Online Safety Bill (Seventh sitting)
Thursday 9th June 2022
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 9 June 2022 - (9 Jun 2022)
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Chair
We are now sitting in public and proceedings are being broadcast. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings. I have no objections to Members taking their jackets off—it is very warm in this room.
Clause 17
Duty about content reporting
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
Good morning, Ms Rees. It is a pleasure to serve once again under your chairmanship. I wondered whether the shadow Minister, the hon. Member for Pontypridd, wanted to speak first—I am always happy to follow her, if she would prefer that.
Chris Philp
I do my best.
Clauses 17 and 27 have similar effects, the former applying to user-to-user services and the latter to search services. They set out an obligation on the companies to put in place effective and accessible content reporting mechanisms, so that users can report issues. The clauses will ensure that service providers are made aware of illegal and harmful content on their sites. In relation to priority illegal content, the companies must proactively prevent it in the first place, but in the other areas, they may respond reactively as well.
The clause will ensure that anyone who wants to report illegal or harmful content can do so in a quick and reasonable way. We are ensuring that everyone who needs to do that will be able to do so, so the facility will be open to those who are affected by the content but who are not themselves users of the site. For example, that might be non-users who are the subject of the content, such as a victim of revenge pornography, or non-users who are members of a specific group with certain characteristics targeted by the content, such as a member of the Jewish community reporting antisemitic content. There is also facility for parents and other adults with caring responsibility for children, and adults caring for another adult, to report content. Clause 27 sets out similar duties in relation to search. I commend the clauses to the Committee.
Kirsty Blackman (Aberdeen North) (SNP)
I will talk about this later, when we come to a subsequent clause to which I have tabled some amendments—I should have tabled some to this clause, but unfortunately missed the chance to do so.
I appreciate the Minister laying out why he has designated the people covered by this clause; my concern is that “affected” is not wide enough. My logic is that, on the strength of these provisions, I might not be able to report racist content that I come across on Twitter if I am not the subject of that content—if I am not a member of a group that is the subject of the content or if I am not caring for someone who is the subject of it.
I appreciate what the Minister is trying to do, and I get the logic behind it, but I think the clause unintentionally excludes some people who would have a reasonable right to expect to be able to make reports in this instance. That is why I tabled amendments 78 and 79 to clause 28, about search functions, but those proposals would have worked reasonably for this clause as well. I do not expect a positive answer from the Minister today, but perhaps he could give consideration to my concern. My later amendments would change “affected person” to “any other person”. That would allow anyone to make a report, because if something is illegal content, it is illegal content. It does not matter who makes the report, and it should not matter that I am not a member of the group of people targeted by the content.
I report things all the time, particularly on Twitter, and a significant amount of it is nothing to do with me. It is not stuff aimed at me; it is aimed at others. I expect that a number of the platforms will continue to allow reporting for people who are outwith the affected group, but I do not want to be less able to report than I am currently, and that would be the case for many people who see concerning content on the internet.
Alex Davies-Jones
The hon. Lady is making a really important point. One stark example that comes to my mind is when English footballers suffered horrific racist abuse following the penalty shootout at the Euros last summer. Hundreds of thousands of people reported the abuse that they were suffering to the social media platforms on their behalf, in an outcry of solidarity and support, and it would be a shame if people were prevented from doing that.
Kirsty Blackman
I absolutely agree. I certainly do not think I am suggesting that the bigger platforms such as Twitter and Facebook will reduce their reporting mechanisms as a result of how the Bill is written. However, it is possible that newer or smaller platforms, or anything that starts after this legislation comes, could limit the ability to report on the basis of these clauses.
Barbara Keeley (Worsley and Eccles South) (Lab)
Good morning, Ms Rees.
It is important that users of online services are empowered to report harmful content, so that it can be removed. It is also important for users to have access to complaints procedures when wrong moderation decisions have been made. Reporting and complaint mechanisms are integral to ensuring that users are safe and that free speech is upheld, and we support these provisions in the Bill.
Clauses 17 and 18, and clauses 27 and 28, are two parts of the same process: content reporting by individual users, and the handling of content reported as a complaint. However, it is vital that these clauses create a system that works. That is the key point that Labour Members are trying to make, because the wild west system that we have at the moment does not work.
It is welcome that the Government have proposed a system that goes beyond the users of the platform and introduces a duty on companies. However, companies have previously failed to invest enough money in their complaints systems for the scale at which they are operating in the UK. The duties in the Bill are an important reminder to companies that they are part of a wider society that goes beyond their narrow shareholder interest.
One example of why this change is so necessary, and why Labour Members are broadly supportive of the additional duties, is the awful practice of image abuse. With no access to sites on which their intimate photographs are being circulated, victims of image abuse have very few if any routes to having the images removed. Again, the practice of image abuse has increased during the pandemic, including through revenge porn, which the Minister referred to. The revenge porn helpline reported that its case load more than doubled between 2019 and 2020.
These clauses should mean that people can easily report content that they consider to be either illegal, or harmful to children, if it is hosted on a site likely to be accessed by children, or, if it is hosted on a category 1 platform, harmful to adults. However, the Minister needs to clarify how these service complaints systems will be judged and what the performance metrics will be. For instance, how will Ofcom enforce against a complaint?
In many sectors of the economy, even with long-standing systems of regulation, companies can have tens of millions of customers reporting content, but that does not mean that any meaningful action can take place. The hon. Member for Aberdeen North has just told us how often she reports on various platforms, but what action has taken place? Many advocacy groups of people affected by crimes such as revenge porn will want to hear, in clear terms, what will happen to material that has been complained about. I hope the Minister can offer that clarity today.
Transparency in reporting will be vital to analysing trends and emerging types of harm. It is welcome that in schedule 8, which we will come to later, transparency reporting duties apply to the complaints process. It is important that as much information as possible is made public about what is going on in companies’ complaints and reporting systems. As well as the raw number of complaints, reporting should include what is being reported or complained about, as the Joint Committee on the draft Bill recommended last year. Again, what happens to the reported material will be an important metric on which to judge companies.
Finally, I will mention the lack of arrangements for children. We have tabled new clause 3, which has been grouped for discussion with other new clauses at the end of proceedings, but it is relevant to mention it now briefly. The Children’s Commissioner highlighted in her oral evidence to the Committee how children had lost faith in complaints systems. That needs to be changed. The National Society for the Prevention of Cruelty to Children has also warned that complaints mechanisms are not always appropriate for children and that a very low proportion of children have ever reported content. A child specific user advocacy body could represent the interests of child users and support Ofcom’s regulatory decisions. That would represent an important strengthening of protections for users, and I hope the Government will support it when the time comes.
Jane Stevenson (Wolverhampton North East) (Con)
I rise briefly to talk about content reporting. I share the frustrations of the hon. Member for Aberdeen North. The way I read the Bill was that it would allow users and affected persons, rather than “or” affected persons, to report content. I hope the Minister can clarify that that means affected persons who might not be users of a platform. That is really important.
Will the Minister also clarify the use of human judgment in these decisions? Many algorithms are not taking down some content at the moment, so I would be grateful if he clarified that there is a need for platforms to provide a genuine human judgment on whether content is harmful.
Kirsty Blackman
I want to raise an additional point about content reporting and complaints procedures. I met with representatives of Mencap yesterday, who raised the issue of the accessibility of the procedures that are in place. I appreciate that the Bill talks about procedures being accessible, but will the Minister give us some comfort about Ofcom looking at the reporting procedures that are in place, to ensure that adults with learning disabilities in particular can access those content reporting and complaints procedures, understand them and easily find them on sites?
That is a specific concern that Mencap raised on behalf of its members. A number of its members will be users of sites such as Facebook, but may find it more difficult than others to access and understand the procedures that are in place. I appreciate that, through the Bill, the Minister is making an attempt to ensure that those procedures are accessible, but I want to make sure they are accessible not just for the general public but for children, who may need jargon-free access to content reporting and complaints procedures, and for people with learning disabilities, who may similarly need jargon-free, easy-to-understand and easy-to-find access to those procedures.
Chris Philp
Let me try to address some of the questions that have been raised in this short debate, starting with the question that the hon. Member for Aberdeen North quite rightly asked at the beginning. She posed the question, “What if somebody who is not an affected person encountered some content and wanted to report it?” For example, she might encounter some racist content on Twitter or elsewhere and would want to be able to report it, even though she is not herself the target of it or necessarily a member of the group affected. I can also offer the reassurance that my hon. Friend the Member for Wolverhampton North East asked for.
The answer is to be found in clause 17(2), which refers to
“A duty to operate a service using systems and processes that allow users and”—
I stress “and”—“affected persons”. As such, the duty to offer content reporting is to users and affected persons, so if the hon. Member for Aberdeen North was a user of Twitter but was not herself an affected person, she would still be able to report content in her capacity as a user. I hope that provides clarification.
Kirsty Blackman
I appreciate that. That is key, and I am glad that this is wider than just users of the site. However, taking Reddit as an example, I am not signed up to that site, but I could easily stumble across content on it that was racist in nature. This clause would mean that I could not report that content unless I signed up to Reddit, because I would not be an affected person or a user of that site.
Chris Philp
I thank the hon. Lady for her clarificatory question. I can confirm that in order to be a user of a service, she would not necessarily have to sign up to it. The simple act of browsing that service, of looking at Reddit—not, I confess, an activity that I participate in regularly—regardless of whether or not the hon. Lady has an account with it, makes her a user of that service, and in that capacity she would be able to make a content report under clause 17(2) even if she were not an affected person. I hope that clears up the question in a definitive manner.
The hon. Lady asked in her second speech about the accessibility of the complaints procedure for children. That is strictly a matter for clause 18, which is the next clause, but I will quickly answer her question. Clause 18 contains provisions that explicitly require the complaints process to be accessible. Subsection (2)(c) states that the complaints procedure has to be
“easy to access, easy to use (including by children) and transparent”,
so the statutory obligation that she requested is there in clause 18.
Kirsty Blackman
Can the Minister explain the logic in having that phrasing for the complaints procedure but not for the content-reporting procedure? Surely it would also make sense for the content reporting procedure to use the phrasing
“easy to access, easy to use (including by children) and transparent.”
Chris Philp
There is in clause 17(2)
“a duty to operate a service that allows users and affected persons to easily report content which they consider to be content of a…kind specified below”,
which, of course, includes services likely to be accessed by children, under subsection (4). The words “easily report” are present in clause 17(2).
I will move on to the question of children reporting more generally, which the shadow Minister raised as well. Clearly, a parent or anyone with responsibility for a child has the ability to make a report, but it is also worth mentioning the power in clauses 140 to 142 to make super-complaints, which the NSPCC strongly welcomed its evidence. An organisation that represents a particular group—an obvious example is the NSPCC representing children, but it would apply to loads of other groups—has the ability to make super-complaints to Ofcom on behalf of those users, if it feels they are not being well treated by a platform. A combination of the parent or carer being able to make individual complaints, and the super-complaint facility, means that the points raised by Members are catered for. I commend the clause to the Committee.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Clause 18
Duties about complaints procedures
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 78, in clause 28, page 28, line 28, leave out “affected” and replace with “any other”
This amendment allows those who do not fit the definition of “affected person” to make a complaint about search content which they consider to be illegal.
Amendment 79, in clause 28, page 28, line 30, leave out “affected” and replace with “any other”
This amendment allows those who do not fit the definition of “affected person” to make a complaint about search content which they consider not to comply with sections 24, 27 or 29.
Clause 28 stand part.
New clause 1—Report on redress for individual complaints—
“(1) The Secretary of State must publish a report assessing options for dealing with appeals about complaints made under—
(a) section 18; and
(b) section 28
(2) The report must—
(a) provide a general update on the fulfilment of duties about complaints procedures which apply in relation to all regulated user-to-user services and regulated search services;
(b) assess which body should be responsible for a system to deal with appeals in cases where a complainant considers that a complaint has not been satisfactorily dealt with; and
(c) provide options for how the system should be funded, including consideration of whether an annual surcharge could be imposed on user-to-user services and search services.
(3) The report must be laid before Parliament within six months of the commencement of this Act.”
Barbara Keeley
I will speak to new clause 1. Although duties about complaints procedures are welcome, it has been pointed out that service providers’ user complaints processes are often obscure and difficult to navigate—that is the world we are in at the moment. The lack of any external complaints option for individuals who seek redress is worrying.
The Minister has just talked about the super-complaints mechanism—which we will come to later in proceedings—to allow eligible entities to make complaints to Ofcom about a single regulated service if that complaint is of particular importance or affects a particularly large number of service users or members of the public. Those conditions are constraints on the super-complaints process, however.
An individual who felt that they had been failed by a service’s complaints system would have no source of redress. Without redress for individual complaints once internal mechanisms have been exhausted, victims of online abuse could be left with no further options, consumer protections could be compromised, and freedom of expression could be impinged upon for people who felt that their content had been unfairly removed.
Various solutions have been proposed. The Joint Committee recommended the introduction of an online safety ombudsman to consider complaints for which recourse to internal routes of redress had not resulted in resolution and the failure to address risk had led to significant and demonstrable harm. Such a mechanism would give people an additional body through which to appeal decisions after they had come to the end of a service provider’s internal process. Of course, we as hon. Members are all familiar with the ombudsman services that we already have.
Concerns have been raised about the level of complaints such an ombudsman could receive. However, as the Joint Committee noted, complaints would be received only once the service’s internal complaints procedure had been exhausted, as is the case for complaints to Ofcom about the BBC. The new clause seeks to ensure that we find the best possible solution to the problem. There needs to be a last resort for users who have suffered serious harm on services. It is only through the introduction of an external redress mechanism that service providers can truly be held to account for their decisions as they impact on individuals.
Dame Maria Miller (Basingstoke) (Con)
I rise to contribute to the stand part debate on clauses 18 and 28. It was interesting, though, to hear the debate on clause 17, because it is right to ask how the complaints services will be judged. Will they work in practice? When we start to look at how to ensure that the legislation works in all eventualities, we need to ensure that we have some backstops for when the system does not work as it should.
It is welcome that there will be clear duties on providers to have operational complaints procedures—complaints procedures that work in practice. As we all know, many of them do not at the moment. As a result, we have a loss of faith in the system, and that is not going to be changed overnight by a piece of legislation. For years, people have been reporting things—in some cases, very serious criminal activity—that have not been acted on. Consumers—people who use these platforms—are not going to change their mind overnight and suddenly start trusting these organisations to take their complaints seriously. With that in mind, I hope that the Minister listened to the points I made on Second Reading about how to give extra support to victims of crimes or people who have experienced things that should not have happened online, and will look at putting in place the right level of support.
The hon. Member for Worsley and Eccles South talked about the idea of an ombudsman; it may well be that one should be in place to deal with situations where complaints are not dealt with through the normal processes. I am also quite taken by some of the evidence we received about third-party complaints processes by other organisations. We heard a bit about the revenge porn helpline, which was set up a few years ago when we first recognised in law that revenge pornography was a crime. The Bill creates a lot more victims of crime and recognises them as victims, but we are not yet hearing clearly how the support systems will adequately help that massively increased number of victims to get the help they need.
I will probably talk in more detail about this issue when we reach clause 70, which provides an opportunity to look at the—unfortunately—probably vast fines that Ofcom will be imposing on organisations and how we might earmark some of that money specifically for victim support, whether by funding an ombudsman or helping amazing organisations such as the revenge porn helpline to expand their services.
We must address this issue now, in this Bill. If we do not, all those fines will go immediately into the coffers of the Treasury without passing “Go”, and we will not be able to take some of that money to help those victims directly. I am sure the Government absolutely intend to use some of the money to help victims, but that decision would be at the mercy of the Treasury. Perhaps we do not want that; perhaps we want to make it cleaner and easier and have the money put straight into a fund that can be used directly for people who have been victims of crime or injustice or things that fall foul of the Bill.
I hope that the Minister will listen to that and use this opportunity, as we do in other areas, to directly passport fines for specific victim support. He will know that there are other examples of that that he can look at.
Kirsty Blackman
As the right hon. Member for Basingstoke has mentioned the revenge porn helpline, I will mention the NSPCC’s Report Remove tool for children. It does exactly the same thing, but for younger people—the revenge porn helpline is specifically only for adults. Both those tools together cover the whole gamut, which is massively helpful.
The right hon. Lady’s suggestion about the hypothecation of fines is a very good one. I was speaking to the NSPCC yesterday, and one of the issues that we were discussing was super-complaints. Although super-complaints are great and I am very glad that they are included in the Bill, the reality is that some of the third-sector organisations that are likely to be undertaking super-complaints are charitable organisations that are not particularly well funded. Given how few people work for some of those organisations and the amazing amount of work they do, if some of the money from fines could support not just victims but the initial procedure for those organisations to make super-complaints, it would be very helpful. That is, of course, if the Minister does not agree with the suggestion of creating a user advocacy panel, which would fulfil some of that role and make that support for the charitable organisations less necessary—although I am never going to argue against support for charities: if the Minister wants to hypothecate it in that way, that would be fantastic.
I tabled amendments 78 and 79, but the statement the Minister made about the definition of users gives me a significant level of comfort about the way that people will be able to access a complaints procedure. I am terribly disappointed that the Minister is not a regular Reddit user. I am not, either, but I am well aware of what Reddit entails. I have no desire to sign up to Reddit, but knowing that even browsing the site I would be considered a user and therefore able to report any illegal content I saw, is massively helpful. On that basis, I am comfortable not moving amendments 78 and 79.
On the suggestion of an ombudsman—I am looking at new clause 1—it feels like there is a significant gap here. There are ombudsman services in place for many other areas, where people can put in a complaint and then go to an ombudsman should they feel that it has not been appropriately addressed. As a parliamentarian, I find that a significant number of my constituents come to me seeking support to go to the ombudsman for whatever area it is in which they feel their complaint has not been appropriately dealt with. We see a significant number of issues caused by social media companies, in particular, not taking complaints seriously, not dealing with complaints and, in some cases, leaving illegal content up. Particularly in the initial stages of implementation—in the first few years, before companies catch up and are able to follow the rules put in place by the Bill and Ofcom—a second-tier complaints system that is removed from the social media companies would make things so much better than they are now. It would provide an additional layer of support to people who are looking to make complaints.
Dame Maria Miller
I am sure the hon. Lady will agree with me that it is not either/or—it is probably both. Ultimately, she is right that an ombudsman would be there to help deal with what I think will be a lag in implementation, but if someone is a victim of online intimate image abuse, in particular, they want the material taken down immediately, so we need to have organisations such as those that we have both mentioned there to help on the spot. It has to be both, has it not?
Kirsty Blackman
I completely agree. Both those helplines do very good work, and they are absolutely necessary. I would strongly support their continuation in addition to an ombudsman-type service. Although I am saying that the need for an ombudsman would likely be higher in the initial bedding-in years, it will not go away—we will still need one. With NHS complaints, the system has been in place for a long time, and it works pretty well in the majority of cases, but there are still cases it gets wrong. Even if the social media companies behave in a good way and have proper complaints procedures, there will still be instances of them getting it wrong. There will still be a need for a higher level. I therefore urge the Minister to consider including new clause 1 in the Bill.
