, local authorities should be able to take appropriate and proportionate action to protect schoolchildren and their parents, as well as teachers and other school staff.

The police and local authorities have a range of powers which can be used to manage protest activity affecting schools. This includes powers in the Public Order Act 1986 to manage protests, measures in the Education Act 1996 to prevent nuisance and disturbances on school premises, and measures in the Anti-social Behaviour, Crime and Policing Act 2014—as noted by the noble Lord, Lord Coaker—targeted at anti-social behaviour. The police also have their common law powers to prevent a breach of the peace.

Despite prominent media reporting, the scale of the issue is quite small. I concur with the noble Lord’s statistics, which I have seen. The issue has affected 68 schools in the various geographies he talked about, and the number of protesters ranges from one to about 20. But the statistics do not add any colour to the human experience people are suffering, so I take the noble Lord’s point.

These people typically hand out leaflets and display placards, with some serving “liability notices” or “cease and desist” letters to head teachers. The Government continue to closely monitor anti-vaccination activity occurring at schools. There is close working between the vaccine programme, the police, local authorities and other partners to gather intelligence and provide proportionate mitigations to keep people safe.

20:15

I understand that, on rare occasions, protesters have engaged in criminal activity, as also noted by the noble Lord, Lord Coaker, such as behaving in an intimidating manner on school grounds such as to cause harassment, alarm or distress. Where criminal behaviour such as this occurs, the police already have the powers they need to deal with those involved and are dealing with any criminal behaviour.

We intend to bring in several new measures in the Bill that could help address this issue. Through the regulation-making power to clarify the meaning of

“serious disruption to the life of the community”,

we will specify that this includes where there is prolonged physical disruption inhibiting access to educational facilities. We are also enabling the police to place conditions on a protest if the noise from it causes or risks causing serious disruption to the activities of an organisation; this would include schools.

Finally, we are introducing serious disruption prevention orders, which will allow the courts to place prohibitions and requirements on people who have committed criminal protest-related offences and/or have a history of, for example, causing or contributing to serious disruption at protests. So, I hope that the noble Lord and the whole Committee will support these measures when we come to them.

On the noble Lord’s proposal for a

“fast-track public spaces protection order”,

we are not persuaded that there is a need for this, given the way that the existing legislation governing these orders is framed. This will address the noble Lord’s specific questions about the pace of the orders.

The amendment seeks to provide for a truncated five-day consultation period for PSPOs when relevant criteria are met. While the legislation already sets out certain sensible minimum requirements for making a PSPO, there is no prescribed minimum consultation period. As such, the amendment would make no material change to the pace at which a PSPO can be implemented.

Indeed, although it is recommended, there is currently no statutory requirement for local authorities to undertake public consultation at all on a PSPO. The legislation requires that the local authority consult the police, the PCC, any community representatives they consider appropriate and the owner or occupier of the land within the restricted area—in this case, the school in question. But it is within the gift of a local authority to conduct such a consultation within five days on issues where there is broad consensus and the evidence is in place.

The noble Lord could be forgiven for thinking that PSPOs have a lengthy minimum consultation period because councils often choose to carry out a public consultation, and they do so for good reason. PSPOs are designed to impose restrictions on what people can do in in public spaces. As any dog owner subject to restrictions regarding where they can or cannot walk a dog will tell you, these are often highly contentious matters, and we expect authorities to be cautious about using powers that restrict individual liberty.

If a local authority were to make a fast-tracked PSPO under this amendment, it would still be accountable in court for demonstrating that the restrictions placed are compliant with the European Convention on Human Rights—and in particular that any infringements of Article 10 and 11 rights are necessary and proportionate. Legislation explicitly permitting a fast-tracked PSPO would not change this, and the local authority could find itself subject to increased legal risks through not performing a more comprehensive consultation before imposing a PSPO.

It is also important to note that experience to date suggests that physical protests at schools are typically short in duration and rarely repeated at the same location, so the widespread use of exclusion zones is unlikely to be an effective response in practice. If repeated protest activities take place at one location, they can be considered as an option, alongside other policing and community responses.

In summary, I share the noble Lord’s desire to protect pupils, parents and school staff from aggressive anti-vaccination protests, but the existing powers to make PSPOs are already available to local authorities, and these will be augmented by the strengthened police powers in Part 3 of the Bill.

I turn to Amendment 292S, which, as the noble Lord, Lord Bassam—I commend his long association with this subject—has explained, seeks to extend the scope of football banning orders. I say at the outset that I do not believe that there is any difference between the noble Lord’s position and the Government’s.

I think that we were all shocked by the disgraceful online racist abuse of black England players following the Euro 2020 final in July. There can be no excuse for behaviour of that kind and it is right that people who perpetrate that kind of abuse online in connection with football should no longer have the right to attend matches. That is why my right honourable friend the Prime Minister, as the noble Lord, Lord Bassam, acknowledged, announced in the House of Commons within days of the Euro 2020 final that we intend to amend the legislation governing football banning orders so that they can be imposed on those who commit online abuse in connection with football.

I assure your Lordships that we are proceeding at pace to give effect to this firm and clear commitment. We are working through all of the issues that have been raised. As a former Home Office Minister himself, the noble Lord will understand that translating policy objectives into legislation is not always as straightforward as one might hope. His amendment is deceptively simple, but we believe that other changes are needed to the Football Spectators Act to achieve the desired outcome. We are making good progress, but this will take a little time to get right. We are also considering the options as regards the appropriate legislative vehicle. I do not rule out using this one, but I cannot give him the firm commitment that he seeks at this stage. What I can do is undertake to update him ahead of Report.

[Lord Bassam of Brighton (Lab)]

Before the noble Lord moves on to the next amendment, thinking back to 2000, the football riots took place in Charleroi and elsewhere, involving some 600 or 700 England fans, and within two weeks the Labour Government swiftly moved to introduce legislation that has been effective for the last 21 years. I do not quite understand how a Government with a majority of this size have failed to act on the promise made by the Prime Minister on 14 July. It is a pretty simple piece of legislation, as the noble Lord gave voice to in his response. Why have they not been able to find the opportunity to put that promise, made very clearly in the House of Commons, into effect? They could do so in this legislation now. We will help the Government to do it by helping them to perfect the amendment and get it right. This is a serious matter. The noble Lord, Lord Paddick, made that point very well. It is time that the Government fulfil some of the promises that they make. This is a relatively simple one to do.

[Lord Sharpe of Epsom (Con)]

I reiterate that the Government agree with the noble Lord. I can only repeat what I said earlier: we are working at pace and I commit to updating him before we get to Report. I hope that there will be a helpful outcome.

Finally, the noble Lord, Lord Faulkner, has Amendment 292U on metal theft. This is an important subject and one that my noble friend Lady Williams recently discussed with the noble Lord, as he acknowledged. I also thank the noble Lord, Lord Birt, for his contribution and his examples. I shall say a bit more about that meeting in a moment.

The Government recognise the impact of metal theft on infrastructure companies, including theft of cable from railway projects, construction companies and solar farms, as well as from heritage and community assets such as churches. The Scrap Metal Dealers Act 2013 was introduced to tackle the metal theft that was affecting many people’s day-to-day lives at that time. Under Section 12 of the 2013 Act, it is already an offence for a scrap metal dealer to pay for scrap metal using cash. The 2013 Act also places requirements on scrap metal dealers to hold a licence, verify the identity of those supplying scrap metal and retain records of metal bought and sold. These elements, together with powers for the police and local authorities to enter and inspect the premises of scrap metal dealers, make the Act an effective tool to tackle the sale of stolen metal.

The noble Lord’s amendment seeks to extend the provisions in the 2013 Act to make it an offence for anyone to sell scrap metal for cash. Although I understand the intention behind this amendment and the desire to have additional powers to tackle those who see metal theft as a profitable crime, the Government do not consider this amendment to be needed. The amendment would broaden the remit of the 2013 Act beyond the responsibilities placed on scrap metal dealers. Should an offender encourage, assist or incite the cash purchase of stolen metal by a scrap metal dealer, they could be found guilty of an inchoate offence under the Serious Crime Act 2007.

I will set this in a broader context. The noble Lord and my noble friend Lady Williams had a very productive meeting, as he acknowledged, on 9 November to discuss this important subject. They were joined by members of the All-Party Parliamentary Group on Metal, Stone and Heritage Crime: the noble Lord, Lord Birt, the right reverend Prelate the Bishop of Bristol and Andrew Selous MP, together with a representative from the British Metals Recycling Association. I understand that it was a constructive discussion and I hope that the noble Lord was left in no doubt as to the seriousness with which the Government view this crime.

At that meeting it was agreed that enforcement of the 2013 Act is key to tackling metal theft. The Government are committed to supporting partners to increase the enforcement of the Act. The Home Office provided £177,000 of seed-corn funding in the last financial year to establish the National Infrastructure Crime Reduction Partnership. The partnership is spearheaded by the British Transport Police and was set up to better co-ordinate police forces and other agencies to tackle metal theft from rail, telecoms and utilities companies.

At the meeting on 9 November, concerns were also raised about the disparity between metal theft figures published by the Office for National Statistics and figures held on the police national computer. We are looking into this and my noble friend Lady Williams—who, by the way, expressed to me that she would have liked to answer the noble Lord’s amendment—will write to the noble Lord when we have clarification on this. However, let me be clear: no one is trying to play down the problem or argue that statistics somehow show things are not as bad as some suggest.

The all-party parliamentary group agreed to provide the Government with a paper setting out its recommendations for tackling metal theft. My noble friend looks forward to receiving this and we will give it careful consideration. The right reverend Prelate and Andrew Selous, who is a Church Commissioner, agreed to see what more could be done to gather data and intelligence about thefts from churches, particularly of lead roofs. That is something that I welcome. I am sure that your Lordships all share my concern about these attacks on our heritage and recognise the particular vulnerability of churches, many of which are in isolated and remote areas. We look forward to continuing to work with the noble Lord and others who have contributed to the work of this all-party group. I hope that he is in no doubt of our commitment in this respect.

In the light of my comments and the undertaking to give sympathetic further consideration to Amendment 292S, I invite the noble Lord, Lord Coaker, to withdraw his amendment.

[Lord Coaker (Lab)]

My Lords, in thanking the Minister for his reply, I will make a couple of comments about the two amendments not in my name. First, I think that we all heard clearly, in answer to my noble friend Lord Bassam and his amendment, that the Government agree with him. The question that my noble friend then posed was: when will the Government act to implement the amendment that he put forward and that the Government say they agree with? That is the key question.

I take the Minister’s point that he will do something before Report—unless I have misrepresented him—or consider it before Report. That is where we start to get into difficulty, because he has moved from doing something to considering it. If the Minister agrees with it, something needs to be done. We have gone past considering it; it is time for action. That is what my noble friend Lord Bassam was saying and I very much agree with him.

I am sure that my noble friend Lord Faulkner will have heard the remarks about dealing with scrap metal, which—irrespective of whether it should have been in this group—is an issue. I think that he will be pleased that the Minister sought to answer those points.

With respect to my amendment, which of course I will withdraw—and I will come to a couple of the points made by other noble Lords—I think that schools will be interested that the Minister says powers are already available to them, notwithstanding the way in which he moved on to powers that we are yet to discuss. Of course, if everyone agrees with them, it will all be solved—that is for another debate later on. The Minister specifically said that powers are already available to schools, should they wish to deal with this issue. That is not how they feel. They feel as though it takes an inordinate amount of time to get anything in place. That is the whole point of what this amendment seeks to do. The Government need to consider how they reassure schools that those powers are available to them to deal quickly with problems that occur.

I thank the noble Lord, Lord Paddick, and my noble friend Lady Chakrabarti for their support for the amendment, in the sense of their recognition that it is a two-way street. I accept that it is not unbridled, unqualified support, but it is important.

20:30

On the points made by the noble Baroness, Lady Fox, it is not me imposing this or saying that schools should ban it. That is clearly laid out that it is for the leadership of the schools, the local police and the local council, along with any other persons who people see fit. Where considerable distress or alarm is being caused to young people in that particular situation and environment, they would then have the option to consider using this to protect them. The amendment refers specifically to schools, although I take the point from the noble Lord, Lord Paddick, that it could be broadened out in some circumstances. I specifically tried to ensure that it was measured, constrained and used in particular circumstances, recognising that people of course have a right to protest. I suspect that many people would also have given leaflets outside schools in an appropriate way.

With those remarks, I thank the Minister again for his reply and thank all noble Lords for contributing to what is an important debate. I seek leave to withdraw the amendment.

Amendment 292Q withdrawn.

Amendment 292R to 292U not moved.

Amendment 293

Moved by

[Lord Dubs]

293: Before Clause 55, insert the following new Clause—
“The right to protest
(1) The Public Order Act 1986 Part II (Processions and Assemblies) is amended as follows.(2) Before section 11 insert—The right to protest(1) Everyone has the right to engage in peaceful protest, both alone and with others.(2) Public authorities have a duty to—(a) respect the right to protest;(b) protect the right to protest; and(c) facilitate the right to protest.(3) A public authority may only interfere with the right to protest, including by placing restrictions upon its exercise, when it is necessary and proportionate to do so to—(a) protect national security or public safety,(b) prevent disorder or crime, or(c) protect public health, or the rights and freedoms of others.(4) For the purposes of this section “public authority” has the same meaning as in section 6 of the Human Rights Act 1998 (acts of public authorities).””Member’s explanatory statement
This amendment would introduce an express statutory right to protest, imposing both negative and positive obligations on public authorities while recognising that the right to protest may need to be limited to protect other legitimate public interests.

[Lord Dubs (Lab)]

My Lords, I am privileged to be a member of the Joint Committee on Human Rights, and these amendments—there are at least seven in my name—are based on its reports, so the Government have been fully warned of what we are going to say, because they have had those reports before them. This group of amendments is probably the substance of a whole Bill in themselves and it is very difficult to keep one’s remarks short. I should just say that I picked up a message about us on my phone, saying “Everyone looks knackered”. I just pass on that comment from the wider public.

Before I get to the substance of the amendment, I should make it clear that I have been on a large number of demos and protests over the years, even against Labour Governments. The most recent ones have been on child refugees in Parliament Square, and outside the Foreign Office in support of Richard Ratcliffe, who was on a hunger strike to try to get his wife out of imprisonment in Iran. I should add that, when I was a Minister in Northern Ireland, there were demos against me for what I was doing or failing to do. So I have had some experience of demos on all sides. I do not know whether that gives me much authority to speak, but at least I have had the experience. When I talk about not making noise on demos, I speak from the experience of having made a lot of noise on demos, because it is the thing that keeps one going and that attracts attention.

Let me get to the substance of this. I repeat that I am speaking to at least seven amendments, but I will try to be as brief as possible. The first is to do with the trigger for imposing conditions on processions and assemblies in England and Wales. A lot of what I want to say is about the trigger and the adverse effect that it will have. Articles 10 and 11 of the ECHR guarantee the right to peaceful protest, and any interference with non-violent protest is therefore an interference with those convention rights. That is absolutely clear and it is why the Joint Committee has taken such a firm stand.

Any restriction on the right to protest that targets noise is a particular concern, as it strikes at the heart of why people gather to protest. Larger and well-supported demos are much more likely to be louder. Therefore, restrictions on noise could disproportionately impact demonstrations that have the greatest public backing, which would be a perverse outcome.

The Joint Committee on Human Rights heard from witnesses who suggested that restrictions on protests based on the noise they produce pose

“an existential threat to the right to protest.”

One witness told us that protests

“lack value and are pointless if they cannot be heard and seen”.

I speak from experience. Perhaps not the demo outside the Foreign Office recently in support of Richard Ratcliffe’s hunger strike, but every other demo that I have been on has been about noise and having our voice heard, whether it is has been on marches or in Parliament Square when we have talked about child refugees. This is absolutely fundamental.

The second aspect is that the new noise trigger proposed in the Bill would allow for restrictions on peaceful protest to prevent the intimidation or harassment of “persons in the vicinity” suffering

“serious unease, alarm or distress”.

That is significant. Preventing intimidation and harassment, which are already criminal offences, would fall within the legitimate aim of preventing crime and disorder. However, the inference with Articles 10 and 11 of the ECHR, which refer to people being involved in making noise that causes alarm or distress—particularly noise that causes “serious unease”—can reasonably be justified only on the basis of

“the protection of the rights and freedoms of others.”

The proposed new noise trigger also puts considerable responsibility on the police officers responsible for the decision whether to impose conditions. The conditions on public processions and assemblies represent a restriction on the right to protest that is not necessary in a democratic society. The amendment would remove the proposed new trigger.

I also refer to the effect of the trigger on a protest by a single person, as is specifically itemised in the Bill. Clause 61 extends the proposed new trigger based on noise generated by protest to cover protest by a single person, in addition to assemblies of two or more or processions. What can a single person do to disrupt good order? A single person would still be exercising their right to free expression under Article 10 of the ECHR. For the reasons given above in respect of Clauses 55 and 56, the Joint Committee on Human Rights opposes the introduction of the new trigger as an unjustified interference with this right. We also noted in our report that

“a single protester has less ability to produce seriously disruptive noise than a large assembly or procession.”

That is pretty evident, is it not? It should be added that existing criminal offences dealing with whether the noise crosses the line and becomes harassment or a threat to public order are available and easy to use against a single protester.

I turn to the question of awareness about the conditions that may be imposed and how they will impact on demonstrators. The Bill seeks to prevent demonstrators who breach conditions imposed on processions and assemblies avoiding prosecution on the basis that they did not know that such conditions were in place. However, it goes too far, sweeping up those who breach conditions of which they were genuinely and innocently unaware.

Amendments 309 and 312 would prevent this, ensuring that only those who know that conditions have been imposed on a demonstration or avoid gaining knowledge of the conditions deliberately and recklessly can be prosecuted for breaching them. A breach of conditions imposed by the police may justify a prosecution, but the potential penalty for a non-violent offence of this kind must not be disproportionate. An overly severe penalty may have a chilling effect on those considering exercising their right to protest. For this reason, Amendments 311 and 312 would remove the increased sentences proposed in the Bill, which seems a moderate suggestion indeed.

I will move on to the proposal to penalise people who “intentionally or recklessly” cause “public nuisance”. The Bill introduces a new statutory offence of

“intentionally or recklessly causing public nuisance”,

which was previously an offence under common law. The committee reported:

“We are seriously concerned that, as currently drafted, the public nuisance offence may be used to criminalise non-violent protest that would be protected by Articles 10 and 11 of the ECHR. The offence would catch not only individuals who cause ‘serious annoyance’ or ‘serious inconvenience’ to the public but also those who create a risk of causing serious annoyance or serious inconvenience.”


It went on:

“It is not entirely clear what behaviour the Government and police are trying to tackle with the new offence”


that would not already be tackled by existing legislation. That runs through a lot of the difficulties we have had: the existing legislation is there, but the Government simply want to take it further.

The report says the new offence runs the risk of being

“used as a catch-all offence because of the wide range of conduct it covers.”

The JCHR has

“serious concerns about the new offence being included in Part 3 of the PCSC Bill, especially given the broad drafting which would catch non-violent protest. Protests are by their nature liable to cause serious annoyance and inconvenience and criminalising such behaviour may dissuade individuals from participating in peaceful protest.”

A protest must make an impact; it must be heard and seen, otherwise what is the point of a protest? Yet the Government seek to penalise what is a legitimate democratic activity. Under the current law, as I have said, there are a plethora of offences already available to the police.

The report says:

“The essence of the public nuisance offence is causing harm to the public or a section of the public. However, as drafted, the offence is confusing and could be read as meaning the offence is committed where serious harm is caused to one person rather than the public or a section of the public. This does not achieve clarity for either the police or protesters. The current drafting also risks the offence being broader than the common law offence it replaces.”


I am going to move on quickly. There needs to be a balance of rights between protesters and the public. I think that is accepted in the European Convention on Human Rights but is not something that runs through the drafting of the Bill. The report says:

“Current rhetoric around protest … focuses on discussions about ‘balancing’ the rights of protesters against the rights of members of the public … Whilst protests may cause inconvenience”—


and I fully accept that they may—

“they are also fundamental in a democratic society to facilitate debate and discussions on contentious issues and this is of value to the public generally … Whilst the ECHR provides that protests can be limited in order to protect the rights of others, any restriction of the right is only lawful if it is both proportionate and necessary.”

It is my contention that, throughout the Bill, the measures are not proportionate and many of them are not necessary.

Public authorities, including the police, are under a negative obligation not to interfere with the right to protest lawfully and a positive obligation to facilitate peaceful protest. This amendment would introduce a specific statutory protection for the right to protest and sets out the negative and positive obligations of the state in relation to protest. I beg to move the amendment—and I hope we are not all looking knackered.

[Lord Campbell-Savours (Lab) [V]]

My Lords, I am not a lawyer, and I have not been briefed to speak; I am only following my instinct. I have not intervened earlier in these proceedings because it is difficult remotely to pick up on the cut and thrust of a debate on issues that command strongly held views. This debate will inevitably draw on strong feelings this evening.

I will concentrate my remarks on one amendment, Amendment 293, moved by my noble friend Lord Dubs, who has spent a lifetime promoting issues of freedom and liberty. The amendment as currently worded, along with associated amendments, is an attempt to weaken provisions in parts of the Public Order Act 1986. My noble friend is well aware of my reservations, in that while Amendment 293 would further restrict a public authority’s power to limit the right to protest, it would still leave the door open for the prevention in advance of disorder, as referred to in subsection (3)(b) in the proposed new clause in the amendment. As I understand it, both would remain in breach, chargeable under highways and public order legislation.

It is at that point that I part company on the amendments. For me, liberty and freedom in this context must stand at the heart of the law. I am talking of the freedom to demonstrate, to object and to peacefully oppose—indeed, simply to say, “No, not in my name”. Under the provisions proposed for the Bill, they are all to be further subject to the approval of a statutory authority in the form of a mere mortal police officer acting on behalf of the state. As I understand it, it is a police officer who would be deciding on whether a liberty, in the form of a demonstration, could be deemed to be excessively disruptive potentially—yes, potentially. I can never accept that.

20:45

There are times when, unless people are prepared to challenge authorities and institutions, nothing will change. I am of a fairly moderate political disposition, so what I am about to say may seem out of character, but so be it. We now face an environmental crisis of immeasurable proportions, and I am not convinced that our political institutions have the wherewithal to take up the challenge without being pushed, particularly as our emissions, although lower than some, are among the highest in the world.

I find it hard to condemn those who, in a spirit of peace, seek to disrupt. We are talking of a liberty which once fired up a whole generation of young women—the suffragettes—to fight for the right to be heard and to vote. These women felt so strongly that they were prepared to go on hunger strike and undergo imprisonment, humiliation and division in their families, to break the law and face the wrath of wider society—in the case of Emily Davison, to lay down her life in the pursuit of that liberty and freedom. I liken the whole debate and struggle on climate change to that of the suffragettes. I see no difference. They are one and the same, and we condemn them at our peril.

If I were a young man and in good health, I confess that my every instinct would be to join these courageous men and women on the streets, sacrificing their liberty on what will be the defining issue for their generation over this century—the survival of the planet. They have my support. I know they are breaking the law. So did the suffragettes; they knew the risks they were taking.

Unfortunately, there will be times during their campaign of disobedience when a few irresponsible individuals will engage in violence. They must be condemned at every stage. Their excesses should not be used to undermine the credibility of a growing movement of decent men and women whose only interest is the survival of the planet. One day, they will be greatly thanked.

