Police, Crime, Sentencing and Courts Bill

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

Commons Amendments

22:18

Motion A

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 73; do not insist on its disagreement with the Commons in their Amendment 73C to the words restored by their disagreement to Amendment 73; do not insist on its disagreement with the Commons in their Amendment 74A to its Amendment 74, on its Amendment 74B to that Amendment in lieu, or on its consequential Amendments 74C, 74D, 74E, 74F and 74G; do not insist on its Amendment 87, or on its disagreement with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E, 87F and 87H to the words restored to the Bill; and do agree with the Commons in their Amendment 73E in lieu of Lords Amendment 73 and in their Amendment 87K to the words restored by their disagreement with Lords Amendment 87.

73E: Page 48, line 8, at end insert—
“(5) The Secretary of State must, before the end of the period of 2 years beginning with the day on which this section comes into force—
(a) prepare and publish a report on the operation of the amendments to section 12 of the Public Order Act 1986 made by this section, and
(b) lay the report before Parliament.”

87K: Page 56, line 32, at end insert—
“(2) The Secretary of State must, before the end of the period of 2 years beginning with the day on which this section comes into force—
(a) prepare and publish a report on the operation of section 14ZA of the Public Order Act 1986, and
(b) lay the report before Parliament.”

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

My Lords, in moving Motion A, and with the leave of the House, I will also speak to Motion B.

We return to familiar ground, namely the powers of the police to attach conditions to a protest, in particular relating to the generation of noise. In our last debate on these issues, we heard quite an entertaining speech from the noble Lord, Lord Coaker, who sought to caricature these provisions, but it would be no laughing matter if a group of protesters camped outside someone’s house or place of work and blasted out noise from loudspeakers at all times of the day and night.

By any objective test—under the Bill it is an objective test—the noise generated would amount to intimidation or harassment or cause those in the vicinity to suffer alarm or distress. In such a case the police should now be able to act, and, as the noble Lord, Lord Hogan-Howe, has pointed out, the public would expect them to act. In such a case, the police could place clear and enforceable conditions on the protest, perhaps prohibiting the use of amplification equipment or musical instruments between the hours of 10 pm and 7 am. So I hope we will not hear again the accusation that these provisions are unworkable. They are workable, proportionate and fully justified, albeit that, as I have said before, we expect them to be infrequently used.

On Motion B, I reiterate that the national policing lead for public order, Chief Constable Harrington, has been clear about the challenges of policing demonstrations which can start off as a procession but morph into an assembly, or vice versa. There is now no good reason for treating the two differently in law, and the provisions in Clause 56 should stand. We will of course want to keep the operation of these provisions under review, and Amendments 73E, 80K and 87K put forward by the Commons now enshrine in the Bill a commitment to post-legislative review to be completed within two years of commencement of the relevant clauses.

This is the third time that noble Lords’ amendments on these issues have been rejected by the Commons. The Commons has now voted on no less than four occasions during the passage of this Bill to endorse the noise-related provisions in Part 3. This brings me to the broader constitutional issue raised by my noble friend Lord Deben in our last debate.

My noble friend argued that the Government was failing to honour “the deal” between your Lordships’ House and the other place. We have honoured that deal and continue to do so. Given that the Commons is the elected House with a democratic mandate, the deal has never been that the other place rolls over whenever this House rejects a particular provision in a Bill. Rather, the deal is that the Commons reflects on the concerns raised by this House and thinks again. Having done so, the Commons may agree the substance of a Lords amendment, may propose a middle way, or may decide, as in this case, that it cannot accept a particular Lords amendment.

In relation to this Bill, there are many examples where the Commons has accepted the letter or the spirit of an amendment put forward by noble Lords, but in relation to the two public order issues, where the two Houses continue to disagree, the Commons has considered and reconsidered the concerns voice by noble Lords but has concluded, as is its right, that the provisions sent to this House last July should stand. The deal is that we, the unelected House, now accept the clearly and repeatedly expressed view of the Commons. We have done our constitutional duty and it is now time to let this Bill pass.