Shaun Bailey (West Bromwich West) (Con)
It is a pleasure to see you in the Chair, Ms Rees, and to make my first contribution in Committee—it will be a brief one. It is great to follow the hon. Member for Aberdeen North, and I listened intently to my right hon. Friend the Member for Basingstoke, from whom I have learned so much having sat with her in numerous Committees over the past two years.
I will speak to clause 18 stand part, in particular on the requirements of the technical specifications that the companies will need to use to ensure that they fulfil the duties under the clause. The point, which has been articulated well by numerous Members, is that we can place such a duty on service providers, but we must also ensure that the technical specifications in their systems allow them to follow through and deliver on it.
I sat in horror during the previous sitting as I listened to the hon. Member for Pontypridd talking about the horrendous abuse that she has to experience on Twitter. What that goes to show is that, if the intention of this clause and the Bill are to be fulfilled, we must ensure that the companies enable themselves to have the specifications in their systems on the ground to deliver the requirements of the Bill. That might mean that the secondary legislation is slightly more prescriptive about what those systems look like.
It is all well and good us passing primary legislation in this place to try to control matters, but my fear is that if those companies do not have systems such that they can follow through, there is a real risk that what we want will not materialise. As we proceed through the Bill, there will be mechanisms to ensure that that risk is mitigated, but the point that I am trying to make to my hon. Friend the Minister is that we should ensure that we are on top of this, and that companies have the technical specifications in their complaints procedures to meet the requirements under clause 18.
We must ensure that we do not allow the excuse, “Oh, well, we’re a bit behind the times on this.” I know that later clauses seek to deal with that, but it is important that we do not simply fall back on excuses. We must embed a culture that allows the provisions of the clause to be realised. I appeal to the Minister to ensure that we deal with that and embed a culture that looks at striding forward to deal with complaints procedures, and that these companies have the technical capabilities on the ground so that they can deal with these things swiftly and in the right way. Ultimately, as my right hon. Friend the Member for Basingstoke said, it is all well and good us making these laws, but it is vital that we ensure that they can be applied.
Chris Philp
Let me address some of the issues raised in the debate. First, everyone in the House recognises the enormous problem at the moment with large social media firms receiving reports about harmful and even illegal content that they just flagrantly ignore. The purpose of the clause, and indeed of the whole Bill and its enforcement architecture, is to ensure that those large social media firms no longer ignore illegal and harmful content when they are notified about it. We agree unanimously on the importance of doing that.
The requirement for those firms to take the proper steps is set out in clause 18(2)(b), at the very top of page 18 —it is rather depressing that we are on only the 18th of a couple of hundred pages. That paragraph creates a statutory duty for a social media platform to take “appropriate action”—those are the key words. If the platform is notified of a piece of illegal content, or content that is harmful to children, or of content that it should take down under its own terms and conditions if harmful to adults, then it must do so. If it fails to do so, Ofcom will have the enforcement powers available to it to compel—ultimately, escalating to a fine of up to 10% of global revenue or even service disconnection.
Chris Philp
Let me develop the point before I give way. Our first line of defence is Ofcom enforcing the clause, but we have a couple of layers of additional defence. One of those is the super-complaints mechanism, which I have mentioned before. If a particular group of people, represented by a body such as the NSPCC, feel that their legitimate complaints are being infringed systemically by the social media platform, and that Ofcom is failing to take the appropriate action, they can raise that as a super-complaint to ensure that the matter is dealt with.
Chris Philp
I should give way to the hon. Member for Aberdeen North first, and then I will come to the shadow Minister.
Kirsty Blackman
I wanted to ask specifically about the resourcing of Ofcom, given the abilities that it will have under this clause. Will Ofcom have enough resource to be able to be that secondary line of defence?
Chris Philp
A later clause gives Ofcom the ability to levy the fees and charges it sees as necessary and appropriate to ensure that it can deliver the duties. Ofcom will have the power to set those fees at a level to enable it to do its job properly, as Parliament would wish it to do.
Barbara Keeley
This is the point about individual redress again: by talking about super-complaints, the Minister seems to be agreeing that it is not there. As I said earlier, for super-complaints to be made to Ofcom, the issue has to be of particular importance or to impact a particularly large number of users, but that does not help the individual. We know how much individuals are damaged; there must be a system of external redress. The point about internal complaints systems is that we know that they are not very good, and we require a big culture change to change them, but unless there is some mechanism thereafter, I cannot see how we are giving the individual any redress—it is certainly not through the super-complaints procedure.
Chris Philp
As I said explicitly a few moments ago, the hon. Lady is right to point out the fact that the super-complaints process is to address systemic issues. She is right to say that, and I think I made it clear a moment or two ago.
Whether there should be an external ombudsman to enforce individual complaints, rather than just Ofcom enforcing against systemic complaints, is a question worth addressing. In some parts of our economy, we have ombudsmen who deal with individual complaints, financial services being an obvious example. The Committee has asked the question, why no ombudsman here? The answer, in essence, is a matter of scale and of how we can best fix the issue. The volume of individual complaints generated about social media platforms is just vast. Facebook in the UK alone has tens of millions of users—I might get this number wrong, but I think it is 30 million or 40 million users.
Chris Philp
I will in a moment. The volume of complaints that gets generated is vast. The way that we will fix this is not by having an external policeman to enforce on individual complaints, but by ensuring that the systems and processes are set up correctly to deal with problems at this large scale. [Interruption.] The shadow Minister, the hon. Member for Pontypridd, laughs, but it is a question of practicality. The way we will make the internet safe is to make sure that the systems and processes are in place and effective. Ofcom will ensure that that happens. That will protect everyone, not just those who raise individual complaints with an ombudsman.
Several hon. Members rose—
Chris Philp
I can see that there is substantial demand to comment, so I shall start by giving way to my right hon. Friend the Member for Basingstoke.
Dame Maria Miller
The Minister is doing an excellent job explaining the complex nature of the Bill. Ultimately, however, as he and I know, it is not a good argument to say that this is such an enormous problem that we cannot have a process in place to deal with it. If my hon. Friend looks back at his comments, he will see that that is exactly the point he was making. Although it is possibly not necessary with this clause, I think he needs to give some assurances that later in the Bill he will look at hypothecating some of the money to be generated from fines to address the issues of individual constituents, who on a daily basis are suffering at the hands of the social media companies. I apologise for the length of my intervention.
Chris Philp
It is categorically not the Government’s position that this problem is too big to fix. In fact, the whole purpose of this piece of groundbreaking and world-leading legislation is to fix a problem of such magnitude. The point my right hon. Friend was making about the hypothecation of fines to support user advocacy is a somewhat different one, which we will come to in due course, but there is nothing in the Bill to prevent individual groups from assisting individuals with making specific complaints to individual companies, as they are now entitled to do in law under clauses 17 and 18.
The point about an ombudsman is a slightly different one—if an individual complaint is made to a company and the individual complainant is dissatisfied with the outcome of their individual, particular and personal complaint, what should happen? In the case of financial services, if, for example, someone has been mis-sold a mortgage and they have suffered a huge loss, they can go to an ombudsman who will bindingly adjudicate that individual, single, personal case. The point that I am making is that having hundreds of thousands or potentially millions of cases being bindingly adjudicated on a case-by- case basis is not the right way to tackle a problem of this scale. The right way to tackle the problem is to force the social media companies, by law, to systemically deal with all of the problem, not just individual problems that may end up on an ombudsman’s desk.
That is the power in the Bill. It deals at a systems and processes level, it deals on an industry-wide level, and it gives Ofcom incredibly strong enforcement powers to make sure this actually happens. The hon. Member for Pontypridd has repeatedly called for a systems and processes approach. This is the embodiment of such an approach and the only way to fix a problem of such magnitude.
Kim Leadbeater
I associate myself with the comments of the right hon. Member for Basingstoke. Surely, if we are saying that this is such a huge problem, that is an argument for greater stringency and having an ombudsman. We cannot say that this is just about systems. Of course it is about systems, but online harms—we have heard some powerful examples of this—are about individuals, and we have to provide redress and support for the damage that online harms do to them. We have to look at systemic issues, as the Minister is rightly doing, but we also have to look at individual cases. The idea of an ombudsman and greater support for charities and those who can support victims of online crime, as mentioned by the hon. Member for Aberdeen North, is really important.
Chris Philp
I thank the hon. Lady for her thoughtful intervention. There are two separate questions here. One is about user advocacy groups helping individuals to make complaints to the companies. That is a fair point, and no doubt we will debate it later. The ombudsman question is different; it is about whether to have a right of appeal against decisions by social media companies. Our answer is that, rather than having a third-party body—an ombudsman—effectively acting as a court of appeal against individual decisions by the social media firms, because of the scale of the matter, the solution is to compel the firms, using the force of law, to get this right on a systemic and comprehensive basis.
Chris Philp
I give way first to the hon. Member for Aberdeen North—I think she was first on her feet—and then I will come to the hon. Member for Pontypridd.
Kirsty Blackman
Does the Minister not think this is going to work? He is creating this systems and processes approach, which he suggests will reduce the thousands of complaints—complaints will be made and complaints procedures will be followed. Surely, if it is going to work, in 10 years’ time we are going to need an ombudsman to adjudicate on the individual complaints that go wrong. If this works in the way he suggests, we will not have tens of millions of complaints, as we do now, but an ombudsman would provide individual redress. I get what he is arguing, but I do not know why he is not arguing for both things, because having both would provide the very best level of support.
Chris Philp
I will address the review clause now, since it is relevant. If, in due course, as I hope and expect, the Bill has the desired effect, perhaps that would be the moment to consider the case for an ombudsman. The critical step is to take a systemic approach, which the Bill is doing. That engages the question of new clause 1, which would create a mechanism, probably for the reason the hon. Lady just set out, to review how things are going and to see if, in due course, there is a case for an ombudsman, once we see how the Bill unfolds in practice.
Chris Philp
Let me finish the point. It is not a bad idea to review it and see how it is working in practice. Clause 149 already requires a review to take place between two and four years after Royal Assent. For the reasons that have been set out, it is pretty clear from this debate that we would expect the review to include precisely that question. If we had an ombudsman on day one, before the systems and processes had had a chance to have their effect, I fear that the ombudsman would be overwhelmed with millions of individual issues. The solution lies in fixing the problem systemically.
Several hon. Members rose—
Chris Philp
I think the shadow Minister wanted to intervene, unless I have answered her point already.
Alex Davies-Jones
I wanted to reiterate the point that the hon. Member for Aberdeen North made, which the Minister has not answered. If he has such faith that the systems and processes will be changed and controlled by Ofcom as a result of the Bill, why is he so reluctant to put in an ombudsman? It will not be overwhelmed with complaints if the systems and processes work, and therefore protect victims. We have already waited far too long for the Bill, and now he says that we need to wait two to four years for a review, and even longer to implement an ombudsman to protect victims. Why will he not just put this in the Bill now to keep them safe?
Chris Philp
Because we need to give the new systems and processes time to take effect. If the hon. Lady felt so strongly that an ombudsman was required, she was entirely at liberty to table an amendment to introduce one, but she has not done so.
Jane Stevenson
I wonder whether Members would be reassured if companies were required to have a mechanism by which users could register their dissatisfaction, to enable an ombudsman, or perhaps Ofcom, to gauge the volume of dissatisfaction and bring some kind of group claim against the company. Is that a possibility?
Chris Philp
Yes. My hon. Friend hits the nail on the head. If there is a systemic problem and a platform fails to act appropriately not just in one case, but in a number of them, we have, as she has just described, the super-complaints process in clauses 140 to 142. Even under the Bill as drafted, without any changes, if a platform turns out to be systemically ignoring reasonable complaints made by the public and particular groups of users, the super-complainants will be able to do exactly as she describes. There is a mechanism to catch this—it operates not at individual level, but at the level of groups of users, via the super-complaint mechanism—so I honestly feel that the issue has been addressed.
When the numbers are so large, I think that the super-complaint mechanism is the right way to push Ofcom if it does not notice. Obviously, the first line of defence is that companies comply with the Bill. The second line of defence is that if they fail to do so, Ofcom will jump on them. The third line of defence is that if Ofcom somehow does not notice, a super-complaint group—such as the NSPCC, acting for children—will make a super-complaint to Ofcom. We have three lines of defence, and I submit to the Committee that they are entirely appropriate.
Barbara Keeley
The Minister said that the Opposition had not tabled an amendment to bring in an ombudsman.
Barbara Keeley
On this clause. What we have done, however—we are debating it now—is to table a new clause to require a report on redress for individual complaints. The Minister talks about clause 149 and a process that will kick in between two and five years away, but we have a horrendous problem at the moment. I and various others have described the situation as the wild west, and very many people—thousands, if not millions, of individuals—are being failed very badly. I do not see why he is resisting our proposal for a report within six months of the commencement of the Act, which would enable us to start to see at that stage, not two to five years down the road, how these systems—he is putting a lot of faith in them—were turning out. I think that is a very sound idea, and it would help us to move forward.
Chris Philp
The third line of defence—the super-complaint process—is available immediately, as I set out a moment ago. In relation to new clause 1, which the hon. Lady mentioned a moment ago, I think six months is very soon for a Bill of this magnitude. The two-to-five-year timetable under the existing review mechanism in clause 149 is appropriate.
Although we are not debating clause 149, I hope, Ms Rees, that you will forgive me for speaking about it for a moment. If Members turn to pages 125 and 126 and look at the matters covered by the review, they will see that they are extraordinarily comprehensive. In effect, the review covers the implementation of all aspects of the Bill, including the need to minimise the harms to individuals and the enforcement and information-gathering powers. It covers everything that Committee members would want to be reviewed. No doubt as we go through the Bill we will have, as we often do in Bill Committee proceedings, a number of occasions on which somebody tables an amendment to require a review of x, y or z. This is the second such occasion so far, I think, and there may be others. It is much better to have a comprehensive review, as the Bill does via the provisions in clause 149.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Clause 19
Duties about freedom of expression and privacy
Question proposed, That the clause stand part of the Bill.
Chris Philp
Clause 19, on user-to-user services, and its associated clause 29, which relates to search services, specify a number of duties in relation to freedom of expression and privacy. In carrying out their safety duties, in-scope companies will be required by clause 19(2) to have regard to the importance of protecting users’ freedom of expression and privacy.
Let me pause for a moment on this issue. There has been some external commentary about the Bill’s impact on freedom of expression. We have already seen, via our discussion of a previous clause, that there is nothing in the Bill that compels the censorship of speech that is legal and not harmful to children. I put on the record again the fact that nothing in the Bill requires the censorship of legal speech that poses no harm to children.
We are going even further than that. As far as I am aware, for the first time ever there will be a duty on social media companies, via clause 19(2), to have regard to freedom of speech. There is currently no legal duty at all on platforms to have regard to freedom of speech. The clause establishes, for the first time, an obligation to have regard to freedom of speech. It is critical that not only Committee members but others more widely who consider the Bill should bear that carefully in mind. Besides that, the clause speaks to the right to privacy. Existing laws already speak to that, but the clause puts it in this Bill as well. Both duties are extremely important.
In addition, category 1 service providers—the really big ones—will need proactively to assess the impact of their policies on freedom of expression and privacy. I hope all Committee members will strongly welcome the important provisions I have outlined.
Barbara Keeley
As the Minister says, clauses 19 and 29 are designed to provide a set of balancing provisions that will require companies to have regard to freedom of expression and privacy when they implement their safety duties. However, it is important that companies cannot use privacy and free expression as a basis to argue that they can comply with regulation in less substantive ways. That is a fear here.
Category 1 providers will need to undertake an impact assessment to determine the impact of their product and safety decisions on freedom of expression, but it is unclear whether that applies only in respect of content that is harmful to adults. Unlike with the risk assessments for the illegal content and child safety duties set out in part 3, chapter 2, these clauses do not set expectations about whether risk assessments are of a suitable and sufficient quality. It is also not clear what powers Ofcom has at its disposal to challenge any assessments that it considers insufficient or that reach an inappropriate or unreasonable assessment of how to balance fundamental rights. I would appreciate it if the Minister could touch on that when he responds.
The assumption underlying these clauses is that privacy and free expression may need to act as a constraint on safety measures, but I believe that that is seen quite broadly as simplistic and potentially problematic. To give one example, a company could argue that end-to-end encryption is important for free expression, and privacy could justify any adverse impact on users’ safety. The subjects of child abuse images, which could more easily be shared because of such a decision, would see their safety and privacy rights weakened. Such an argument fails to take account of the broader nuance of the issues at stake. Impacts on privacy and freedom of expression should therefore be considered across a range of groups rather than assuming an overarching right that applies equally to all users.
Similarly, it will be important that Ofcom understands and delivers its functions in relation to these clauses in a way that reflects the complexity and nuance of the interplay of fundamental rights. It is important to recognise that positive and negative implications for privacy and freedom of expression may be associated with any compliance decision. I think the Minister implied that freedom of speech was a constant positive, but it can also have negative connotations.
Kirsty Blackman
I am pleased that the clause is in the Bill, and I think it is a good one to include. Can the Minister reaffirm what he said on Tuesday about child sexual abuse, and the fact that the right to privacy does not trump the ability—particularly with artificial intelligence—to search for child sexual abuse images?
Chris Philp
I confirm what the hon. Lady has just said. In response to the hon. Member for Worsley and Eccles South, it is important to say that the duty in clause 19 is “to have regard”, which simply means that a balancing exercise must be performed. It is not determinative; it is not as if the rights in the clause trump everything else. They simply have to be taken into account when making decisions.
To repeat what we discussed on Tuesday, I can explicitly and absolutely confirm to the hon. Member for Aberdeen North that in my view and the Government’s, concerns about freedom of expression or privacy should not trump platforms’ ability to scan for child sexual exploitation and abuse images or protect children. It is our view that there is nothing more important than protecting children from exploitation and sexual abuse.
We may discuss this further when we come to clause 103, which develops the theme a little. It is also worth saying that Ofcom will be able to look at the risk assessments and, if it feels that they are not of an adequate standard, take that up with the companies concerned. We should recognise that the duty to have regard to freedom of expression is not something that currently exists. It is a significant step forward, in my view, and I commend clauses 19 and 29 to the Committee.
Nick Fletcher (Don Valley) (Con)
I have been contacted by a number of people about this clause, and they have serious concerns about the “have regard” statement. The Christian Institute said that it was
“promised ‘considerably stronger protections for free speech’, but the Bill does not deliver. Internet companies will be under ‘a duty to have regard to the importance of’ protecting free speech,”
but a “have regard” duty
“has no weight behind it. It is perfectly possible to…have regard to something…and then ignore it in practice.”
The “have regard” duty is not strong enough, and it is a real concern for a lot of people out there. Protecting children is absolutely imperative, but there are serious concerns when it comes to freedom of speech. Can the Minister address them for me?
Chris Philp
As I have said, at the moment there is nothing at all. Platforms such as Facebook can and do arbitrarily censor content with little if any regard for freedom of speech. Some platforms have effectively cancelled Donald Trump while allowing the Russian state to propagate shocking disinformation about the Russian invasion of Ukraine, so there is real inconsistency and a lack of respect for freedom of speech. This at least establishes something where currently there is nothing. We can debate whether “have regard to” is strong enough. We have heard the other point of view from the other side of the House, which expressed concern that it might be used to allow otherwise harmful content, so there are clearly arguments on both sides of the debate. The obligation to have regard does have some weight, because the issue cannot be completely ignored. I do not think it would be adequate to simply pay lip service to it and not give it any real regard, so I would not dismiss the legislation as drafted.