I perfectly understand the dilemma for Parliament in the conflict between those who want to protest and those who want to go about their daily business unimpeded. I am not arguing that police officers under any circumstances cannot intervene and arrest those who, during static protest or on marches, engage in violence. I am arguing that police officers and those engaged in the law should not have further power to prevent such protests which in their view and belief may lead to a future breach of the law. This is a slippery slope. The Government would do well to think again.

There are times in life when the law must be challenged from outside Parliament—even, indeed, outside the courts. That must apply in particular where the law is frozen in aspic. Survival of the planet is one such issue, and I have nothing but admiration for those who go about their endeavour in a spirit of peace. Any amendment to the law in today’s amendments must reflect that freedom.

[Lord Beith (LD)]

My Lords, I will speak to two amendments in my name. By way of preface, I must say how much I agree with the noble Lord, Lord Dubs, in his masterful presentation of the case against what the Government are doing, and of the observations of the Joint Committee on Human Rights.

The noble Lord mentioned proportionality. Proportionality was central to the case of Ziegler and others in the Supreme Court back in July. I thought the wording it used, as reported by the Times, summed up my feeling in a way:

“Peaceful protest was capable of constituting a ‘lawful excuse’ for deliberate physical obstruction of the highway … There had to be an evaluation on the facts of each case to determine whether any restrictions on the protesters’ rights to freedom of expression and freedom of peaceful association was proportionate. There should be a certain degree of tolerance to disruption to ordinary life caused by the exercise of those freedoms.”


I do not think the Government like the concept of proportionality, and the whole direction of these clauses—and those in the subsequent group, more recently tabled —illustrates that.

The amendments I have tabled are probing one feature, which is the word “unease”. They are Amendments 297 and 307. In the new subsection that the Government propose, which is about

“the noise generated by persons taking part in”

an assembly, there is reference to the impact it may have on “persons in the vicinity” of that assembly

“if … it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity”.

A court is going to have some fun working out what the characteristics are of people likely to be in the vicinity, but that is another part of the story.

The subsection also applies if

“it may cause such persons to suffer serious unease”.

That is a very low bar indeed. It made me think of the Governor of the Bank of England speaking to the Treasury Committee a couple of weeks ago. He said that he was “very uneasy” about the inflation situation¸ but not so uneasy that he sought to raise the interest rates. In his view of vocabulary, “uneasy” is clearly nowhere near the top at all.

It is the purpose of numerous protests to make people uneasy; I have been made uneasy by both the intensity and subject matter of protests. The protests that went on in Glasgow were designed to make people feel uneasy about what is happening to the planet, and to do so in ways which might even more directly make them feel uneasy, by noticing that such a large number of people are involved and making such a lot of noise.

However, it has always been so. John Wesley and his followers made people uneasy, by preaching loudly out in the open air and singing loud hymns. It was to make them uneasy about the life they were leading and trying to cause them to change their way of life. I have been confronted in my time by all sorts of demonstrations and protestors, putting forward views which I sometimes agreed with and sometimes did not. But being even seriously uneasy does not seem any reasonable basis on which to restrict the rights of protest. I simply cannot conceive that the Government have any other intention than to make protest much more difficult, even in circumstances which most people, on reflection, would accept were reasonable.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, we have had some powerful speeches already and it is a real pleasure to hear them. This was supposed to be the worst bit of the Bill. It is a terrible Bill but this was meant to be the absolute pits. However, the Government have made things worse by bringing in the latest amendments, so this is not the worst bit any more; it is just the next worst bit.

I have signed about a dozen amendments in this group. I could have signed them all and definitely support them all. Many of them are good, and worth raising, but the only real way forward is to remove these clauses altogether. I hope that opposition parties can join together to do that on Report, because our civil liberties and human rights are far too important to be negated in this way.

Amendment 293 from the noble Lord, Lord Dubs, sets the scene perfectly because it stresses the importance of the right to protest in a free country. We always look down our noses at all these illiberal countries abroad who suppress their citizens—their human rights and liberty to protest—but this Government are trying to do exactly the same. Any restriction on the right to protest has to be really carefully considered, not rushed in with 18 pages of amendments at the last minute and without any proper discussion.

There is a balancing act between the rights of individuals and those of wider society. The balancing act already happens because there is a great number of restrictions on protest in this country. The police have many powers, which they use, and many tactics—some of which go too far, such as kettling. The Government want to ramp up these restrictions even more: being noisy or annoying could be banned. Some Peers could be banned because they are annoying. We could end up with the only protests, as has been said, being the ones that are so quiet and uneventful that they achieve absolutely nothing.

This is deep, dark politics. This is about a Conservative Government wanting to rewrite completely how we operate within society, as individuals against the state. I think they are planning, or hoping, to remain the dominant political party for generations to come. That is what could happen through these terrible amendments.

If you make protests impossible to perform legally, criminalise non-violent direct action, abolish or restrict the ability of citizens to challenge the Government in court through judicial reviews, turn people against lawyers, gerrymander the election boundaries and dish out cash in the way that looks best for Conservative MPs, that is deep, dark politics. Many of us here are not particularly political and perhaps do not see the dangers inherent in what you, the Government, are doing. It all seems like a calculated ploy to turn all the cards in favour of an unaccountable Government that cannot be challenged in the courts, at the ballot box or on the streets. We all have to unite against this and deleting these clauses from the Bill is the beginning of that fight.

I have a tiny quibble on the issue that noble Peers have mentioned about the survival of the planet. The chances are that the planet will survive. What we are doing in this climate crisis is destroying the little bit of ecosphere that supports human life, so that is what we have to think about. It is not about survival of the planet but about survival of people.

[Baroness Stowell of Beeston (Con)]

My Lords, I may be able to tone down some of the hyperbole. Let’s go back to first principles on what this Bill is about. I think we are all united in this country in support of our right to protest. That is a very precious right that we all feel strongly about. Nobody wants to put that at risk and nobody is trying to put that at risk.

In a world which is becoming more divided, with people having very strong, trenchant positions in the views they adopt, we are trying to ensure that it is possible for people to express their views in a way which does not undermine some of the other social norms in our society which allow us to disagree but be united at the same time. Over the last few years, we have seen a new fashion of protest which is carried out in a way that is unacceptable to other people in its disruption; whether they agree with the matter in question or not is almost irrelevant. We need to try—I believe this is what the Government are trying to do through this Bill—to make it possible for protests to continue in a way which does not divide society further.

I do not support the amendments, but I agree with one point, made earlier by the noble Lord, Lord Dubs. We have to be very careful on the issue of noise. It is impossible for people to protest silently and I will look to the Government for reassurance on that matter when the Minister comes to respond.

Let’s not forget what we are trying to do here: allow people to disagree in a way which does not divide us further. I worry that some of these amendments will perpetuate a division which we do not want to see happen in this country.

[Viscount Colville of Culross (CB)]

I rise to support Amendments 294 and 298 because I believe that Clauses 55 and 56, which introduce noise triggers for public demonstrations and assemblies, are fundamentally undemocratic and will have a detrimental effect on free speech in England and Wales. I apologise that I was not able to speak at Second Reading, but I was unable to attend the House on that day.

I have always thought of the Conservative Party as supporters of free speech, so I am disappointed that this Government seek to take that right away through these clauses. I repeat the quote from Jules Carey that the noble Lord, Lord Dubs, gave that this is

“an existential threat to the right to protest.”

Of course, these clauses are a response to the outrage at BLM, Extinction Rebellion and Insulate Britain protests which have been incredibly disruptive to the lives of thousands of people across the country and especially in London. But the blocking of highways was always illegal under the Highways Act and the existing triggers in the Public Order Act 1986 can be harnessed by the police to control the other protests. The House will debate the new draconian measures the Government plan to introduce later which, as was mentioned at the beginning of today’s Committee debate, seems to be a poor way to treat the House.

The introduction of noise as a criterion for the police limiting or stopping protests and assemblies seems to me an unnecessary and damaging extension of police powers. The factsheet for the Bill promises that the police will use the noise trigger only

“where it is deemed necessary and proportionate.”

But “proportionate” must be subjective as a threshold for the trigger.

21:00

This brings me to support Amendment 297 of the noble Lord, Lord Beith, on the definition of “serious unease”, which is so central to the threshold of the noise trigger. As the noble Lord said, it is a very low bar. In fact, I am seriously uneasy about the provisions in the Bill, but, quite rightly, this should not stop the Government putting them forward. In the present culture wars, there are cries from all sides not to be offended or allowed to feel uneasy. I am certain that unease and offence are a central part of democracy and free speech. I ask the Minister: can the police really be expected to predict such a subjective response?

This unease trigger also refers to

“persons of reasonable firmness with the characteristics of persons likely to be in the vicinity”.

I know that this is an objective term, but how can it be applied when a protest is going down a high street or busy thoroughfare where a wide-ranging demographic is represented? A reasonably firm teenager, having attended a fair few festivals, will have a completely different response to a noisy protest from that of a reasonably firm pensioner. Surely that makes it difficult to be objective when predicting the effect of noise on passers-by? This point was well made by the Joint Committee on Human Rights.

The example of how the trigger will be applied was given by the Minister, Victoria Atkins, in the other place. She said:

“A noisy protest outside an office with double glazing may not meet the threshold, but a protest creating the same amount of noise outside a care home for elderly people, a GP surgery or small, street-level businesses might, given the level of disruption likely to be caused.”—[Official Report, Commons, Tenth Police, Crime, Sentencing and Courts Bill Committee, 8/6/21; col. 394.]

Are the police supposed to be considering the noise-proofing of the buildings along a protest route or around the location of an assembly before giving their conditions to the organisers? There must be better uses of police time.

If the Government are so worried about noise outside specific locations, such as GP surgeries and care homes, would it not be better to protect these people by restricting protest outside a specific location using a PSPO? Yet the Minister has just rejected an amendment on the extension of fast-track public space protection orders for schools, saying that there were enough laws in place already. These have proved effective at stopping protest at certain special locations, which is what the Government seem to be so concerned about.

In April 2018, Ealing Borough Council was the first authority to create a buffer zone against pro-life protesters around an abortion facility on Mattock Lane. It imposed the public spaces protection order, following reports of intimidation, harassment and distress from women using the facility. Last year, Manchester City Council officials made a similar order, placing a buffer zone around the Marie Stopes clinic in Fallowfield to stop pro-life protesters getting too near the building.

The Government should not only be worried about how this noise trigger chills free speech; there is also a threat to the police from the backlash by protesters, if they implement the trigger during a demonstration. Surely the Minister would want to avoid such an eventuality. It is hard to think of many causes and protesters who would give up the right to make a noise and to be noisy, even if it does cause serious unease to passers-by.

I appeal to the Minister to listen to the numerous groups from across the country and the political divide who have asked for the noise trigger to be removed from the Bill. I ask her, in doing so, to prove that the Government do indeed support free speech.

[Baroness Chakrabarti (Lab)]

My Lords, I have a duty, first, and then, I hope, the privilege to make some comments of my own. My noble friend Lord Hendy is unable to be here to speak to his Amendment 304, so, if the Committee does not mind, I will read his remarks in support of that before I make a few remarks of my own on this group.

He says the following: he is grateful to my noble friend Lord Hain for adding his name to the amendment and to me for reading these remarks. The Delegated Powers and Regulatory Reform Committee, under the excellent chairmanship of the noble Lord, Lord Blencathra, on which he has the privilege to serve, criticised in its report of 13 September Clauses 55, 56 and 61 of the Bill for the surrender of the definition of certain phrases to delegated legislation, thus bypassing the full scrutiny of primary legislation.

At Second Reading, the noble Lord, Lord Blencathra, emphasised that his committee took no position on the substantive provisions but recognised that they are contentious and should therefore be in the Bill. My noble friend Lord Hendy goes on to say that he and many other noble Lords supported that argument, but the Government have not taken heed of this criticism, and the power remains to define by secondary legislation some very contentious phrases in these sections.

I continue to support the committee and the amendments brought by noble Lords—particularly that of the noble and learned Lord, Lord Judge—to obviate this procedural but fundamental flaw, but Amendment 304 goes beyond the procedural to the substance of Clause 56. That clause will be the basis for yet further restriction on the right to picket in an industrial dispute. That is objectionable because the right to picket, still extant in UK law, is already constrained in law in multiple ways which go far beyond those imposed on other kinds of public assembly. Further restrictions on the right are simply not warranted. It would be tedious to review the law on picketing today. Suffice to say, it is already highly regulated by statute, case law and its own code of practice.

By the Conspiracy, and Protection of Property Act 1875, 146 years ago, it ceased to be a criminal offence to attend

“at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information”,

although the use of violence, intimidation, damage to property, persistent following, watching and besetting were all made statutory offences. From this beginning, the right to picket was established. It has been further restricted many times since, including by the outlawing of picketing of domestic premises. The current formula is Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992. It reads:

“It is lawful for a person in contemplation or furtherance of a trade dispute to attend … at or near his own place of work, or … if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”


The Act defines both “place of work” and a “trade dispute”.

I should add in relation to the latter, in case any of your Lordships were unaware of it—which I doubt—that collective action

“in contemplation or furtherance of a trade dispute”

will not be lawful without the prior fulfilment of many statutory conditions. These include service of a highly complex notice of ballot on every relevant employer; a ballot in favour, which must conform with complicated and demanding thresholds on turnout and majority; and service of an equally complex notice of industrial action on every relevant employer. There are many provisions regulating all this in detail and many other requirements, such as the provision of mandatory qualified scrutineers, full postal balloting—no workplace or electronic voting is permitted—and so on.

Case law has held that Section 220 on the right to picket does not protect against private nuisance—interfering with someone’s enjoyment or use of land—nor against public nuisance in the form of violence, intimidation, molestation, excessive numbers, obstruction, blockade or an unreasonable obstruction of the highway. There is no exemption from the criminal law or the law of trespass, so this is all covered.

The Code of Practice on Picketing—the latest edition of which is from 2017—is taken into account by the courts and runs to 19 detailed pages of guidance. The code provides, among many other things, that

“pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate.”

In consequence, a requirement that there be no more than six persons on a picket line is applied as though it was statute law by both the police and the courts.

As if that is not enough, the Trade Union Act 2016 imposed yet further restrictions. The union must appoint a picket supervisor to supervise the picketing. They must be an official or other member of the union familiar with the code of practice and have taken reasonable steps to tell the police their name, where the picket is to take place and how they can be contacted. The picket supervisor must be in possession of a letter stating that the picketing is approved by the union, which must be shown to the employer if sought. This is very highly regulated.

The possibility of flying pickets and anything else that any of your Lordships might think requires restraint has already been closed off. Surely all this is enough. Picketing in recent years under this strict legislative regime has not thrown up problems which require further legislative redress, yet Clause 56 will give the police the power, in many sectors, virtually to extinguish life from the remains of this emaciated right.

Among other things, the clause gives power to a senior police officer to impose conditions on an assembly where the officer reasonably believes that noise generated by persons taking part may result in

“serious disruption to the life of the community”

or

“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”.

Senior officers seeking the meaning of these phrases will not find them in the Bill, which does not define either. Instead, the Bill will give power to the Secretary of State to create definitions by regulation. We can only guess how the Secretary of State might choose to define these phrases. However, we have a strong steer as to what she currently has in mind, because she has provided a draft set of regulations in relation to the meaning of the phrases. There is not, so far as I can ascertain, a draft of regulations to define

“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”,

but the draft regulations that deal with a

“serious disruption to the life of the community”

state:

“It may be regarded by the senior police officer as serious disruption to the life of the community if there is … a significant delay to the supply of a time-sensitive product impacting on the community, or … prolonged physical disruption to access to essential goods and services impacting on the community.”


They go on to say that a

“‘time-sensitive product’ includes newspapers and perishable items”

and

“‘essential goods and services’ means … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … a place of worship … an educational facility … a service relating to health, or … another critical public service.”

If pickets in a trade dispute are successful in persuading workers not to cross the picket line, it is obvious that, depending on the nature of the employer’s business, picketing may involve significant delay to the supply of time-sensitive products or prolonged physical disruption to access to essential goods and services. Accordingly, under Clause 56, the assiduous senior police officer may well impose conditions on workers who legitimately but noisily picket their place of work in order to persuade others not to work during a lawful industrial dispute in relevant sectors. Such relevant sectors will be where the workplace is involved in the production or delivery of food, water, power, railways, buses, places, lorries, ships, newspapers, mail, TV, radio, film, education, health, local government and so on. It is hard to think of many workplaces at all that will not be included.

Though the Explanatory Notes to the Bill do not expressly refer to picketing in an industrial dispute, it is plain that these draft regulations have given the game away. Clause 56 is precisely aimed at picketing in a lawful industrial dispute, whatever other assemblies may also be impacted. Accordingly, Amendment 304 proposes to exclude lawful picketing—subject to all of that regulatory regime that my noble friend Lord Hendy sets out—in legitimate trade disputes from these additional restraints. The Minister is invited to agree the amendment in order to exempt picketing from this intended regime, given that it is so closely regulated.

I am grateful to the Committee for its patience in listening to my noble friend Lord Hendy’s rationale for Amendment 304. Perhaps I may be indulged in making just a few comments of my own about this whole group. I shall try not to hyperbolise but do my best to disagree well with the noble Baroness opposite. I do not think that noble Lords who have spoken and expressed their concern so far have hyperbolised. Let me try to explain why some of us are so desperately concerned about the impact on freedom of expression and freedom of association of Part 3 of this draft legislation.

If we take existing tests, there is so much law already on the statute book, some of it passed by Conservative Governments, much of it passed by Labour Governments—much of which I objected to at the time, alongside friends of mine in the Conservative Party. I may be wearing a red dress now, but it was not always the case; I hope noble Lords opposite will understand that. Free speech is a two-way street and, in my lifetime, no Government have been perfect when it comes to protecting it.

21:15

The existing test in, for example, the Public Order Act, for the police to impose conditions on sessions or assemblies is about a threshold of serious public disorder, serious damage to property or serious disruption to the life of the community. That is a certain threshold. With Part 3 of the Bill, we are moving from that threshold of serious disruption or serious damage to noise, which may result in

“serious disruption to … an organisation”,

or noise which will have a relevant and “significant impact”—not disruption but an impact—

“on persons in the vicinity”.

That could be a wholly peaceful protest that makes some noise outside a sweatshop or a place that sells Chinese clothing. It could apply to a one-person protest outside that shop saying to people, “Please don’t buy this clothing, because it comes from China and there have been terrible human rights violations, and we are also very worried about climate catastrophe.” There may be a bit of noise and a bit of an impact, but a significant one, because consumers may say, “Actually, I don’t want to buy those clothes any more.”

That one person made some noise. I am making some noise now. I hope it is not intimidating anybody, but I am making some noise now to make that impact. I have the privilege of doing it in this protected space. People who get to write columns in newspapers have that privilege, too, but what about the people who do not have the platforms that we have? What about people who have to take to the streets—peaceably, not even going as far as the suffragettes? I am not talking about putting bricks through windows; that is already covered by damage to property. We are not talking about damage to property or harm to people in the sense of violence; we are talking about noise—that is, communication—and impact. You listened to me and you no longer want to buy that product or behave in that way. You have been persuaded by my noise; by my communication I have made an impact. Is that not the essence of the right to freedom of expression?

We have talked about the conditions and whether people ought to know about them. We are talking about imprisonment for up to 51 weeks. I do not think it is hyperbolic to suggest that this legislation, if passed unamended, will be as notorious as was the Cat and Mouse Act in the context of the suffragettes. I am not saying that because this is a Conservative Government; I am saying it because it is a Government of the United Kingdom, who ought to be setting examples to the world. We could all cite our favourite protests from history. I think the suffragettes are popular on both sides of this Committee. Some of us will cite the anti-apartheid movement or the civil rights marches in the United States—pick your favourite protesters, your legendary protests on whatever side of whatever argument, it does not matter. As I said to the noble Baroness, Lady Fox, on the previous group, I will defend the protest rights of people I really disagree with.

I once thought that people such as the present Prime Minister agreed, because I can remember when he was not Prime Minister but a journalist and passionately defended free speech. He, like me, disagreed with the Labour Government for wanting to suppress it and for wanting to lock people up for long periods without charge or trial. He was going to eat his identity card if he was forced to have one, et cetera.

Why is it not a two-way street any more? How are we to send a signal to Russia, China and other countries about the right to protest, as we try to? The Foreign Office's website has all sorts of condemnations of behaviour that would be allowed—

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

This has been quite a long speech. We do need to get through business tonight. Can noble Lords please respect other Members and think about the length of their contributions?

[Baroness Jones of Moulsecoomb (GP)]

Perhaps the Government could decide not to bring huge Bills such as this, so that we are forced to sit late at night.

[Baroness Evans of Bowes Park (Con)]

This is the 11th day in Committee on the Bill; I think we have given it due course. I am sorry, but I do not accept the noble Baroness’s views. Perhaps we can all respect each other and move on. Noble Lords have very important points to make, but if we can make them succinctly, that will be very helpful.

[Baroness Jones of Moulsecoomb (GP)]

Respect goes both ways. The Government are not respecting this House.

[Baroness Chakrabarti (Lab)]

I am happy to wrap up. I am sorry, I had to read for my noble friend Lord Hendy, who had an amendment, and that took a little time. I beg your pardon; I will be very brief.

I have talked about the past—suffragettes and anti-apartheid, et cetera—and I have talked about Russia and China and the places that we have to persuade, in the current, dangerous world, not to suppress protest. The domestic context is that we have come out of Brexit, which was incredibly divisive; whichever side you were on, we know that it divided communities. I was subject to protesters who were very cross with me, and a little scary, but in the end, I put up with it. We are coming through a pandemic, and people are scared and very worried by climate change. I do not believe that oppressive powers giving this level of discretion to the police to suppress free speech will bring our communities together.

[Lord Walney (CB)]

My Lords, if I may, I will speak succinctly on the noise amendments. I appreciated what the noble Baroness, Lady Chakrabarti, said about the two-way street, favourite protests and standing up for all protests, but I wonder about the extent to which we are actually doing that. I listened carefully to the persuasive argument made by the noble Lord, Lord Coaker, in introducing the Opposition amendment on fast-track orders for schools. I also listened to the excellent opening speech from the noble Lord, Lord Dubs; if that is the kind of protest which is being restricted, I am sure that a majority in both Houses would vote against it. Opposition Members have spoken in favour of protections around schools, and I can very much see the case for protecting schools. But are we really saying that untrammelled noise cannot be intimidating and unacceptable, in the manner which the Bill attempts to frame as a problem?

Anti-vaxxers outside schools were given as an example. Are we saying that noise should not be a factor if anti-vaxxers are making a sustained attempt to disrupt Covid vaccine clinics? Another entirely feasible example is a far-right protest that was seeking to intimidate council workers using high levels of noise, because the council was volunteering to bring in refugees and a section of that community did not want that.

The question raised by the noble Viscount, Lord Colville of Culross, was pertinent: is existing legislation sufficient to deal with this? I hope that Ministers will address that point when summing up and in bringing the Bill to Report. I am much less comfortable with the rhetoric which simply cites noise as beyond the bounds of regulation in a legal framework. We all know that many protests are noisy—I would imagine that the majority of us in this Chamber have been on such protests—and that is a good thing. But it is surely not what this legislation is intended to debar.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I support those who oppose the clauses in Part 3 standing part of the Bill, but I will support each and all of the specific amendments that aim to mitigate the most egregious harm to liberty that Part 3 represents. The comments by the noble Viscount, Lord Colville of Culross, and the noble Lords, Lord Dubs and Lord Beith, and the personal remarks from the noble Baroness, Lady Chakrabarti, sum up many of my concerns.