Motion A1 (as an amendment to Motion A)

Moved by

[Lord Coaker]

Leave out from “House” to end and insert “do insist on its Amendment 73; do insist on its disagreement with the Commons in their Amendment 73C to the words restored by their disagreement to Amendment 73; do insist on its disagreement with the Commons in their Amendment 74A to its Amendment 74, on its Amendment 74B to that Amendment in lieu, and on its consequential Amendments 74C, 74D, 74E, 74F and 74G; do insist on its Amendment 87, and on its disagreement with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E, 87F and 87H to the words restored to the Bill; and do disagree with the Commons in their Amendment 73E in lieu of Lords Amendment 73 and in their Amendment 87K to the words restored by their disagreement with Lords Amendment 87.”

[Lord Coaker (Lab)]

My Lords, I beg to move the Motion in my name. I will leave the noble Lord, Lord Paddick, to speak to his worthwhile and important amendment and, in view of the time, will concentrate on those in my name, namely A1 and B2. Amendment A1 would remove the noise provision from marches and one-person protests, while Amendment B2 would remove the noise provision from public assemblies. In other words, we have responded to what the Commons has said and narrowed it down to the particular issue of noise.

I am sure that, in her conclusion, the Minister will point to something that I suggest actually shows the importance of standing up against the Commons to get concessions. As a result of us doing that, the Government have made a concession; they tabled Amendment 73E, which was not in the previous concessions that they gave. As a result of us telling the Commons to think again, it did, and has come forward with Amendment 73E.

The same arguments were made to me last time: that we should not be pushing the Commons again, that we should not be standing up to it again, and that we had done our job and had pushed it as far as we could. Yet we pushed one more time and here is Amendment 73E, where the Government have promised a review—Governments always promise a review of one sort or another when they are in trouble. This amendment promises a review after two years to see whether the noise clause in the Bill is actually working or not. There we are—there is a concession. They do not say what will happen if they find it has not worked, why they have decided on two years, or why they did not include a review in two years of whether they should have put it in, but there we go—there is a review.

I say to the Minister that, of course, the elected House has the right to get its own way, but it does not have the right to do so easily without being held to account, without being pushed and without being made to think about what it is doing. I will come to that with respect to noise in a minute. We have narrowed it down; we have listened, but the Minister and others made exactly the same argument to me a few days ago. I resisted that and said we had every right to push the Commons again and, lo and behold, we get a concession.

I think that is the House of Lords doing its job; I think that is the Minister doing her job. She will have gone back to the Home Office and said: “He’s off again. We’ve got to offer something. What can we do?”—I am not doing a “Yes Minister” plot here, but they would have done “Yes Minister”-type activity. They will have sat in the office, and somebody will have said, “We can offer a review. Minister, it is always very easy to offer a review, because actually it does not mean very much but it sounds good, and we can add a bit around looking at whether the provision works or not. You do not have say you do or you don’t, but actually it is very good because Coaker will have to say, ‘Well, thank you very much for offering us a review.’” My important constitutional point is that it was not in there until I said that it was not our constitutional right to defeat or kill the Bill, but it was our constitutional right to say to the Commons, “You have got this completely wrong on noise.”

I will not name people here—although one is about—but I have been encouraged by noble Lords on all sides saying: “This is barking mad, but sometimes you have to vote for it because you are whipped to vote for it; but you carry on.” And I am going to carry on. I am sure that if people go through Hansard when I was a Home Office Minister, they will be able to find things quite as ridiculous as this, but banning something on the grounds that it is too noisy without any idea how you are going to define “too noisy” is, I suggest, ridiculous.

I say as a serious point that the Government have now adapted and adopted all sorts of conditions that they can put on marches but also added those to assemblies. That is a debate that we and the noble Lord, Lord Paddick, have had on a number of occasions, but the Government have extended the power to put conditions on assemblies. We have now accepted that; we have said that that is the Commons having their way and we will accept it. But on the issue of noise, saying that you can ban a demonstration, a protest or an assembly on the grounds that it is too noisy is not only ridiculous but it undermines the right to protest.