I would point to the clauses that we have recently discussed, such as clause 15, under which content of democratic importance—which includes debating current issues and not just stuff said by an MP or candidate—gets additional protection. Some of the content that my hon. Friend the Member for Don Valley referred to a second ago would probably also get protection under clause 14, under which content of democratic importance has to be taken in account when making decisions about taking down or removing particular accounts. I hope that provides some reassurance that this is a significant step forwards compared with where the internet is today.
Alex Davies-Jones
I share the Minister’s sentiments about the Bill protecting free speech; we all want to protect that. He mentions some of the clauses we debated on Tuesday regarding democratic importance. Some would say that debating this Bill is of democratic importance. Since we started debating the Bill on Tuesday, and since I have mentioned some of the concerns raised by stakeholders and others about the journalistic exemption and, for example, Tommy Robinson, my Twitter mentions have been a complete sewer—as everyone can imagine. One tweet I received in the last two minutes states:
“I saw your vicious comments on Tommy Robinson…The only reason you want to suppress him is to bury the Pakistani Muslim rape epidemic”
in this country. Does the Minister agree that that is content of democratic importance, given we are debating this Bill, and that it should remain on Twitter?
Chris Philp
That sounds like a very offensive tweet. Could the hon. Lady read it again? I didn’t quite catch it.
Alex Davies-Jones
Yes:
“I saw your vicious comments on Tommy Robinson…The only reason you want to suppress him is to bury the Pakistani Muslim rape epidemic”
in this country. It goes on:
“this is a toxic combination of bloc vote grubbing and woke”
culture, and there is a lovely GIF to go with it.
Chris Philp
I do not want to give an off-the-cuff assessment of an individual piece of content—not least because I am not a lawyer. It does not sound like it meets the threshold of illegality. It most certainly is offensive, and that sort of matter is one that Ofcom will set out in its codes of practice, but there is obviously a balance between freedom of speech and content that is harmful, which the codes of practice will delve into. I would be interested if the hon. Lady could report that to Twitter and then report back to the Committee on what action it takes.
Chris Philp
At the moment, there is no legal obligation to do anything about it, which is precisely why this Bill is needed, but let us put it to the test.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Record-keeping and review duties
Question proposed, That the clause stand part of the Bill.
Barbara Keeley
Record-keeping and review duties on in-scope services make up an important function of the regulatory regime that we are discussing today. Platforms will need to report all harms identified and the action taken in response to this, in line with regulation. The requirements to keep records of the action taken in response to harm will be vital in supporting the regulator to make effective decisions about regulatory breaches and whether company responses are sufficient. That will be particularly important to monitor platforms’ responses through risk assessments—an area where some charities are concerned that we will see under-reporting of harms to evade regulation.
Evidence of under-reporting can be seen in the various transparency reports that are currently being published voluntarily by sites, where we are not presented with the full picture and scale of harm and the action taken to address that harm is thus obscured.
As with other risk assessments, the provisions in clauses 20 and 30 could be strengthened through a requirement on in-scope services to publish their risk assessments. We have made that point many times. Greater transparency would allow researchers and civil society to track harms and hold services to account.
Chris Philp
The shadow Minister has eloquently introduced the purpose and effect of the clause, so I shall not repeat what she has said. On her point about publication, I repeat the point that I made on Tuesday, which is that the transparency requirements—they are requirements, not options—set out in clause 64 oblige Ofcom to ensure the publication of appropriate information publicly in exactly the way she requests.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clauses 21 to 24 ordered to stand part of the Bill.
Clause 25
Children’s risk assessment duties
Amendment proposed: 16, in clause 25, page 25, line 10, at end insert—
“(3A) A duty for the children’s risk assessment to be approved by either—
(a) the board of the entity; or, if the organisation does not have a board structure,
(b) a named individual who the provider considers to be a senior manager of the entity, who may reasonably be expected to be in a position to ensure compliance with the children’s risk assessment duties, and reports directly into the most senior employee of the entity.” —(Alex Davies-Jones.)
This amendment seeks to ensure that regulated companies’ boards or senior staff have responsibility for children’s risk assessments.
The Chair
I call Kirsty Blackman to move amendment 22. [Interruption.] Sorry—my bad, as they say. I call Barbara Keeley to move amendment 22.
Barbara Keeley
I beg to move amendment 22, in clause 31, page 31, line 17, leave out subsection (3).
This amendment removes the condition that applies a child use test to a service or part of a service.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 32 stand part.
That schedule 3 be the Third schedule to the Bill.
Clause 33 stand part.
Barbara Keeley
The purpose of the amendment is to remove the child use test from the children’s access assessment and to make sure that any service likely to be accessed by children is within the scope of the child safety duty. The amendment is supported by the NSPCC and other children’s charities.
Children require protection wherever they are online. I am sure that every Committee member believes that. The age-appropriate design code from the Information Commissioner’s Office requires all services that are likely to be accessed by children to provide high levels of data protection and privacy. Currently, the Bill will regulate only user-to-user and search services that have a significant number of child users or services for which children form a significant part of their user base. It will therefore not apply to all services that fall within the scope of the ICO’s code, creating a patchwork of regulation that could risk uncertainty, legal battles and unnecessary complexity. It might also create a perverse incentive for online services to stall the introduction of their child safety measures until Ofcom has the capacity to investigate and reach a determination on the categorisation of their sites.
The inclusion of a children’s access assessment in the Bill may result in lower standards of protection, with highly problematic services such as Telegram and OnlyFans able to claim that they are excluded from the child safety duties because children do not account for a significant proportion of their user base. However, evidence has shown that children have been able to access those platforms.
Other services will remain out of the scope of the Bill as currently drafted. They include harmful blogs that promote life-threatening behaviours, such as pro-anorexia sites with provider-generated rather than user-generated content; some of the most popular games among children that do not feature user-generated content but are linked to increasing gambling addiction among children, and through which some families have lost thousands of pounds; and other services with user-generated content that is harmful but does not affect an appreciable number of children. That risks dozens, hundreds or even thousands of children falling unprotected.
Parents have the reasonable expectation that, under the new regime introduced by the Bill, children will be protected wherever they are online. They cannot be expected to be aware of exemptions or distinctions between categories of service. They simply want their children to be protected and their rights upheld wherever they are.
As I say, children have the right to be protected from harmful content and activity by any platform that gives them access. That is why the child user condition in clause 31 should be deleted from the Bill. As I have said, the current drafting could leave problematic platforms out of scope if they were to claim that they did not have a significant number of child users. It should be assumed that platforms are within the scope of the child safety duties unless they can provide evidence that children cannot access their sites, for example through age verification tools.
Although clause 33 provides Ofcom with the power to determine that a platform is likely to be accessed by children, this will necessitate Ofcom acting on a company-by-company basis to bring problematic sites back into scope of the child safety duties. That will take considerable time, and it will delay children receiving protection. It would be simpler to remove the child user condition from clause 31, as I have argued.
Kirsty Blackman
I would have been quite happy to move the amendment, but I do not think the Opposition would have been terribly pleased with me if I had stolen it. I have got my name on it, and I am keen to support it.
As I have said, I met the NSPCC yesterday, and we discussed how clause 31(3) might work, should the Minister decide to keep it in the Bill and not accept the amendment. There are a number of issues with the clause, which states that the child user condition is met if
“a significant number of children”
are users of the service, or if the service is
“likely to attract a significant number of users who are children”.
I do not understand how that could work. For example, a significant number of people who play Fortnite are adults, but a chunk of people who play it are kids. If some sort of invisible percentage threshold is applied in such circumstances, I do not know whether that threshold will be met. If only 20% of Fortnite users are kids, and that amounts only to half a million children, will that count as enough people to meet the child access assessment threshold?
Fortnite is huge, but an appropriate definition is even more necessary for very small platforms and services. With the very far-right sites that we have mentioned, it may be that only 0.5% of their users are children, and that may amount only to 2,000 children—a very small number. Surely, because of the risk of harm if children access these incredibly damaging and dangerous sites that groom people for terrorism, they should have a duty to meet the child access requirement threshold, if only so that we can tell them that they must have an age verification process—they must be able to say, “We know that none of our users are children because we have gone through an age verification process.” I am keen for children to be able to access the internet and meet their friends online, but I am keen for them to be excluded from these most damaging sites. I appreciate the action that the Government have taken in relation to pornographic content, but I do not think that this clause allows us to go far enough in stopping children accessing the most damaging content that is outwith pornographic content.
The other thing that I want to raise is about how the number of users will be calculated. The Minister made it very clear earlier on, and I thank him for doing so, that an individual does not have to be a registered user to be counted as a user of a site. People can be members of TikTok, for example, only if they are over 13. TikTok has some hoops in place—although they are not perfect—to ensure that its users are over 13, and to be fair, it does proactively remove users that it suspects are under 13, particularly if they are reported. That is a good move.
My child is sent links to TikTok videos through WhatsApp, however. He clicks on the links and is able to watch the videos, which will pop up in the WhatsApp mini-browser thing or in the Safari browser. He can watch the videos without signing up as a registered user of TikTok and without using the platform itself—the videos come through Safari, for example, rather than through the app. Does the Minister expect that platforms will count those people as users? I suggest that the majority of people who watch TikTok by those means are doing so because they do not have a TikTok account. Some will not have accounts because they are under 13 and are not allowed to by TikTok or by the parental controls on their phones.
My concern is that, if the Minister does not provide clarity on this point, platforms will count just the number of registered users, and will say, “It’s too difficult for us to look at the number of unregistered users, so in working out whether we meet the criteria, we are not even going to consider people who do not access our specific app or who are not registered users in some way, shape or form.” I have concerns about the operation of the provisions and about companies using that “get out of jail free” card. I genuinely believe that the majority of those who access TikTok other than through its platform are children and would meet the criteria. If the Minister is determined to keep subsection (3) and not accept the amendment, I feel that he should make it clear that those users must be included in the counting by any provider assessing whether it needs to fulfil the child safety duties.
Kim Leadbeater
I agree with thon. Lady’s important point, which feeds into the broader question of volume versus risk—no matter how many children see something that causes harm and damage, one is one too many—and the categorisation of service providers into category 1 to category 2A and category 2B. The depth of the risk is the problem, rather than the number of people who might be affected. The hon. Lady also alluded to age verification—I am sure we will come to that at some point—which is another can of worms. The important point, which she made well, is about volume versus risk. The point is not how many children see something; even if only a small number of children see something, the damage has been done.
Kirsty Blackman
I absolutely agree. In fact, I have tabled an amendment to widen category 1 to include sites with the highest risk of harm. The Minister has not said that he agrees with my amendment specifically, but he seems fairly amenable to increasing and widening some duties to include the sites of highest risk. I have also tabled another new clause on similar issues.
I am glad that these clauses are in the Bill—a specific duty in relation to children is important and should happen—but as the shadow Minister said, clause 31(3) is causing difficulty. It is causing difficulty for me and for organisations such as the NSPCC, which is unsure how the provisions will operate and whether they will do so in the way that the Government would like.
I hope the Minister will answer some of our questions when he responds. If he is not willing to accept the amendment, will he give consideration to how the subsection could be amended in the future—we have more stages, including Report and scrutiny in the other place—to ensure that there is clarity and that the intention of the purpose is followed through, rather than being an intention that is not actually translated into law?
Chris Philp
Colleagues have spoken eloquently to the purpose and effect of the various clauses and schedule 3 —the stand part component of this group. On schedule 3, the shadow Minister, the hon. Member for Worsley and Eccles South, asked about timing. The Government share her desire to get this done as quickly as possible. In its evidence a couple of weeks ago, Ofcom said it would be publishing its road map before the summer, which would set out the timetable for moving all this forward. We agree that that is extremely important.
I turn to one or two questions that arose on amendment 22. As always, the hon. Member for Aberdeen North asked a number of very good questions. The first was whether the concept of a “significant number” applied to a number in absolute terms or a percentage of the people using a particular service, and which is looked at when assessing what is significant. The answer is that it can be either—either a large number in absolute terms, by reference to the population of the whole United Kingdom, or a percentage of those using the service. That is expressed in clause 31(4)(a). Members will note the “or” there. It can be a number in proportion to the total UK population or the proportion using a service. I hope that answers the hon. Member’s very good question.
Kirsty Blackman
My concern is where services that meet neither of those criteria—they do not meet the “significant number” criterion in percentage terms because, say, only 0.05% of their users are children, and they do not meet it in population terms, because they are a pretty small platform and only have, say, 1,000 child users—but those children who use the platform are at very high risk because of the nature of the platform or the service provided. My concern is for those at highest risk where neither of the criteria are met and the service does not have to bother conducting any sort of age verification or access requirements.
Chris Philp
I am concerned to ensure that children are appropriately protected, as the hon. Lady sets out. Let me make a couple of points in that area before I address that point.
The hon. Lady asked another question earlier, about video content. She gave the example of TikTok videos being viewed or accessed not directly on TikTok but via some third-party means, such as a WhatsApp message. First, it is worth emphasising again that in order to count as a user, a person does not have to be registered and can simply be viewing the content. Secondly, if someone is viewing something through another service, such as WhatsApp—the hon. Lady used the example of browsing the internet on another site—the duty will bite at the level of WhatsApp, and it will have to consider the content that it is providing access to. As I said, someone does not have to be registered with a service in order to count as a user of that service.
On amendment 22, there is a drafting deficiency, if I may put it politely—this is a point of drafting rather than of principle. The amendment would simply delete subsection (3), but there would still be references to the “child user condition”—for example, the one that appears on the same page of the Bill at line 11. If the amendment were adopted as drafted, it would end up leaving references to “child user condition” in the Bill without defining what it meant, because we would have deleted the definition.
Barbara Keeley
Is the Minister coming on to say that he is accepting what we are saying here?
Chris Philp
No, is the short answer. I was just mentioning in passing that there is that drafting issue.
On the principle, it is worth being very clear that, when it comes to content or matters that are illegal, that applies to all platforms, regardless of size, where children are at all at risk. In schedule 6, we set out a number of matters—child sexual exploitation and abuse, for example—as priority offences that all platforms have to protect children from proactively, regardless of scale.
Barbara Keeley
The Minister has not addressed the points I raised. I specifically raised—he has not touched on this—harmful pro-anorexia blogs, which we know are dangerous but are not in scope, and games that children access that increase gambling addiction. He says that there is separate legislation for gambling addiction, but families have lost thousands of pounds through children playing games linked to gambling addiction. There are a number of other services that do not affect an appreciable number of children, and the drafting causes them to be out of scope.
The Chair
There is no hard and fast rule about moving the Adjournment motion. It is up to the Government Whip.
Chris Philp
I have a few more things to say, but I am happy to finish here if it is convenient.
Ordered, That the debate be now adjourned.—(Steve Double.)
Public Order Bill (First sitting)
Thursday 9th June 2022
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Public Order Act 2023 View all Public Order Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 9 June - (9 Jun 2022)
The Chair
I have a few preliminary announcements. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings. Date Time Witness Thursday 9 June Until no later than 12.15 pm The National Police Chiefs’ Council Thursday 9 June Until no later than 1.00 pm High Speed 2 (HS2) Limited; National Highways Thursday 9 June Until no later than 2.45 pm United Kingdom Petroleum Industry Association; Thursday 9 June Until no later than 3.05 pm Adam Wagner, Doughty Street Chambers Thursday 9 June Until no later than 3.25 pm News UK Thursday 9 June Until no later than 4.10 pm Sir Peter Martin Fahy QPM, retired police officer; Matt Parr CB, HM Inspector of Constabulary and HM Inspector of Fire and Rescue Services; Chief Superintendent Phil Dolby, West Midlands Police Thursday 9 June Until no later than 4.55 pm Amnesty International; Justice; Liberty
We will consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, and a motion to allow us to deliberate in private about questions between the oral evidence sessions. In view of the time available, I hope that we can take these matters formally, without debate. I call the Minister to move the programme motion standing in his name, which was discussed on Tuesday 7 June by the Programming Sub-Committee for this Bill.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 11.30 am on Thursday 9 June) meet—
(a) at 2.00 pm on Thursday 9 June;
(b) at 9.25 am and 2.00 pm on Tuesday 14 June;
(c) at 11.30 am and 2.00 pm on Thursday 16 June;
(d) at 9.25 am and 2.00 pm on Tuesday 21 June;
(2) the Committee shall hear oral evidence in accordance with the following Table:
3. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 21 June.—(Kit Malthouse.)
The Chair
The Committee will proceed to line-by-line consideration of the Bill on Tuesday 14 June at 9.25 am.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Kit Malthouse.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee room and will be circulated to Members by email.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Kit Malthouse.)
The Chair
We are now sitting in public again and the proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make declarations of interest in connection with the Bill? No, I take it. We will now hear oral evidence from Chief Constable Chris Noble, lead for protest on the National Police Chiefs’ Council, who is joining us via Zoom. I remind Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings in the programme motion. The Committee has agreed that, for this session, we have until 12.15 pm. Can the witness please introduce themselves for the record?
Chris Noble: Good morning, Chair. My name is Chris Noble. I am the chief constable of Staffordshire Police.
The Chair
Thank you, Mr Noble. If, at any time, you have any difficulty in hearing the questions, please indicate and we will make the necessary technical adjustments.
The Minister for Crime and Policing (Kit Malthouse)
Q
Chris Noble: Thank you, Minister. There is a lot, in terms of looking back. There have been a number of trends. We have seen global causes land on our shores very quickly and having significant impacts. Black Lives Matter is a good example. We have seen causes overlapping, both in terms of membership and tactics. There have been some very novel—without giving them any credit—and highly disruptive tactics; that is reflected on the contents page of the Bill. If we look across the breadth of protest organisations and groups, we see that they are very aware of some of the legal gaps, inadequacies and shortcomings; that is very clear from their engagement with police, as well as their tactics. There is a focus, albeit not exclusively, around what we would call non-violent direct action, which is slightly different from previous protest phases, where violence was maybe more commonplace. That said, it is not completely exclusively non-violent.
Most protests are still relatively non-contentious. However, in terms of complexity, intensity and tactics, there has been a step up, and the assessment going forward is very clear that we will still see those challenges around complexity and the co-ordination and the adapting of protests, and we have significant gaps around our information and intelligence. Even though we will have our own, home-grown causes that people will wish to protest against, I anticipate that a lot of protest will potentially be generated from outside these shores. That is a little bit of the picture on what has been, and what may well be to come.
On impacts, there are safety challenges across the board, including safety risks to some of the protestors, challenges to members of the community on our roads or, indeed, in their communities, and challenges for police officers and private contractors in dealing safely with tactics that we will perhaps talk about. Also, there may be increasing cost as we try to deal with more complex issues—costs either to communities, the businesses impacted, or indeed the police, be it financial or opportunity cost, in terms of officers not being able to work in neighbourhoods, or in serious and organised crime, or in the other roles on which they clearly want to be focused. Those are real challenges, but still, the backdrop is that the vast majority of protest activity is relatively non-contentious. However, there is a hard core, a small element, that I do not see going away any time soon.