I do not agree at all with the sinister reading of the Government’s motives from the noble Baroness, Lady Jones, but I am genuinely utterly baffled as to what the Government intend this part of the Bill to achieve. We are consistently told, I think in good faith, that Part 3 does not threaten the right to protest, but whether that is disingenuous, naive or whatever, it is just not true: it does threaten the right to protest. This part of the Bill weighs the balance of power heavily towards the authorities and will make it harder for members of the public to demonstrate their views and have their concerns heard. It explicitly aims to restrict protest in an ever-wider range of circumstances and, more insidiously, by threats of criminalising, eye-watering fines and imprisonment for an ever-expanding number of types of protesters. That will have a chilling effect.

How would the Government advocate that citizens stand up to the state to make their voices loudly heard or hold the Government to account beyond the ballot box within the prescriptive clauses of Part 3? Surely, this Government have championed popular sovereignty in relation to Brexit, for example. Surely, they will not then be frightened of a lively culture of politically engaged citizens who, on occasion, might have noisy, boisterous protests and demonstrations to effect change.

Having said all this, I am aware that many members of the public—many millions, probably—have become frustrated by some of the recent protests we have seen in the UK. They want the police to deal firmly with these new kinds of protests, which seem less about democratic rights and more about using tactics against the public, almost with the aim of disrupting ordinary people’s lives until they relent and accept their net-zero aims without the bother of winning over the majority by argument. So, I get that the Government and the headlines pose Part 3 as tackling these new-style, seemingly anti-democratic, not anti-power but anti-public protesters.

However, it just is not true that the original Part 3, without the new amendments that are to be added, did not have any elements that would tackle those new types of protests. As I said at Second Reading, laws already exist that are just not being enforced by the police consistently. At the judicial review of the Extinction Rebellion protests across London, the Commissioner of the Metropolitan Police conceded that she was satisfied that the power in the Public Order Act 1986 was sufficient to allow the police legally to deal with protests that, even in design, attempt to stretch policing to its limits. I suspect that those Insulate Britain protesters in prison now might think that the law is pretty sufficient. Indeed, when Sajid Javid was Home Secretary he admitted that

“where a crime is committed”

during a protest,

“the police have the powers to act”,

and that significant legislation

“already exists to restrict protest activities that cause harm to others.”—[Official Report, Commons, 13/9/18; cols. 37-38WS.]

As Garden Court Chambers notes:

“The suggested ‘gaps in the law’ simply do not exist … These additional powers are designed to make it prohibitively difficult for the public to exercise its right to protest at all”.


As it happens, it seems that the Home Secretary possibly agrees with me—I do not imagine she was influenced by me—that the original Part 3 does not make a blind bit of difference to policing Extinction Rebellion-style protests. That is presumably why Priti Patel announced at the 2021 Conservative Party conference a whole swathe of new amendments specifically to deal with new protest tactics. I might not agree with those new amendments, but at least I understand the logic of creating new offences to deal with things such as the act of “locking on”, which is a new form of protest, or to tackle all those people gluing themselves to highways and so on. But the rest of Part 3 makes little sense if it is the case that the Government are addressing public concern over the new-style protests.

There is loads that I want to say on the detail, but I will not do that. I want to make a couple of points on noise, although a lot has been said. I cannot believe that we in this House have been reduced to looking at what is too noisy. The police have been given such expansive and draconian powers to impose conditions on protests based on interpreting how much noise may have a significant impact, and so on, that I have spent quite a long time researching decibels and statutory noise nuisance laws and much more. Noble Lords will be relieved to know that I am not going to give them any fascinating detail on any of that in this speech. But as I was researching it, I thought, “Oh my goodness, all these police officers who are charged with making judgments on what’s too noisy won’t have my research at their fingertips—rather, they’ll have a nebulous, vague and subjective idea that they’ve got to make a judgment about what noise might be causing unease”.

21:30

As the Joint Committee on Human Rights noted earlier in the year:

“What one person considers to be noise sufficiently ‘intense’ to be likely to cause ‘serious unease, alarm or distress’ may be very different to what another person would believe meets this threshold”.

If I asked noble Lords what is too noisy, we would not agree. I do not know about in other people’s homes, but in my home I insist on turning the TV up and everybody else says that it is too loud. I basically shout that the music is screeching and drowning out our conversation, and I am told that I am being an old fogey. Noise that causes alarm, distress and unease—any of these different things—we all know is a subjective matter. At the Academy of Ideas office around the corner, there are lots of drilling noises going on: loads of lorries and loads of construction noise. I spend the whole time moaning about how noisy it is. It causes me a lot of distress and alarm—but actually, as one of my colleagues pointed out, it is noise that signifies economic activity, and you cannot build back better quietly.

So it is a complete waste of police time to ask them even to consider the ludicrous basis for assessing whether a demonstration should take place or not, based on noise. In the very good examples given by the noble Lord, Lord Walney, of when noise is horrible, he was talking about unpleasant political views—and, to be honest, whether you shout or whisper them, they are unpleasant: the issue is not the noise but the views.

[Lord Oates (LD)]

My Lords, I speak particularly to Amendments 294, 299, 303 and 305 in the name of the noble Lord, Lord Rosser, and other noble Lords. I have added my name, but I want to speak in support of the wider amendments in this group. In doing so, I declare my interests as co-chair of the All-Party Parliamentary Group on Zimbabwe.

As we have heard, the amendments tabled by the noble Lord, Lord Rosser, take up recommendations from the Joint Committee on Human Rights to remove the trigger for imposing conditions on protests based on noise. In her brief remarks about Part 3 of the Bill at Second Reading, the Minister stated:

“The right to peaceful protest is a fundamental part of our democracy”.


She went on to say that Part 3 was

“not about stifling freedom of speech and assembly”.—[Official Report, 14/9/2021; cols. 1281-82.]

The noble Baroness, Lady Stowell, said earlier in this debate that nobody wants to undermine the right to protest, and complained about hyperbole. I might make a complaint on the other side about complacency. If it was really the intention of the Minister, the Government and Government Back-Benchers not to impact on protest, they really should have brought another Bill forward, and they should talk to the drafters, because the right to peaceful protest is clearly under attack in this part of the Bill, as the noble Baroness, Lady Fox, said.

Noise is fundamental to peaceful protest, as is impact —not least because protest is about making one’s voice heard when it would otherwise be ignored. As the noble Lord, Lord Dubs, said, what on earth would be the point of a protest if you were not heard and if you did not have an impact? So any measure that makes the level of noise and its impact on others an arbiter of whether or under what conditions a protest may go ahead is, quite apart from being an absurd road to go down, self-evidently an attack on the right to peaceful protest that the Minister has told us is such a fundamental part of our democracy.

Do we really think that a senior police officer should be put in a position where they have to take on the responsibility of determining whether a protest should go ahead at the place proposed or on the route planned on the basis of the noise that protest may generate and the impact that it may have on people?

The noble Baroness, Lady Stowell, said that there was a new fashion in protests, but I do not think there is a new fashion for protests to be noisy. All the protests I have ever been on in my life have I think been noisy.

[Baroness Stowell of Beeston (Con)]

I did make the point that I was not wholly comfortable with what was being said about noise in the legislation, and I was looking to my noble friend the Minister for some comfort—but I do think there is a new fashion of protest, which the noble Baroness, Lady Fox, also referred to, which is very different from that which we have seen before and is causing a huge amount of disruption, which people find unacceptable.

[Lord Oates (LD)]

I thank the noble Baroness for her clarification, but I have to say to her that noise is absolutely fundamental to the issues that we are debating now. As the noble Viscount, Lord Colville, said, in relation to the other protests and the obstruction of highways et cetera, the powers exist already in the Public Order Act and in other places to deal with them. So the question now is whether we should have the new, very restrictive curtailments on the right to protest proposed in this Bill which are about noise and its impact, and that is what I am addressing.

Not only is it a terrible idea which will place the police in an impossible situation, but the Bill compounds their difficulty by failing to provide any definitive criteria by which the police can determine whether the level of noise or its impact on others is sufficient to trigger their powers. The noble Baroness, Lady Fox, raised this issue. No decibel level is defined in the Bill; no definition of intensity of impact, which the police are supposed to take into account, is set. As a result, the police will be dragged into areas of heated political controversy on which they will have to make entirely subjective decisions—except in the cases where the Home Secretary will help them out by making her own entirely subjective decisions—deciding that one protest may go ahead in a certain way and a certain place but having to decide that another may not. Presumably the police’s decisions will be open to challenge by protesters on the one hand and those who wish to curtail protest on the other. It is hard to think of a better way to undermine trust in the impartiality of our police services.

As I mentioned at Second Reading, and as the noble Baroness, Lady Chakrabarti, has also mentioned, many noble Lords will have taken part in the protests outside South Africa House against the apartheid regime. It was the express intention of those protests to generate noise and, doubtless, the agents of the apartheid state were impacted, and they may well have genuinely felt serious unease as a consequence, but, as long as those protests remained peaceful, it was surely no business of the state to protect them from the impact of that noise or any serious sense of unease that it may have caused.

That is an example from the past—it would be interesting to know how the Minister thinks the powers would be applied in that case—but let me take one from the present. Currently, a fortnightly vigil for democracy and human rights is held outside the Zimbabwe embassy on the Strand. The vigil is not normally loud, but, on occasion, when the Zimbabwe Government are involved in particularly egregious violations of human or political rights, it can be noisy and, without doubt, it has an impact on people in the vicinity. People are understandably angry in such circumstances, particularly in circumstances where protesters have been gunned down in Zimbabwe, and the noise that the protesters here generate will certainly have an impact on and may cause serious unease to embassy staff. But again I ask: if the protest is peaceful and orderly, is there any reason to prevent it happening?

As evidence to the Joint Committee on Human Rights highlighted, police will inevitably be faced with pressures from certain embassies to ban protests outside their premises on the grounds of noise or serious unease. Can the Minister expressly address this issue in her summing up? Do such embassy protests fall under the powers of this Bill? Could a senior officer, for example, direct protestors not to protest outside the Zimbabwe embassy if he was convinced of serious unease being caused to embassy staff? How would the police assess evidence of the threat of serious unease in court? I hope the Minister will not tell the House that she cannot envisage the police using such powers in these circumstances, because that would only highlight how this part of the Bill will entangle the police in decisions they simply should not have to make.

If those are some of the potential, but hopefully unintended, consequences of this part of the Bill, what of the intended consequences? We know that the public protest clauses and proposals contained in Part 3 and in the government amendments, which will be debated in a later group, are deliberately aimed at environmental protestors, whether Extinction Rebellion or Insulate Britain, because the Government have basically told us that they are. Many of the people involved in these protests are young people who are protesting against an existential threat to their futures. The noble Lord, Lord Campbell-Savours, made a very powerful speech in this regard. What is the reaction of the Government to these tiresome people who have the temerity to demand a future for themselves and their children and who understandably will not be bought off by the long-term promises so casually given out by the Prime Minister and so nakedly betrayed by his failure to take the action now to realise them? To deal with them, the Government propose using these wholly disproportionate powers.

What do these people want? They want us to insulate Britain. It is hardly world revolution. Yet in the face of an unprecedented climate emergency, we cannot even do that. No wonder they are angry. No wonder they despair of politics as usual. Instead of consuming a lot of time and energy banning their protests, because they are noisy or might have some impact, perhaps it would be better to have an infrastructure Bill with a long-term programme to tackle the problem of our energy-leaking and climate-threatening buildings. At least that is a problem we know how to deal with and could if we had the will. Certainly, it would be a better use of time, because if the Government think that these measures to curtail protests on the spurious grounds of noise and impact and to jail more people for a longer time will stop these protests, they are sadly mistaken.

Those who face an existential threat do not just buckle under, no matter the level of restriction or curtailment of their rights. If you doubt that, look at a history book. Look at the civil rights movement which the noble Baroness, Lady Chakrabarti, mentioned, or the suffragettes, as the noble Lord, Lord Campbell-Savours, highlighted. These people were protesting in the face of laws far more extreme than even this Government would contemplate. Bringing in unjust laws to deal with this situation does not stop protest. You deal with it by addressing the issues fairly. These measures will only further embitter the protests. Far from what the noble Baroness, Lady Stowell, hopes for, it will not bring about any greater sense of unity, and it will not only further embitter the protest but embroil the police in unending controversies which, as far as I understand, they have no desire to be dragged into. Also, they have been provided with no objective criteria on which they can adjudicate such controversies.

The amendments in this group will remove some of the most objectionable aspects of this attack on peaceful protests. I hope that the Minister gives serious consideration to the powerful arguments that have been made by noble Lords on all sides, but really this part should come out of the Bill completely.

I conclude by saying that I am very pleased to say that we are a long way from the situation in Zimbabwe, where a youth leader languishes in jail in appalling conditions for more than 200 days, charged with blowing a whistle at a protest, where the police have become so embroiled in political controversy that they are no longer trusted by the public at all, and where public safety and public order are consistently deployed as reasons to stifle the most modest of protests. But those who courageously struggle in such situations look to our democracy, with our traditions of free and raucous protest, as a beacon. We should remember that. Every time we take a step away from them, we dishearten democrats around the world and give succour to those who oppose them.

21:45

[Lord Hogan-Howe (CB)]

My Lords, I broadly support what the Government are trying to do here. There will be times when you might disagree with some of the language, but it seems to me that the only reason why the Government are bringing forward these proposals is that they have been asked to. I do not think they set off with an agenda to limit protest, but presumably people have complained about it. The public have complained; the media have complained, representing the public; and sometimes the police have complained—and everybody has complained about the police, which is not an unusual place to be. That is the nature of the job.

What the police want is some simple law that they can implement on behalf of the public to protect the weak against those who sometimes intimidate them. That seems to me to be what this part of the Bill is trying to address.

British policing, and criminal law generally, has always been about doing what is reasonable and making criminal what is unreasonable. It is about trying to strike that balance all the time. In most protests, people carry out their protest in a peaceful way that attracts attention. Sometimes it gets change and sometimes it fails. Sometimes it moves along the spectrum from irritation to nuisance, to serious disruption to life, to crime, to serious crime. Protests in the last group are relatively small in number, but when they happen they are pretty awful.

On the whole, the police do not want to be there. They are not seeking to be at a public protest, but in London you are probably talking about at least one protest march a day, every working day. Just to show the scale of the challenge that the Metropolitan Police faces—it happens in other parts of the country, but of course the Government, who attract most of the protests, are in London—on average, 400 or 500 officers are still drawn into central London every day for something called aid. It may see them coming out of Croydon or Lewisham to police central London, because there is no separate box; they have to come in to help police these types of protest. Of course, when they are doing that they are not in Croydon, Lewisham and all the other places, so it is something of significance that we all have to consider when we talk about the number of protests and the type that we allow.

The most difficult types of protest—I think this is pertinent to whether a senior police officer should have some powers in these cases—are those where the protesters generally do not engage or explain their plans. When both those things happen, on the whole, plans can be made. The police may not always agree with a certain approach, but some kind of agreement will be reached. That enables everybody to plan. The disruption that will flow is probably restrained to a reasonable amount. That goes back to the reasonableness test.

When those things do not happen—the people do not engage, do not have organisers who are prepared to engage, or do not even acknowledge that there are organisers, or they are prepared to take what others may regard as unreasonable action—it gets pretty hard for the police to deal with it and, more importantly, for the public to deal with the consequences.

The types of unreasonable things that I think everyone is always worried about include interference with free movement. That can mean just blocking a road. I do not think anybody minds it for five minutes, but an hour, four hours? We all have our own limits, but when it goes on for a long time, serious disruption can happen. Another type is any disruption of public space generally; we all want to go where we want to go, when we want to go there. Some of the people in this Chamber will be the most aggravated in dealing with cops who prevent them travelling through a protest, saying that they have a right to go where they want to go. They have a right to move around too, and of course we all have the right to enjoy our homes and places where we have a business. There are times when we all have a right to make the nuisance caused clear to the police and expect them to take some action.

Some of the tactics have changed recently. That is the nature of protests; they will always change. You are never going to have the protests of 50 years ago, as people will move on to try to achieve a new aim. We have seen the M25 blocked and Heathrow invaded. There was one case where protestors broke through a perimeter fence, went in and disrupted the international airport; eventually, they were found not guilty. Fine, if that is what happened in that case, but I do not think it a very safe thing to do, in the case of either the motorway or the international airport. Is it for the protester to decide what is safe and reasonable or is it for some objective standard? I cannot see how it is okay for you to be driving along the M25 at 70 miles per hour, at least, for people to decide it is now okay to block the road. I agree that obstruction of the highway is an existing offence, but this is something of far more gravity, which needs a new approach. The police struggle to interfere when people are preparing for acts of protest, where there is going to be a disruption. This is another thing that the legislation is trying to address.

I will mention some of the specific items that people have rightly been concerned about in this Bill. The first is noise. As the noble Lord, Lord Walney, said on noise, just because I shout, does that mean I am going to be locked up? That has never been the case and I doubt that it ever will be in the future but, whether it is 150 decibels, or 10 decibels in your ear for two hours or four hours, noise can be more than an irritant. We have a right to enjoy peace in whichever way we prefer. Noise can be injurious of itself.

I went to Notting Hill carnival every year on the bank holiday Monday. For anybody who has not been, and the ex-commander and the noble Lord, Lord Paddick, must have been, there are these huge amplifiers. I do not know how many decibels they produce, but they are the size of a two-storey house. They can produce some significant effects. In fact, the police horses had to shift back, because they were knocked back by the percussion from the loudspeakers. Noise can be an irritant and do damage. We have to consider its effect on people, where it is either so loud or so persistent that it cannot be ignored. If people turn around to the police and say, “What are you going to do about it?” and they say, “Actually, it’s not illegal. It is okay and you shouldn’t be irritated by it,” that will not work. I will come back to why that is something that we have to think about.

I agree that it is hard to imagine a single-person protest of such significance that the police should intervene. However, we have seen it outside this place. Somebody with the right amplification can cause a lot of effect, particularly if it is outside your front door or business. People will ask for help and the police need to know where they stand on that. If Parliament does not want to help them to decide that issue, it is left to the officer on the street to decide. That goes back to the simple advice, at three o’clock in the morning or more likely nine o’clock at night, to make their own decisions. They are pretty good at acute problem-solving, but they deserve the support of Parliament to be clear about what is and is not okay.

There has been a slight tone from some contributions —perhaps this is just my old sensitivities—of “How can we possibly expect the police to make this type of decision?” I have to say that they make it every day and usually quite reasonably. Senior police officers have been making it on public order for years. Occasionally, it goes wrong but, on the whole, the British police get these things right. There are many things you can criticise the British police for, as we hear every day in here, but I do not think that dealing badly with protests is one of them. You can trust the cops to get this right and be reasonable, because they do not seek to fall out with the majority—or with anybody, come to that. I honestly think that you could trust them to make this type of decision, provided that the legislation is clear. There has been some challenge to the language, which I support, in some cases, as you can always make language more precise.

My final point is that it is important to get this right, for no other reason than that there is a debate between protesters’ right to protest and the police’s right to intervene. If we do not get it right, we leave the public to intervene on their own account. We have already seen examples of that. Before the cops arrived, the people at the front of the queue who were getting blocked said, “I’m going to move you. You’ve got two choices.” When the police arrived, it was a difficult situation to resolve. The law needs to be clear. There is a duty on the law, set by Parliament, to make clear lines in the sand, so that you do not leave members of the public to decide for themselves. That will end in the worst of all worlds.

To go back to my first point, the Government have only reacted to the concerns expressed by the public initially, sometimes through the vehicle of the media but also through the political process. I do not think that what has been proposed is entirely unreasonable. It can always be improved in this process and on Report, but it would be foolish to suggest that it is completely unreasonable to change the law to adapt to the tactics of the protesters.

[Viscount Goschen (Con)]

My Lords, my speech can be very quick because I should just like to associate myself with the remarks of the noble Lord, Lord Hogan-Howe. It was an exceptionally informative and balanced speech about just how difficult these issues are and how difficult the job of the police is to draw that balance and get it right. We should all be extremely grateful that we are policed in such a consensual and high-quality way.

I spoke about this at Second Reading and we have had an exceptionally interesting debate here in Committee. I shall make just a couple of points. First, we ought to avoid, if at all possible, differentiating between good protests, on an issue that I agree with, and bad protests, on an issue that I disagree with. We should resist the temptation to talk about specific causes. The noble Baroness, Lady Chakrabarti, made that point in one of her two speeches; I think that it was the second one.

[Baroness Chakrabarti (Lab)]

Forgive me, but I did not make two speeches. I asked the Committee’s permission to read the remarks of my noble friend Lord Hendy because he could not be here to speak to his Amendment 304. I thought that I had the consent of the Committee. If I misunderstood that, I apologise, but I did not intend to make two speeches on my own part.

[Viscount Goschen (Con)]

My Lords, the noble Baroness spoke for nearly 20 minutes and I am attempting to speak for about two minutes.

We ought to avoid drawing the distinction to which I referred. However, there is a clear difference between a lawful expression of protest drawing attention to a particular issue, wanting it to be heard, and a deliberate and aggressive attempt to disrupt the lives of the general public. That is what we have seen over recent weeks. It is entirely reasonable that we look carefully at the current legislative settlement and examine what can be done with the existing powers. I hear the remarks made that the police have the powers that they need. Some feel that they do and others do not. That matter should be carefully looked at.

However, where there are gaps and where the police require additional powers to take those finely balanced judgments, it is entirely legitimate that we look at that in the Bill while maintaining a clear balance and making sure that we do not trespass too much on some of the issues that have been raised around, for example, noise. In essence, there are grounds for a constructive debate and finding that balance. It is never going to get everyone’s support but we all ought to look beyond the Westminster bubble and consider the reaction of the general public when they see their lives and critical national infrastructure such as transport being substantially disrupted and when the police are unable to deal with it effectively.

[Lord Judge (CB)]

My Lords, I am not sure that I would have been elected Convenor of the Cross Benches if my colleagues had known that I, too, was once a protester.

[Noble Lords]

Oh!

[Lord Judge (CB)]

I wanted to join the general acclaim for people who had been protesting. I was 17 years old and I was idealistic. I believed in what I was doing.

My point is this: no one has spoken at all to Amendments 295 and 306, which were intended, according to the script, to remove new triggers. I hope that that was on the basis that Amendment 298 in the name of the noble Lord, Lord Beith, and Amendment 308 in my name covered that point. If anyone wants me to cover the point now, I shall do so, but would it not be better for me to sit down?

22:00

[Lord Paddick (LD)]

My Lords, we are now on to arguably the most controversial aspect of the Bill—the public order measures. The debate began at 8.30 pm and is made even more controversial by the Government tabling more than 18 pages of new amendments last week, creating new offences and draconian new powers for the police that the other place was not even aware of when it passed the Bill. Not only that, but debate has been concertinaed into one day, on both the existing and the new measures, and, with the collusion of the Official Opposition, the vital two-week gap between Committee and Report is being shortened, further curtailing proper scrutiny. This Government are behaving unacceptably and Labour are letting them get away with it. Of course, I make no criticism of my hard-working and conscientious comrades on the Labour Front Bench, nor indeed of the government Ministers on the Bill, who will no doubt say they are just following orders; the criticism is of the usual channels.

I am speaking on every group today, bar one, so I have been unable to eat or have a proper break; it is a bit like being back on the Job—with a capital J, for the benefit of Hansard. No wonder observers think I look knackered, to use the words of the noble Lord, Lord Dubs.