I have said numerous times that I do not attack the Government for wanting to ban protests. I do not attack the Government for wanting to end the right to demonstrate. That is nonsensical; I do not believe that. Although not as much as me, I suspect that one or two Members of your Lordships’ House opposite have been on demonstrations. I hope they have not been too noisy. I do not know what “too noisy” means, but I just say that that is a problem.

The Minister knows that the police did not actually ask for this. I do not know who did. I do not know how it turned up in the Bill, but it did and there it is: we have noise. You can tell the Government are in trouble. I am not going to go through all the various issues that I raised about the brilliant publicity the Government got as a result of me pointing out certain thresholds that had to be met in order for the noise provisions to be implemented, but I say to noble Lords that they should read the Police, Crime, Sentencing and Courts Bill 2021: noise-related provisions factsheet. It is a brilliant piece of government explanation, an exposition on what thresholds have to be met in order for noise conditions to be placed on a demonstration by the police. Only a senior officer will be able to determine what “too noisy” is. I forget the rank. I should have written it down. I think it is chief inspector or above. I wonder whether it should be a chief inspector. We have the noble Lord, Lord Paddick, here. Perhaps he could advise us. What is the correct rank for a police officer to work out whether something is too noisy? Goodness me, it is an important decision that impacts on the right to protest. It cannot just be a chief inspector, so a superintendent, maybe. It could even be something just for the chief of police to determine, but who knows?

22:30

The serious point I am making is that, within this, there are thresholds to be made. I am sure every noble Lord has read this; if not, it is available on the GOV.UK Home Office website, which was helpfully updated on 31 March 2022. I thank the Minister for ensuring that we have up-to-date information to inform our deliberations—this is most helpful. It has a number of hypothetical scenarios in which the “too noisy” provisions might apply. For example, it states:

“A noisy protest in a town centre may not meet the threshold”.

I am pointing this out again because this is what noble Lords are being asked to vote for. We are being asked to vote to include the “too noisy” provisions. I do not know how many noble Lords live in towns—we have a levelling-up agenda, which is wider than it used to be. If you live in a town, it may not meet the threshold. If you are in a city such as London—the noble Lord, Lord Ahmad, will be pleased to know—you will probably be able to use these provisions, but not in a town. In the town where I live, you will probably not be able to use these provisions. It is most disappointing that the “too noisy” provisions may not be able to be used in the place where I live. I almost want to ask, “Hands up, how many people live in a town?”. I am very disappointed by this legislation.

The factsheet also says:

“A noisy protest that only lasts a short amount of time may not meet the threshold”.

I tell the noble Lord, Lord Paddick, that the more I think about this, the more it will require a chief officer. A chief inspector will not know what “a short” period of time means. The guidance says that “a short” period

“of time may not meet the threshold, but a protest creating the same amount of noise over several days might”.

In fact, I think this is not just a government factsheet but a script for “Yes Minister”, which has been leaked to the Home Office and which it has just adopted without reading it.

We then come to the double-glazing threshold. The Minister knows that I have huge regard for her but I would have thought that the Government would have done something about this. I said this last time and I just say it again. The reason I am using humour is that it makes the point. This is a government document; it is about legislation that we are passing. The “too noisy” provision includes:

“A noisy protest outside an office with double glazing may not meet the threshold”.

It just speaks for itself. This applies if you are going to have a demonstration, as I have said. Noble Lords are going to vote for a piece of legislation that will require the police to determine how much double glazing there is on a route to decide whether it will be too noisy. Goodness only knows what will happen with triple glazing. I think this needs an inquiry by the Independent Parliamentary Standards Authority to determine the links between the Conservative Party and double-glazing companies. It is a very serious matter that, in a government document, we have what can be described only as incentives for double glazing and noisy protests. I could go on, but I will not—

[Noble Lords]

More!