Kit Malthouse
Q
Chris Noble: In Staffordshire, we have a very experienced protest removal team, and on occasion they have dealt with individuals glued to the top of fuel tankers by cutting them loose, using cutting equipment. There are obvious risks in that. Equally, if you go on to a busy motorway and glue yourself to it, there is a raft of risks from traffic, and risk to police officers. Understandably, we have seen members of the public, through sheer frustration, look to take matters into their own hands. You can translate that to power stations and other vulnerable sites. Although this may be attention-grabbing and headline-grabbing, the risks to the protestors, the police and members of the public are becoming ever more significant.
Kit Malthouse
Q
Chris Noble: There is quite a disciplined training regime. The training is licensed through the College of Policing. You have command training at what we call gold, silver and bronze levels. The strategists—those who develop a plan—are at the silver level; those who carry it out on the ground are at the bronze level. There is not only initial very intense and comprehensive training for those individuals, but annual continual professional development, which is annotated and logged. There is also re-accreditation to ensure that people are still fit for operation. There are also annual inputs on what has changed—training on new legislation, new powers, learning from court cases, different protest tactics and emerging risks—so there is a continual learning cycle, as well as a very detailed pass-or-fail approach to training.
This week, we had an early morning dial-in with the vast majority of gold commanders across the country to break out some peer learning around Just Stop Oil. It was about what we could do differently, and how we could learn. There are specialist teams in policing that share information and liaise with the Health and Safety Executive and other bodies on how we do our very best to minimise danger to protesters, the wider public and police officers.
The challenge for policing is that training is at one point in time, and tactics and intentions are constantly moving. There is a constant challenge in making police training fit for purpose. The one thing that stays consistent—you alluded to this—is the police commitment to striking the balance between our positive and negative obligations to protest, and our ongoing responsibility to those impacted by protest.
Kit Malthouse
Q
Chris Noble: In short, yes, we would. You have already partly qualified that. For us, the more intrusive our tactics, the more they need to be focused on the harm being caused. In our approach, there has to be a constant test of what is proportionate, and that is subject to significant internal and external scrutiny.
We can see greater risk of harm to communities and protesters if things are left to run. An example was the G7 operation. I was speaking to one of the senior commanders recently, and they described a lack of powers around stop and search for people with items that could only have be used for generating a lock-on device. They had to intervene later in the day, with more significant powers, on a wider group of protesters, therefore interfering with more people’s rights. As long as early intervention and prevention are subject to proportionality tests, and are applied precisely, they are preferable to some of the risks that protesters place themselves under, and some of the significant disruption that they cause to other individuals.
Sarah Jones (Croydon Central) (Lab)
Q
Chris Noble: Sadly, I am no longer a practising operational commander, so I will talk vicariously. You also have Phil Dolby coming to speak to you. He will be able to give you a flavour of the west midlands region. There is a range of powers, but the policing operation begins with communication and engagement. As soon as we are aware of a protest, the first thing we will do is link in with the organisers and understand how we can do our very best to minimise any intrusion on their rights and safeguard the right to protest. Our most powerful tactic is engagement and communication.
Very, very rarely will we ever ban a protest. We hear the lazy soundbite at times that police are looking to ban protests. It has not happened in many years. Even when we apply conditions under sections 12 and 14 of the Public Order Act 1986, which were the subject of the Police, Crime, Sentencing and Courts Act 2022, their usage is limited. We will record those. They are tested, and they are very often subject to court testing as well.
Then we have a range of other powers, depending on the level of criminality or risk that we identify in the protest. We are able to seize items and search properties, but that would be under a plethora of legislation and would be very specific to what we know in advance. In current protests, we often know little until something presents, or until very close to the event time. We have a range of powers, but they are not particularly coherent in the light of what is often a very poor line of sight around protest activity.
Sarah Jones
Q
Chris Noble: Yes. I will take the example of obstructing the highway; those powers have recently been adjusted. With Insulate Britain and some of the obstruction of the M25 motorway, we were dealing with legislation that was drafted without those tactics or activities in mind. The powers are relatively low level, in terms of consequences; individuals who were arrested could be back on the scene the next day. The capability of some of those powers to deal with repeat protest or reckless protest is very limited, and I think a significant number of the protesters were very aware of that.
On criminal damage, there are opportunities, through those powers, for us to intervene where people are carrying specified items and going equipped to commit criminal damage. Aggravated trespass, which you alluded to, is particularly relevant. In the private space, there is no right to protest in anything like the way that there is in the public space. That is just a flavour of a number of the offences that most commonly come into play in protest. There are others that are perhaps a little more rare, including conspiracy to commit various offences.
Sarah Jones
Q
Chris Noble: We have tried to make an assessment about the impact of injunctions, especially around Insulate Britain and Just Stop Oil. The feedback we have had is that when they are appropriately framed and developed at an appropriate pace, they can be very useful in terms of what we are trying to control and how we are trying to shape people’s behaviour. I think, in general though, while they are a key tool, they are not the only one we need.
We have worked hard with private industry to give them information and knowledge about injunctions. I have worked closely with an industry on my own patch that is very up for taking on the responsibility along-side the police service for trying to target harder and prevent protest. On occasions, they will then look to obtain injunctions in terms of trying to prevent harm from being caused to their business, property and employees. Injunctions have been used increasingly frequently, but the challenge is framing them appropriately and securing them within a reasonable timescale so they can have maximum impact.
Sarah Jones
Q
Chris Noble: Yes.
Sarah Jones
Q
Chris Noble: Again, this is slightly outside my corporate memory, but there have been very lengthy conversations as far back as 2019 with policing, in terms of the public order and public safety portfolios, about the adequacy of some of the powers. That refined itself down into some further conversations around some bespoke powers, many of which appear in the Act you have just referred to.
There is an ongoing conversation around policy in terms of public order and public safety. For example, in some of the Just Stop Oil protests we have seen a cross-departmental approach. The police were clear in identifying where they see some inadequacies and in the effects that they want to achieve. In many ways, there is a rolling conversation around public policy, some of which will translate into legislation at one point or another.
Sarah Jones
Q
You also had some concerns about things in the Bill that he talks about—for example, the potential chilling effect on freedom of assembly that the stop-and-search powers, in particular, could have. Could you give us your view on the non-legislative suggestions that he had and how important they are? What is your view on his concerns about some of the things we are talking about, in particular the suspicionless stop and search and the scope of police power that that provides to you?
Chris Noble: For clarity, when you talk about non-legislative suggestions, what are thinking about?
Sarah Jones
Not changes in the law; most of the recommendations in his report are not about changing the law. They are about
“equipping police commanders with up to date, accessible guidance…ensuring that they consider the levels of disruption or disorder above which enforcement action will be considered; improving the way that police assess the impact of protests…improving the quality of police intelligence on protests…addressing a wide variation in the number of specialist officers available for protest policing throughout England and Wales”.
It goes on. They are all non-legislative recommendations. They are about how you train and support, gather intelligence and have the right people in the right place.
Chris Noble: Absolutely. Thank you. For me, having the right powers is clearly going to be very important. I think the policing ask about the powers is very current, in terms of being up to date with the challenges we face and clear about where the policing remit sits, and the powers being coherent and capable of being implemented. While the approach around legislation is important, there are some qualifiers on it.
Equally, you are right because, in some ways, irrespective of the legislation we are debating today, the overwhelming police commitment, around policing in a human rights-compliant way—policing by consent—fundamentally cuts across all the relevant legislation. That would probably be my key point.
I absolutely agree in terms of training, leadership and learning as we go what we do and do not do well. Having scrutiny around public order operations, whether they be protests or other things, is fundamental in terms of public confidence. This is also about making sure there is no unhelpful orthodoxy of approach within policing; constantly checking and evaluating our training; sharing information within policing; and listening to, and perhaps on occasion challenging, critical voices to make sure we pick up the wide perspective of views around how the police protest policing.
It is also about ensuring that we are accountable. I have a local police, fire and crime commissioner who has a real interest around protest policing and how it is delivered and relevant scrutiny panels, which will look at other matters, such as use of force or disproportionality. One part of the jigsaw is undoubtedly the powers we have. They are important, but as important, and in many ways more important, is how this is done and how policing maintains and secures public confidence.
On that note, I can talk about stop and search as the second element. Again, we recognise this is contentious. Whether this is within protest policing or tackling violent crime, the checks and balances are exactly the same, but there is a gap for us at the minute in terms of, as we alluded to earlier, being able to intervene earlier to try and prevent the more significant harm and disruption that takes place.
This is not about stopping someone protesting. I have no doubt there will be circumstances where we will stop and search and maybe even seize an item from someone, but they will still be facilitated in taking part in a protest. It is very much about recognising that particular articles and equipment are now being used to maximise disruption. Whether it is a suspicion-led or suspicionless power, we see real value in being able to intervene and ensure that the rights of everyone impacted by protest, as well as the rights of those expressing their views through protest, are protected.
Under the Police and Criminal Evidence Act 1984, code A will very much apply in terms of how it is done and how records are kept. If we move to a section 60 type power, which is similar to the one in the Criminal Justice and Public Order Act 1994, again, it would be a senior officer check and balance, and there will be appropriate scrutiny of how it is done. Of course, that can step into the realms of the inspection bodies reviewing it, and indeed of it ultimately being tested in court. We see it as a necessary power. There is a gap, but these things absolutely have to be done proportionately and transparently.
Sarah Jones
Q
Chris Noble: If we are talking about the serious disruption prevention orders, although the critical decisions will be made by members of the judiciary, obviously the police have a role to play in terms of potentially initiating these. Again, we would anticipate a high threshold. They will be for the most persistent and most reckless offenders, but we have seen a number of individuals who on occasions are making a mockery of not just the law, and less importantly the police service, but communities of interest in terms of their behaviours. I would not anticipate their being used on a common basis, but having the capability around some of the most persistent and reckless offenders would be helpful. There are significant checks and balances built in around capability and assurance in terms of who would grant those.
You are right that the powers exist in other parts of the criminal justice environment, with the supposed mantra being about controlling behaviour and not criminalising it, but we have heard quite a bit of noise from various parties about these things, so I think the rules and the protocols that exist, and the judicial test that would be applied, would be very important to ensure that orders are focused on the most potentially harmful individuals.
Lee Anderson (Ashfield) (Con)
Q
Chris Noble: It probably comes back a little bit to the challenge we talked about earlier about thresholds. Quite appropriately, whenever we look at protests, it is baked into part of a democratic society. In terms of articles 9, 10 and 11, from a police point of view, we of course respect those and want to give them appropriate regard. Social media, on the one hand, can be a help to us, in terms of getting a flavour of public sentiment, what is going to happen and where, and where the issues are. It can maybe give us a line of inquiry to follow, in terms of who we might want to engage with and maybe try to support and, where appropriate, in terms of shaping some of the protest’s behaviour and activities.
On other occasions, there may well be offences committed on social media, which clearly we would need to look at, consider and progress with. Very often, most of the conversations taking place around protest are behind closed doors in social media, in various protected groups. Again, the thresholds that we currently work to would not allow us, as a general rule, to penetrate those and find out more information. So social media can be of use, but in terms of the most useful information about understanding the impact on the life of a community, some of that most significant information is not taking place in any sort of public forum at all.
Lee Anderson
Q
Chris Noble: We are open to using new technologies, whether digital technologies or the more traditional capabilities and assets that we have. I think that the challenge that we face, in terms of policing protests is that, again, whenever we look at the various elements of the Bill under discussion, around lock-ons and some other behaviours, there is a real complexity to the devices that, from a policing point of view, will take significant time to deal with, and, indeed, from a private company point of view, can take significant time and effort to deal with too.
Of course, the challenge is that a wide range of people are, on occasions, involved in protest—it might well be their first time within protest; it may well not—so in terms of offending behaviours and previous criminal records, some of the elements there, which may well be appropriate in bringing someone to account, may well not be there. We are open to using any and all tactics within protest, but as I say, probably the common theme around protest is around non-violent direct action; people who are very legally aware; flash protests, which emerge with limited notice; and some quite complex lock-ons, which individuals know we need to be very thoughtful in how we deconstruct, with regard to rights and safety.
There is no magic bullet to dealing with modern protest. It is a combination, as we have just heard, around legislation, engagement and appropriate tactics, and then constantly trying to be innovative in trying to strike the balance between competing rights.
Lee Anderson
Q
Chris Noble: This is very close to home. We have a live operation in Staffordshire, which has been running now for some time, involving a number of protesters. It is incredibly complex, clearly. We have a limited idea of what is going on under the ground, in terms of what risks might be there. Are they near utilities? What risk could there be in terms of collapse of tunnels? It is clearly not a safe environment unless it is done by professional tunnellers. There is an inherent risk there, as well as the impact on the legitimate business going on in that area.
At this point—this probably goes to the core of one of the key issues that police are keen to discuss within the Committee—the vast majority of that work is done by the landowners and private companies that are skilled and experienced within this work. While I have some dedicated resources allocated to that at present, if that responsibility was to significantly shift to policing, it would cost me probably in the region of £80,000 a day to resource that. It would need significant officer resources, which clearly would need to come from elsewhere, so it is not only inherently dangerous; it is costing significant money and it is undoubtably impacting on the genuine, legitimate business interests of various companies.
The key, for me, is not so much even, necessarily, an offence around tunnelling, because we may well have powers that, broadly speaking, exist to deal with it—we are keen to develop that conversation. The challenge is in preventing it in the first place, and then in how we can work with industry and landowners on how we could potentially remove individuals more quickly. However, we are concerned that we have seen tunnelling come back on the radar again, and people will be held to account for what they do.
Wendy Chamberlain (North East Fife) (LD)
Q
Chris Noble: From a gold point of view, we probably have two or three officers who are trained or just about to do a credit, but we are also able to draw on neighbouring forces for that strategic support and command role, and top that up as necessary. Silver-wise, it is probably more in the region of maybe a dozen officers, again either accredited or being trained. For bronze, it is probably more in the region of a couple of dozen officers.
Now, this is not their day job. They do not wake up every morning and become a bronze commander and that is all they do—they are neighbourhood officers, they work in the criminal investigation department, they work in public protection teams—so while we have significant numbers of command officers, they are constantly being drawn for other matters. Whenever we have environmental protests or protests around High Speed 2 or other areas, there is a drain of that leadership role from elsewhere. We maintain hundreds of other officers within Staffordshire with a range of public order skills and capabilities but, again, none are completely dedicated to it. We would have about two dozen officers trained, as a minimum, in some other specialist skills as well. It is a significant commitment to maintain that training, but Staffordshire has definitely attracted some significant protest activity, so it is a necessary investment.
Wendy Chamberlain
Q
Chris Noble: Training for the more specialist roles could be at least two or three weeks a year, in terms of the various skills that they need to maintain. For general public order trained officers, you are talking about two to three days per year to maintain that. From a command point of view, depending on refreshers, it could be a week a year. The bigger challenge is when they are deployed. If we take, for example, Just Stop Oil—we supported colleagues in a neighbouring force. Our protest removal team was essentially out of force for two weeks, consistently maintained within those deployments. There are abstractions around training, but we are finding because of the dynamics of the protest environment at the minute, either in force or supporting other parts of the country, those abstractions are increasing.
Wendy Chamberlain
Q
Chris Noble: I see your line of questioning. I suppose we would be hopeful that by being able to intervene earlier, we could maybe limit the impact of protest. I think the proof of that will come out in terms of whatever moves from the Bill into formal legislation.
The biggest challenge that policing has at the minute—one we are keen to discuss as the Bill progresses—is any shift from public realm protest policing. If we moved more into a private space than currently, we would see that as potentially being incredibly significant for money and opportunity lost in terms of policing communities. Those abstractions would probably quite fundamentally change my local model of policing, in terms of being able to maintain that. That does not mean that we are any less committed to working with businesses and organisations to try to minimise the extreme disruption that can be caused to them on occasions.
Wendy Chamberlain
Q
Chris Noble: Not within Staffordshire. That said, when you look at the challenge that is applied to policing of protest from those who protest, from those who are not happy with protest and those in the media looking on, I am not quite sure why some people would want to, but they do—they step up. They are excellent. They come back from training. They seek out the roles. They are open to feedback and learning and training. I have a huge amount of regard for them.
I have not found people being reticent to step up because, fundamentally, it is a core part of our democracy. Having local officers dealing with local protest, who are then policing those communities the next day, is incredibly important for me. I have not seen a reticence, but it is an incredibly challenging job. Very often, there is a perception that we do not get it right, when actually the inspection report was very clear that in the vast majority of occasions we did and a minor recalibration was required around the balance we needed to strike.
Wendy Chamberlain
Q
Chris Noble: There is a rolling assessment with a part of policing called NPoCC, which is the police co-ordination body. As it becomes clearer what legislation will take place, those conversations will step up in terms of what it might mean for other jurisdictions, whether the legislation applies and whether the learning transfers across. We are constantly in contact with the devolved Administrations, and with European colleagues more widely, about legislation, tactics and police capability. Rest assured that those conversations will continue.
The Chair
Andrew Bridgen and then Anne McLaughlin, but we will need quick questions and quick answers if everybody who wants to participate can get a chance.
Andrew Bridgen (North West Leicestershire) (Con)
Q
Chris Noble: No, not as yet, but we are very aware that as legislation is cast, people will look to see where it begins and ends, so I think it will be a constant piece of scrutiny from us.
Andrew Bridgen
Q
Chris Noble: I think it has that potential. Clearly, as to how it actually works on the ground, each circumstance will need its own assessment and its own operation. That will play through, but there is no doubt that a number of the elements in the Bill are clearly responding to current challenges for policing. But ultimately, this will still be down to individual choices, decisions made on the day and the attempt to try to balance the rights that are at play. This is not a science for police officers in day-to-day public order policing: it is an art, it is discretion and it is matters of judgment. As elected Members, I know that you appreciate that. As we said earlier, this is a key element around trying to have current and up-to-date legislation, but there are elements of the Bill where defining a bit more what they mean and do not mean would be very helpful for day-to-day policing, however we achieve that precision of language and detail.
The Chair
Anne McLaughlin and, if there is time, Rupa Huq, but we have to finish at 12.15 pm.
Anne McLaughlin (Glasgow North East) (SNP)
Q
Chris Noble: I do not want to broadcast too easily what people might want to use, but it is a good challenge. There will be very obvious elements, such as bamboo poles or scaffolding, which would probably give us a bit of a hint. But you are right: there are other, more innocuous items, such as bicycle locks—clearly, there are many cyclists around—glue and so forth. It will have to be very context-specific. It may well be relevant to other behaviours at the time—what else is going on, and have we picked up something on social media? It will be down to individual discretion. Again, this is not about criminalising people. The outcome we are looking for is minimising disruption, so the policing focus will be around how we do that, as opposed to how we criminalise someone for having an item that can be very difficult to prove exactly what it is for.
Anne McLaughlin
Q
“We agree with the police and Home Office that such orders would neither be compatible with human rights legislation nor create an effective deterrent.”
Do you agree with that? If not, could you say why, and how issuing one of these to someone without any criminal conviction is compatible with human rights legislation?