As other noble Lords have said, this legislation should be a separate Bill because of the many fundamental issues around people’s human rights. I said last week that my comments on serious violence reduction orders were the longest I had made in eight years in the House. I am going to exceed that, and I will explain why—it will become clear.

It was gone midnight on another day of Committee when the Minister said four times that he would keep his remarks short because of the lateness of the hour. My response was that the Bill needs to be properly scrutinised and I do not care what time of night it is. I promise not to speak for more than two minutes on each amendment in this group, so, if noble Lords will give me 54 minutes, that should be enough.

For the information of the Committee, I was involved in public order policing throughout my policing career. I was deployed at Notting Hill Carnival in various roles for seven consecutive years—I can still hear—and at the Grunwick trade dispute, and the Lewisham, Southall and Brixton riots, as a senior officer, as the officer in overall command, and as gold commander at numerous events, having been selected and trained and regularly retrained to maintain my position in the small cadre of advanced trained senior officers in public order policing. This involved practical exercises, in riot gear, with commanding officers, and involved missiles and petrol bombs, as well as weekend table-top exercises with people from the media and community groups, looking at the practical consequences of banning or imposing conditions on protests.

I was, however, fortunate to spend time away from operational policing, being sponsored to undertake a full-time degree course during the miners’ strike, in which I took no part, other than to give money to support miners’ families. I think it is important that the House understands where I am coming from. I am also grateful to Liberty for its briefing.

I start with Amendment 293, in the name of the noble Lord, Lords Dubs, which I have signed. Not only is the right to protest a human right enshrined in the Human Rights Act but it is a right that British people have had for centuries. The police have recent history that is relevant here. Up to and including the early 2000s, the police had been taking an increasingly hard line with protestors, frequently using techniques such as kettling—which the noble Baroness, Lady Jones of Moulsecoomb, mentioned—where protestors, and many innocent bystanders, were contained in a small area and not allowed to leave except in groups of two of three, sometimes requiring those leaving to be photographed and to give their names and addresses.

As a result of violent incidents in 2009 at the G20 London summit protests, the Independent Police Complaints Commission concluded that the Metropolitan Police should review its crowd-control methods, including kettling. As a result, the Metropolitan Police, for a while at least, changed emphasis, stating that the police role was to facilitate peaceful protest, and, interestingly, putting women senior officers in charge of some of the most controversial protests. This amendment is an important reminder of the recent history of policing protest in this country, and the dangers of the emphasis being placed on controlling protest rather than facilitating protest.

It is also important to comment on the origins of this legislation in connection with this amendment. The Home Secretary asked Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to look specifically at whether new legislation, further offences and stronger police powers were necessary. Her Majesty’s Inspector of Constabulary, Matt Parr, a retired Royal Navy rear admiral, conducted the review.

I read the report with interest because, as the Guardian reported on 31 March this year:

“The official policing inspectorate showed repeated bias in favour of the police and against peaceful protesters as it compiled a report which backed a government clampdown, a whistleblower has alleged.”


The allegations were that HMICFRS wrote to the Home Secretary five months before the report was published, saying that it backed the need to change the laws. The Home Secretary replied—again, I quote the Guardian:

“Protests have proved a significant challenge over the last year and I am keen to ensure that the police have the powers and capabilities they need to help address the disruption they face. Your findings will help me to do that.”


The whistleblower, who had worked for HMIC for more than five years, said:

“The purpose of the report was not to collect evidence and then make a decision, but rather to collect evidence to support the decision that had already been made”.


I have read that report. I have also read the report into the Sarah Everard Clapham Common vigil by the same author. I agree with the whistleblower that the contents of both reports do not match the conclusions.

Almost all police forces outside London said that the limiting factor on policing protest was the number of police officers available to enforce existing laws, not a lack of legislation. Indeed, as we will see—yes, I am only just getting started—despite what the Government say, these proposals are based on a false premise. The Police Federation, which represents 130,00 front-line police officers, was not even consulted about these proposals. In my discussions with the federation, it is, to say the least—and to use a word that has been popular this evening—uneasy about them.

Amendments 294, 295, 299, 300, 303, 305 and 306 refer to new powers to control protests on the basis of them being too noisy, marking a significant expansion of police powers. As other noble Lords have said, protests are by their nature noisy, and threatening to curtail or close down protests because they are noisy is threatening to close down protest full stop. HMICFRS did not comment on the noise proposals in its report. Again, noble Lords are being asked to sign off on open-ended legislation because these half-baked proposals have to relegate important aspects of the proposed legislation to regulations that this House will not see until after the Bill receives Royal Assent.

Amendments 297 and 307 from my noble friend Lord Beith probe what “unease” means. The Joint Committee on Human Rights goes further, saying that it places too much into the hands of the police officer at the scene and that

“What one person considers to be noise sufficiently ‘intense’ to be likely to cause ‘serious unease, alarm or distress’ may be very different to what another person would believe meets this threshold.”


Amendment 302 in the name of the noble Lord, Lord Dubs, rightly seeks to limit the conditions that can be imposed on an assembly for the reasons why they were restricted when the original legislation was debated. On 13 January 1986, in the House of Commons, the then Conservative Home Secretary said:

“We stopped short of a power to ban because we believed that that would be an excessive limit on the right of assembly and freedom of speech. For this reason, clause 14 does not permit the police to impose conditions changing the date and time of an assembly.”—[Official Report, Commons, 13/1/1986; col. 797.]


We think that Lord Hurd of Westwell was right.

We support all the amendments in this group but, to continue, Amendments 309 to 312 refer to disobeying conditions imposed on protests by the police. Not for the first time in the Bill, the hideous phrases “ought to know” and “ought to have known” appear. I understand that in the past some protesters have put their fingers in their ears or made a lot of noise so that they could not hear what conditions the police were imposing on them, but Amendments 309, 310 and 312 contain the much-preferred wording

“deliberately or recklessly avoided gaining knowledge that the condition has been imposed”.

Amendment 311 removes the increased penalties for disobeying conditions; we agree that non-violent civil disobedience should not face harsher penalties.

I stand alone with Amendment 318, requiring the most senior police officer present at a one-person protest who wants to close it down to hold at least the rank of inspector. It is a rank of officer who is on duty and available in every police area 24/7. It is a serious claim to make, that the decision on the level of noise or disruption caused by a solitary individual peacefully protesting should not be made by a police officer, no matter how junior. In fact, we do not believe that one-person protests should be subject to any conditions and we oppose Clause 61 standing part of the Bill.

I will talk now about the impact of these proposals on the police, in terms of both resources and public trust and confidence in them. In so doing, I will address my Amendments 296 and 301. The first thing to say, from my professional experience, is that the more conditions the police impose on a protest, the more police officers are needed and the more likely those conditions are to be resisted. Taking the point of the noble Lord, Lord Hogan-Howe, it is not right that lots of police resources should be taken from the suburbs of London, for example, to police protests in central London, but the more conditions you impose, the more police officers you will have to take from the suburbs to police that demonstration.

[Lord Hogan-Howe (CB)]

I think the noble Lord will agree that the number of officers put into an event is usually down to intelligence about the nature of the event, which leads to the conditions, which then leads to the numbers. I am not sure it is down to the conditions; in my view, the conditions are always subject to the character of the protest.

[Lord Paddick (LD)]

I understand what the noble Lord is saying, and I shall develop my argument further.

I have referred to away-weekend table-top exercises that I attended as part of keeping my “certificate to practise”, if you will, my continuing professional development as an advanced trained public order senior officer. We were told the maximum number of police officers, horses and so forth that were available to us and we were often presented with scenarios where the level of disorder anticipated led one to contemplate banning the protest entirely or imposing severe conditions. We were divided into syndicates which separately presented their proposals for dealing with the scenario. Invariably, syndicates that advocated an outright ban or severe conditions found that they ran out of resources to implement the plan. I do not know whether the noble Lord, Lord Hogan-Howe, has benefited from this sort of advanced public order training, but that is my experience. He has his experience, and I have mine.

[Lord Hogan-Howe (CB)]

I am not quite sure of the noble Lord’s point. I go back to my original point: the nature of the intelligence tells you what the event is going to be, which drives the conditions and the number of officers. Nothing he has said has changed my view.

[Lord Paddick (LD)]

My Lords, a peaceful protest with no anticipated violent infiltrators and an agreed route, however large, can be policed with a minimum number of police officers, a lot of traffic cones and miles of white tape. Imposing conditions that the organisers are resisting is likely to require double to five times as many police officers, as confrontation must be anticipated and the conditions imposed by force if required, such as a march wanting to take a different route.

22:15

An outright ban on a protest, as well as being unlikely to be successful—as we saw with the Sarah Everard vigil on Clapham Common—requires about 10 times as many police officers as for a compliant, peaceful demonstration. To arrest one violently resisting protester, for example, takes four or five police officers: one for each limb and one to prevent the protester biting the others. How many police officers would it have taken to police the Sarah Everard vigil, in the middle of a common, if there had been agreement between the police and the organisers? The more conditions that can be imposed and the more draconian those conditions, the bigger the drain on already overstretched police resources.

The second thing to mention is the impact on trust and confidence in the police. The impact of the policing of the Sarah Everard vigil was hugely negative, and these proposals simply increase the potential for such scenes to be repeated and with increasing frequency. Only last week the Minister said that trust and confidence in the police had been hugely damaged by recent events, and in my professional judgment these proposals will add to that negative impact.

If these proposals are to be agreed, it is essential that the police are not the ones who take the decision to implement them. If the proposals take effect, the police will increasingly be accused, rightly or wrongly, of taking political decisions to impose conditions on or ban some protests but not others, not because of their likely impact but because of the causes they are protesting about. For example, in allowing a protest about an increase in cross-Channel immigration but not allowing a protest against compulsory Covid vaccination, it would not matter that the police anticipated one being entirely peaceful and the other violent; it would lay the police open to being accused of being politically partisan.

I am sure other noble Lords found better ways to spend last weekend, but sometimes research turns up some unexpected treasure. In the same debate on the Public Order Act on 13 January 1986 from which I just quoted Lord Hurd, there was a speech by the honourable Member for Montgomeryshire, now known as the noble Lord, Lord Carlile of Berriew. The noble Lord was not making exactly the same argument as I am but he was also concerned that the police might make the wrong decision, so he asked the then Home Secretary:

“Does he not accept that the Government should provide that those wishing to hold a procession or assembly should be able to apply to the local county court or to a Crown court judge for a review of the decision made by the police?”—[Official Report, Commons, 13/1/1986; col. 797.]

I have suggested that the police apply to the courts if they wish to impose conditions or ban a protest. The noble Lord suggested then that the organisers should be able to challenge such a decision. My proposal has the advantage of providing the police with judicial cover for what might otherwise be considered, rightly or wrongly, to be a political decision.

In this regard, and in other aspects of the Bill, the experience of Northern Ireland is valuable but often overlooked. For example, I am told by an officer from the Police Service of Northern Ireland that Section 60 stop and search without suspicion has never been used in Northern Ireland because of the damaging impact that it would have on police-community relations. Policing protests in Northern Ireland has unique problems associated with a sectarianism that is not normally found on the mainland, but it also has a potential solution. I was talking to a friend and colleague from Northern Ireland who said that everyone there hates the Parades Commission. That is exactly the point of it: if there were no Parades Commission then everyone would hate the police, who would otherwise have to make the difficult decisions on whether to impose conditions or ban processions.

That is why my other amendment in this group requires the Secretary of State to consider establishing an independent parades commission for the mainland, to avoid the police suffering an even more damaging erosion of public trust and confidence as a result of having to implement these proposed changes to public order legislation. There we are—not too bad, was it?

I apologise to the Committee for the length of my comments, but I hope noble Lords will understand that I have a lot to say on these issues. Going back to where I started: as a police officer with over 30 years’ experience and having been involved in the policing of protests in almost every rank, up to and including being a gold commander in charge of policing such events, I believe none of the Government’s proposals is necessary, desirable or likely to be effective, save perhaps the changes to deliberately avoiding becoming aware of conditions imposed by the police on a march or assembly, and then only as amended.

[Lord Rosser (Lab)]

The amendments in this group to which my name is one of those attached would, based on recommendations by the Joint Committee on Human Rights, remove the proposed new trigger for imposing conditions on public processions based on noise and provide that a person who breaches a condition after deliberately or recklessly avoiding knowledge of the relevant condition can face criminal liability, but without extending the criminal offence to cover persons who breach conditions accidentally. In other words, that amendment would remove the offence of breaching a condition that you “ought to have known” was there. My name is also attached to the notifications opposing Clauses 55, 56, 57 and 61, which concern imposing conditions on public processions and public assemblies, “Offences under sections 12 and 14 of the Public Order Act 1986”, and “Imposing conditions on one-person protests”, respectively.

The Prime Minister said that he would sit in front of the bulldozers to protest against and seek to prevent the construction of a third runway at Heathrow. Can the Government, in their response, say whether he could have been arrested and prosecuted under existing legislation for doing that? If not, could such an arrest and prosecution for that activity be made under the legislation the Government are now pursuing in the Bill? It would be somewhat ironic if the Government were now seeking to introduce legislation to enable action to be taken against the kind of protest that the Prime Minister was only too happy to commit himself to undertaking—presumably, as a democratic right in a democracy.

Likewise, we saw protests against the increase in fuel prices recently, with drivers of goods vehicle trailers going at 5 mph along a motorway, resulting in significant delays to traffic. Can the Government say whether that action could have led to arrests being made and prosecutions taking place under existing legislation? If not, could such arrests be made and prosecutions pursued under the legislation that the Government now propose?

It is important to be clear about the extent to which existing laws do, or do not, enable action to be taken against the kind of protest to which I have referred, along with recent protests by Insulate Britain, and thus whether the issue is the way and extent to which existing legislation is applied and enforced, rather than a need for legislation of the kind now proposed. Insulate Britain protesters have ended up with custodial sentences under existing legislation.

As my noble friend Lord Blunkett wrote in April of this year:

“Protest might be inconvenient for politicians, but it acts as a pressure valve, allowing citizens to express their views and vent frustrations that could otherwise boil over … If we suppress protest, we could see more anger towards institutions including the police, the judiciary and parliament.”


Protest needs to be peaceful and tolerated, and accepted as a democratic right, against which we have to balance the rights of others to go about their daily business. We do not believe that the Government’s proposals in the Bill deliver those goals and reject the attempts to amend the Public Order Act 1986 with this loosely drafted legislation, which would restrict democratic rights to peaceful protest.

Clause 55 imposes conditions on public processions, including powers for the Secretary of State to define

“serious disruption to the life of the community”

or to the activities of an organisation carried out in the “vicinity” of a public procession, as well as powers for the police to impose conditions when they believe that noise might have

“a significant impact on persons in the vicinity”

or may result in

“serious disruption to the activities of an organisation”.

With that reference to noise, it would appear that it is now also protestors and not only children whom some people think should be seen and not heard.

Clause 56 allows the police to place any necessary condition on a public assembly as they can now with a public procession. Clause 57 removes the need for an organiser or participant to have “knowingly” breached a condition and increases the maximum sentences for the offence. Further clauses impose conditions on one-person protests and make significant changes to the police powers contained in the Public Order Act to respond to protest by expanding the types of protests on which the police could impose conditions.

The Bill also widens the types of conditions that the police can place on static protests, since it would significantly lower the legal tests that must be met for the police to issue conditions on protests. The police would be able to issue conditions on protests where they are noisy enough to cause “intimidation or harassment” or

“serious unease, alarm or distress”

to bystanders.

Before using their amended powers to issue conditions on a protest, the police would have to consider the “likely number of persons” affected by the protest, the “likely duration” of the impact and its “likely intensity”. The clause would also widen the types of conditions that the police can issue on static protests to match their powers relating to protest marches. They would also be able to issue any condition on static protests that they think necessary to prevent

“disorder, damage, disruption, impact or intimidation”.

These powers would also amend the offence of failing to comply with a condition imposed by the police on a protest. They would remove the legal test that requires protestors “knowingly” to breach a condition to commit an offence. People would commit the amended offence if they disobeyed a condition that they “ought” to have known was in force. Finally, these powers will allow the police to issue conditions on one-person protests. Currently, protests must involve at least two people to engage police powers.

The Bill includes many ambiguous clauses and will no doubt cause lots of legal argument in the effort to define what they mean. That puts the police in an impossible situation. There is no real drive from them for the government measures that we are discussing in this group of amendments. They do not need more legislation because they already have the powers in place, under the Public Order Act 1986, to impose conditions and to prohibit protests. Good policing is done with discretion. The Bill tries to require the police to do certain things that they may not want to do or may not feel are appropriate.

It is our belief that the powers in the Bill threaten the fundamental balance between the police and the people. The most severe clauses are not actually what the police asked for. We believe that these new broad and vaguely worded proposals would impede the ability of the police, rather than help them in their job. These clauses put way too much power into the hands of the Home Secretary, and the powers threaten our fundamental right to peaceful protest. The proposals risk making protests ineffective and curtail fundamental rights of citizens in a democracy that allow people to express their concerns about the Government of the day or other issues that they feel passionately about.

The provisions of the Bill put more power in the hands of the Home Secretary, who, in the future, may use these powers in an authoritarian way, further impacting on people’s rights. On the power of the Home Secretary to make regulations on the meaning of

“serious disruption to the activities of an organisation … or … the life of the community”,

the former Prime Minister and Home Secretary Theresa May said at Second Reading in the Commons:

“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, Commons, 15/3/21; col. 78.]


Throughout our history, protests and marches have led to significant changes for the better in this country. If the provisions of the Bill had been in place, would they have been stopped for causing annoyance or being too noisy? There is no doubt that those who disagreed with the objectives of the protestors might well have claimed that they were being caused annoyance and found them too noisy.

22:30

Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, to which the noble Lord, Lord Paddick, referred, reported on public order measures in its inspection report Getting the Balance Right? On public order legislation, the inspectorate called for a

“modest reset of the scales”.

I do not believe the measures in this Bill constitute a “modest reset”. The support for new powers on public order was qualified support for the five government proposals that the inspectorate was asked to respond to. The report said that the vast majority of police forces were happy with the existing legislation and it was mainly the Met Police that wanted new powers to deal with very specific events, mainly large-scale peaceful Extinction Rebellion protests.

In the evidence session before the Commons Committee on the Bill, the author of this report said:

“We were very clear in what we said that any reset should be modest. We also said that, because of article 10 and article 11 rights, some degree of disruption is not just an inevitable by-product, it is sometimes the whole point of the exercise of protest, and on that basis, it has to be encouraged.”

He went on to say that what the Government propose

“clearly aims to set a lower bar. Personally, when I reviewed it, I did not think the bar was necessarily the problem. There is just as much of a problem with educating and training the police officers and making sure they understand how article 10 and 11 rights can be properly tempered. It was a question of training and understanding as much as it was of where the bar was for disruption.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill, 18/5/21; cols. 52-53.]

Despite that, however, these clauses widen the legislation significantly, which will simply make the job of the police in enforcing it more complex. For example, they will have to determine what is annoying. No doubt many people are annoyed to a greater or lesser degree when a protest blocks or takes over a street, but lowering the threshold in the way proposed in the Bill will create a situation in which there could be very little protest that would be lawfully allowed.

The police are already sometimes challenged on why they did not do more to stop a protest which was causing disruption. Under the provisions of these clauses, the political pressure on the police to act is only likely to intensify. Why do the Government want to make the police the gatekeepers for public protest when they should be putting them in a position in which the rules are neither too confusing nor too broad, since that will only lead to disparity in how the Bill is implemented, and more flashpoints. Why do we need to go down this road when the police already have the power to break up protests that cause harm, serious public disorder, serious damage to property or serious disruption to the life of a community?

Sir Peter Fahy, former chief constable of Greater Manchester Police, has said that the legislation includes “some really dodgy definitions” that the police are supposed to make sense of. The police will find themselves in impossible situations, having to make judgments about, for example, what constitutes “significant”, “relevant” and “impact”. There are likely to be different interpretations in different forces, and possibly within the same force, since the officer on duty who has to make the call may well have a different view from another officer on duty on another day. What one person considers to be noise might not be the same for another person.

Tolerating dissent and accepting peaceful protest as a right is a British value of which we should be proud, since it is central to our democracy. The Bill, as it has come to this House from the Commons, puts that at serious risk, since it creates uncertainty by giving too much discretion to the police, which they do not want, and too much power to a Home Secretary and thus a Government—which presumably they do want. As the shadow Home Secretary said in the Commons at Third Reading:

“It is a Bill that destroys the fine British tradition of protecting the right to protest … Our laws of protest have always been a balance, and the way this proposed law disturbs it is wrong.”—[Official Report, Commons, 5/7/21; col. 697.]

[Baroness Williams of Trafford (Con)]

My Lords, it has been rather a lengthy debate, but rightly so. I accept that the provisions in Part 3 of the Bill raise important questions about the balance of rights in our vibrant democracy, as my noble friends Lady Stowell and Lord Goschen and the noble Lords, Lord Hogan-Howe and Lord Walney, so eloquently outlined. This Government stand by the right to freedom of expression and assembly; no democracy can survive without them. However, these are necessarily qualified rights and must be balanced against the rights and freedoms of others. That point was well put by the President of the Queen’s Bench Division just last week when sentencing the protesters who had breached the M25 injunction. She said:

“In a democratic society which recognises the right to freedom of peaceful assembly, protests causing some degree of inconvenience are to be expected and, up to a point, tolerated. But the words ‘up to a point’ are important. Ordinary members of the public have rights too”.


The provisions in Part 3 of the Bill are about where to draw that line—to paraphrase the noble Lord, Lord Dubs, and indeed the point made by the noble Lord, Lord Campbell-Savours. We believe that, in the light of the experience in recent years with protest groups such as Extinction Rebellion, Insulate Britain and others, the law governing the policing of protests—which is over 35 years old—needs to be updated.

Again, just last week, we heard from the Metropolitan Police the cost of policing the Extinction Rebellion protests in August and September: as well as £4.5 million in overtime costs, the protests required as many as 2,000 police officers to be assigned to police Extinction Rebellion events on any given day. Some 4,000 rest days were cancelled overall. This means 2,000 officers being taken away from protecting local communities—as the noble Lord, Lord Hogan-Howe, pointed out. Of course, there were also costs and significant inconvenience to members of the public and local businesses—and this was on top of the £37 million cost of policing the 2019 protests by Extinction Rebellion. Some costs and disruption are an inevitable part of peaceful protests but, as the noble Lord, Lord Coaker, recognised with his Amendment 292Q, there is a line to be drawn.

Nobody could fail to empathise with people trying to get to work or to get their children to school or their loved ones to hospital who were obstructed, not just—as the noble Lord, Lord Hogan-Howe, said—for a small amount of time but sometimes for hours on end. There were utterly heartbreaking stories of people who were not able to visit people who were dying in hospital. Those protesters are not winning public support in this; the public are pretty disgusted. The working public want to go to work. As the noble Lord, Lord Hogan-Howe, said, police resources are diverted from other parts of Greater London when the protests take place in London. I note that not one Member of the Committee who opposes what the Government are doing mentioned these protests or their effect on the working public.

That brings me to Amendment 293 in the name of the noble Lord, Lord Dubs. I reiterate here that this Government fully support the right to peaceful protest. This amendment aims to enshrine that right in legislation. As the Committee will be aware, the Human Rights Act 1998 writes the European Convention on Human Rights into UK law, including those rights in Articles 10 and 11. Under Section 6 of the Human Rights Act, it is already unlawful for public authorities to act in a way that is incompatible with the convention rights. That being the case, while I share the noble Lord’s belief in the importance of the freedoms of expression and assembly, I do not think that this new clause is necessary.