[Lord Coaker (Lab)]

No. As an aside, I googled double-gazing companies, just in case the Minister wanted a hand with that. However, I thought that was not taking this, or dealing with this, with the seriousness it needs. I get criticised for using humour but the reason I do so is not to trivialise an important point of principle; all I am doing is saying that I am quoting from a government document on the website, available and updated for the benefit of this deliberation. The Government have got their way on a whole range of different issues; it is the right of the Commons, as the Minister pointed out, to have its way as the elected House. We have an absolute right, though, as the House of Lords, to push right until the last minute on things that are nonsensical. The “too noisy” provision is a nonsense. Protests are about noise.

The police have perfectly adequate powers; they arrest people for making noise, using breaches of the peace and so on. The government document says that the trouble with a breach of the peace is that it does not have very much power, except that the police can arrest you. I would have thought that being able to arrest was adequate. I do not know about other noble Lords but I have never been arrested. I suggest to this House that for the vast majority of people, believing that they were going to be arrested would be a pretty serious threat to them. For the vast majority of people, that would stop them. The Government’s document says that it is not an adequate power. My view is that the power of arrest is a pretty important power that the police can use.

The right to protest is a fundamental right of democracy—a fundamental right that all of us, including me, have used—and one that involves making noise. The Government have got their way in respect of place and conditions, not only on processions but on assembly. We pushed back and the Government have now made a further concession to have a review after two years as to whether this “too noisy” provision has worked. It is time for us to push back again and say that the provision is a nonsense; it is ridiculous. It does not work, it will not work and it is not needed. I hope that when it comes to a Division, noble Lords will consider this a step too far in allowing the police to act to control protests, processions and marches. I beg to move.

[Lord Paddick (LD)]

My Lords, for all the reasons explained by the noble Lord, Lord Coaker, we support Motions A1 and B2 on the noise trigger. Specifically, asking the police to anticipate what noise levels a protest that has yet to take place might result in is likely to bring the police into unnecessary and avoidable conflict with the public, further undermining the trust and confidence that the police rely on to be effective. The more popular the protest, the more likely it is to be noisy and the more likely it is to be banned.

I cannot play the noble Lord, Lord Coaker, at his own game, but he did ask me a specific question about the rank of officer who should be judging whether a protest is too noisy. Perhaps an additional condition should be for that officer to have a hearing test, because we cannot possibly have hearing-impaired senior officers making such important judgments.

On Motions B and B1, we insist on the amendment passed by this House the last time this issue was considered. That amendment allows the police to impose conditions on the start and end time of an assembly, meeting or political rally, in addition to the existing powers they have to set or move where the assembly takes place and to limit the numbers attending and its duration, but not to ban an assembly, meeting or political rally completely. In particular, Article 10 of the European Convention on Human Rights states that everyone has the right to freedom of peaceful assembly and to freedom of association with others.

Of course, it may be necessary, in exceptional circumstances, to place restrictions on this right, and existing legislation and Motion B1 allow that, but when it comes to taking away the right to freedom of peaceful assembly completely, by allowing the police to ban people meeting together, we agree with the then Conservative Home Secretary in the other place when the original legislation was passed that that would be an excessive limit on the right of assembly and freedom of speech. Allowing the police to prevent people peacefully meeting together—to ban political rallies, for example—surely puts us on the slippery slope of the erosion of fundamental human rights and the imposition of a police state. I ask noble Lords to support Motion B1.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise briefly to offer the Green group’s support for Motions A1 and B1. Another thought the police might have to consider is the historical place: how their judgment might be judged, both at that moment and later in history.

I have on my office wall a cartoon from Punch about the suffragettes. It has a whole series of episodes from a Minister’s day. It starts with the Minister in his bath. The suffragettes shout “Votes for women” through his window and he jumps up in horror. He then goes on the golf course. The suffragettes leap out of a bunker and shout “Votes for women”. He then breathes a sigh of relief when he gets to the House. The suffragettes appear through his window, shouting “Votes for women”.

I do not know whether the Minister knows “The March of the Women”, one of the suffragettes’ anthems. It starts:

“Shout, shout, up with your song! Cry with the wind for the dawn is breaking … Loud and louder it swells, Thunder of freedom”.


Noisy protest has been, and is, a central part of our democracy. It has been a central part of creating our democracy. Protest—having your voice heard—is not and must not be a crime.