Chris Noble: The language is slightly different, albeit the concept is broadly similar—HMICFRS was looking at and discussing protest banning orders. From a policing point of view, unless we knew the exact circumstances of the individual it would be hard to say how exactly the orders could be justified. As I alluded to earlier, we would see them as potentially being relevant to more persistent and reckless offenders when other methods of intervening were not seen as successful or were not capable. The standard tests on proportionality would be applied, and ultimately it would be a matter for the relevant judge to make a decision as to how they could be justified or not. I would not rule out them ever being used—I see it very much as a top-end tactic or power—but I would not want to preclude the creativity and ingenuity of protesters meaning the orders might well be the only thing left open to us.
The Chair
Mr Noble, I wanted to allow you to finish that answer, but that brings us to the end of our allotted time. Thank you.
Examination of Witnesses
John Groves and Nicola Bell gave evidence.
The Chair
We will now hear oral evidence from John Groves, Chief Security and Resilience Officer at High Speed 2 Ltd, and Nicola Bell, Regional Director South East at National Highways. For this panel, we have until 1 pm. Will the witnesses please introduce themselves for the record?
Nicola Bell: Hello. My name is Nicola Bell and I am the regional director for National Highways in the south-east. On a day-to-day basis I am responsible for the day-to-day running of the motorway and A road network in the south-east of England.
John Groves: Good afternoon. I am John Groves and I am the chief security and resilience officer for HS2 Ltd. My role principally involves protecting and safeguarding HS2 and, in this context, dealing with the protestor risk.
Sarah Jones
Q
John Groves: As you say, we are under constant attack from illegal protest. We work closely with the police and seek their support in dealing with that, but in the past we have had to use three High Court injunctions on different parts of the route because we felt we were not getting where we needed to through using the police.
We have applied for a route-wide injunction, there has been a hearing and we are waiting for the outcome. Rather than going back every time to each parcel of land, we have asked the court to give us a full route-wide injunction, which we hope will have some effect on the behaviour of the illegal protestors. The decision by HS2 to seek that High Court injunction was taken in between the failure of the previous legislation and the introduction of this legislation. We hope the High Court injunction will have a positive effect, but it is still limited and we still look to the police to support us.
Sarah Jones
Q
John Groves: It can vary. We can secure a High Court injunction pretty quickly, depending on the circumstance, but it can take a long time—two to three months. Our application for the current injunction went in in March and there was a hearing at the end of May. We are still waiting for the outcome of that decision, and as soon as we hear, we will want to get moving on it.
Sarah Jones
Q
John Groves: As you said at the beginning, they are very expensive, and they do not always have the effect that we are seeking. Fundamentally, what we are seeking to do is deter illegal protester behaviour and stop it happening. What we have seen, as the chief constable alluded to, is that HS2 is running an operation right now in Staffordshire with people who have been subject to court action in the past, and just continue to come back and repeat the same behaviour against us. It is useful, but it is not having the full effect that we need.
Sarah Jones
Q
Nicola Bell: Absolutely. Just to put it in context, we look after something like 4,500 miles of motorway and A roads, and the difference we saw this time around was that they are not just related to a site, like HS2 for example. We had protesters literally popping up everywhere; you did not know where they were going next. The police were arresting them using their existing powers—obstruction of the highway, maybe—but they were telling us that that was not a deterrent to them coming back out literally the next day, which was why we then sought to get injunctions ourselves.
We ended up applying for four injunctions in total. We were granted all of them, and if those people then went back out again, ultimately we had to follow that through with committal proceedings, which take a lot of time and effort. That alone—those people breaching that injunction order—was the thing that meant they would be sent to prison or ordered to pay costs. In total, we ended up with 34 defendants. Some were sent immediately to prison, which I think ranged from 24 days to six months, and then you had 18 people who ended up with two-year suspended sentences, but it was for National Highways to pursue that, not the police, because the injunctions that we were granted did not come with a power of arrest. If you are a local authority, for example, you can get a power of arrest with an injunction. We are a private limited company, so we cannot, and therefore it is up to us to keep on going with the injunction process.
It is important to point out that you then have two processes running in parallel. The civil proceedings have now happened, and the police are only now starting the criminal proceedings, which will probably run until December this year. Remember, that is for protests that happened on our network at the tail end of last year. The first protest by Insulate Britain was on 13 September, and the last one was on 2 November, so we had over 30 protests in 15 locations in less than two months.
Sarah Jones
Q
John Groves: We have recorded 1,600 incidents against HS2 since the end of 2017. All of that is unlawful activity—trespass, violence against staff, criminal damage. Not all of those offences will lead to an arrest or any legal action. So, for us, this legislation is about the deterrent effect—absolutely. The extent to which it will cause a behavioural change in those who are participating is, I guess, the open question, but I would certainly see that tougher sentences and more police action would help—absolutely.
Kit Malthouse
Q
John Groves: Absolutely. It is probably everything and anything. We have seen violence against both staff and against those who are building the railway—so it is not just security staff who engage with them. These are protests that are taking place not just on the ground, but in tunnels. I am sure that you will all remember what happened at Euston; there was a 25-tunnel network under Euston. When we went in there to remove the protesters, the protesters were using lock-on devices sub-surface. There was violence against staff in there.
We have seen large-scale trespass. In Buckinghamshire, we did an operation to remove protesters from a site. We secured the venue, but they came back with about 100 people. They shone lasers in the eyes of staff members, they threw human waste around—I mean, it is the full panoply. What is different between what you see against HS2 as compared with other locations is that it is probably quite invisible to most of the public. Again, we have got an operation live at the moment. I have four protesters in a tunnel at the moment and they have been there since 10 May, and that is costing the taxpayer a huge amount of money. The safety risk to them, not just to the people who are working on the surface to support them, is significant. As you say, up until the end of March, £126 million of taxpayers’ money has had to go into protester removal or the cost to HS2 of the delay that these illegal protesters are causing us.
Kit Malthouse
Q
John Groves: Indeed, yes.
Kit Malthouse
Q
John Groves: Yes. I mean, if you consider the definition of “protest”, you have people protesting in Swynnerton, Staffordshire—they are not particularly visible to the public. Other than probably at Euston, that is what we have seen consistently right across the piece. I would say that nearly every day there is something—there is an incident, an unlawful act against HS2.
Kit Malthouse
Q
John Groves: I hope so. I mean, it is about the deterrent. The overwhelming issue for us is tunnelling, because it is the thing that causes us the most significant cost and delay. We can, with the support of specialist contractors, move people off our land, but when there are tunnels involved, or high structures, which we also see quite regularly—they will build structures on the surface, at height, and underground. However, the tunnels are the most significant, for us, in terms of removal and, again, the safety risk is significant.
Kit Malthouse
Q
Nicola Bell: Yes, absolutely. The thing is that I think a lot of people at the time thought that an injunction was the thing to go and do, but you must see it through; you must follow up with the committal proceedings, and it is that that then takes the time. We had to apply for a very urgent injunction, sometimes overnight, with things being prepared at pretty breakneck speed in order to try and protect what we were seeing. I am sure you are all aware of what we saw on the M25, with people either gluing themselves or sitting on the road. It is about the resource intensity that is needed to follow that up and follow that through. If I take the example of a day that they were protesting, on 8 October, by the time that got to court, that was at the end of November and by then Insulate Britain had called off its protests.
Kit Malthouse
Q
Nicola Bell: Yes, two years.
Kit Malthouse
Q
Nicola Bell: No. I think you heard from the chief constable earlier that the arrests being made on the day were being made for low-level criminal offence—I think they were the words the chief constable used—for obstruction of the highway. It was literally going to the police station, getting processed and, the very next day, often the same person going out to another part of the M25 to do the very same thing again.
Kit Malthouse
Q
Nicola Bell: Yes. I am a civil engineer not a lawyer, but—sorry.
Kit Malthouse
Q
So in your view, would it be a sensible move to combine the best of both? Effectively having a power of arrest for an offence that attracts a not dissimilar level of sentencing, which might act as a deterrent, that you would get under an injunction.
Nicola Bell: I think the level of offence is a matter for the police. For me, it is the same as John has mentioned. It is about the deterrent and, for me, it is really about safety. Walking on to a 70-mph road is not wise. If you look on Insulate Britain’s website, you will see evidence of the day they blocked the M25 at junction 25, where four protestors came out and sat on the road. They did exactly the same on the opposite side of the carriageway and that footage clearly shows the police in danger, my traffic officers in danger and the protestors in danger as people are trying to swerve, brake and avoid them. What is included in the Bill, I hope, offers that deterrent. That is what I would like to see given that my job is about trying to keep the motorway network flowing as freely and as safely as possible. If something deters them in terms of the locking on or interfering with infrastructure—of course, we have talked a little bit about the serious disruption prevention orders that might be available—maybe that might mean that you do not have to apply for an injunction because, actually, those repeat offenders could be tackled through that means.
Kit Malthouse
Q
Nicola Bell: I do not have the exact figure, but I will just give you a couple of examples. There is a day when they protested at Littlebrook interchange, just off junction 1A of the M25—maybe some of you will know it. Four protestors sat across our traffic signal control junction. You might have thought that was not going to cause too much impact because it is just a little bit off the M25. The impact was 4 km of slow-moving and queuing traffic over the Dartford crossing, and it took until lunchtime for the effects of that to disappear. The day they protested down at the port of Dover, they sat on the road, but two protestors climbed up the side of an oil tanker and glued themselves to the top of the oil tanker while we got rid of the people on the road. By mid-morning, the effects of that around the roads in Dover were felt until about half-past 5 in the evening. The economic impact of that alone, given the importance of road freight to the UK and goods coming in and out of Dover, probably speaks for itself.
Anne McLaughlin
Q
John Groves: I come back to the tunnel point I made earlier. I assume that those that participate in going on to land and trespassing on land and digging tunnels know that they are breaking the law. but they do not see the current law as a significant deterrent to stop them from doing that. The police will always seek the balance between lawful protest and the rights of the landowner or whoever. Invariably, that often means issues with access to sites.
Access to some of our sites has been delayed for about eight hours. We cannot do any work. We cannot move vehicles in or out of our sites, because protesters are sat down outside at the access point, sometimes locked on, sometimes not. The police are there but they will not take action because they are allowing the right to protest. Because the protestors are not on HS2 land, we cannot do anything about that. We cannot move them on—on the public highway, only the police can move them on.
My sense is that this Bill, if enacted, will provide a deterrent effect for the protestors. I come back to the safety point—I am sorry to keep going on about tunnelling. Four people in a tunnel is such a serious thing; I am concerned that we will have a fatality at some point in the future. We have been really lucky. We have had four or five tunnel incidents and we have yet to have any serious injury, but I suspect it will come one day, if it continues in the way it is going. If we look at our data, we are seeing protestors turning to tunnelling more readily. In the operation we have just run, there were four shafts on one piece of land; they moved on to another piece of land very quickly and they started to dig a tunnel. We were able to get in quickly and move them on. That is my principal concern.
Anne McLaughlin
Do you want to respond, Nicola? You do not have to.
Nicola Bell: No, it is the same as what I was talking about before. It is about the fact that the police recognised that there was nothing that would stop somebody just keeping on doing this. They could arrest them, but it was a low-level criminal offence and ultimately that was not going to deter what we were seeing, which was pretty unprecedented, really—that level of protest in the south-east of England over the tail end of last year.
Mrs Natalie Elphicke (Dover) (Con)
Q
I was hoping you could expand on your earlier answer to give the Committee more of a feel for the impact of this kind of traffic disruption on the Kent and Dover economy and its importance to the strategic network for the nation, and for some of the safety and other challenges in dealing with these incidents that are different from the ordinary traffic disruption that your team deal with on a more regular basis.
Nicola Bell: The bounds of my responsibility would be, for example, the traffic officers that you see as they patrol the network. On the day of a protest, our role would be to try and create a safe space for the police to then get in and do their job. For example, on the day that they protested down in Dover, that was about protecting the area to allow the police to get specialist people in to get protestors off the top of the tanker and to therefore get the port open again and get things running.
On your point about the economy, as I mentioned earlier, 80% of domestic freight still uses road, so that is a pretty big impact on the economy. We know that most of our goods come in and out of the port of Dover, so therefore the roads they take—the M20, the A20 and the A2—are very significant indeed. Ultimately, the cost also relates to people not getting to where they need to be on time—whether that is missed appointments or freight not getting to where it needs to get to on time. I do not have an exact figure for the impact on the economy. I know that some of that has been worked on, and we can perhaps provide that to the Committee in writing afterwards.
Tom Hunt (Ipswich) (Con)
Q
Nicola Bell: What we saw was that, first, they got themselves on to the road and sat down, then they waited until the police arrived, and then they started to lock on so that they were causing maximum delay. I would say that, on average, if you had 10 of them sat down, at least three quarters of them were glued.
Tom Hunt
Q
Nicola Bell: You can see in some of the footage, which is freely available on Insulate Britain’s website, that the police are trying to stop them putting their hands down on the road surface. As soon as they put their hand on the road surface, specialist teams need to come in to de-bond them, as it were. That adds to the safety risk but it also adds to the delay.
Tom Hunt
Q
John Groves: In the most recent experience I can talk about, the police were frustrated that they were not able to step in and deal with it. They were not on the ground immediately. Certainly, there is frustration from my team on the ground that the police are not more direct with some of the protesters; that is certainly true. Invariably, what happens on HS2 sites is that protests get there some weeks ahead of when we plan to take possession of land, so they are always looking forward and looking at what we are about to do. We publish all this information online about where the route is and when we will be taking possession, and they are always ahead of that.
Lee Anderson
Q
John Groves: It has a significant impact on morale. Invariably, my security team and my security contractors, who are somewhat used to dealing with difficult people—if I can put it like that—are subjected to verbal abuse pretty much all the time they are confronted with legal protestors.
Obviously, there is a broader range of people who are supporting and delivering for HS2 who did not sign up to being verbally abused or being chased around a field when they are trying to undertake an ecology assessment, for instance. We have also seen throughout our joint ventures that the tier 1 contractors that are doing the work of building the railway are having to invest in a lot more physical security and a lot more support for staff across a broad range, so it does have a significant impact.
Lee Anderson
Q
John Groves: Absolutely, that is an issue for the economy—job retention and retaining the skills we need to build the new railway. As you can see from my evidence, we are putting a lot of money into physical security, and we are working through the joint ventures, which have some responsibility for their own staff. Fundamentally, as I said earlier, if this legislation is enacted and it provides that prevention, those risks will reduce, our costs will reduce and, you would hope, the staff who have been impacted will feel far more comfortable and at ease in coming to work every day.
Sarah Jones
Q
I have a couple of follow-up questions. In the Police, Crime, Sentencing and Courts Act 2022, which has not yet come into force, there are lots of changes to protesting. They are not yet law, but they will become law as soon as the Government get around to doing that. One change is that obstruction of a highway will carry a prison sentence of up to six months. The Minister was talking about it being a fine—it will now be a prison sentence of up to six months. There is also a raft of stuff about imposing conditions on static protests, so, if you are organisers of static protests, there are conditions on those, and, again, you can be imprisoned for that.
What is your assessment of the impact that that legislation will have when it comes into force? There is a question as to whether we should implement that legislation to see whether it has an impact before we move on to other things. What is your assessment? Will it have an impact?
John Groves: From HS2’s perspective, it will be limited. Protest on the public highway is limited in terms of the impact it has on us.
Sarah Jones
Q
John Groves: It may have some positive effect, but—I am sorry to repeat myself—tunnelling is the biggest issue for us, and I do not believe the Bill deals with that. Lock-on, as well, has a serious impact on us.
Nicola Bell: From my perspective, it is about seeing what impact that has and what the outcome will be. Obviously, it will be for the police to decide whether or not they are going to then use that new power to do exactly as you said. It is really about the impact that it has and whether it will be enough to act as a deterrent against people coming back. If it does, that is positive as far as running the strategic road network on a daily basis is concerned.
Sarah Jones
Q
Nicola Bell: Yes.
Mrs Elphicke
Q
John Groves: Absolutely. The protestors state that in their social media posts and in the things they say directly to us when we are talking to them. They are intent on stopping the project. They want to stop the railway. They believe it is the wrong thing to do.
We have had to shift how we approach the removal operation by taking land earlier, to build in sufficient time for removal, so that it does not have a direct impact on the programme. We have learned as we have gone along and, as the protestor strategy has changed, our reaction to that has changed. Again, it is expensive work, having to have a High Court enforcement team, paramedics and mine rescue there 24/7, since 10 May, until they come out. Then we hand that over to the police and also probably the ambulance service.
Wendy Chamberlain
Q
John Groves: I would expect that, if the legislation is enacted and the police pursue charges against individuals who are breaking these laws, it will have a direct effect. At the moment, when you compare the number of incidents we are seeing against the number of prosecutions and convictions, there is a disparity. I would hope this legislation would initially have a significant effect, and hopefully the deterrent effect will tail off after that and we would see a reduction in it. That is how I see it.
Nicola Bell: Similar to what I said earlier, for me it is about that repeat offence, where people keep going back out. That is one of the biggest impacts for us—what could be used under the serious disruption prevention order. I guess it is about them having more powers. All I can say is that, with the system as it is working at the moment, the police are telling us they do not have anything to deter and so they continue this repeated behaviour—hence why the injunctions were sought.
Wendy Chamberlain
Q
John Groves: I do not know. In terms of the numbers of people we see protesting against HS2, we think there is roughly about 150 that are the core. Within that, there is a focused 20 people. It is not a big number, but we also see that they move between different causes and different protests. I suspect that we will see some of the people Nicola has been talking and vice versa. They will move. If there were a new Heathrow runway being built or a new nuclear build, they would probably move in those directions as well.
It is a relatively, I think, small community, albeit they draw in quite a large number every now and then. They will move on to other things, which is probably why the order would be helpful in that respect. At the moment, we are focused on HS2 actions in terms of our security and injunction work, but if the order has a broader effect across protester activity in general, that would be positive.
Andrew Bridgen
Q
John Groves: It is not just standard security for a site, which you would expect to see anywhere. The direct costs of protester activity to the taxpayer up to the end of March were £126 million. We estimate that by the end of next year, that could in a worst-case scenario reach £200 million.
Anne McLaughlin
Q
John Groves: Certainly, looking at the Bill when it was published, the things we have seen and discussed today are important. The introduction of the tunnelling amendment is very positive from our perspective. I have not got any comment on the timing of it.
Anne McLaughlin
I suppose that is a question for the Minister, but I am not allowed to ask the Minister.
The Chair
We are questioning the witnesses at this stage. In due course, I am sure you will have the opportunity to question the Minister.
Kerry McCarthy (Bristol East) (Lab)
Q
John Groves: All I can say is that it is about the penalty that could follow an arrest. As I said earlier, if you contrast the number of incidents we have seen on HS2 sites against the number of arrests, there is a disparity. If there are more arrests as a result of what they are doing today, and there are more penalties, that should have a deterrent effect. In terms of fines, it is interesting that we have seen some offences being prosecuted and resulting in a fine. What sometimes happens, and we have seen this in other places, is that they will crowdfund and those penalties will be paid by others.