Amendments 294, 295, 299, 300, 303, 305 and 306 would remove the ability of the police to place conditions on processions and assemblies where the noise they generate risks causing serious disruption to the activities of an organisation or significant impact to those in the vicinity of a protest. The threshold at which the police will be able to impose these conditions is very high, and the vast majority of protests will be able to continue making noise as they currently do. These powers can be used only on unjustifiably noisy protests.

I would also like to take this opportunity to clarify that the police will be able to place conditions only on the basis of the level of noise which is generated from a protest. This means that the police will not be able to place conditions on a protest if the content of what is being said or chanted causes anyone unease, alarm or distress. Protests by their nature highlight often very controversial and difficult issues in society, and we have no intention of preventing this. In making use of this power, the police will have to consider the intensity and duration of the noise generated, the number of people and organisations affected, and the rights of the protestors involved, to respond to the question from the noble Lord, Lord Oates, on the embassy protest. As the noble Lord, Lord Hogan-Howe, said, the police make these judgment calls every day.

I remind the Committee that the police are restrained in their use of conditions on protests, and this will not change. In his evidence to the JCHR, the NPCC public order lead, Chief Constable Harrington, said that there were over 2,500 protests between 21 January and 21 April 2021, and that where they have records, conditions had been imposed no more than a dozen times. As the noble Lord, Lord Hogan-Howe, said, the police have been acting proportionately.

Moving now to Amendments 297 and 307 in the name of the noble Lord, Lord Beith, I am grateful to him for pointing out that these are probing amendments to understand the meaning of the term “unease”. Should the noise from a protest risk causing persons in the vicinity “serious unease”, the police may place conditions on the protest to prevent that harm. As I have indicated, when setting conditions, the police will be required to consider the likely number of people impacted by the noise, the likely duration and the intensity of the impact on those people. The police will also be required to act compatibly with the rights to freedom of expression and assembly of those generating the noise.

The word will take its natural meaning and it will ultimately be for the courts to interpret. Removing “unease” would raise the threshold at which conditions can be placed on the basis of noise. The police will be able to do so only where there is a risk of intimidation, harassment, serious alarm or serious distress. That would leave a gap where protesters could continue to cause harm to those in their vicinity through the level of noise they generate.

Amendments 296 and 301 in the name of the noble Lord, Lord Paddick, would require the police to obtain a High Court order before they can impose conditions on public processions and assemblies. This would be a significant departure from the framework in the 1986 Act. As the noble Lord will know, the nature of protests can change rapidly. It is vital that the police are able to respond swiftly to developments, and I fear that requiring them to seek permission from the High Court to place conditions does not recognise the fast-moving dynamics of policing a protest.

Public order commanders receive extensive training and guidance on the safe management of protests. Through the College of Policing’s authorised professional practice, their training and their continuous professional development, the police are continuously improving their ability to strike the correct balance between the rights of protesters and the rights of others.

Amendment 302 in the name of the noble Lord, Lord Dubs, would remove the ability for the police to place any necessary condition on an assembly, as they can currently do for processions. I have already explained the fluid nature of protest, and I re-emphasise the need for the ability to place conditions on assemblies and processions to be aligned. While giving evidence to the JCHR, Chief Constable Harrington detailed that it is not always evident when a procession becomes an assembly, or indeed vice versa, which makes the imposition of conditions for complex protest scenarios extremely challenging. He also stated that the limitations on what conditions can be placed on assemblies are not suitable for some of the assemblies they have had to police in the past. Ensuring that the range of conditions which can be placed on assemblies matches those currently available for processions would resolve both these issues.

22:45

I come now to Amendment 304 in the name of the noble Lord, Lord Hendy, whose speech was read out by the noble Baroness, Lady Chakrabarti. I wholeheartedly agree that we must support workers’ right to peacefully protest and take collective action as part of a trade dispute. The ECHR provides that the rights of freedom of assembly and expression can be legitimately limited to prevent disorder and to protect the rights of others. When using these powers, the police must not act incompatibly with picketers’ rights under the ECHR, as is currently the case when considering the use of Sections 12 and 14 of the Public Order Act.

Amendments 309, 310 and 312 concern the fault element for not complying with police conditions on an assembly or procession. The Bill modifies the threshold from one where the prosecution has to show that a protestor knew of the conditions to one where the prosecution must prove that the protestor knew or “ought to have known” of the conditions in place. These amendments would change this to where the perpetrator either “recklessly” or “deliberately” avoids gaining knowledge of conditions they go on to breach.

From that, I recognise concerns that we must ensure that these measures do not sweep up those who are inadvertently or accidentally unaware of conditions in place. As I have said, if the police cannot evidence the fact that they made appropriate efforts to inform protesters, then those who accidentally break conditions will not be at fault.

These amendments would place a disproportionately high burden on the prosecution, which would be required to prove beyond reasonable doubt that the defendant actively took steps to avoid being made aware of the conditions in place. Collecting such evidence would be extremely challenging in the context of a large protest. Therefore, I think that this approach would not resolve the loophole exploited by some.

Amendments 311 and 313 would remove the increase in sentences for those who breach, or incite others to breach, conditions on assemblies and processions. As the Government have already made clear in their response to the JCHR, we think that the current maximum penalties for breaching conditions are disproportionately low compared with the harm suffered in the most extreme examples of protests. It will be for the independent judiciary to pass sentences appropriate to the facts of each case, subject to the statutory maximum.

Amendment 318 would require that only a police officer of the rank of inspector or above would be able to impose conditions on one-person protests. It is right that we follow the same approach for processions and assemblies, where the most senior officer of any rank at the scene of a protest can impose conditions which are necessary. The police need to be able to react to harmful protests swiftly and I have already detailed the extensive training and guidance that public order trained officers rely on. Therefore, it is right that the most senior officer available be the one with responsibility for placing conditions on a single-person protest.

Finally, Amendment 320A seeks to explore whether the model of a parades commission as it applies in Northern Ireland could be adopted in England and Wales. I do not think that the amendment is necessary. The Parades Commission that currently exists in Northern Ireland was set up to independently place conditions on parades in order to minimise sectarian tensions. The context in England and Wales is completely different from that in Northern Ireland and the powers available to the police under Section 12 of the Public Order Act, as amended by this Bill, are sufficient for the management of marches. As I have said, the police are restrained in their use of conditions and use them in only a small minority of the protests they manage. Therefore, I see no need to pass the power to set conditions over to a third party.

In conclusion, these provisions in the Bill provide for no more than a modest updating of the Public Order Act. The police must have the tools they need to ensure that the rights of protesters are appropriately balanced with the rights of others. I hope that, in the light of my explanations, I have been able to satisfy noble Lords and I commend these clauses to the Committee.

[Lord Dubs (Lab)]

My Lords, I am grateful to the Minister for the detail with which she went through the amendments, which was helpful. It is far too late in the evening to have a point-by-point discussion about them; we will leave that for Report. I shall make just two or three brief comments.

First, I am not satisfied from what the Minister said that the existing police powers are not adequate for most of the situations described. It seems to me that the police are able to take action, and there may be only a limited number of additional respects in which they need more powers. I should like to examine that in more detail.

Secondly, there was widespread concern about the noise issue. I am grateful to the noble Lord, Lord Hogan-Howe, for what he said. Although I was on the human rights committee—and still am—I cannot remember whether the question of electronic amplification ever came up. I am very sympathetic to the criticism of noise that is amplified in that way. I may have missed a point or misremembered, but I certainly think that that is not acceptable. However, it would be of concern if noise without amplification was going to be subject to the more stringent measures proposed.

I repeat my gratitude to all Members of the Committee who have contributed to a very interesting if somewhat lengthy debate. I beg leave to withdraw the amendment.

Amendment 293 withdrawn.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

I must inform the Committee that if Amendment 294 is agreed to, I cannot call Amendments 296 or 297 due to pre-emption.

Clause 55: Imposing conditions on public processions

Amendments 294 to 297 not moved.

Amendment 298

Moved by

[Lord Beith]

298: Clause 55, page 47, line 33, leave out subsection (4)
Member’s explanatory statement
This is based on a DPRRC recommendation. It removes the ability of the Secretary of State to make regulations defining “serious disruption to the activities of an organisation” and “serious disruption to the life of the community”, thereby requiring these terms to be defined on the face of the Bill.

[Lord Beith (LD)]

My Lords, this is a simple and straightforward amendment implementing the wishes of our Delegated Powers and Regulatory Reform Committee. It deals with the “serious disruption to … an organisation” and “serious disruption to the life of the community” provisions, which, instead of being set out in the Bill, are to be the subject of a statutory instrument, a draft of which, or parts of which, have already been circulated by the Government.

The Delegated Powers and Regulatory Reform Committee was quite clear that the affirmative procedure for a statutory instrument is wholly inadequate to anything as important and fundamental as this. An affirmative statutory instrument, being unamendable and debated only once in each House, was not in its view adequate. It considered that the definitions of the expressions in question should be added to the Bill to give Parliament the opportunity fully to debate them. It said:

“We consider that the definitions of the expressions ‘serious disruption to the activities of an organisation’ and ‘serious disruption to the life of the community’ are of such significance that they merit the fuller scrutiny afforded to Bill provisions and should therefore appear on the face of the Bill.”


It is not clear to me that it was necessary to have got into this territory at all. There is a complex potential conflict with ECHR provisions which will probably lead to the matter being resolved in the courts in any event. For us to allow Ministers to proceed by statutory instrument on a matter which could have such a profound effect on how these provisions operate in practice does not seem wise. I therefore strongly support the views of the Delegated Powers Committee and believe that either the Government should go ahead and include these provisions in the Bill or they should take this element out altogether.

[Lord Judge (CB)]

My Lords, we have not had time yet for all of us to read the report from the Secondary Legislation Scrutiny Committee or, for that matter, that of the Delegated Powers and Regulatory Reform Committee, whose paper is entitled Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. I have read that, but I did not get round to the first.

We have to support our committees—that is why we have them; they are cross party. This is a tiny amendment of significance. The amendment does not propose any interference with the power to address the problem of serious disruption. It is not intended to address that. The submission is that the way in which the legislation is drafted, in Clause 55(4) and Clause 56(6), is completely unnecessary to enable justice to be done in whichever way the Government think it is appropriate for justice to be done.

Secondly—this is a bit naughty of me—I think the provision reflects a growing constitutional wheeze, what I call the “blank cheque wheeze”. It is this: the Executive tell the legislature to please legislate, and the legislature legislates—and, when it legislates, the Executive then tell the legislature what the legislation means. That is a blank cheque that we are being asked to give in these clauses.

As to the words, I know that it is quite late at night and so I shall be short, but do any of us here not understand two simple English words—“severe disruption”? I mean, come on, even the lawyers among us cannot think of a lot of differences. “Severe”, “serious”—get out your thesaurus. They are simple English words, and the two words put together make a perfectly clear picture of what is being addressed and sought to be protected.

This is unnecessary and a wheeze. We really must not allow the Executive to start treating this way of legislating—called in more elegant terms tertiary legislation —by saying, “We’ll tell you what it means when we get around to it”. The Secretary of State has started to tell us what it means. The place where we should be told what it means, if it does not mean what it says—and I think that it does mean what it says—is in a definition clause within the primary legislation.

[Lord Hope of Craighead (CB)]

My Lords, I put my name to Amendment 308 in the name of my noble and learned friend Lord Judge and shall say a few words in support of what he has just said. It was quite clear from the reply by the Minister to the previous group that these words, “serious disruption”, are the key to the proportionality of the clauses that we are considering. They are absolutely central to the whole proportionality of the scheme. Of course, if something does not amount to a serious disruption, the police take no action; if it does amount to that, within the ordinary meaning of the word, the police have authority to do so.

I mention that because, while I support entirely what my noble and learned friend has just said, there is an element of risk here, which I think the noble Lord, Lord Rosser, hinted at in his comments in the last group. It is the risk of lowering the threshold. Why else is the power being taken? If it is not in the present Home Secretary’s mind to lower the threshold, the risk is there. It is for that reason that I suggest there is a risk here that should be avoided.

There is also the point about the clarity of the legislation. One element of the rule of law is that the law should be accessible, and the more you attempt to define words by regulation and not in primary legislation, the more inaccessible the true meaning of the words becomes. It is not a way to go down—it is unnecessary, as my noble and learned friend said—and I hope very much that the Government do not proceed with this scheme.

[Baroness Chakrabarti (Lab)]

The noble and learned Lord is exactly right about this constitutional problem, but there is a further point to be made. In this context, it is not just the usual problem of allegedly unclear legislation that is then going to be sorted out by regulation later, and the relationship between the Executive and the legislature not as it should be. It is also in danger of interfering with police operational independence. To be explicit about this, my fear is that the police will take whatever view they take of what this legislation means in certain circumstances and do their best—and if a Home Secretary of the day, even well into the future, thinks that the police are being too lenient towards protesters, or perhaps there is a commotion in the media, regulations will be used further to define what “serious” and “disruption” mean so as to mandate the police effectively to be more heavy-handed than the natural meaning of the words would suggest.

[Lord Paddick (LD)]

My Lords, I can be relatively brief. Do not worry—it is a temporary blip.

Amendments 298, 308 and 319 question “serious disruption” being decided by the Secretary of State rather than being either defined in the Bill, as my noble friend Lord Beith proposes, or simply left to its natural meaning, as the noble and learned Lord, Lord Judge, suggests in his Amendment 308.

23:00

In the debate on the previous group, the noble Lord, Lord Rosser, quoted what the former Prime Minister and Home Secretary Theresa May said during Second Reading in the other place. The full quote is actually slightly longer than what the noble Lord quoted:

“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 … I would urge the Government to consider carefully the need to walk a fine line between being popular and populist. Our freedoms depend on it.”—[Official Report, Commons, 15/3/21; col. 78.]

Along with the right honourable Theresa May MP, we support these amendments.

[Lord Coaker (Lab)]

My Lords, I very much support the amendments tabled here and the comments by the noble Lords, Lord Paddick and Lord Beith, the noble and learned Lords, Lord Judge and Lord Hope, and my noble friend Lady Chakrabarti.

I want to say a little more on the next group of amendments, so I will be quite specific with respect to this group. The example is used of the meaning of “serious disruption” and defining that in the Bill, but this is a problem right the way through Part 3. A number of terms are left either to future regulations or to the discretion of the police.

I will quote not the Delegated Powers and Regulatory Reform Committee but the Joint Committee on Human Rights, because I want to point out to the Committee the Government’s response, which points to a very real problem as we discuss the Bill. The Joint Committee on Human Rights says:

“Using multiple terms that are open to wide interpretation, such as ‘intensity’ and ‘serious unease’”—


okay, it does not say “serious disruption”—

“leaves an excessive degree of judgment in the hands of a police officer. This is likely to prove challenging to the police, who already have significant responsibility for ensuring that demonstrations are lawful and safe. It will also give rise to uncertainty for those organising and participating in demonstrations and fails to provide convincing safeguards against arbitrary or discriminatory use of these powers.”

Surely that is why the noble Lord, Lord Beith, and the others who have spoken are trying to give some clarity—I think that was the word that the noble and learned Lord, Lord Hope, used—to the legislation, so that the police and others know exactly what the legislation says they can or cannot do. More importantly, this Parliament is legislating for what it thinks is appropriate.

I have to say to the Minister—I do not know whether it is the noble Baroness or the noble Lord responding—that I was very disappointed in the response from the Government last month, before this Committee has discussed and thought about these amendments and listened to the arguments. Bear in mind that the Joint Committee on Human Rights referred to

“multiple terms that are open to wide interpretation”,

so, whatever anybody’s view, there are numerous phrases that people are concerned about. The Government’s response before this Committee met today was: “We reject this entirely.” That is the first sentence of the Government’s response.

Before the debate has happened and any points have been made on amendments tabled by the noble Lords, Lord Beith and Lord Paddick, the noble and learned Lord, Lord Hope, and my noble friend Lady Chakrabarti, the Government have rejected it all. What is the point of debates, discussions, arguments, clashes of views and opinions and well-meant and well-intentioned differences if, before we have even discussed it, the Government do not believe that using multiple terms presents a problem and are rejecting that view? It is not a case of “we will consider this”.

I have been a Minister and the normal ministerial response is, “We’re considering this. Some good points have been made and we need to consider how this is best reflected as we take this forward”. You would certainly have said that before a debate or discussion. This is the Government’s own response to the JCHR report that says that using multiple terms is open to wide interpretation.

The concern of the noble Lord, Lord Beith, is that “serious disruption” should be in the Bill. The Government have already rejected it. There is no listening to the debate: “We reject this entirely.” Those are the first four words—unbelievable. I will not say any more than that, because this speaks for itself, but I would like to know from the noble Baroness the Minister, if she is replying, what the point is of us debating these amendments, even if the Government disagree. There is well-put, well-intentioned and sometimes brilliant analysis of some points, but the Government have already rejected it in response to a committee report that says there is a problem with using multiple terms. It is just unbelievable.

They are an elected Government in the other place, and they will get their way. This is a revising Chamber, the purpose of which is to suggest to the Government where they might improve the legislation, even if we do not agree with it. If the Government have rejected this before we have even discussed it, what is the point? “We reject this entirely.” I am speechless about it, to be honest.

In responding to this debate, can the Minister explain who signed that off? Which Minister signed it off? I presume, if I am being fair, that it was missed. But it is a hell of a thing to miss before a debate in Committee, where the use of multiple terms such as “serious disruption”, “alarm” and “distress” concerns us all. Even if the Bill passes, we need some clarity around those terms. I will leave it there. I have more to say on the other groups of amendments, but I very much support what all noble Lords, and my noble friend Lady Chakrabarti, said about this and look forward to the Minister’s response.

[Baroness Williams of Trafford (Con)]

I have listened to the noble Lord loud and clear. Governments are urged to respond to Select Committee reports within two months, and only last week the noble Lord, Lord Faulkner, was pressing for the response to the DPRRC. I will say two things, and I will be brief, in response to the noble Lord, Lord Beith, and the two noble and learned Lords.

The Government are considering the DPRRC’s recommendation to list the definitions in the Bill, and I have listened to the points made loud and clear by the noble and learned Lords, Lord Judge and Lord Hope, and will consider them and the strength of their views. I assure noble Lords that we will publish our response to the DPRRC report very soon. With that, I hope the noble Lord, Lord Beith, will withdraw his amendment.

[Lord Beith (LD)]

My Lords, much as I would welcome publication of the response, what matters is what it contains and whether, even at this stage, the Minister recognises that it is still possible and well within the Government’s capacity to make an appropriate amendment on Report. I am not asking her to make a commitment to that effect, because she has obviously not been given the authority to do that, but we clearly have to return to this. I hope that we can do so on the basis of the Government recognising the point made by the Committee.

This is the trigger that allows police involvement in setting quite challenging conditions regarding protest and noise, which worry us a great deal. This is the key trigger, so for it not to be clear in the Bill or used in the sense in which people normally use it and understand it in courts is to imperil one of the key operating features of the Government’s proposals. I am not in the least enthusiastic about the Government’s proposals, but I think they should be coherent and capable of working. For that to happen, the Minister needs to look at this carefully. We will await what she brings forward on Report with interest. I beg leave to withdraw the amendment.

Amendment 298 withdrawn.

Clause 55 agreed.

Clause 56: Imposing conditions on public assemblies

Amendments 299 to 308 not moved.

Clause 56 agreed.

Clause 57: Offences under sections 12 and 14 of the Public Order Act 1986

Amendments 309 to 313 not moved.

Clause 57 agreed.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The question is that Clause 58 stand part of the Bill.

[Lord Coaker (Lab)]

That is in the other group, is it not?

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

No. It is a clause stand part. I paused slightly, but if nobody wishes to speak to it—

[Lord Coaker (Lab)]

Is the Clause 58 stand part debate not in the next group?

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

Clause 58 stands on its own to be either agreed or not agreed. I think perhaps the noble Lord wishes to speak to an amendment. No?

[Lord Coaker (Lab)]

I thought they were all grouped together.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

Okay, but I think I need to put Clause 58 to the Committee now. The question is—

[Lord Coaker (Lab)]

I am sorry. On the Order Paper, it looks as though Clause 58 stand part is the lead amendment. Then there is a series of other amendments and clauses with it.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

Yes, but I must put the question first. The question is that Clause 58 stand part of the Bill.

Debate on whether Clause 58 should stand part of the Bill.

[Lord Coaker (Lab)]

May I speak now? I apologise. I did not mean to be rude.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I did actually pause originally, but nobody spoke.

[Lord Coaker (Lab)]

I am not used to standing up and speaking. If I was in the other place, I would have shouted out.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

Yes, but we do not shout here.

[Lord Coaker (Lab)]

Clearly. That is the problem. No, I am glad that we do not. It is sometimes a bit off-putting when there is a nobody shouting at me when I speak, but there we go.

The serious point I want to make is this. Obviously, we have come to Clauses 58 and 59, which relate to various changes to the law with respect to demonstrations outside Parliament. I want to make a general point, because I have not done that already. Some really fascinating points have been made about public protests: the right to protest and the need to balance that with people’s right to be able to go about their lawful business. Clause 58, headed “Obstruction of vehicular access to Parliament”, extends the area, while Clause 59 is headed “Power to specify other areas as controlled areas” and Clause 60 is headed “Intentionally or recklessly causing public nuisance”.

On Clauses 58 and 59, I think it was my noble friend Lord Dubs who made the point that many of us, including me, may well have not been able to protest if this law had been there. I am old enough to remember coming here, during a formative time for me as a local councillor in Cotgrave, which was a Nottinghamshire pit village, to demonstrate about pit closures, both in the mid-1980s, in and around the miners’ strike, and at the beginning of the 1990s, when the pit closure programme happened.

23:15

Those demonstrations around Parliament were part of the democratic right of the country to protest about what the Government were doing. It did not matter that it was a Conservative Government, because the protest was joined by people from all over the country who thought that the Government were wrong. As a result of that demonstration, the noble Lord, Lord Heseltine, as he is now—Michael Heseltine MP, as he was then—changed what the Government were doing. In particular, if I remember my own pit village in Cotgrave—obviously the colliery is long gone now—it was not only the fact that the mine was closing that people objected to, and there was a debate about that; it was the fact that people felt that their communities were being abandoned and that no proper support was being given.

We came to Parliament to put that point of view and there were thousands upon thousands of people from all over the country demonstrating. I do not know how—the noble Lord, Lord Paddick, is here; maybe he does—the police would have allowed that to take place in a way that is consistent with the legislation which this Committee is about to pass. There were so many people here. There was no violence, but there were lots of placards, there was lots of shouting, lots of fun, people dancing et cetera, and children galore, holding balloons and goodness knows what. It was like a jamboree as much as a demonstration, but it really made the point. Is that something we would want the legislation to stop? I am not sure that every Member of Parliament or Peer who wanted to get access to Parliament on that day would have been able to.

I am not saying that it is easy. I think it was the noble Baroness, Lady Fox, who said about the amendment I moved earlier that your support for a protest depends on whether you support what people are protesting about. If you agree with it, you tend not to mind the disruption. If you do not, you think the disruption is an outrage, and the police are caught in the middle of that. It is tricky, but I just wanted to make that general point.

I will tell you what I think. I think that the Government, in the face of pressure from wherever, have decided that they have to do something; that everything is out of control and a disaster, and the country is going to rack and ruin: “If we don’t do something, goodness only knows what the consequences will be”. Some of what I see irritates me, but you have to be really careful, and I wonder whether, in their desire to show that they are doing something about Extinction Rebellion, or others like that, the Government are moving the pendulum too far in favour of restricting the right to protest.