[Baroness Williams of Trafford (Con)]

My Lords, I thank noble Lords who have contributed to this short debate. I say from the outset that these provisions do not enable the police to ban noisy protests. They enable the police to attach conditions to a protest in relation to the generation of noise. That is quite an important distinction. Similarly, Clause 56 does not enable the police to ban assemblies. I simply reiterate that these provisions represent a measured and proportionate rebalancing of people’s rights to protest peacefully with the rights of those whose lives may be unacceptably disrupted by the tactics employed by the minority of protests—such as those by the group Just Stop Oil, whose members believe that their rights and point of view trump everybody else’s.

Setting aside the substance of the amendments, the central issue now before noble Lords is whether it is appropriate to send these amendments back to the Commons for a third time. We have already—quite properly—asked them to reconsider these issues not once but twice. I do not think that asking the same question for a third time will yield a different answer.

On seniority—that is, the rank of a police officer—for an upcoming protest, the chief constable of the relevant force will be responsible for making the decision on whether the threshold is likely to be met. This power can be delegated to an assistant chief constable under Section 15 of the Public Order Act. For a protest that is already in train, the most senior officer at the scene will decide whether the threshold is met; depending on the circumstances, that senior officer would typically be an inspector, chief inspector or superintendent.

With that said, I hope noble Lords will agree to Motions A and B.

[Lord Coaker (Lab)]

My Lords, I wish to test the opinion of the House on Motion A1.

22:43

Division 11

Ayes: 133

Noes: 180

22:55

Motion A agreed.

Motion B

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 80, do not insist on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E, 80F and 80H to the words restored to the Bill by their disagreement with that Amendment, do not insist on its Amendment 80J instead of the words left out by that Amendment and do agree with the Commons in their Amendment 80K to the words restored to the Bill by their disagreement with Lords Amendment 80.

80K: Page 49, line 34, at end insert—
“(7) The Secretary of State must, before the end of the period of 2 years beginning with the day on which this section comes into force—
(a) prepare and publish a report on the operation of the amendments to section 14 of the Public Order Act 1986 made by this section, and
(b) lay the report before Parliament.”

[Baroness Williams of Trafford (Con)]

I have already spoken to Motion B, so I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

[Lord Paddick]

Leave out from “House” to end and insert “do insist on its Amendment 80, do insist on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E, 80F and 80H to the words restored to the Bill by their disagreement with that Amendment, do insist on its Amendment 80J instead of the words left out of the Bill by that Amendment and do disagree with the Commons in their Amendment 80K to the words restored to the Bill by their disagreement with Lords Amendment 80.”

[The Deputy Speaker (Baroness Fookes) (Con)]

I should inform the House that if Motion B1 is agreed to, I will not be able to call Motion B2 for reasons of pre-emption.

[Lord Paddick (LD)]

I wish to test the opinion of the House.

22:56

Division 12

Ayes: 84

Noes: 171

23:08

Motion B2 (as an amendment to Motion B)

Moved by

[Lord Coaker]

At end insert “and do propose Amendments 80L and 80M to the words so restored, Amendment 80N to Commons Amendment 80A and Amendments 80P, 80Q, 80R, 80S and 80T as consequential amendments—

80L: Page 48, line 14, leave out paragraph (b)

80M: Page 48, line 40, leave out subsection (5)

80N: Leave out subsection (2ZC)

80P: As an amendment to the words so restored, page 49, leave out lines 15 and 16

80Q: As an amendment to the words so restored, page 49, line 19, leave out “an expression mentioned in subsection 11 (a) or (b)” and insert “that expression”

80R: As an amendment to the words so restored, page 49, leave out lines 23 and 24

80S: As an amendment to Commons Amendment 80B, leave out “any of subsections (2ZA) to (2ZC)” and insert “subsection (2ZA) or (2ZB)”

80T: As an amendment to Commons Amendment 80C, leave out “any” and insert “either””

[Lord Coaker (Lab)]

I beg to move.

23:09

Division 13

Ayes: 113

Noes: 169

Motion B agreed.