Kerry McCarthy
Q
John Groves: We want the legislation to work so that it provides that deterrent. I do not think I can say any more than that.
Kit Malthouse
Q
John Groves: Absolutely.
Kit Malthouse
Q
Nicola Bell: To your first point, once people saw that injunctions were being followed through, committal proceedings were happening and people were going to prison, that did have a deterrent effect, because we have not seen a protest on the strategic road network since 2 November. Three of the injunctions, particularly covering the south-east—the M25, M25 feeder roads, and the roads down to Dover—still exist and are still in place. Certainly, the public mood was something that was different as the protest happened. By the time we saw things through in court the protests were finished. Nobody was seeing them every day, whereas the first time we went it was fresher in people’s memories. People were mostly peaceful but then realised the impact that it could have on their lives—that was clear.
The Chair
If there are no further questions from Members, I thank the witnesses for their evidence.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Public Order Bill (Second sitting)
Thursday 9th June 2022
(2 years, 6 months ago)
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The Chair
We are now sitting in public and the proceedings are being broadcast. We will hear oral evidence from Elizabeth de Jong, chair of the United Kingdom Petroleum Industry Association, and Steve Griffiths, managing director of London Stansted airport, part of MAG, the Manchester Airports Group. Welcome to our witnesses. This session will run until 2.45 pm. Please will the witnesses introduce themselves for the record?
Elizabeth de Jong: Hello. I am Elizabeth de Jong, the chief executive of UKPIA, the Petroleum Industry Association. We represent companies involved with oil refining, fuel production, terminal operations and petrol stations, some of which have been targeted by Just Stop Oil.
Steve Griffiths: Good afternoon. I am Steve Griffiths, the managing director of London Stansted airport, the fourth largest airport in the UK. I have been invited today as an airport operator to discuss the scale and impact of any disruptions to airport operations.
Sarah Jones (Croydon Central) (Lab)
Q
Elizabeth de Jong: Our experience of protests until April this year was that they were mainly peaceful and occasional. However, their nature changed considerably in April; they have become more widespread, longer and more confrontational. Our main concerns include the safety of staff and protestors. There are significant safety risks, an impact on fuel supply, and increased costs.
In April 2020, 11 terminals were targeted for a number of days, and two forecourts suffered damage and were blocked. A significant number of arrests were made during that period. We followed the tweeting of Essex police, and halfway through April, they were talking about almost 500 arrests; some 12% of those arrested were arrested multiple times.
On the types of activities and the safety risks, there has been locking on, which is dealt with in the Bill. We have seen people lock themselves on, or attach themselves, to the top of stationary tankers, even when they are full, and when asked, they have not moved to empty ones, which would be safer. We have also seen locking on at height, which is when people attach themselves to machinery, pipes or vehicles high up, which means a risk of falls. People have even made their own stretchers to attach themselves to, which can be difficult to deconstruct safely. We have seen smoking on terminal storage tanks, with the safety risks that go with that. Cables have been cut on road tankers, which affects braking, and roads have been undermined—networks of tunnels have been dug under roads, affecting main and emergency access roads.
That causes great concern about safety. Refineries and terminals, as I am sure you can imagine, store potentially dangerous substances such as oil, other flammable substances, and substances that can cause chemical burns and can generate extreme heat. There can be a real danger of explosion and of falls from buildings. The activities on such sites are strictly regulated under COMAH—the Control of Major Accident Hazards Regulations 2015—and of course protestors are not following those regulations; they are putting themselves and staff in danger. There have also been impacts on fuel deliveries and costs to companies.
On what the police can do and what the response has been, the industry has increased security staffing at some sites. There is already fencing and closed circuit television, and there are inspections by operational staff. Some sites have increased security around the clock. However, security staff have limited powers; they can only ask people to leave. Companies have also taken out civil injunctions, which is an option open to them; a number of our members have done so. That is of limited effect, because they do not come with powers of arrest and they take time to put in place, which allows people to come back and target the locations while the injunctions are being put in place. We have encouraged local authorities to take out injunctions, which are a more powerful tool, but, again, they take time to put in place and are costly. During the protests in April, two were put in place, in Essex and Warwickshire.
Steve Griffiths: From my experience as an operator of Stansted airport, which is clearly very much a live operational environment where there are complex, high-risk operations, any protests pose a serious risk to human life—the lives of our staff, our customers, the travelling public, and the protesters—and cause major disruption to the operation.
Our last major significant event was back in 2017, and it related to a deportation flight to Africa. The protesters cut through the security fence around the airport, which ensures its safety and security, using bolt cutters, and breached the airfield. Fourteen protesters then locked themselves around a Boeing 767 jet, which was due to fly the deportation flight to Africa. The impact of that was that the runway was closed for approximately one hour. This was at night time, so there was no daytime visibility, and incoming and departing flights were grounded during that period. Approximately 25 flights registered delays during that hour, and 11 were cancelled, including the flight in question, which was due to fly to Nigeria. We estimated that about 1,700 to 1,800 passengers were impacted by that disruption.
The protesters were arrested by the police, but were ultimately acquitted. We understand from media reporting of the case that they were charged with intentional disruption of services at an aerodrome under the Aviation and Maritime Security Act 1990, but the court acquitted them because the offence requires some element of terrorist activity, which was not deemed to be present in this event. We understand that the Crown Prosecution Service charged the protesters with that offence because other offences that the perpetrators may have been charged with did not carry sentences that adequately reflected the seriousness of the circumstances that we experienced on that night—of forcibly gaining access to a security restricted live airport operation. That is the direct impact of the last major event.
Clearly, we support the right to protest at the airport, and we have designated areas, but this is about cases that infringe on parts of the airport outside those designated areas. I can talk only on behalf of London Stansted, but events have happened across UK airports.
Sarah Jones
Q
Elizabeth de Jong: Yes. I can see a direct reference to locking on. There are a number of elements in the Bill that will be helpful. These are new challenges for us, and the Bill makes a number of enhancements to mechanisms that will be available to the police. The police will, of course, give their view about whether they will help or not.
From what I have read, the Bill will give the police a power to arrest in a timelier and more straightforward way. The current way of giving powers through injunctions could lead to a patchwork of different injunctions in different places, and be confusing, which would mean that police felt less confident in making decisions. The Bill specifically refers to two things: locking on—that looks as though it will be potentially useful—and the definition of key national infrastructure; again, that would enhance the powers and make their use more practicable.
Sarah Jones
Q
I guess my question is whether an offence of locking on—I think that it has its own problems because of the very broad way it is drafted—will be any more helpful than those 500 arrests that the police made; you are talking about people who just come back afterwards.
Elizabeth de Jong: My understanding is that the legislation will reduce the time and cost spent getting the injunctions that allow the arrests. It clearly says, “This is an offence. We don’t need to go through the injunction process.” The issue is the time it takes to get the injunctions; that allows people to reoffend. There might be an opportunity for faster processing as well, but clearly local authority injunctions will allow court appearances to take place sooner.
Steve Griffiths: There is nothing I could add to that. I am really here to talk about the impact of disruption, and I am probably not qualified to comment intensely on the Bill; I leave that to the police.
Tom Hunt (Ipswich) (Con)
Q
Elizabeth de Jong: The particular areas are Kingsbury and Esso Purfleet; it has been around Essex and Warwickshire. It has also been nationwide, but those are the current ones that have been focused on.
Tom Hunt
Q
Elizabeth de Jong: Currently, but the difference that we are seeing in these protests is that they are more widespread, both in number and geography. I think it will be, potentially, that other aspects of supply chains are focused on in the future.
Tom Hunt
Q
Elizabeth de Jong: I do not have an opinion on the police response. We have been working together with them, but I am really focusing on what would make their role easy.
Tom Hunt
Q
Elizabeth de Jong: It has had an impact on fuel deliveries. It has been hard to estimate that, but, for example, I can give you evidence that for the week ending 3 April, there was a 9% drop, week on week, in fuel deliveries. We have calculated that.
Tom Hunt
Q
Elizabeth de Jong: I cannot equate that to an impact on cost; I can say just that there was an impact on deliveries. However, the costs of obtaining injunctions across our members and across the different sites, for example, have run into the hundreds of thousands of pounds—we estimate tipping over the £1 million mark. Our estimate for the cost of obtaining injunctions for local authorities is that they will also be spending that. The cost of security staff has also been at the hundreds of thousands of pounds mark, tipping into the millions. There is an increase in the cost base, and a need to repair for industry, but I am not here to comment on prices at all; that is not something that we address.
Mrs Natalie Elphicke (Dover) (Con)
Q
I want to explore the Stansted situation a bit more. You have your highly secure zone—that goes without saying for national infrastructure—and people break in through a security fence and close a runway. I think you said that 25 flights were grounded as a result.
Steve Griffiths: Yes.
Mrs Elphicke
Q
Steve Griffiths: Yes, indeed. Obviously, the security of the airport is critical to its safe operation, as you said. We have practices and procedures, CCTV and patrols, as well as what we call a “critical” part of the airport for maintaining security. We know about the security that we experience just as travelling passengers; that is equally important around the whole perimeter of the airport.
It is very serious, and any situation like that requires our staff to respond to it as well as ensuring the continued safety of the operation of incoming aircraft and aircraft that could be departing at that time.
Mrs Elphicke
Q
Steve Griffiths: No. Obviously, we work with the local police, so we very much have a partnership between the airport police and Essex Police, and they look at intelligence and so on. All the intelligence suggested that it was a protest rather than terrorism.
Mrs Elphicke
Q
“We recognise that the various summary-only offences with which the appellants were originally charged…might…not reflect the gravity of their actions.”
I think that underlines the importance of the matters before us. At the Court of Appeal, Lord Burnett referred specifically to disruption “likely to endanger” the safe operation of the airport or the safety of people there. We have heard from your evidence that the actions that were taken were grave and had real impacts on the airport’s operations and security.
Steve Griffiths: Yes, they did indeed.
Andrew Bridgen (North West Leicestershire) (Con)
Q
Elizabeth de Jong: We follow guidance produced by the Centre for the Protection of National Infrastructure. New guidance on the security of sites was issued in April by the Department for Business, Energy and Industrial Strategy, with the support of national counter-terrorism police and the National Police Coordination Centre. Lots of site security plans are already put in place using guidance and experience, and there are updates; that is continually being reviewed using the best available guidance. It is a tiered system, as people gain access and then further access into the site, but one of the points I wanted to make is that the sites are very large indeed. CCTV and fencing are already there, but it is very hard to stop a large number of people—
Andrew Bridgen
Q
Elizabeth de Jong: Large perimeters, and a large number of people who are determined to get in and willing to put their own safety at risk. Should security guards or other people want to remove them, they have almost no powers to do so, apart from asking them and pointing out that it is not safe. We have been relying on the police, and in my opinion, we need to make sure that the police have the powers of arrest in order to remove those people, for their safety as much as anybody else’s.
Andrew Bridgen
Q
Elizabeth de Jong: It would be a proper emergency catastrophe—explosions, fire, life-ending.
Andrew Bridgen
Q
Elizabeth de Jong: I do not have that figure off the top of my head, I am afraid, but all the sites that have been targeted, all the areas of the supply chain—the petrol stations as well—are places that have the potential for explosions. Safe working is needed in those areas, and that is what we are very concerned about. In fact, petrol stations are one of the areas that are specifically not included in the new Bill. One of our asks is for that to be considered, and for the scoping of the Bill to be as wide as possible in order to include all aspects of the supply chain, because petrol stations could endanger the public—in fact, arguably more so than oil terminals. That would put staff as well as protesters at risk.
Andrew Bridgen
Q
Steve Griffiths: Obviously, the Home Office determines those deportation-type flights and works with all of the UK airports. There is no doubt that that will become more public and more prevalent, and it does heighten the potential risk to us as an airport as well.
Mr Gagan Mohindra (South West Hertfordshire) (Con)
Q
Steve Griffiths: Certainly from my perspective, I do not feel qualified to answer that question, unfortunately.
Mr Mohindra
Elizabeth, do you want to give it a go?
Elizabeth de Jong: I have not researched that myself, but the companies we represent are international companies. If it would be of interest to the Committee, I could ask how that operates for them as well. Let me know if that is something you would like me to follow up on.
Mr Mohindra
Q
Elizabeth de Jong: That is exactly what we would be seeking as well. Just in the same way as we have seen an evolution in the last year of the types of protest down and around the supply chain, we would like the drafting to reflect the continued evolution of protests and to cover as much of the supply chain as possible, and what the next target might be. In terms of “key national infrastructure”, the “downstream oil” sector is very useful to have. I think it will give the police confidence that this is an area where they can intervene and make arrests. But we would like the definition of key national infrastructure to be more specific and to include roads as well as buildings, to include vessels—tankers, for example—and infrastructure under construction. All these things are important to the supply chain, but also very important for the safety of the protesters, staff and the public. Specifically, as I have mentioned, petrol stations have been excluded; we think that they are important for safety as well.
Mr Mohindra
Thank you. Steve, is there anything from you?
Steve Griffiths: No, nothing to add from me, thank you.
Anne McLaughlin (Glasgow North East) (SNP)
Q
Elizabeth de Jong: Steve, you have said, and I would agree, that we absolutely support the right to peaceful protest. We absolutely support the right to free speech. That is really important to us as a trade association. Free speech—debate—is very important for you as well. However, what we are looking at here is the impact on people’s safety. That is also very important.
Anne McLaughlin
I understand that, but I am asking about—
Elizabeth de Jong: Yes, I promise I will try to answer that. Our industry is vital to achieving net zero, and there is lots the oil industry is already doing, and is wanting to invest in, to be part of the solution. We are producing more low-carbon biofuels. We are delivering and manufacturing sustainable aviation fuels. We are running some of the biggest hydrogen and carbon capture projects in the country. We are delivering the electric vehicle charging network; we are producing lubricants for electric vehicles as well. Personally, we think dialogue is very important. That is the essence of our democracy. But we also support peaceful protests and free speech in all ways. But if we are focused on dealing with protests and spending money on protests, that money arguably could instead help continue the work that we are doing to achieve net zero.
Steve Griffiths: I would echo everything that Elizabeth has said. It is obviously important, from the perspective of the aviation industry, that the Government have set out a plan to achieve net zero carbon by 2050. That is a plan that all of the industry has signed up to. As the largest airport group in the UK, MAG has a plan to achieve that by 2038, which is 12 years ahead of the Government target. Again, contributions to further advancing that would only help our industry, and that is what we will be looking for. As we have said, we have no objections about the right to protest, but it should be done peacefully.
Anne McLaughlin
Q
The Chair
I think we are straying into the debate around net zero rather than the issue in hand.
Anne McLaughlin
What I am really trying to say is that they disagree with the answers that you have given me; if they have a different view, they must have the right to protest. How can they do that and make an impact, while dealing with the safety and disruption concerns we have talked about?
Steve Griffiths: I can only comment in a limited way on this. Advancing this subject is really about innovation, technology and research and development. Obviously, we have to be realistic about the step changes that we can make, which is why in the industry that I work in the Government have set out a very clear plan. I know that all parts of the industry are looking at ways to achieve that a lot earlier. At the heart will be design, research, innovation and technology—that will drive it. Those elements have to be at the top of the industry’s and the Government’s agenda if we are to achieve that.
Elizabeth de Jong: And creating the right investment environment for the investments and the innovation as well. It is that type of dialogue that can speed this along. Some 96% of energy used in the transport sector currently comes from oil, so to just stop oil would have quite catastrophic impacts on society and the economy, but there are plenty of ways to debate this and to look at the policies that are needed.
Matt Vickers (Stockton South) (Con)
Q
Elizabeth de Jong: I am afraid I am going to have to leave that for the police and those who work in that area who have studied what the best incentives are for people. We are definitely focused on how to make things safe in our industry and how our society can work more efficiently and effectively.
Steve Griffiths: I cannot really comment on that. It is really for the police to determine, but we obviously support their having the right tools because, at the heart of this, as Elizabeth has said, is the safety of the protesters, the general public and customers, as well as our colleagues. That is really important.
Matt Vickers
Q
Steve Griffiths: I am here to talk about the disruptions; I cannot really talk about the policy itself.
Elizabeth de Jong: The areas we have focused on are the definitions of key national infrastructure. Locking on is important, and it is important that petrol stations are included. We do not have views on the other areas of the Bill, around stop and search for example. That is for people who have studied and are expert in what deters people or does not deter people.
The Minister for Crime and Policing (Kit Malthouse)
Q
Steve Griffiths: That is clearly one obvious option, yes.
Kit Malthouse
Q
Steve Griffiths: Yes, certainly. We work with the police on intelligence and they do a lot of scanning to try to look at risks that are presented at the airport, but certainly, having those facilities to stop people directly and search them would be helpful.
Kit Malthouse
Q
Steve Griffiths: Yes, we have a very well-defined plan that is a joint plan between the airport, the airport police and Essex police. That is really around the seriousness with which we take breaches on the airport. We have to have a very clear escalation plan and very clear, constant monitoring in place, because the seriousness of the disruption it causes, and also the threat to safety, is significant to us as an operating airport.
Kit Malthouse
Q
Elizabeth de Jong: Yes. Site security and risk assessment per se, given that we work in such a tightly regulated and potentially dangerous environment, are very much at the core of all operations throughout the downstream oil sector.
Kit Malthouse
Q
Elizabeth de Jong: Indeed.
Sarah Jones
Q
Also, there seem to be slightly different issues. The issue with the flight was a slight one-off, in that people were objecting to that particular flight going away. There is a particular problem, it seems, with people trying to block entire infrastructure programmes across the country. They are two quite different things and I think they need a slightly different response.
I want to confirm with you, Mr Griffiths, that the police arrested the people but that the issue was that the charge was not right. It was not that they were not arrested and taken away; it was just that the charge did not stick because the right charge was not there, if you see what I mean.
Steve Griffiths: Yes, you have the fact that the incident occurred in the first place and then, as you say, the perpetrators were arrested, but then the subsequent charge fell apart because of, presumably, a gap in legislation, in that the route taken for prosecution did not stand up. On your first question, I do not have that answer with me today.
Elizabeth de Jong: I have some information on the first one. We received police intelligence about the attacks and that intelligence was broadly correct.
Sarah Jones
Q
Elizabeth de Jong: It was very helpful indeed.
The Chair
If there are no further questions from Members, I thank our witnesses for the evidence. We will move on to the next panel.
Examination of Witness
Adam Wagner gave evidence.
The Chair
We will now hear oral evidence from Adam Wagner, a barrister at Doughty Street Chambers. We have until 3.5 pm for this session. Will Mr Wagner introduce himself for the record?
Adam Wagner: Good afternoon. My name is Adam Wagner and I am a barrister at Doughty Street Chambers. I practice in human rights law and public inquiries, and I do a lot of work on protest law.
Sarah Jones
Q
Adam Wagner: Okay. I will start with the general question about what I think of the legislation. It is important to frame this debate properly. In this country, our tradition is that protest is something that is permitted. It is not seen as a social evil; it is seen as a social good. A certain level of disruption is inevitable in any successful protest. That is how you get people’s attention: you disrupt, and you put yourself in front of them. That is not a new thing; it is very old. It goes back to the suffragettes, who I am sure many people giving evidence will mention.