The Government will say that they are not doing that, and that is the debate that is taking place. Numerous noble Lords have made various points, and we will have to decide on that. But I tell you this: that clash of views about where the swing of the pendulum should stop will be much more balanced with the clash of views that is taking place in this Chamber and elsewhere. That is the key debate that is taking place; it is over where the pendulum should stop when it is swinging. I do not think that some of the demonstrations that I have been on, which commanded huge public support, would be allowed under the terms of this Bill. I wonder whether that is really what noble Lords in this Chamber would want.

I do not know the experience of people across the Chamber. I will not go on too much, given the time, but, for example, sometimes I read in the paper that people are outraged by protests happening. But then, in their local area, there are some well-loved trees that are to be chopped down to make way for a road and people rally around those trees and everybody says that it is a really good thing to save the trees. Under the process in the Bill, they may well have broken the law. We must be careful with this and similar measures.

Clauses 58 and 59 in part respond to previous recommendations from the JCHR to ensure that democratic institutions are protected, including the right of people with business here to access the parliamentary estate. The clauses do not follow the JCHR’s recommendations to put a specific statutory duty on police to protect access to Parliament. Instead, the Government have opted to make obstructing the access of vehicles to Parliament a prohibited activity and to expand the controlled area.

In response to the Government’s proposals, the JCHR said that protecting access to Parliament

“does not mean there should be an outright ban on protest in the area. Instead the police should balance the rights of protesters against the need to ensure the effective functioning of democratic institutions … To ensure the rights of protesters, the police should use the new power regarding vehicles only when necessary to ensure access to and from the Parliamentary estate, rather than to impose general restrictions on protests in the vicinity of Parliament.”

What safeguards will be in place on the use of this power to ensure that it is used to protect access to Parliament but not to prevent protest? This is the heart of government and people should be able to protest. I am proud of the fact that, outside the legislature of our country, people can come from all parts of the country to protest. I know that it is a pain. I have not been that pleased when I have had to go about three bridges down the River Thames, or whatever, but, once you get over the initial anger, you sometimes think that it is good that that can happen. We are a great democracy, a proud country, and we talk about other countries and say, “Look at what is happening there: it is a disgrace. They cannot even protest.” I am not suggesting for one minute that we are an authoritarian country—do not get me wrong—but sometimes inconvenience and disruption may be the small price that you pay for democratic rights to protest. Again, it comes back to a question of balance, so I ask the Minister about safeguards.

The Explanatory Notes state:

“Clause 60 gives effect to recommendations made by the Law Commission … that the common law offence of public nuisance should be replaced by a statutory offence”.

However, as raised by the Bar Council and the JCHR, the Law Commission’s report specifically did not include protests and raised freedom of assembly as an instance in which behaviour would not be unlawful. The JCHR has raised a number of concerns about the clause and I look forward to hearing from my noble friend Lord Dubs on his amendments in this group.

I finish on the lack of clarity on what the clause is trying to achieve and in what situations it will apply. We all want to know about the seeming contradiction between what the Law Commission has said and the way in which the Government have used it to justify the change in Clause 60 and what the Bar Council says about it. I appreciate the balance that the Government are trying to strike, but we need to hear a little more from them about the new restrictions in Clauses 58 and 59, the various amendments to do with Clause 60 and how the right to protest, particularly at the seat of government, will be protected in a way that will preserve the democratic freedoms of this country, which we have all respected in the past and should be a source of pride for us.

[Lord Dubs (Lab)]

My Lords, I support what my noble friend Lord Coaker has just said, but perhaps I may say a brief word about Amendments 315 and 316. They are there to improve the drafting of the offence to make it clear, first, that it is committed only when serious harm is done to the public, rather than to any one person, which is what the Bill’s wording is now, and, secondly, that when considering the reasonable excuse that the defence supplies, the court should take into account the importance of the rights guaranteed by Articles 10 and 11 of the ECHR. In other words, put simply, it is not about any one person but the public, and the courts should look at Articles 10 and 11 when coming to any decision about whether an offence has been committed.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, for me, this is getting like election night. Any politician in the room will tell you that it is when you are really tired but you are so wired that you cannot possibly sleep anyway.

I have signed three of these amendments but I wanted to speak mainly to Amendment 315A. I am concerned about this whole part of the Bill, because it is far too broad and risks criminalising a host of innocent behaviour. We heard earlier about the right to move around. Today, I was stopped by the police outside and could not go for nearly 250 yards on the pavement because a band was going through. I love an Army brass band—it is absolutely fine—so I joined the crowds on the other side of the road who were all pushing and shoving. We often take away the right to move around, sometimes for good causes. I would argue that protest is a good cause.

As regards stopping traffic, let us remember that traffic jams cost us billions of pounds every year and millions of people are inconvenienced, with long times added to their journeys to work—working people who are delayed by traffic jams. This morning outside the Marlin Hotel on Westminster Bridge Road, three Mercedes were parked in the bus lane. The buses had to go around them, slowing all the traffic. What are the Government doing about that sort of thing? I contacted the police and sent them the registration numbers, so let us hope that they were caught.

The definitions in the Bill of serious harm are a mess because serious annoyance cannot be a crime—it is too difficult to define. You cannot put people in jail for just being annoying. I am sure that sometimes we would all like to, but you cannot do it. I am particularly worried, after the way in which Covid was policed early on, about the inclusion of disease in the new public nuisance offence. At the start of Covid—and possibly all the way through—every prosecution was wrongful. That was partly because—and I will be generous to the Government for once—the Government were confused and blurred the lines between law, guidance, advice and so on. As I have said before in your Lordships’ House, it was hard for the police because they did not know what they should be doing and became a bit overzealous. That may have been well intentioned but it was not appropriate. There were wrongful prosecutions and convictions as a result. Let us be a bit more careful about the definitions in the Bill, because I think that they will cause more problems.

We are all boasting about our qualifications for going on demonstrations and that sort of thing. My first demo was in 1968 for CND, of which I am still a member, and we are still fighting nuclear weapons—but that is another issue. I argue that the Government are taking chaos and ambiguity to new heights and I urge them not to allow the dangerous and confusing language in the Bill to go through because it is certain to lead to injustice.

23:30

[Lord Paddick (LD)]

My Lords, as we have heard, this group contains two completely different issues: protection of the routes around Parliament and potential places where Parliament may sit while renovation work is undertaken; and the new statutory offence of public nuisance. How putting these two issues into one group is supposed to save time, I have no idea.

Clause 58 is about the obstruction of vehicular access to Parliament. Noble Lords, particularly those with mobility issues, have had difficulty accessing Parliament, particularly during Extinction Rebellion demonstrations, although I would not describe the Prime Minister being hindered from attending Prime Minister’s Questions in September 2020 as someone with mobility issues, unless you are talking about levelling up. It is a bit late for subtle jokes like that.

These provisions go much further. They expand obstruction to include

“making the passage of a vehicle more difficult.”

Presumably, any delay caused, even slow-moving traffic, would be covered by such an offence, and this could potentially criminalise any protest within the expanded controlled zone outlined in these proposals. Protests that have resulted in Members of Parliament being prevented from accessing Parliament have been few and far between, which suggests that the existing provisions are adequate. Clause 58 is unnecessary.

Clause 59 allows the Secretary of State to move the controlled area in the event of either House of Parliament being relocated because of building works under the restoration and renewal programme. This enables the Secretary of State to impose restrictions on protest to whatever area she thinks fit, however wide, by regulations. Parliament has no chance to question or vary the extent of the controlled area; it must either accept or reject the proposal made by the Secretary of State. The clause also gives the Secretary of State power to

“make provision for any other enactment, or any instrument made under an enactment, to have effect with modifications in consequence of regulations”

under this provision. This is too much power given in regulations to the Secretary of State, who could effectively ban protest almost anywhere within a wide area around any place where Parliament may be relocated to. Clause 59 is too broad and should not stand part of the Bill in its current form.

Parliament is at the heart of democracy in this country, but what about other institutions and organisations that are also important to the democratic process? What about news broadcasters or print journalists who hold politicians generally, and the Government in particular, to account? Where is the protection from protests aimed at disrupting a free media, such as the blockading or invading of television news and radio studios and newspaper printworks? This looks very much like protecting the Government and Government Ministers while doing nothing to protect those who hold the Government and Government Ministers to account.

Clause 60 creates a new statutory offence of public nuisance, as recommended by the Law Commission, but the provision appears to be far too wide and could potentially impact on all protests. Liberty’s briefing quotes Lord Justice Laws, who said in the case of Tabernacle v the Secretary of State for Defence in 2009:

“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.”


If someone is seriously annoyed or inconvenienced, or is put at risk of being seriously annoyed or inconvenienced, by someone doing something, that person commits an offence if they intend to seriously annoy or inconvenience the public or a section of the public.

Almost every protest could be criminalised by this provision, and not just public protests on the streets, as the noble Lord, Lord Coaker, has said. Are the Government a “section of the public”? If they are, take me away now. As a minority party in this House, we are, very often, unable to change what the Government plan to do, but we can seriously annoy the Government by pointing out the error of their ways and by holding them to account for their actions. Even if we do not have the intention of doing the Government serious harm—maybe—we may be at least reckless as to what harm it causes. Are we too to be criminalised by this provision, however much some noble Lords might like us to be?

The Government will point to the “reasonable excuse” defence contained in the provisions, but that applies only once a person has been charged with an offence under these provisions. The provisions do not say that a person commits an offence if, without reasonable excuse, the person does an act. Therefore, the police would be justified in arresting and charging people who believed that they had a reasonable excuse because the reasonable excuse provision applies only once a person has been charged.

We oppose in its entirety this provision as drafted, but we have Amendment 314, which removes the obstruction of

“a section of the public in their exercise of a right that may be exercised or enjoyed by the public at large”

from these provisions, to at least narrow the extent of this proposed new offence. A counterdemonstration against a far-right group, for example, would be caught by the provisions of this new offence as drafted, but not as we suggest that it should be amended. We support Amendment 315, as far as it goes, in attempting to ensure that the serious harm applies not just to one person but must be caused to the public, further limiting the extent of the offence.

We also support Amendment 315A tabled by the noble Baroness, Lady Morrissey, to leave out serious harm to a person if, as a result, the person suffers disease. As the noble Baroness, Lady Jones of Moulsecoomb, has said, we saw during the coronavirus pandemic, particularly with the attempt the ban the vigil for Sarah Everard on Clapham Common, restrictions on protest on public health grounds. That is why the police intervened in the Sarah Everard vigil. They felt that there was a public health risk. Although the provisions under which the Sarah Everard vigil was done have been repealed, this appears to be an attempt to reintroduce them. As drafted, it matters not whether the protesters intend to spread disease. They must only be reckless as to whether it would have such a consequence.

We also support Amendment 316—again, as far as it goes—but we would prefer there to be a reasonable excuse provision added to the offence itself, as I have said before, rather than protesters, for example, having to raise their reasonable excuse in court. People such as protesters, who have a reasonable excuse, should not be arrested in the first place. They should not be charged, and they should not have to appear in court. With respect to the noble and learned Lord, Lord Etherton, I am sure that his amendment is right, but I am not sure that it is necessary. However, I am sure that the Minister will enlighten us.

This clause needs to be withdrawn and thought through again.

[Baroness Williams of Trafford (Con)]

My Lords, I am grateful to all noble Lords who have spoken in this debate on Clauses 58 to 60. These three clauses will help ensure unimpeded vehicular access to Parliament and implement the Law Commission’s recommendation to codify in statute the common-law offence of public nuisance.

The noble Lord, Lord Coaker, mentioned pressure from “wherever” regarding Clause 58. In fact, the clause gives effect to a recommendation by the Joint Committee on Human Rights, of which Harriet Harman is chair, to protect the right of access to the Parliamentary Estate for those with business there, including, of course, Members of your Lordships’ House. The clause amends the Police Reform and Social Responsibility Act 2011 to allow a police officer to direct an individual to cease, or not begin, obstructing vehicular access to the Parliamentary Estate. If a person does not comply with a direction, they will be committing an offence and may be arrested. Currently, parliamentarians and others conducting business in the Palace can face delays in entering and leaving Parliament via vehicular entrances, both impeding the functioning of our democracy and creating a security risk, with vehicles held stationary while police clear the way.

I should stress at this point that this power does not stop people protesting in the vicinity of the Palace of Westminster. Those who want to protest outside Parliament can continue to do so but, if asked by a police officer, must allow the passage of vehicles through the Palace’s gates or face the consequences.

Should Parliament need to relocate for any reason, such as the ongoing restoration and renewal works, Clause 59 provides the Home Secretary with the power to designate a new controlled area around Parliament’s new temporary location. This would ensure that the protections afforded by the Police Reform and Social Responsibility Act 2011, as amended by this Bill, applied wherever Parliament relocated to.

Clause 60 implements the Law Commission’s recommendation that the common-law offence of public nuisance should be codified in statute. We heard last week calls for the Government to be more diligent in implementing Law Commission recommendations, so I hope noble Lords will support and welcome this measure. Putting the long-standing common-law offence of public nuisance into statute will provide clarity to the police and potential offenders, giving clear notice of what conduct is forbidden.

We have followed the Law Commission’s recommendation as closely as possible. In doing so, we are narrowing the scope of the existing common-law offence. That is being achieved by retaining the use of the terms “distress”, “annoyance”, “inconvenience” and “loss of amenity” within scope of the offence but by requiring that these harms be “serious”. We are also increasing the fault element of the offence. Currently, a person would be guilty through negligence; under the new offence, that is raised to intent or recklessness. Finally, we have made it a defence for a person to prove that they had a reasonable excuse for their act or omission that caused a public nuisance.

The Law Commission’s report stated that as the offence is intended to address serious cases for which other offences are not adequate, if a maximum sentence is set then it should be high enough to cover these cases. We have therefore set the maximum custodial sentence at 10 years. It is worth noting that that is lower than the current unlimited maximum sentence available under the common-law offence.

I turn to the amendments tabled to Clause 60, beginning with Amendment 314 in the name of the noble Lord, Lord Paddick. As the clause is currently drafted, the offence is committed if a person’s act or omission causes serious harm to the public or a section of the public, or obstructs the public in the exercise or enjoyment of their rights. The amendment would limit the scope of the offence to only where serious harm is caused to the public. That would significantly narrow the scope of the offence. Most forms of public nuisance will, by their nature, impact on only a section of the public rather than the public generally.

However, I believe it is right that the offence be committed if it affects a section of the public. It is a fundamental part of the common-law offence of public nuisance that not every member of the public need be affected but a section of the public must be. Similarly, the offence should include where the rights of the public are infringed; the Law Commission concluded it is right to do so. For example, the effect of excessive and persistent noise or the release of a foul-smelling substance or gas in a public place may affect only a small number of local residents but potentially affects any member of the public who enters the relevant area.

Amendment 315 flows from a JCHR recommendation that aims to clarify that this offence is not committed if serious harm is caused to a person. That would be achieved by removing the word “person” from the definition of “serious harm”. I understand that the noble Lord is trying to clear up ambiguity as to whether an offence of public nuisance can be committed to a person, but I remain to be persuaded that the amendment is strictly necessary. Subsection (1) of the clause already sets out that the offence of public nuisance can be committed only against the public or a section of the public, with the references to persons in the definition of “serious harm” being an interpretive provision that does not affect the scope of the offence. That said, I am ready to consider this point further ahead of the next stage.

The amendment would also raise the threshold at which the offence is committed where an individual put the public at risk of serious harm. The amendment would raise that to “serious” risk of serious harm. We have followed the Law Commission’s recommendations in setting the scope of the offence and the thresholds at which it will be committed. The commission conducted a rigorous consultation on the offence, and it is right that, in this instance, we follow the recommendations set out in the report.

23:45

Amendment 315A is in the name of my noble friend Lady Morrissey. It would remove causing disease from the definition of “serious harm”. The harm of causing disease sits alongside causing death and personal injury to the public or a section of the public as an injury in scope of the offence. Again, we have followed the Law Commission’s advice. It is only right that, if someone can be guilty of public nuisance by causing or risking death or injury to the public, they can also be guilty should they endanger the public by exposing them to a highly contagious disease. Although thankfully not a threat we face today, in 1815 a woman was convicted of the common-law offence after she carried her smallpox-infected child through a public highway.

Amendment 316 seeks to give effect to another JCHR recommendation. It would add a provision to ensure that the right to protest is considered when determining if a defendant has a reasonable excuse for their act or omission which led to a charge of public nuisance. As we have stated in our response to the JCHR’s report, the Human Rights Act 1998 already provides that public authorities must not act in a way that is incompatible with any European convention right. Courts must consider defendants’ convention rights; therefore, this amendment is unnecessary as it provides no further protections than those already granted under the Human Rights Act.

Finally, I turn to Amendment 317 in the name of the noble and learned Lord, Lord Etherton, which I understand is to highlight the difference between this new criminal offence of public nuisance and the tort of public nuisance. The existing common-law tort of public nuisance will continue to exist. Subsection (8)(b) provides that the clause does not affect the civil liability of any person for an act or omission which constitutes public nuisance and subsection (8)(c) clarifies that the clause does not affect the ability to take action under any enactment against a person for an act or omission which constitutes public nuisance. I will reflect on this amendment.

In conclusion, I hope noble Lords are satisfied as to why I believe these amendments are unnecessary and will support the Government’s efforts to faithfully implement the recommendation of the Law Commission. I commend Clauses 58 to 60 to the Committee.

[Lord Coaker (Lab)]

I do not know whether it is for me to move the first amendment in the group.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

No.

[Lord Coaker (Lab)]

We will get there.

Clause 58 agreed.

Clause 59 agreed.

Clause 60: Intentionally or recklessly causing public nuisance

Amendments 314 to 317 not moved.

Clause 60 agreed.

Clause 61: Imposing conditions on one-person protests

Amendments 318 and 319 not moved.

Clause 61 agreed.

Amendment 319A

Moved by

[Baroness Williams of Trafford]

319A: After Clause 61, insert the following new Clause—
“Offence of locking on
(1) A person commits an offence if—(a) they intentionally—(i) attach themselves to another person, to an object or to land,(ii) attach a person to another person, to an object or to land, or(iii) attach an object to another object or to land,(b) that act causes, or is capable of causing, serious disruption to—(i) two or more individuals, or(ii) an organisation,in a place other than in a dwelling, and(c) they intend that act to have a consequence mentioned in paragraph (b) or are reckless as to whether it will have such a consequence.(2) 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.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.(5) In this section “dwelling” means—(a) a building or structure which is used as a dwelling, or(b) a part of a building or structure, if the part is used as a dwelling,and includes any yard, garden, grounds, garage or outhouse belonging to and used with a dwelling.”Member’s explanatory statement
This amendment creates a new offence of “locking on”, involving the attachment of an individual to another individual, to an object or to land, or an object to another object or to land. It is a requirement of the offence that the act causes or is capable of causing serious disruption to two or more individuals or an organisation and that the accused intends that to occur or is reckless as to whether it will occur.

[Baroness Williams of Trafford (Con)]

My Lords, the amendments tabled in my name are in response to the significant and repeated disruption we have seen over the last months by a small number of protesters. Their behaviour has clearly demonstrated that the balance between the rights of protesters and the rights of others tips far too far in favour of the protesters.

It is completely unacceptable for a minority of protesters to repeatedly and deliberately cause serious disruption to members of the public trying to go about their daily lives: trying to get to work or trying to get to hospital. Additionally, some of the tactics we have seen have been extremely dangerous, placing the police and the public, and the protesters themselves, at serious risk of harm.

We cannot have sections of our transport infrastructure or other critical infrastructure brought to a halt by a small group of protesters, whatever their cause. As I said in an earlier debate, we accept that some level of disruption is to be expected and tolerated from protest actions, but there is a line to be drawn. Insulate Britain, Extinction Rebellion and others have overstepped that line. The sentences recently handed down for breaches of the injunction obtained by National Highways demonstrate that clearly.

These amendments will strengthen the police’s ability to respond to the types of protests we have seen and reflect the seriousness of that type of behaviour. We need to update the criminal law and police powers to deter and prevent such wholly unacceptable disruption taking place. Civil injunctions have their place, but they are not enough on their own.

Amendments 319A and 319B introduce new offences of locking on and going equipped to lock on. These offences are designed to deter individuals from engaging in lock-on tactics, which cause serious disruption to the public and organisations. Lock-ons waste a considerable amount of police time and some, such as those on the side of buildings or on tripods or similar temporary structures erected by protesters, place the police and the protesters themselves at serious risk of injury or even death.

The locking-on offence will be committed where individuals attach themselves to other individuals, objects or land, or attach objects together or to land. It would be an offence only if their act causes or is capable of causing serious disruption. Furthermore, there must be an intention to lock on, and the offender must intend to cause, or be reckless as to causing, serious disruption. If found guilty of this offence, an individual will be liable to a maximum penalty of an unlimited fine, six months in prison or both. The offence will apply to lock-ons that cause, or are capable of causing, serious disruption on public and private land. However, private dwellings, including people’s houses, will be excluded.

Supporting this measure is the new offence of “going equipped to lock on”. This offence will apply where a person has with them an object with the intention that it will be used, either by themselves or someone else, in the course of or in connection with a lock-on. In this case, the maximum penalty is an unlimited fine.

Amendment 319C increases the maximum penalties for the offence of obstruction of the highway and clarifies the scope of the offence. Currently, individuals found guilty of this offence face a maximum fine of only £1,000. Recent actions by Insulate Britain have shown that this is disproportionality low compared with the widespread misery and disruption that an obstruction of a major road can cause. Anyone found guilty of this offence will now face an unlimited fine, up to six months in prison or both.

Additionally, this amendment clarifies that the offence is still committed even if free passage along the highway in question has already been suspended. This is to address the defence that some have used, claiming that they were not guilty of obstructing the highway because they joined a protest after the police had already closed the road to ensure protesters’ safety while they were being removed.

Amendment 319D creates a new offence of obstructing major transport works, such as airports, roads, railways and ports. As noble Lords will know, protesters have caused huge disruption in the construction of HS2. Additional costs to the project resulting from protester actions alone are estimated at £80 million. That is unacceptable.

Protesters have been able to evade conviction for highly disruptive and dangerous acts, such as tunnelling under Euston Square Gardens, on effectively a technicality, namely that HS2 was not carrying out construction work on the site at the time of the occupation. This new offence will make it clear that obstructing the construction, and preliminary work to construction, of important transport infrastructure constitutes criminal activity and that the Government see this as a serious offence.

Acts in scope of this offence would include interfering with construction apparatus or obstructing the surveying of land prior to the commencement of construction. Such behaviour will carry a maximum penalty of an unlimited fine and/or six months’ imprisonment.

The amendment defines “major transport works” as any works that are

“authorised directly by an Act of Parliament”

or by development consent orders under the Planning Act 2008. This would capture transport works of strategic importance that support the levelling up of our transport infrastructure across the country.

[Lord Beith (LD)]

Will the Minister explain that a little further? In relation to the recent announcement about not proceeding with the Yorkshire leg of HS2 but instead carrying out a variety of other works, does that mean that these other works, which are not separately sanctioned by Parliament, will not be included within the scope of the clause?

[Baroness Williams of Trafford (Con)]

Yes—it is confined to works that are authorised directly by an Act of Parliament, so, if they have not been, they are not in scope. As I said, the amendment would capture transport works of strategic importance that support the levelling up of our transport infrastructure.

To ensure that the police have the ability to proactively prevent protesters causing harm, we are introducing supporting stop and search powers for these and other protest-related offences. In its March 2021 report on policing protests, Getting the Balance Right?, HMICFRS argued that new stop and search powers could help police to prevent disruption and keep the public safe.

Amendment 319E amends Section 1 of the Police and Criminal Evidence Act 1984 to allow a police constable to stop and search a person or vehicle where they reasonably suspect that they will find an article made, adapted or intended for use in the course of committing one or other of the offences relating to locking-on offences, public nuisance, obstructing a highway or obstructing major transport works. While this power will significantly help police in preventing protesters using highly disruptive tactics, in a fast-moving protest situation it is not always possible for the police to form suspicions that certain individuals have particular items with them. Therefore, Amendment 319F provides for a police officer of the rank of inspector or above to authorise the use of the suspicionless stop and search power.

I have just been passed a note that says that Amendment 319D defines major transport works as any works that are

“authorised directly by an Act of Parliament”

or by development consent orders under the Planning Act 2008. That further clarifies my response to the question of the noble Lord, Lord Beith.

[Lord Beith (LD)]

That is very helpful of the Minister. It probably means that the announcement made last week about HS2 not proceeding but various other kinds of rail works going ahead will mean that none of those alternative rail works will be covered by these provisions.

[Baroness Williams of Trafford (Con)]

It depends on whether they have been authorised directly by an Act of Parliament or by development consent orders under the Planning Act 2008. I will not pretend to know the detail of that at this point, but I can get the noble Lord the detail, if he would like me to.

Amendment 319F provides for a police officer of the rank of inspector or above to authorise the use of the suspicionless stop and search power. This mirrors the powers currently available to the police under Section 60 of the Criminal Justice and Public Order Act 1994. As with existing Section 60 powers, this power can apply only in a specific locality and for a maximum of 24 hours, with the option to extend it if deemed necessary by a senior police officer. Amendments 319G to 319J make further provisions in respect of the suspicionless stop and search powers, in line with the existing Section 60 stop and search powers.

Finally, Amendment 319K introduces serious disruption prevention orders, or SDPOs. These new preventive court orders are designed to tackle protesters who are determined to repeatedly cause disruption to the public. There are two circumstances in which they can be made. A court will be able to impose an SDPO on conviction where an individual has been convicted of a protest-related offence and has been convicted of an earlier protest-related offence.

Alternatively, the court will be able to make an SDPO on application by the police 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 or been found in contempt of court for a protest-related breach of an injunction; caused or contributed to a protest-related criminal offence or breach of an injunction; or carried out, or caused or contributed to another person carrying out, protest-related activities that have, or were likely to, result in serious disruption. The courts must consider it necessary to make an SDPO to prevent the person committing, or causing or contributing to, a protest-related offence or breach of injunction, to prevent the person carrying out, or causing or contributing to another person carrying out, protest-related activities that result in, or are likely to result in, serious disruption, or to protect from serious disruption. They will also have discretion as to what prohibitions and requirements will be necessary and proportionate to prevent these acts.

These orders may be imposed only on those aged 18 or over, will last anywhere from one week to two years, and can be renewed or discharged on application to the court. Breaching an order will be a criminal offence, punishable by an unlimited fine, six months imprisonment or both.

This suite of new measures is necessary to protect the public from the unacceptable levels of disruption that we have seen as a result of the reckless and selfish tactics employed by some protest organisations in recent weeks. We stand by the right to protest, but that does not afford a right to cause unlimited disruption to others irrespective of the cost to business, the dangers caused to road users and the police, the risk to life by blocking ambulances and the hardship caused to the public seeking to get to work or going about their daily lives. I therefore commend these amendments to the Committee. I note that the noble Lord, Lord Paddick, has tabled a number of amendments to the government amendments; I will respond to these and any questions on the government amendments once we have heard from other noble Lords. I beg to move.

Amendment 319AA (to Amendment 319A)

Moved by

[Lord Paddick]

319AA: In Amendment 319A, in subsection (1)(b), leave out “or is capable of causing”
Member’s explanatory statement
This would limit the offence to an act that causes serious disruption.

[Lord Paddick (LD)]

My Lords, we now come to the most controversial part of the Bill: the Government’s new public order amendments. They have not been debated before in either House—and this debate started at 11.49 pm. Is this any way to conduct legislation?

I have amendments 319AA, 319AB, 319AC, 319BA, 319BB, 319BC, 319DA, 319DB, 319DC, 319L, 319M, 319N, 319P, 319Q, 319R, 319S, 319T and 319U in this group, all of which are, of course, amendments to the Government’s amendments. If I took just two minutes for each of those amendments, that would be 36 minutes. I will speak to each of the government amendments in turn; I will then add what Liberty has said to noble Lords in its excellent briefing on each amendment. I will then outline our proposed amendments to each government amendment in turn. We oppose all the Government’s amendments.

Government Amendment 319A concerns locking on. I have to ask: how much of a problem is this? Yes, it is inconvenient and annoying but it is temporary, and the police are becoming quite accomplished at unsticking. The amendment includes the phrase

“causes, or capable of causing, serious disruption”

so there does not even need to be serious disruption for this offence to be committed. It refers to serious disruption to two or more people or an organisation. Is a counterdemonstration to stop Holocaust deniers marching past a synagogue, or an Islamophobic organisation marching past a mosque, causing serious disruption to two or more people or an organisation? What does “capable of causing” mean? If it 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? It is difficult to say because “serious disruption” will be defined by the Secretary of State in regulations only after the Bill has received Royal Assent.

Amnesty has talked about case law having established that protestors have a right to choose the manner of conduct of their protest. That is an important aspect of freedom of assembly. I too will quote from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, which said that “most interviewees”—junior police officers—

“did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”

Can the Minister explain why the Government have gone against what the police want where this is concerned?

Our Amendment 319AA would leave out “is capable of causing” so that the offence applies only if there actually is serious disruption. Amendment 319AB leaves out

“or are reckless as to whether it will have such a consequence”,

so that there must be an intent to cause serious disruption, while Amendment 319AC’s insertion of

“not exceeding level 2 on the standard scale”

is to probe whether an unlimited fine is proportionate to this offence.

Government Amendment 319B concerns going equipped to lock on. “Going equipped” offences have always been difficult as they often involve innocent articles where the intent has to be proved. You could buy a tube of superglue to repair a broken chair at home, then get caught up in a protest and be accused of going equipped for locking on, for example. Amnesty’s briefing asks, in relation to

“in the course of or in connection with”,

whether having a megaphone that might be used to shout encouragement to those intending to lock on is going equipped with something for use “in connection with” locking on. How broad is this offence?

Our Amendment 319BA would leave out “in connection with” to probe how broad that phrase is. I hope the Minister will be able to explain. Our Amendment 319BB would

“leave out ‘any person’ and insert ‘them’”

so that the offence applies only if the person carrying the equipment intends to lock on, while our Amendment 319BC is to probe whether an unlimited fine is proportionate.

Government Amendment 319C contains an increased penalty for highway obstruction. As the Minister mentioned, it does not matter if the road is already blocked. This is sentence inflation again—more people in prison for non-violent offences. The current offence involves only a fine. I can understand that the Government might want to lock people up, but sit-down protests are an important part of freedom of expression and assembly. The chilling effect if people fear being sent to prison will be considerable.

Government Amendment 319D is about the obstruction of major transport works. This is a blatant and direct attack on climate change protesters, covering such projects as HS2, with its impact on biodiversity; new roads, which will create more traffic; and new airport runways, such as the third runway at Heathrow. So when the Prime Minister carries out his promise to lay down in front of the bulldozers, he will be committing this offence. Amnesty questions whether construction workers picketing such sites would be committing an offence. Could the noble Baroness say whether this would apply to them?

Our Amendment 319DA would remove an undertaker

“taking … steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works”,

because we feel that this is far too broad. Amendment 319DB would remove interfering with or moving apparatus, again because we think this offence is far too broad. Our Amendment 319DC probes whether an unlimited fine is proportionate for such an offence.

Government Amendment 319E provides the police the power to stop and search for anything made, adapted or intended for use in the course of or in connection with highway obstruction, public nuisance, locking on or the transport infrastructure offence. This is a massive expansion of an already contentious power—the power of the police to stop and search—at a time when trust and confidence in the police is low. It would apply the power to a whole range of new offences, providing the police with a whole new range of excuses to stop and search people. This power would allegedly be on the basis of reasonable suspicion, but other stop and search powers exercised on this basis result in the police allegedly “reasonably suspecting” black people eight times more than white people. The police did not ask for this power, and some do not want it, so why are the Government doing this?

Amnesty quotes the report from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, which says:

“Some of the most intrusive and contentious … powers are those that allow the police to use force and to stop and search people.”


Police suggested 19 new powers they wanted in connection with policing protests, and this was not one of them. One police officer told HMICFRS that

“a little inconvenience is more acceptable than a police state”,

and HMIC agreed with the sentiment. This amendment could result in black and other minority ethnic people being deterred from protesting, and police could seize banners, placards and all sorts of legitimate props used in protests.

Government Amendment 319F would provide the power to stop and search without suspicion. We have already proposed the removal of the last remaining stop and search power without suspicion, Section 60 of the Public Order Act. Section 44 of the Terrorism Act, another suspicionless stop and search power, has already been repealed, and Section 60 needs to follow. When we debated an amendment to a previous part of the Bill, we set out comprehensively why stop and search without suspicion should not be exercised for anything, as it is hugely damaging to police-community relations and ineffective. Disproportionality increases—from being eight times to 18 times more likely to be stopped and searched if you are black—and only one in 100 searches under Section 60 resulted in a weapon being found, the purpose for which it is now being used by the police. Objects can be seized, retained and disposed of, as set out in regulations. We have only just seen the proposed primary legislation, let alone the regulations. We cannot think of any useful amendments to this provision; we simply oppose these powers being included in the Bill.

00:15

Amendment 319J relates to obstructing the police exercising the new stop and search powers. 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?” This is a power that the police have not asked for and where the evidence shows that harsher penalties do not deter offenders.

We opposed a similar new offence of obstructing the police in connection with serious violence prevention orders and oppose this now for similar reasons, which I do not intend to repeat here. A month in jail for obstructing a police officer without assaulting him under current legislation is more than enough.

I turn to government Amendment 319K on serious disruption prevention orders. I am beginning to wonder whether the Government need some lessons in how to be creative, rather than cutting and pasting existing parts of the Bill to make new ones. Here we are again, with orders that are similar to, but in some respects worse than, serious violence prevention orders, because these can be made on not only conviction for a “protest-related offence” but application by the police without conviction, on the balance of probabilities. Like serious violence prevention orders, they can be made using inadmissible evidence, they can be extended indefinitely and breaching them is a criminal offence with terms of imprisonment attached.

One of the purposes is to prevent a person aged 18 or over, referred to as “P”, committing a protest-related breach of an injunction. What is an injunction other than an order to stop P from doing something that is unlawful—in these circumstances, something unlawful in relation to a protest? The Minister will contradict me if I am wrong, but it seems that this new power, among other things, is to prevent someone who is already subject to an order preventing them doing something by the courts doing something in relation to a protest. I am not sure whether this is double jeopardy or just completely unnecessary. If they were to breach the injunction, they would most likely also be in breach of the serious disruption prevention order and could then be sentenced for breaching both the injunction and the “SDPO”. Is that a character from “Star Wars”?

In order to be subject to this proposed new order on conviction, the person must have been convicted of another protest-related offence that the court considers to be a protest-related offence on the balance of probabilities and relates to a different protest or a different day. The earlier offence must have happened within five years of the day of conviction for the offence for which the new order is being made, but the five-year period starts only when this new power comes into force and offences can be taken into account only if the person was over 16 at the time they were committed. The order can be imposed only if the person is 18 or over when it is made. If an offence was committed over a period of two or more days, or at some time during a period of two or more days, it must be considered to have been committed on the last of those two days. Is there a flowchart?

The order can be made whether P is sentenced or given a conditional discharge. It can be made based on evidence inadmissible in consideration of the protest-related offence. One of the reasons for imposing the new order can be to prevent P “causing or contributing to” another person committing a protest-related offence or breach of an injunction. What does that mean? Does shouting encouragement to others to engage in a sit-down protest amount to causing or contributing to another person committing a protest-related offence?

The order can require P to do anything described in the order or prohibit them doing anything described in the order. This includes prohibiting P using the internet to facilitate or encourage persons to carry out activities related to protest that are likely to result in serious disruption. The Secretary of State, by regulations —which we will not see until after Royal Assent—decides what serious disruption is, but who decides whether what P is doing on the internet is actually encouraging others to do something that is “likely” to cause serious disruption? How much of a restriction on free speech is this?

These orders cover 10 pages of amendments, mainly cut and pasted, with some variation, from serious violence reduction orders, but how are we, at this late stage, supposed to properly scrutinise these provisions? The Government may claim that we have had over a week, but have they not noticed that we were debating other proposals contained in this Bill until gone midnight on the last two Mondays, and last Wednesday our debates spanned 11 hours, including six hours without a break?

Amnesty says that this is an unprecedented and highly oppressive measure, tantamount to a ban on named individuals’ right to protest. In its report Getting the Balance Right? Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services said, of protest banning orders—which is what these are—

“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”.

Quoted on page 137 of the report, some senior police officers said that protest banning orders would

“‘unnecessarily curtail people’s democratic right to protest’”

and that such orders would be

““a massive civil liberty infringement’”.

This is senior police officers quoted by HMICFRS. They further said that

“‘the proposal is a severe restriction on a person’s rights to protest and in reality, is unworkable’”.

If that is the case, why on earth are the Government introducing the orders, other than to fulfil a rash promise made by the Home Secretary at the Conservative Party conference?

As an illustration of how broad these proposals are, Liberty gave the following example—these are my own words. Somebody could be subjected to a SDPO who has never been convicted of an offence, who attended two protests in the past five years and, 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 in order to prevent the person subject to the SDPO contributing towards another person doing something that was likely to result in serious disruption at some point in the future.

My Amendments 319L and 319M would change the burden of proof for imposing a SDPO to “beyond reasonable doubt” rather than “on the balance of probabilities”. Amendment 319N would remove the ability for a SDPO to be imposed unless the person has been convicted of a protest-related offence. Amendment 319P is to probe whether an unlimited fine for breaching a SDPO is proportionate.

Overall, these are outrageous proposals with serious consequences in terms of police powers, infringement of civil liberties and the creation of new offences, introduced in a wholly unacceptable way at the last minute at the Committee stage in the House of Lords, where the other place will have very little, if any, time to properly consider them, either in Committee or on the Floor of the House. These government amendments must be withdrawn and seriously reconsidered.

[Lord Beith (LD)]

My Lords, I strongly support my noble friend. When I came to this House, I was told that this was a place in which, line by line, we scrutinise legislation to make sure that, whatever its policy objectives, it is properly constructed, workable law. I was also told that we pay particular attention to things that have not been debated fully in the Commons. I came here happily, ready to try to assist in that sort of thing.

That is not what we are doing now. These proposed new clauses have not been considered by the House of Commons. They were not sent to us from the House of Commons; nor were they tabled when they could have been. In her introductory remarks, the Minister did not give us any indication as to why we are getting them at this stage and why they were not tabled in the Commons, or at least at the beginning of Committee stage in the Lords. It seems to me that political considerations have taken precedence over all considerations relating to making good law and, indeed, policing protests satisfactorily and effectively.

This is so unsatisfactory because this group of proposed new clauses covers at least five fundamental issues, to which my noble friend referred. The new offence of locking on is a completely new offence with no obvious precedent in existing law; it therefore requires pretty careful consideration, first, as to whether it is necessary and, secondly, as to what the consequences will be of having on the statute book provisions as bizarre-sounding as some of them are. I will not trouble the Committee with the details at this late hour, but locking on and

“being equipped for locking on”

are wholly new elements being introduced into our criminal law.

Then we have “search without suspicion”. We succeeded in excising that from other, earlier legislation, but here it comes back to us. Subsection (7) of the new clause proposed by Amendment 319F states:

“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.”


Should the person concerned, perhaps out of the sort of anxiety that has arisen after the Sarah Everard case, feel that they are being asked to do something unreasonable, perhaps even dangerous, they must remember this:

“A person commits an offence if the person intentionally obstructs a constable in the exercise of the constable’s powers under section (Powers to stop and search without suspicion).”


This is very discomforting language to find in legislation.

That is two fundamental issues already. Then we have “obstruction of highway”. The Minister explained the reason for one of the odder provisions in that proposed new clause, but it has a rather bizarre effect. Let us say that the road outside your house has been blocked for a week or two by some public undertaking supposedly carrying out works, although you never see any workmen there or anything happening; that is a fairly regular occurrence. You decide with your neighbours to protest about this, so you all gather in the road and effectively block the road, perhaps to the machine that the company has at least brought along. If the company says to you, “You’re blocking the road”, and you say, “No, you’re blocking the road. We’re protesting at you blocking the road”, you are still committing an offence because you are blocking the road—even though it is already blocked. That is what is provided for under this legislation. Sometimes one must look at the secondary consequences of legislating badly.

Then there is “Obstruction etc of major transport works”. I tried to assist the Minister in making this a little clearer; she was very helpful in producing the note that she had been given. However, again, there is a slightly bizarre effect. Having announced that we will not get the rest of HS2 to serve us in the north but, in various other ways, lines will be improved and some bits of new railway will be put in, none of that is covered by any of the provisions referred to, as far as I can see—not that the people of the north are eager to stop rail improvement. Perhaps some of these issues will not arise but, again, if you try to write legislation around an individual set of circumstances that has arisen, you get into trouble. You turn into general law attempts to deal with very specific cases.

Then we come to the issue to which my noble friend Lord Paddick gave particular attention: serious disruption prevention orders. Here, again, I must refer to the work of the Delegated Powers and Regulatory Reform Committee. It described the orders, some of their features and the fact that they can be imposed on people who have not been convicted of any offence—the orders are not limited to the prevention of criminal conduct, either—by saying that the proposed new clause

“allows the Secretary of State to issue guidance to chief officers of police and chief constables in relation to SDPOs, including … identifying persons in respect of whom it may be appropriate for applications for SDPOs to be made”.

I am genuinely puzzled as to what that means or what the consequences will be.

00:30

I am particularly concerned by the advice of the committee that says,

“We consider that new section 342V”,

which is the equivalent of Amendment 319K,

“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 to be highly controversial—including identifying persons in respect of whom the courts may make serious disruption prevention orders under which people who have not been convicted of any offence—and are not considered to be at risk of offending—may nonetheless be made subject to restrictions on liberty backed by criminal penalties.”

That is very serious and I am sure the Minister will have thought about it and seen the report, by this stage. I am concerned to know what she has to say about it. I regard this new material as being inappropriately introduced to the Bill at far too late a stage and very dangerous.

[Lord Paddick (LD)]

My Lords, I apologise. I forgot to speak to five more amendments: Amendments 319Q, 319R, 319S, 319T and 319U, which remove the ability for SDPOs to be renewed.

[Baroness Chakrabarti (Lab)]

My Lords, I will be brief and not repeat the valid and chilling points that have already been made. I just say this: for me to even attempt a line-by-line examination of this whole suite of new amendments would result in not just the Leader coming in to censor me again, but me probably being arrested. I am not going to do that, but I will try to say two things that noble Lords have not said yet.

On locking on and in particular going equipped for locking on, and stop and search with or without suspicion of locking on, I am worried not about the glue referred to by the noble Lord, Lord Paddick, but about people with bicycle locks. I am worried about young people going about their business, sometimes riding to a demonstration or being in the vicinity of potential demonstrations, carrying bicycle locks. I cannot see how they are not potentially in jeopardy, en masse, of both the stop and search powers, and going equipped.

Secondly, as a former Home Office lawyer and a director of Liberty, to me, this suite of measures, which could be a Bill in itself, looks, smells and tastes a lot like anti-terror legislation of the kind that I have always opposed as being disproportionate and counterproductive. Whether it is the new orders, the stop and search powers, including suspicion, or offences including thought crimes, this new Bill within a Bill looks like some of the anti-terror powers that, when they were introduced, noble Lords opposite and elsewhere, and I and some of my noble friends—forgive me, I hope—looked the other way. Those powers have inspired what we see here, but this time they are not for terrorists but protesters.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the Minister gave a powerful justification for upgrading and updating the criminal law to deal with these new forms of protest. She made the point that the general public have had enough, and we recognise that. We have all seen instances of workers begging protesters to let them through to go to work, parents trying to get ill children to hospitals and so on. We have seen frustration turn to fury and people often taking action on their own, dragging protesters away as the police have stood by. At least this section of the Bill makes sense to me based on that motivation, but we have spent hours and hours on previous sections on banning the types of protest in Part 3, which was justified on the basis that it was dealing with those kinds of actions, when in fact none of the measures that we previously discussed would deal with them at all.

The measures that we previously discussed in Part 3 elicited some very fine speeches about the right to protest. I was struck most recently by the speech by the noble Lord, Lord Coaker, which I related to. We were probably on the same miners’ demos. It properly and entirely understood why people were demanding the right to protest. All those fine words were effectively shot down by the Minister on the basis that these are things that we need to do to deal with Extinction Rebellion and these different kinds of protest. In fact, the only dealings that I had when I got caught up in an Extinction Rebellion protest—I mean that I was trying to get through it, rather than that I was on it, in case anyone panics—was when they were doing a five-hour silent vigil in mime. There was no noise involved. But we have spent all that time discussing how noise is going to trigger the police having a huge amount of power to deal with those people.

I find it utterly galling, because now we have a set of amendments, and at least I can understand why the Government have brought them in—and the public will think that they will tackle what they are furious about—and we should therefore, in this House, be able to scrutinise them line by line, as has been explained. People will probably like the locking-on offence—I say “people”, meaning that there might be popular support for it. But the noble Lords, Lord Paddick and Lord Beith, have done a really good take-down of what the consequences of these measures would be beyond the headlines, and people might be less keen on the equipped to lock-on offence. Certainly, when they work out the frightening aspects of the serious disruption prevention orders, they might want to think again. The “causing and contributing to” aspect, as the noble Lord, Lord Paddick, noted, really is a very serious threat to free speech—absolutely. And this is a Government who claim all the time that they are here to defend free speech, but they are introducing, without even casually noting it, something that would absolutely have a damaging effect on free speech.

Maybe I am wrong, and maybe the Government could persuade us that these special kinds of protests need special laws, in which case we should have hours and hours to discuss it. Instead, here we are, fed up, having discussed a whole range of other legislation that was supposed to deal with these issues when in fact, it did not; and now, the things which might deal with those issues we do not have time to discuss. It is frustrating for all of us.

[Baroness Jones of Moulsecoomb (GP)]

When Boris Johnson was Mayor of London, he brought in a rule about not drinking on the tube, which was a solution in search of a problem—because it was not a problem at the time. But it immediately made me want to run out, buy a bottle of gin and go drinking on the tube, because it was such a stupid rule. This provision is a little bit like that: I do not really want to carry a tube of superglue around, but I have on many occasions carried a bike lock. It is absolutely ludicrous.

When the Minister read out the list of amendments, my heart sank. Although I had looked at them all individually, somehow hearing them one after the other made me feel that this is totally wrong. If the Government do not withdraw all these amendments, we should vote against the Bill in its entirety.

The Minister talked about protestors, referring to the issue of whatever their cause may be. But the HS2 protestors, of whom I consider myself one, have actually been trying to save precious things for the nation. It is not fun to be out on a picket line, being shoved around by security guards and hassled by the police constantly. I was standing next to one man on a picket line who said, “I retired last year and I thought I would be birdwatching, but here I am holding a placard”. Those are the sorts of people who have been protesting about HS2; they have been trying to save precious eco-systems for the nation, for all of us, and to prevent the chopping down of ancient woodlands. We really cannot dismiss these people as troublemakers, deserving of all these amendments. I admire the attempts of the noble Lord, Lord Paddick, to improve these measures, but it is a hopeless case.