Every social movement in history that has a protest element has always used an element of disruption, and there will of course be times when disruption steps over the line into violence and such serious disruption that society will not tolerate it. At that point, the criminal law will intervene, and there is always an uneasy balance between where you put the line, because you accept that conscientious protest about important issues is something that democracy needs for the public to communicate directly to the rest of society and to you—the people who are in charge. That is always the context.
All the court authorities on these kinds of issues recognise that protest is disruptive, unruly and something that annoys people, particularly if they do not agree with the views. If somebody does not agree with a view, that is a very good reason to not allow them to be in charge of whether the person can be express it. That is why it is very dangerous to start tinkering with a law because of views you do not approve of, because the next lot will come along and do the same for the views you do approve of. So we keep a level of tolerance towards protest—that is the way I would frame it.
For the most part, the mechanisms that the Bill puts in place essentially criminalise peaceful protest. That is what the Bill does: it criminalises peaceful protest in a way that has not been done before. It treats peaceful protest like knife crime, drug dealing or terrorism. I do not mean that metaphorically; I mean it directly. Serious crime disruption orders and terrorism disruption orders stop people doing something in future—those are the kinds of methods we have used to disrupt terrorism, knife crime, drug dealing and gang violence. I have been involved in lots of cases involving those kinds of orders. If the Bill is used by police—they will be under pressure to use it in particular instances—the end result will be lots more protesters in the criminal courts, in very long and complicated trials that involve looking at the proportionality of the protest in question, as we saw with the Colston statue case. But it will be 100 times more, because all these offences have a reasonable excuse—I can come to that. I think that is one thing you will see.
The other thing you will see is a lot more protesters in prison—and a lot more peaceful protesters in prison. I do not have any issue with, and I do not think human rights law has any issue with, violent protesters being treated as criminals—the European convention on human rights entirely accepts that violent protest does not fall under the protection of the right to protest—but all these provisions are about peaceful protest, and it will end up with hundreds and hundreds of protesters in the prison system. I see that from my own work. An increasing amount of protesters are going to end up in prison because of the injunctions. That is my general view, but I can talk about specifics.
Sarah Jones
Q
Also, we heard from previous witnesses about cases in which people have glued themselves to motorways in a dangerous way, and about people locking themselves on and tunnelling under things—doing things that are criminal and dangerous. That is the problem that the Bill is seeking to tackle: the small number of people who are repeatedly doing things that are dangerous for themselves and others. It would be helpful for you to explain how that marries with your view that the Bill will affect loads of peaceful protesters.
Adam Wagner: Hard cases make bad law, is the aphorism. I think that is true. I listened to a previous witness say that locking on is a new phenomenon; the suffragettes were locking on and Gandhi was locking on—these are very old protest methods. Anybody that breaks into an airport or an oil refinery, or blocks a motorway, can be arrested and charged under existing criminal law. That is absolutely uncomplicated.
One of the misapprehensions about the Insulate Britain protests—I read it in the newspapers—was that the police could not arrest people until there was an injunction in place. That is completely the wrong way round. Injunctions do not give powers of arrest to the police; court enforcement officers gain powers of arrest from injunctions, but the police can arrest people for obstruction of the highway in the same way that they have been able to for a long time. There are all sorts of other criminal offences that can be used—aggravated trespass is the other catch-all one. When someone is on the road they can still be trespassing if they are not using it for a permitted purpose. Aggravated trespass applies to any private land, including airports, oil refineries and petrol stations.
In terms of dealing with the issue at the time and on the ground, the Bill is not going to make any difference at all. The police can go in and arrest people—there is nothing stopping them. They can use reasonable force to unlock people who are locked on. The police will have exactly the same powers to do that under all these new offences. The difference—to use a term that has come up—is the downstream. Instead of those people potentially going to prison for a bit, or not going to prison at all, they will end up going to prison for a long time. The clauses of the Bill create a culminative effect—it is like being a petty criminal: once you start and are in the criminal justice system, you get longer and longer sentences and everything stacks up, one after the other. The courts have more and more draconian powers that they can use against you. The Bill creates that culminative effect for peaceful protesters.
Sarah Jones
Q
Adam Wagner: A serious disruption prevention order follows the model of lots of other such orders in our laws, such as serious crime prevention orders, gang orders and drug dealing prevention orders. It is the same exact model. As drafted, a serious disruption prevention order allows a court a power if someone is convicted of any offence under the new offences.
For example, having superglue in their pocket would be an offence under the regulations, because it could be used for a lock-on. Arguably, too, a bicycle lock on their bicycle could be used for a lock-on. Once that is triggered and they get convicted of an offence, the court can then look at their background and, if they have been involved in a protest that even potentially might cause serious disruption, that is all that is needed—
“capable of causing serious disruption to two or more”—
and could trigger the power for the judge to impose an order of up to two years that prevents them from doing all sorts of things. They might not be allowed into a town centre for two years, or to associate with particular people, or they could be given electronic tagging requirements. Once that is in place, they could be dragged back in if they breach a requirement and be given a prison sentence as a result. It is a protest banning order, effectively.
In fact, there are two different kinds of order: clause 13, which is the serious disruption prevention order, and then another one, whereby a police officer—even if the person has not been convicted of an offence, but just so long as they have participated in a protest and the judge thinks they might participate in another or maybe take some superglue along with them—can prevent them from going into a town centre or associating with particular people. The orders can even be applied to organisations, so it is not just individuals; it could be a charity or a campaigning organisation. It is a really huge expansion of court powers against protesters.
Let me talk a bit about the psychology of some of the people I represent, who are some of the more hardcore protesters who are at the centre of a lot of these movements. They will not be deterred by this legislation. If we look at Insulate Britain, which I guess is on the extreme end of disruption versus expressing the right to protest—it is not directed; the people they were disrupting were not the people they were protesting against, which makes the courts the least sympathetic to those actions—a lot of them said, “Well, I will go to prison for the cause.” A lot of environmental and Black Lives Matter protesters—whichever cause you think of—will say, “It’s going to be a badge of honour to go to prison.”
The prison system will start to be full of those people. It will not deter them; the people it will deter are the people who are not willing to go to prison, but who will also not be doing anything illegal at protests. They will just not want to go along, “Because I don’t want to be caught with a bicycle lock. I have a bicycle outside; I don’t want to be caught with a bicycle lock. What happens if I get arrested because I have a bicycle lock? I didn’t know one of these orders allowed police to do suspicionless search.” It will deter those people; it won’t deter the people you are worried about or the previous witnesses were worried about. It will deter lots of other people who you are not worried about, but you should be worried about.
Kit Malthouse
Q
I want to ask you a couple of questions. First, you seem to be quite happy for those who profess to be protesters to go to prison in certain circumstances. So, if someone glues themselves on to a fuel gantry, bringing themselves and others into danger, you are quite happy for those people to go to prison—the only question in your mind is for how long. I presume you accept that part of the role of sentencing is not just to punish, but to deter. In circumstances where somebody is persistently committing those offences, whether or not they are subject to the order that you talked about, would you not expect them to get increasing sentences as they reoffended?
Adam Wagner: The first thing I would say is that I have come here voluntarily. I did not come here to have someone be personally rude to me, and I really do not appreciate it. I do not understand the benefit of that to anyone.
The second point is that I am not happy for any protester to go to prison. That is the criminal law as it is. The question this Committee is asking is: does the criminal law need to change to deal with the problems that the Bill is supposedly dealing with? I just do not think it does. If the aim of the Bill is to send a lot of peaceful protesters to prison, it will do that. By peaceful, I mean non-violent. Locking on to something is not a violent protest. It is disruptive and annoying for the people who are trying to do whatever they are going to do in the location the protester has locked on to, but it is a classic form of protest. It is something that has always been used. It is something that society generally tolerates.
If we want lots more people like that to go to prison, this is the Bill to do it. However, if you want to stop people blocking roads, oil refineries or fracking sites—whatever the cause at the moment is—this is not the Bill to do that. I can tell you that, because I know these people; they will continue doing what they are doing. The difference is that they will end up in prisons all around the country, and I am not sure that is a good look for the country.
Kit Malthouse
I understand. I apologise if I was rude before.
Adam Wagner: Thank you.
Kit Malthouse
Q
Adam Wagner: First, it depends on whether the police are charging under that. I have not really talked about the relationship between the police and the public. The police will have to think really carefully about whether they want any of the aggravation of having to recommend for charging people who are not violent criminals, but are, in fact, peaceful protesters expressing their views.
Secondly, you cannot guarantee at all that the judges will send people to prison. There has been a step change through Insulate Britain. I have acted in a lot of these contempt cases—where people breach injunctions. The big difference with Insulate Britain is that these people are being sent to prison, and the courts’ reasoning, as I said, is that the protest is not directed at the social evil that the protesters are protesting. They are blocking the highway, and not blocking anybody who is insulating or not insulating anything. That is why they are sending people to prison.
However, what the judges have not done is send to prison people who, like my clients, were protesting at the entrance of a fracking site in Blackburn at Preston New Road, or people protesting on the HS2 line. The courts have said very directly: “We tend not to send people to prison for that.” It is quite possible that the courts will not oblige. Who knows? The powers will be there.
Kit Malthouse
Q
The Chair
A short answer, Mr Wagner, because we are in the final minute.
Adam Wagner: It is a mixed bag. You might end up with a judge who is not very used to the criminal law, because a lot of them are in civil courts, but you also might end up with a whopping cost order at the end of it. For some of the cases I have been involved in, it has been tens of thousands of pounds. It is a mix, but civil injunctions have their own problems more widely.
The Chair
That brings us to the end of the time allotted for the Committee to ask questions of you, Mr Wagner. I thank you, on behalf of the Committee, for your evidence.
Examination of Witness
David Dinsmore gave evidence.
The Chair
Q
David Dinsmore: I am David Dinsmore, chief operating officer at News UK. For the purposes of this, News UK is the owner of Newsprinters Ltd, which prints a lot of the newspapers in this country.
Sarah Jones
Q
David Dinsmore: This started on the evening of 4 September 2020 and continued to midday on the 5th. We have three print sites across the UK: one at Broxbourne to the north of London, one in Knowsley in Merseyside, and one at Eurocentral, between Glasgow and Edinburgh. At the Eurocentral site, there was a small, peaceful protest that broke up very quickly and did not get in the way of any of our business. However, at both Broxbourne and Knowsley, starting at about 9.45 pm, a collection of vans, boats on trailers and a bamboo superstructure were put in place at the exits to the plants. In the Broxbourne case, 50-plus people got on to those structures, many of them locking themselves on. At Knowsley, I think the number was about 30. Certainly, there were 51 arrests at Broxbourne, and 30 arrests and 28 charges at Knowsley.
The police were called immediately and were on the scene within half an hour, but they did not start removing people properly until 4 am at Broxbourne and 11 am at Knowsley. Both sites were finally cleared at midday on the 5th. This was a Friday, into Saturday. Saturday is the biggest newspaper sale of the week. Between The Sun and The Times, we would normally expect to sell about 2 million papers that day. We also print for The Daily Telegraph. We print some of the Daily Mail and some of the Financial Times, and we also deliver a direct-to-consumer service, although we do not print them, for The Guardian out of the Broxbourne site, so you will see that we are at the heart of the news industry in the country, whatever your flavour may be.
All the exits were blocked, which meant that all our trucks and drivers were blocked inside. Although we printed the run of about 2.5 million papers, they all had to be pulped. We had to use other print sites around the country to print those newspapers, and we delivered from them. The net result was that we lost a significant sale, as we did not get to many newsagents until past midday. The cost to us as a company was about £1.2 million. I would say we had 155 staff who were trapped on site until midday the following day, and we still have senior staff attending court hearings. They have had to block out of their diaries about 150 man/woman days—they are not having to attend court, but there is definitely serious disruption.
The final point I would make is that those 51 people at Broxbourne were all charged under obstructing highways, and those at Knowsley were charged under the aggravated trespass legislation. Some of the people at Knowsley have been found not guilty because it was not clear whose land they were trespassing on, and at Broxbourne, most people who have been found guilty have been given conditional discharges—costs of £150. One of them even glued himself on to the court table and still got a conditional discharge.
It feels to us to be a major, serious and co-ordinated attack. It caused considerable material disruption and continues to do so. The legislation is not in place to provide a deterrent to this. There is not even a catch-all law that people can be charged under, even if they do commit the crime. It felt like we were powerless to do anything other than work around this huge disruption, which had a massive impact. There is another impact worth mentioning. We go to wholesalers, who were hugely disrupted, and then we go to 44,000 retailers, who were similarly disrupted. That ends up with 2 million or 3 million customers who cannot get their paper when they turn up to buy it in the morning. The disruption to freedom of speech and our democracy in this instance was huge.
Sarah Jones
Q
David Dinsmore: My understanding is that you need specialist teams to remove protesters who are locked on at a height.
Sarah Jones
Q
David Dinsmore: It was chains. At Broxbourne, they brought a purpose-made bamboo super structure, which they were able to erect at speed and put themselves on to.
Sarah Jones
Q
David Dinsmore: We call it the nightly miracle that we get from literally a blank sheet of paper at 9 o’clock at night to 44,000 retailers at 6 o’clock the following morning around the country. While I like the aspiration, the idea that we could get specialist teams there and remove blockages and get all that cleared without having significant disruption to the network and that delivery is, I think, pretty ambitious.
Sarah Jones
Q
David Dinsmore: Indeed.
Anne McLaughlin
Q
The Chair
We cannot go into the detail. The concept of how a protest can be taken forward is, however, a legitimate question.
Anne McLaughlin
Q
David Dinsmore: News brands are a very good channel for campaigning. We would see ourselves as giving a voice to the voiceless. One of the ironies of this particular protest was that on page 10 of The Sun that day, there was a piece from David Attenborough about exactly what Extinction Rebellion were campaigning on. They were going after one of the vessels that would probably be a good way of disseminating protest and counter-voices. Newspapers have campaigned legally and peacefully for centuries on many issues successfully and got law changes. If we want to go into the details of the great Sunday Times investigation campaign on thalidomide, I think there are many routes through which you can get outcomes that do not require the law to be broken.
Anne McLaughlin
Q
David Dinsmore: On the Black Lives Matter issue, we have, as an organisation, carried a huge amount of coverage. We have done things explicitly and internally on diversity. It is something that we do take very seriously. The Sun has recently run a series on Black History Month, et cetera, et cetera. I will not go into the detail, but I can give you much more on what we do as an organisation on those kinds of issues.
There are many, many routes to protest in this country. I am just giving you the specifics around our particular route. There are petitions and social media. There are many ways in which you can get a story, a campaign or a point of view across without disruption and breaking the law.
Andrew Bridgen
Q
David Dinsmore: I think the best example we have got is the pandemic we have just lived through and the requirement for quality, trustworthy information. That showed how vital and valuable that is. We, as professional journalists, provide that information on what used to be a daily basis and is now a minute-by-minute basis, and the public need that more than ever.
Andrew Bridgen
Q
David Dinsmore: But it could be just as easily threatened by this kind of protest.
Mrs Elphicke
Q
David Dinsmore: I do think that the way the law is structured protects the rights of the few against the rights of the many. That feels to me to be anti-democratic. So, without going into the specifics of it, yes, I do think that. On that point of “you can get it online”, there is still a significant cohort in the community—principally older readers—who cannot or do not get it online, and do get their news in print.
Kit Malthouse
Q
David Dinsmore: I do not know if we know for a fact that that is the case. However, certainly, in a lot of protests that we see—and believe you me, we see a lot of protests—an anti-Murdoch element always comes out. We are big, grown-up girls and boys, and we deal with most of that in our daily work, but on that occasion, the level of disruption caused was well beyond what would be acceptable.
Kit Malthouse
Q
David Dinsmore: Apart from the fact that it was Extinction Rebellion, I would need to go back. I think there was a lot of assumption about what it was against—I think they did some tweeting at the time, but I will need to come back to you with the specifics around what was actually said and claimed at the time.
The Chair
Do any Members wish to ask further questions? On that basis, Mr Dinsmore, I thank you for your evidence.
Examination of Witnesses
Sir Peter Martin Fahy QPM, Matt Parr CB and Chief Superintendent Phil Dolby gave evidence.
The Chair
Q
Sir Peter Martin Fahy: I am Peter Fahy. I was the chief constable of Greater Manchester police and, before that, the chief constable of Cheshire constabulary. I was a police officer for 34 years and a chief constable for 13 years.
Matt Parr: I am Matt Parr. I am one of four of Her Majesty’s inspectorates of constabulary. My focus is primarily on the Met and non-Home Office forces. In specialism terms, I look at such things as counter-terrorism policing and, in this case, public order.
Phil Dolby: Good afternoon. My name is Phil Dolby. I am a chief superintendent for West Midlands police and I am a trained and accredited tactical public order/public safety commander and have been for some time, and I have been through quite a few adventures.
Wendy Chamberlain
Q
Sir Peter Martin Fahy: The first thing I would say is that there is a threat to public confidence in policing from the police not being seen to be effective when they are dealing with issues like those we have heard about—issues like the Insulate Britain protest—but there is a danger that this Bill is trying to produce the wrong solution. The problem we have, as you heard from the gentleman from News UK, is that we do not have a standing army of police officers in this country. We are not like France, Spain and Italy, which have paramilitary police forces. If this had happened in France, they would have turned out the CRS very rapidly. They are very highly specialist and trained: they would use water cannon, they would probably use rubber bullets, and essentially the French population would accept that level of force. Thankfully, we do not live in a country like that, and the trouble is that when these events happen—I had a similar thing in Cheshire, with milk protests outside Morrisons and Tesco—in the middle of the night, it is extremely difficult to get together enough officers to safely disperse that protest. If anything, that has got far worse, because in those days we did not have everything filmed and on social media and all those things.
Essentially, it seems to me that we have three problems. The first is the inability to get officers quickly together, with the right equipment—I would like to be able to move lorries, vans and stuff like that quickly—because that is not how British policing is set up. The second issue is that you then have to clear and arrest people, and the trouble is that the rules on bail are very narrow. In most cases, the police have to release that person on bail, which makes them free to go back and rejoin the protest. Even if you are able to get them to court immediately, the court will probably bail them out, because they plead not guilty and are back out on the street again. That is essentially the problem: they are able to keep on going back and repeat their behaviour.
Wendy Chamberlain
Q
Sir Peter Martin Fahy: No, it will not deal with any of these three practical issues unless you address the issues of a lot more police officers being available; the public appetite for those officers to be able to use force, confident that the public, the media, and even people like the Independent Office for Police Conduct will support that use of force; and court procedures being able to deal with that and, if necessary, keep people in custody if they are persistent in going back. Just having more powers does not really solve any of those practical issues. Some people will be deterred by harsher sentences, but we know that a lot will not be.
On the other hand, part of that is absolutely that there is a danger to public confidence. That is really critical. I just visited Westminster Abbey and saw the statue of Sir Robert Peel, who laid down some remarkable principles of policing way back in the 1820s. It was very much about the police being impartial, acting under the rule of law, and not seeming to follow any particular initiative. There is absolutely a risk in this. Most protests are short-lived and move on very quickly. We have talked largely today about national protests, such as those on the M25, where there is not really a local community, but most protests and the most difficult protests are often very local protests about things like fracking and road developments, where there are very strong local public emotions. Yes, there may be some outsiders who join it, but most of it is very local people. If the police are involved in gathering intelligence around those people and criminalising them in a way that those local people do not think is fair, and it destroys their confidence in what their local police force is there to do, there is absolutely a risk in that.