The Government are very quick to talk about the views of the public and what the public want, perhaps from a few clips on TV and a few emails, but on the sewage amendment to the Environment Bill, they had thousands and thousands of emails, but they absolutely ignored them and carried on allowing sewage to be pumped into our rivers and on to our coastline. So please do not tell me that the public want this. The public did not want sewage, but the Government ignored that. The Government pick and choose to suit themselves what they design legislation around.

As the noble Lord, Lord Beith, mentioned, there is also the late tabling of these amendments. It is a democratic outrage. They are of such legal significance and such a threat to people’s human rights that they should be the subject of a whole Bill, with public discussion about it, public consultation, human rights declarations and equalities impact assessments. Every MP should be furious that they have been bypassed, because the only scrutiny they will get is, if they are lucky, a quick 20 minutes during ping-pong to find out what they are all about. Because they are whipped, they will probably not pay any attention to it anyway. This is nothing more than a naked attack on civil liberties and a crackdown on protest, and we must oppose it for both what it is and how it is being done.

[Lord Oates (LD)]

My Lords, I will speak specifically to government Amendments 319F to 319J on powers to stop and search without suspicion, and Amendment 319K and subsequent amendments on serious disruption orders. Before I do, I add to the comments made by just about all noble Lords on the outrageous way in which the Government have proceeded in this matter. To bring this number of amendments, introducing, as they do, among other things, unlimited fines, wide-ranging suspicionless stop and search powers, the creation of criminal liability on the basis of the civil burden of proof, with powers of indefinite renewal, at such a late stage in the Bill and at this time of night amounts to absolute contempt of Parliament. I may not get to say this often when we are in Parliament together, but on this matter I agree with every word that the noble Baroness, Lady Fox, had to say.

I turn to powers to stop and search without suspicion. As the Minister explained it and as other noble Lords have commented, this provides an extraordinary power, exercisable by any police officer in an area where an inspector or above has delegated that locality, under a whole series of offences. We already know how stop and search powers are abused. We know how disproportionate they are. My noble friend Lord Paddick set out the stark figures.

You do not have to take it from the Liberal Democrat Benches or the other Opposition Benches. We have heard a lot quoted from the former Prime Minister and Home Secretary this evening, but it is worth reminding the Committee of the issues that she has highlighted over suspicionless stop and search and the dangers that causes: the undermining of trust in the police and all the problems that come with that.

The noble Baroness, Lady Chakrabarti, raised the important point that people on bicycles travel with locks. We all have locks on our bicycles. I should be interested to know the Government’s answer. Government Amendment 319J provides for 51-week imprisonment—nearly a year—for anyone who obstructs a police officer who, without suspicion, demands the right to search them. This is not how you stop protest; it is how you cause it.

As if that is not enough, we have heard about government Amendment 319K, which introduces serious disruption prevention orders, creating criminal liability based on the civil burden of proof, and imposing a series of potential restrictions on individuals. The penalty for breaching any of those conditions is imprisonment. As my noble friend Lord Paddick said, these are protest banning orders, and they have no place in our society.

00:45

As others have said, we cannot do justice to scrutinising this; we cannot go through every line, it is absurd. In Amendment 342M, I read:

“This condition in this subsection is that the court is satisfied on the balance of probabilities that … on at least two occasions in the relevant period, P has … been convicted of a protest-related offence … been found in contempt of court for a protest-related breach of an injunction … carried out activities”—

it goes on and on. Here is just one question: why does the court have to be satisfied on the balance of probabilities that somebody has been convicted of something? Surely the court can determine that. Is this written wrongly? Is “the balance of probabilities” supposed to come after subsection (2)(a)(ii)? What does it mean? Why is the court deciding on the balance of probabilities whether someone has been found in contempt of court? That is absurd. But we cannot go through all this. There are probably even more absurd things in it.

The Government have introduced a series of measures which seriously call into question civil liberties in this country, in particular the right to protest. They have done so at a massively late stage in a Bill, and begun the discussion at midnight. If the Government had any sense of decorum, or wished to show some respect to this House and, more to the point, to the people of this country—who may demand action but also demand that the people who govern them act with care and consideration—they would let their legislators properly scrutinise the things that they put before them. We have not been given that chance. The Government should withdraw these amendments, and if they insist on bringing them back, doing so in a form that can be properly debated by both Houses of Parliament.

[Baroness Hamwee (LD)]

My Lords, the noble Baroness, Lady Jones, gave some well-deserved compliments to my noble friend Lord Paddick, but he was not trying to improve these proposed clauses. He was trying to show why they should not go forward, and he did.

There are many points that puzzle me, but I will ask about two. First, on prevention orders, is the phrase “causing or contributing to” used elsewhere in legislation? Certainly, “contributing” is a vaguer term than I have come across elsewhere. Would it extend to financial contributions? Is a response to a crowdfunding appeal caught by it?

The second point, to which my noble friend Lord Beith referred, relates to Amendment 319J. It refers a person who

“intentionally obstructs a constable in the exercise of the constable’s powers”.

How does that fit with the advice given after Sarah Everard’s abduction and murder about requiring another constable to be called, flagging down a bus, and so on? I simply do not understand the policy.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this is my first contribution on this Bill in your Lordships’ House. It is nice to be back.

I am pleased to join my noble friends replying to the debate by setting out the position of the Opposition on the new clauses before us. First, I want to say that this is no way to do business, as has been said. To introduce clauses of such magnitude, complexity and controversy to a Bill in the House of Lords, with the Bill already having left the elected House, is just wrong. It is no way to treat the House of Commons, where the Government have a huge majority; no way to treat the House of Lords; no way to treat Parliament; and, as we have heard from the noble Lord, Lord Oates, no way to treat the public, whatever their view on the matters before us today.

If the Government felt that they needed these powers, they should have introduced a separate Bill in the Commons and treated Parliament, not least the elected House, with some respect. None of us wants to be here at this late hour but the Government have left us no opportunity to do otherwise.

I make it clear that we do not support these clauses that have been added to the Bill in Committee today, and we expect the Government to withdraw them. I also want to be clear that when we come to the Motion on the order in which we will consider the clauses on Report, we expect that these clauses will not be considered until the new year in the last part of our Report-stage consideration of the Bill. If the government Motion does not put that down clearly, I will move a Motion to achieve just that, and I think we will be successful in getting that Motion through the House. I hope the Minister can confirm that these clauses will be debated in the new year at the end of Report.

The Government are creating problems for themselves, and we have seen by their actions in recent weeks that that is nothing new. As I said, the Government are introducing at the last minute clauses that we are not able to consider properly, even today. They were published just a week ago. That is totally unacceptable.

I want to be clear that I condemn the actions of the Insulate Britain protesters. Their tactics are wrong and counterproductive. We have seen images of protesters gluing themselves to roads and people desperate to get their relatives to hospital, and that is completely wrong. I support the right to protest. I have protested, marched, sung, waved placards, stood in line and locked arms with the best of them, and have been doing so for 43 years. Having strong views, being passionate about what you believe in and making your voice heard are good things in a democracy; that is what living in a democracy is about. The Government must recognise that, even though sometimes the protesters do things they do not like. That can be irritating—as my noble friend Lord Coaker said, we can all be irritated when we cannot get across the bridge to come into Parliament or go down the road—but, equally, the way that this has been done is counterproductive and completely wrong.

My honourable friend the Member for Tottenham, Mr David Lammy, said:

“The police have got to have the powers to deal with these issues … endangering lives, creating a situation in which an ambulance travelling with a patient can’t get to the hospital—someone ended up with paralysis as a result of some of these actions—I’m afraid is totally, totally unacceptable.”


I agree with him entirely on that. It is right that the police have the powers that they need to deal with this unacceptable behaviour—but what powers do they genuinely need? What powers are missing? What powers would be effective? What would be the impact of what the Government are suggesting?

It is crucial to remember that although we are responding only to one particularly crass protest, the law that we are debating tonight would not apply to that one crass protest but to all peaceful protest, and that is the issue here. We must be thoughtful and get it right, and that is why the Government’s handling of this issue is so wrong. For me, the key question is: is none of the powers at the disposal of the police and law enforcement today fit for purpose? Is there nothing that can be done? I have key concerns about stop and search and the proposed disruption orders, and a number of questions for the Minister.

I hope that she can set out for us the organisations—the police forces, the National Police Chiefs’ Council or the police and crime commissioners—that have been demanding these powers and these specific tools in front of us tonight. Can the Minister give us more details about why the protesters cannot be dealt with under Acts such as the Public Order Act 1986? Why is it not sufficient? I thought—maybe I am wrong—that, under that Act, if a senior police officer reasonably believes that actions will give cause for serious disruption, they can give directions about where a protest can be held and for how long, and it is an offence to breach those conditions. Can that not limit this action? Maybe I am wrong, and they have got that.

Regarding lock-ons, are we really suggesting that if I go on a protest with my noble friend Lord Coaker, and we hold arms together—lock on—we are committing an offence? Are we suggesting that?

[Lord Coaker (Lab)]

If we bring the equipment.

[Lord Kennedy of Southwark (Lab Co-op)]

Yes, absolutely. Are we really suggesting that? Lock-ons are not new, but what is the basis being used here for dealing with these protesters? Is it only, for example, about taking attachments such as glue or locks? I think I have a padlock sitting on my desk in the office; this is just nonsense. These clauses would affect just two people together; that would have prevented the suffragettes protesting. When we do tours in Parliament, we often stop in St Stephen’s Hall and show our guests the statue that the suffragettes locked themselves on to; we talk about it. Clearly that would have been an offence then, and it is an offence now. If you locked yourself on to the Downing Street gate, I am sure that would be an offence now, so why do we not have the powers already?

Of course, we have powers, so I want to understand why we need to do this. Many people have mentioned the pledge by the Prime Minister in the 2015 election. He was going to

“lie down … in front of those bulldozers”

to stop the third runway. He has pledged other things as well. He would be potentially criminalising himself if he went and did that.

On suspicion-less stop and search, and the serious disruption prevention orders, the Government are mirroring laws that currently exist for serious violence and knife crime. Unless I am wrong, and I am sure the Minister will correct me if I am, these measures apply to peaceful protesters, not people carrying knives or causing violence, and that is a huge issue for us. The noble Lord, Lord Beith, referred to the report of the Delegated Powers and Regulatory Reform Committee, chaired by the noble Lord, Lord Blencathra, a Member on the Conservative Benches. I looked at some of the points made by the committee. It said:

“We consider that new section 342V 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 to be highly controversial—including identifying persons in respect of whom the courts may make serious disruption prevention orders under which people who have not been convicted of any offence—and are not considered to be at risk of offending—may nonetheless be made subject to restrictions on liberty backed by criminal penalties.”


That is pretty extreme, and that is being suggested by the party opposite. I hope that the Government will read very carefully what is being suggested here by the committee.

In conclusion, it is very important that we do not consider these issues until the new year. These are very controversial proposals, whether you agree with them or not, and the fact that we are debating them at 1 o’clock in the morning is not a good place for any of us to be. We need to ensure that they are discussed in the new year and that we keep scrutinising them. I hope the Government will listen to the debate tonight and to the report from the Delegated Powers Committee, and will come back on Report to ensure they temper these measures, because at the moment they are totally unacceptable and would not be passed by the House.

01:00

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken to these amendments. Amendment 319AA would limit the offence of locking on—on the point made by the noble Lord, Lord Paddick, the deputy commissioner has in fact welcomed this offence—to cases where serious disruption had been caused, thereby excluding from the ambit of the offence cases where the use of a lock-on has not caused serious disruption but where the conduct is capable of doing so. Removing this element of the offence would make it possible for those who engage in such behaviour to evade prosecution. This could happen if they were quickly removed by the police or if they removed themselves from the lock-on after having caused some disruption which did not meet the threshold of “serious”.

In a similar vein, it is necessary that the offence can be committed if a person locks on and was reckless as to whether it would cause serious disruption. Amendment 319AB would remove this and have the offence be committed only if there was intent to cause serious disruption. If this amendment were made, a person who is aware of the risk of causing serious disruption but unreasonably took that risk anyway would not be captured by the offence.

What matters here is the protester’s intention and/or the impact of their actions. It may simply be fortuitous that the action of locking on did not cause serious disruption, but, if that was the intent, we believe the offence should apply. Equally, if there was not an intention to cause serious disruption but it was a risk of which they were aware and they unreasonably took that risk, again we believe that such conduct should be covered by the new offence.

A few noble Lords talked about bikes, specifically people innocently going about their business with a bike lock. It is a defence for a person to prove that they had a reasonable excuse for carrying the equipment in question. For example, carrying a bike lock for the purposes of locking one’s bike to a designated space for bikes could be considered a reasonable excuse. The prosecution must also demonstrate that the person intended to use the item in the course of or in connection with the lock-on offence.

A couple of noble Lords asked whether this was a ban on protests. HMICFRS concluded that protest banning orders would not be compatible with human rights, but the report considered only orders that would outright ban an individual from protesting. The two are quite different. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related offences, breaches of injunctions and serious disruption. Depending on the individual circumstances, this might mean that the court will not consider it necessary to stop individuals attending protests. Also, a court as a public authority must not act incompatibly with protesters’ Article 10 and Article 11 rights. This means that the court must decide whether making an SDPO is proportionate in an individual case.

Amendments 319AC, 319BC, 319DC and 319P seek to probe the maximum fine for the new offences created by the government amendments. What were level 5 fines, or a maximum of £5,000, were replaced in 2015 as a result of reforms introduced by the coalition Government through the Legal Aid, Sentencing and Punishment of Offenders Act 2012. We think that an unlimited fine is appropriate in the case of these new offences; a level 1 or level 2 fine, as proposed by the noble Lord, 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.

Amendment 319BA probes what objects it will be a criminal offence to possess under the “in connection with” limb of the going equipped to lock-on offence. This could include items that supported the deployment of a lock-on but did not form a part of it—for example, tools to set up structures to be used in the course of a lock-on.

Amendment 319BB would limit the offence such that a person would only be guilty of going equipped to lock on if they are carrying the equipment to commit the lock-on offence themselves. This would mean that a group of protesters could each legally carry items to lock on for use by others in the group.

Amendment 319DA would limit the scope of the offence to where a person obstructs the setting out of lines for major transport works or actual construction or maintenance. We think that it is necessary to include acts that obstruct steps necessary for facilitating construction. This would include steps such as environmental surveys and the translocation of species. If protesters delay ecological surveys into nesting or hibernation season, construction works may be delayed by a period of a year, potentially adding millions to the cost of HS2.

Amendment 319DB seeks further to narrow the scope of the offence to omit activity where a person interferes with, moves or removes any apparatus necessary for the works. This amendment would enable protesters to interfere with works without committing the offence simply by interfering with equipment rather than the relevant works. It is necessary that this limb of the offence remains.

Finally, turning to the amendments on serious disruption prevention orders, one of the circumstances in which an order can be imposed is when at least two protest-related offences have been committed. Amendments 319L and 319M seek to raise the burden of proof for demonstrating that two offences were protest related from “on the balance of probabilities” to “beyond reasonable doubt”. We have had this debate before, including in the context of serious violence reduction orders, and it is our view that these are civil orders and that it is therefore entirely appropriate for the civil standard of proof to apply in the making of an order. It is already the case that the court must consider the SDPO necessary to prevent a person committing harmful protest-related acts. In the event of a prosecution for breach of an order, of course the prosecution would need to prove the case beyond reasonable doubt.

Amendment 319N removes the ability of the courts to impose an SDPO on application. We think it is essential that the courts should have the power to impose an order in such circumstances. It will allow SDPOs to be placed on those who are intent on causing unjustifiable disruption at a protest but who have not met the criteria for an SDPO on conviction. It is entirely right that, where there is sufficient evidence of a pattern of behaviour that an SDPO be imposed. The public should not have to risk unjustifiable disruption caused by an individual who the police knew was likely to cause such disruption simply because they did not have two prior protest-related convictions. This would mean that even if someone had two convictions, if the application was not made at the time of the second conviction, an application could not be made until they were convicted of a third protest-related offence. This approach is consistent with other risk-based civil orders that may be made in the absence of a conviction—for example, domestic abuse protection orders.

Amendments 319Q to 319U remove the ability for a court to renew an SDPO. Where there is strong evidence that that an individual would go on to cause serious disruption, it is appropriate that the facility exists for SDPOs to be renewed.

Very finally, on the point raised by the noble Lord, Lord Beith, on the DPRRC report, we consider that the negative procedure for the SDPO’s statutory guidance to be appropriate, but we are studying the report and will respond soon.

The question of causing or contributing to felt like a bit of an exam question at the end of quite a long day. I have three Acts in which causing or contributing feature: the Water Act 2014, the Climate Change Act 2008 and the Football Spectators Act 1989. On the question of the noble Lord, Lord Kennedy, about whether these measures will be taken in the new year, the answer is yes.

I am obviously disappointed that the noble Lords, Lord Paddick and Lord Kennedy, have signified their objections to the amendments tabled today but, given that, I will not move them. However, the Committee should be in no doubt that we will retable them for Report and, if necessary, seek the opinion of the House. With that, I beg leave to withdraw Amendment 319A.

[Lord Kennedy of Southwark (Lab Co-op)]

Before the noble Baroness sits down, I want to be absolutely clear about something. I am sure that the answer must be yes, but it would be good to hear it from her, as this is my first time speaking from the Dispatch Box on this Bill. On these SDPOs, I always thought that we operated on the basis that you were innocent until proven guilty in this country; we would all defend that right. These orders can be imposed and have an effect on people who are totally innocent of any crime whatever. Can she confirm that, as it is good to get it absolutely clear on the record? If that is the case, as I am sure it is, that is totally outrageous.

That and other reasons are exactly why we need to ensure that there is the maximum amount of time to enable this House and people outside it to discuss and debate these issues. For that reason, I think it is absolutely right that these amendments be withdrawn. Can these orders be imposed on totally innocent people who have committed no crime?

[Baroness Williams of Trafford (Con)]

Does the noble Lord want a response on the nature of the orders?

[Lord Kennedy of Southwark (Lab Co-op)]

I want confirmation that the Government intend to bring orders in which would be imposed on totally innocent people who have committed no crime.

[Baroness Williams of Trafford (Con)]

They are civil orders; they are preventive measures.

[Lord Paddick (LD)]

If I can assist the House, the first amendment moved in the group was that of the noble Baroness, not mine.

Amendment 319AA (to Amendment 319A) withdrawn.

Amendment 319A withdrawn.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

Amendments 319AB and 319AC are not called because they were amendments to the amendment.

Amendment 319B not moved.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

Amendments 319BA to 319BC are not called because they were amendments to the amendment.

Amendments 319C and 319D not moved.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

Amendments 319DA to 319DC are not called because they were amendments to the amendment.

Amendments 319E to 319K not moved.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

Amendments 319L to 319U are not called because they were amendments to Amendment 319K.

Amendments 320 and 320A not moved.

Clauses 171 and 172 agreed.

Schedule 20: Minor amendments in relation to the sentencing consolidation

Amendment 321

Moved by

[Lord Stewart of Dirleton]

321: Schedule 20, page 297, line 6, at end insert—
“2A_ In the table in section 122(1) (standard scale of fines for summary offences)—(a) in the heading of the second column, for “1 October 1992” substitute “1 May 1984”;(b) between the second and third columns, insert—

“Offence committed on or after 1 May 1984 and before 1 October 1992

£50 £100 £400 £1,000 £2,000””

Member’s explanatory statement
This amendment makes a minor amendment to the Sentencing Act 2020 to correct an omission from that Act in relation to the standard scale of fines for historical summary offences.

[Lord Stewart of Dirleton (Con)]

My Lords, as an unacceptable substitute for my noble friend Lord Wolfson of Tredegar and in the light of the hour, I will simply move the amendment formally.

01:15

[Lord Coaker (Lab)]

Sorry, can I just ask a question? Does this change make any difference? The only reason I ask is because my noble friend Lord Kennedy and I—we are very good friends—looked at this and did not understand it properly, in particular, where it said

“in the heading of the second column, for ‘1 October 1992’ substitute ‘1 May 1984’”.

Given that that is eight years earlier, does that make any difference if you were fined during that period? Will you now get a fine in the post, or will something happen to you? Is it retrospective or does it not make a difference? I just worry that, because of the lateness of the hour, we pass something and then in a month or two—or even three or four months—we find that lots of people start moaning and complaining, quite rightly, that they have suddenly had a letter in the post. Can the noble and learned Lord just explain that to us?

[Lord Stewart of Dirleton (Con)]

I think that I can assist: the provision is not truly retrospective. The Sentencing Act 2020 makes it clear that the repeal of relevant provisions by the Act for the purpose of consolidating sentencing law into the Sentencing Code should not change how the law operates. I hear the noble Lord’s concerns, including that this matter is coming out so late. I will raise it with my noble friend in the Ministry of Justice and he will communicate with the noble Lord in order that these matters can hopefully be clarified to the noble Lord’s satisfaction.

[Lord Coaker (Lab)]

That is very helpful. I thank the noble and learned Lord.

Amendment 321 agreed.

Amendment 322

Moved by

[Lord Stewart of Dirleton]

322: Schedule 20, page 297, line 29, at end insert—
“(2A) In paragraph 34, in the opening words, for “omit” substitute “in”.”Member’s explanatory statement
This amendment corrects an error in paragraph 34 of Schedule 22 to the Sentencing Act 2020, which refers to the omission of subsection (4) of section 257 of that Act rather than providing for the amendment of that subsection.

Amendment 322 agreed.

Schedule 20, as amended, agreed.

Amendment 323 not moved.

Clauses 173 and 174 agreed.

Clause 175: Extent

Amendment 324

Moved by

[Lord Stewart of Dirleton]

324: Clause 175, page 194, line 14, at end insert—
“(ca) section (Expedited procedure for initial regulations about remote observation of proceedings);”Member’s explanatory statement
This amendment provides for the new Clause after Clause 170 in the name of Lord Wolfson of Tredegar to extend to England and Wales, Scotland and Northern Ireland.

Amendment 324 agreed.

Amendment 324A not moved.

Amendment 325

Moved by

[Lord Stewart of Dirleton]

325: Clause 175, page 194, line 29, at end insert—
“(6A) Sections 167 and 168 extend to England and Wales, Scotland and Northern Ireland.”Member’s explanatory statement
This amendment provides for Clauses 167 and 168 to extend to England and Wales, Scotland and Northern Ireland (in consequence of their expanded scope as brought about by the amendments in the name of Lord Wolfson of Tredegar at page 187, line 17 and page 190, lines 27 and 28).

Amendment 325 agreed.

Clause 175, as amended, agreed.

Clause 176: Commencement

Amendments 326 to 328 not moved.

Amendment 329

Moved by

[Lord Stewart of Dirleton]

329: Clause 176, page 195, line 39, leave out paragraph (u) and insert—
“(u) sections 167 and 168;(ua) section (Expedited procedure for initial regulations about remote observation of proceedings);”Member’s explanatory statement
This provides for Clauses 167 and 168, and the new Clause after Clause 170 in the name of Lord Wolfson of Tredegar, to come into force on Royal Assent.

Amendment 329 agreed.

Amendment 330 not moved.

Clause 176, as amended, agreed.

Clause 177 agreed.

House resumed.

Bill reported with amendments.

House adjourned at 1.20 am.