Very quickly, I found the Sarah Everard vigil that Matt did a review of interesting in a way, because most of the police service were really clear that that gathering was illegal under the coronavirus regulations. The inspectorate did an inspection and said, “No, it was a very good policing operation done very well.” It didn’t matter. Media, most politicians and public opinion said, “No, that was wrong”, on the basis of two images that ended up on the front of the Sunday newspapers. That is the difficult environment that police officers are operating in, some of them very junior and without the chance to have a great deal of training, and dealing with very complex issues, such as more legislation, more powers and more definitions of what is serious disruption, whether something is national infrastructure or not and whether something is the highway or private ground. Those are difficult issues for individual police officers, even inspectors, to make sense of in the heat of the moment, with strong emotions and the potential need to use force on people.
Wendy Chamberlain
Q
Sir Peter Martin Fahy: Yes. We cannot be naive: the training level for police officers is still very poor. There is no formal qualification for superintendents. They do their best, but we put them into very difficult situations with complex consequences if they get it wrong.
Wendy Chamberlain
Q
Phil Dolby: Certainly from a West Midlands police perspective it is extremely difficult when we have a protracted protest, because all of those cops come from the normal, business as usual police, often at the front end of demand, as opposed to detectives or safeguarding officers. They are the first response and are often the ones trained to be ready to police such events. The opportunity cost, as well as the financial costs, can be significant.
The British model of policing of protests in the last 10 years has matured and advanced. There is more to do, but work has been done on balancing the rights of all; trying to make sure that it is seen as a community issue and not just a policing issue, so the officers do not come into an area and then leave, and how that affects the community; and protest liaison officers who are specialists in how to engage and try to negotiate before we use force.
Wendy Chamberlain
Q
Matt Parr: I suspect I am here because I wrote not just the report on the Sarah Everard vigil but the report you mention, at the Home Secretary’s request, on what was then a series of proposals, some of which have made their way into the Bill and some of which have not. That report covered much more than legislation: it made the point that getting the legislation right is not a panacea. A dozen or so recommendations were made in the report, and they covered issues such as greater expertise, increased training, better intelligence and more debriefing afterwards. The problem is not solved by legislation. It is solved by a mixture of legislation, greater training, awareness and preparation for decision-makers and police.
Wendy Chamberlain
Q
Obviously, your report from 2021 considered protest banning orders, which was something suggested by the Met. Your report stated that
“such orders would neither be compatible with human rights legislation nor create an effective deterrent.”
What are your views on the serious disruption orders in the Bill, given what you have said previously?
Matt Parr: I can only comment on what we said in the report. We looked at them and at what the Home Office said about a protest ban at the time. It opposed a ban, saying that it
“essentially takes away a person’s right to protest and…would very likely to lead to a legal challenge…Consequently, we believe it unlikely the measure would work as hoped.”
The report agreed. We said:
“We remain unconvinced that such orders would either be compatible with human rights legislation or create an effective deterrent.”
We supported many of the other measures, some of which have not made it into the Bill.
Wendy Chamberlain
We shall find out from the Minister why he has changed his mind.
Sarah Jones
Q
Sir Peter Martin Fahy: You mention the level of resources. Certainly, when you look at the number of officers per head of population in the UK roughly compared with France, Italy and Spain, you see that we have about half the number that they have. Why is that? Because they have national police forces and paramilitary police forces that essentially are part of the military, live in barracks and are able to respond in that militaristic way. That is not our history whatsoever and I would absolutely not want it to be, but it possibly gives you some indication of the level of resource.
Even if the chief superintendent had double the number of officers, I am not sure that he would necessarily want to put them into this form of policing, because he is absolutely right that when officers had to be on motorway bridges at the time of Insulate Britain to try to be available to clear the protests, they were officers who would have been investigating rapes, burglaries or whatever. There is a practical issue here: could we ever have the level of resources to be able to effectively—? The fact is that the protesters will always be fleeter of foot than the police, because they have the element of surprise.
In terms of what can be done to help people like Newsquest, Morrisons and other people I have dealt with who were absolutely very concerned about the future of their businesses, for me it is about being prepared to look at issues like bail. In the more immediate sphere, it is for the courts to be able to keep people in custody, rather than having to wait for a court case a few months down the line, or for one of these particular orders.
I would still doubt whether the appetite would be there—the judicial appetite. Police officers are very wary, and you heard the exact reason for that from Newsquest: when cases get to court, the judiciary or the magistrates often give out very minor sentences—whatever might be allowed in the legislation. They find, as happened with the Sarah Everard case, that higher courts then disagree and bring in human rights legislation, or bring in a different interpretation that is in the legislation, which then completely takes the legs of the police from underneath them.
That can only really be covered partly by legislation but essentially by judicial practice, because you can bring in all the laws you like—it will not actually solve those practical issues that the police face. There is also a real difficulty with definitions. This Bill talks about “protests”. Previous legislation, such as the Public Order Act 1986, talks about “gatherings”. We seem to have brought in this word “protests”, and I am not sure there is a legal definition of what is a protest.
The 1986 Act uses the phrase,
“serious disruption to the life of the community”.
I dealt with a really difficult protest in the centre of Manchester, which essentially put the Jewish community and the Muslim community at odds. I actually contacted the Home Office and said, “Please can you tell me the definition of serious disruption to community life?” They said, “The legislation’s never been used. We can’t tell you.” I was left wondering whether I should go around the shops of Manchester and try to work out whether their takings were up or down as a result of the protest.
With words such as “serious disruption”, on the face of it, yes, they are common sense and everybody knows what it looks like. In reality, however, when it gets into the courts that is exactly where the lawyers make their money from, but it absolutely undermines the police action and seriously means that police forces may be sued for unlawful arrest, and officers may be more liable to receive complaints because the conviction was not secured. It is a really complex issue, as Matt has said, and it needs a range of things, but just having more legislation without dealing with those other issues—you would certainly need an absolutely huge investment in training.
That would be my concern about this legislation. It is quite complex legislation. How, for instance, are West Midlands police supposed to train that, with all the day-to-day of policing? There is no time in policing for training. Again, those officers who are going to be on training courses have to be taken away from other duties. In my time, in my early stage there was very little change to the law. It is now changing almost month by month, and trying to keep police officers—who, with due respect to them, do not have the sort of professional background on how to interpret legislation—up to date with that is really difficult, because we are putting them into a totally different scenario, in terms of their level of accountability and the level of transparency that has now come from mobile phones and social media.
Sarah Jones
Q
The third question is just about any thoughts you might have on things in the Bill that you have not looked at. You might not have had thoughts because the Government have not asked you to do a report on it—I think I am right that they have not asked you. Do you have any thoughts on things that you have not looked at before?
Matt Parr: I will deal with the easiest one of those questions first. The policing response to our report has been possibly the most professional and thorough response that I have seen in any report I have done in six years as one of Her Majesty’s Inspectors. The then National Police Chiefs’ Council lead picked it up, gathered a group together, and it has been a model of how policing as a whole should respond to a report. That has been really good. We have not been back to inspect, but I am pretty confident that progress has been made against every recommendation we made. I think they have almost all been ticked off. That is very encouraging. That is not standard fare with reports from us, sadly.
On your point about what bits of the legislation we looked at, we were asked to look at five changes. The history of this is that in 2019 the Home Secretary wrote to the commissioner of the Met, and the commissioner then wrote back with a series of 19 potential changes to the law. There was a big roundtable involving the Home Office and lots of people in policing in mid-2020. After that it was decided that they would take forward five. We supported all five of those—with a little bit of teeth-sucking about a couple. Generally, we thought that they all had the potential to improve the efficiency and effectiveness of the policing of protests, and would help achieve the “modest reset” I referred to in the report.
The Bill contains one of those changes, and that is the one about extending stop and search to look for lock-ons. It contains other changes that were not in there: obstructing major transport works; interference with key national infrastructure; serious disruption prevention orders, which we have already mentioned; and, lastly, lowering the rank in the Met for authorisations.
On extending stop and search, we said that because of its preventive nature it has the clear potential to enhance police effectiveness. It would also act as a deterrent. We recognised it was controversial, and we registered concerns about modelling it on current section 60 legislation—we thought that was potentially problematic. It is trying to achieve two very different things. We were nervous about a potential effect on minorities, and therefore we would like to see strong safeguards around that.
Finally, we said there must be appropriate thresholds and correct authority levels. I think the Bill says inspector, which is probably as low a rank as I would want to go. However, in general we remain supportive. There was broad support for the stop and search proposal from across the National Police Chiefs’ Council, and policing generally. Some people raised some difficulties, but we concluded:
“our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency”.
I have mentioned that we were not supportive of SDPOs. We did not really look at the others. I will touch on changing the minimum rank of assistant commissioner to commander in the Met. That strikes me as entirely pragmatic. If you look at the Met, the real expertise in public order tends to be at commander rank, rather than above, where people get a bit more generalist. The deep professional experts in London, in my experience, are the commanders. That strikes me as perfectly sensible. The other two changes we simply have not looked at. I would say that they strike me as consistent with the aim I was in support of. Currently, the balance is not being got right on a regular basis; the level of disruption between those who have a right to protest, and those who are bystanders and affected by protest, is not in the right place. Those changes strike me as consistent with resetting that balance.
Everybody I talked to in the course of this inspection or since—every police officer and everybody involved in this—absolutely recognises the right to protest. There is no question about that. Frankly, I think some of the criticism of the Bill, and some of the interpretation of it, goes too far. It is not a police state.
Sarah Jones
Q
Matt Parr: Both. Any changing of where the pendulum sits does not automatically mean the introduction of a police state. To me, they look like sensible measures to redress the balance. I note that the Government’s note accompanying the Bill links to a YouGov survey that shows where the public are on this issue, and those findings were entirely consistent with the survey we did as part of the Bill. To be honest, I was quite surprised at the time, but the YouGov poll is in exactly the same place.
Sarah Jones
Q
Phil Dolby: No one protest is the same as any other, even if it might be about the same cause. Some of the most challenging ones we have had have not necessarily been Extinction Rebellion or High Speed 2. The issues in Gaza led to some go-slow protests that were going to churn up the city, which I had to deal with.
Another protest was in the paper a few years ago. A school was hoping to do a teaching element about same-sex relationships, and some of the local Muslim community were upset about that. We have also had Sikh tensions at the Indian consulate general, the Kisan protests and so forth. Sometimes you can start your tour of duty and something appears on Al Jazeera—suddenly, you can feel the tension rising during that same tour of duty.
The first thing is very much: what relationships do we have with communities before there is a protest? What kind of neighbourhood local policing service do we have? What is our community engagement across the spectrum of age, ethnicity, communities and so on? That is the most important. One of the most important briefings I give to everyone—including protesters—at the beginning of any operation, be it pre-planned or spontaneous, is always about the style and tone of what we are about to do. That is about being a fair service that is not afraid to make decisions when it needs to.
I will give you a couple of quick examples, starting with when we had the go-slow. Like most cities, Birmingham has a ring road, and it does not take much for that artery to suddenly be blocked, which means that nobody is going anywhere. We had a protest about Gaza whereby they were going to do a go-slow with their vehicles and do a circuit around the city. Because it kept moving, we tolerated that. We did some traffic management around it, kept the city moving and made sure that really important things, such as hospitals and so forth, were not affected. They then went for a second lap, and that was where I had a threshold with a gold commander who had given me a strategy that said, “That’s enough now, because everyone else in the city has the right to peaceful enjoyment of the transport system and to get around.”
We currently have a power under section 12 of the Public Order Act 1986—this goes to Sir Peter’s point—that already has the term “serious” within it. There is a test called 3DI—serious damage, disorder, disruption or injury —but the definition of “serious” is still quite open to interpretation. You also need to have an organiser. During the pandemic, people did not want to show that they were organisers, because they would then be potentially prosecuted under the coronavirus regulations. That has kind of stayed. Before then, people were quite happy to say, “I was the organiser,” but that is less so now.
The go-slow had no clear organiser, but through the CCTV around the city, I was able to see who the organiser was. There were probably about 200 vehicles involved in it, and I just gave a warning about the police’s power to who I was evidentially satisfied was the organiser. I negotiated and said, “Look, I’ve got this power. It’s ready, and here it is. Do you want to carry on, or can I encourage you to stop? You have had your opportunity, and you need to move on.” There was a negotiated approach that I thought tried to keep the balance for everyone.
Similarly, Extinction Rebellion recently blocked a fairly minor road. We were a little confused about the road they chose. If we had been doing it, we would have chosen a different one. They had a tactic whereby instead of staying in the middle of the road all the time, they would use the pelican crossing but let the traffic stop by the traffic furniture. They would then occupy the road for about five minutes and when the traffic built up, they would move away. That was an interesting application of the law but, again, what we did was start negotiations with them.
We have our protest liaison teams, and there is a five-step appeal that officers go through, which we document and fill, giving every opportunity for the protesters to reach the decision themselves. Eventually, I said, “Okay. There is a power here to stop you. This is an unlawful assembly because it is now causing serious disruption. There’s a children’s hospital that is starting to be affected, so now that’s enough.”
I brought forward the van that is a mobile prison cell—kind of a show of strength, really—and said, “That is what I am prepared to use”. They said, “Okay”, and that was enough. Again, both the powers were available to us. They were being prepared to be used. We were not just tolerating it; there was a negotiated approach, and both of those are examples of where that has been successful. On the serious disruption element in the Bill, I would encourage as much precision for that definition as possible.
Mrs Elphicke
Q
Matt Parr: We made that point in the report. There are certain things that probably would have a deterrent effect—the £37 million is something that we referred to. I think it is relevant. It is difficult to say that you cannot put a price on articles 10 and 11 and, of course, you are right. However, just for context, the two operations we looked at in London cost £37 million. That is twice the annual budget of the violent crime taskforce, so it does have a significant effect.
The other general observation I would make is that protest has been increasing and the complexity and demand on policing has increased. It does not seem likely to us that it will go in a different direction in the years to come, so something has to be done to prevent it becoming too much of a drain. Yes, I think that some of these act as a deterrent, of course. It rather depends on how they end up progressing through the courts—if, indeed, they are brought to court—and if it turns out that they are not meaningfully prosecuted and there are not meaningful convictions, any deterrent effect will pretty soon dissipate after that, I would have thought.
Sir Peter Martin Fahy: I would make the same point. Anything that could be put in the legislation to clarify the issue about “serious”, which absolutely could be some financial calculation, would be extremely useful. You have to remember that it was quite clear that the vast majority of people thought the Insulate Britain protests were extremely disruptive and pointless.
There are certainly some protests where you have two sides. Therefore, you will get pressure from one side to use this legislation, and we should not be naive about the pressure that police leaders come under from local politicians to do that. I will be honest: they were some of the most uncomfortable times in my police career when that happened. Therefore, having clarity about the legislation is really important, as is anything that can be put in to help that.
I do not know whether there is actually any evidence that people are deterred. Common sense says that some people will be deterred by harsher sentences and the threat of a conviction in court, but clearly some people are so determined, and have a certain lifestyle where it does not really have any consequence for them, that—if anything—it makes them martyrs. Certainly, as Matt said, if they are not convicted or get found not guilty, if anything that gives them a greater status as a martyr and leads to further criticism of the police.
Phil Dolby: I want to make a point on the precision of the legislation. When looking to consider stop and search without suspicion, I think no matter how hard you try, there will be a complete, solid line in the public discourse between that and section 60, which is the existing power to have targeted stop and search around violence principally. That is a tool that is being used increasingly with the challenges we are all facing around youth violence and knife crime. It is also something around which communities have not always necessarily experienced fair treatment.
With all that we are trying to do now, it is still a key point of discussion and, sometimes, contention. We have the community coming in and scrutinising how we have used it. They watch our body-worn video of what we tried to do. We have even got youth versions of that for young people. I do not know how you would do the same kind of thing with protest. I think there is something that needs to be done there. There is best practice advice on how to conduct stop and search, and I think there is potentially some real thinking if those go ahead to start with that position as opposed to learning those lessons as we go along.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Q
Sir Peter Martin Fahy: On your point about the Sarah Everard vigil, there is a question about what the difference is between a vigil and a protest, which is really critical for policing. Again, I would come back to that point: it did not really matter how legal or professional the police operation was. Because of that wider context, the public view of it is really clear.
Going back to what the chief superintendent said, you have to take into account absolutely the feelings of your local community. I would say that on things like this extension of stop and search, for me there would need to be a well-documented community impact assessment, where the police worked with other agencies and community groups to assess what the impact is going to be. I am not sure about the psychological impact. It is about the fact that this is how policing is judged now, and that is the risk.
I would bring in the issue of disruption orders. Anything that is about gathering intelligence is extremely problematic. Even if you go way back to the 1970s and the big scandal about undercover policing, that came from a desire to try to gather intelligence about protesters, and look where it got the police service. This is about what could be a group of people here organising a protest against a local road development and the police using the local council CCTV to try to show that, for instance, three people had met and a gentleman had put something on Facebook to bring about the protest. That is the form of intelligence gathering that I would suggest some of your constituents, if they were involved in something that was local and very emotional, would find extremely disturbing.
I think the police service has to be very careful about going down that route. Again, I think most people would say that we want the police to use intelligence gathering against serious criminals. It would need to be a very serious degree of public protest and disruption for the police to be using some of those tactics, in terms of the degree of trying to hold on to public confidence in law and police powers and tactics.
Matt Parr: As the person who conducted the study into that vigil, I was genuinely shocked. I had a team significantly composed of female senior police offers—mostly detectives or people with firearms backgrounds. Therefore, they had done relatively little public order in their careers. I found astonishing the look on their face at some of the evidence they saw from that night and the abuse that the police took. There was a very, very clear difference between an entirely well conducted and peaceful vigil that lasted until a certain time of the night, and the disorder that—
Dr Huq
That was what it looked like. It was like—
Matt Parr: Exactly. The vigil and the disorder that came after were two entirely different things. That is a significant point as well, of course, because we talked at the start about getting the resources and it is increasingly difficult, in many forces, to persuade people to volunteer to do public duty, for reasons of the social media aspect and also, frankly, because to do so means you will be on the receiving end of some real nastiness from certain—not all, by any means—members of the public.
When it comes to your wider point about how you take into account the seriousness and the psychological aspects and the presentational aspects, I think they are all absolutely relevant factors to take account of. One of our recommendations in the report was that police decision makers should be given better tools to be able to assess what serious disruption looks like. It cannot be as simple as financial cost; it has to be far more complex than that. At the moment, we have seen a number of cases where senior decision makers had clearly been left floundering by not understanding the nature of the disruption that was likely to be a consequence of a particular protest and therefore they shrank from making sensible decisions. Better tools for understanding when the thresholds for the nature of disruption have been crossed strike me as an essential part of this.
Phil Dolby: There is a sense in which we are always doomed to look like we are failing in some of these incidents—even though the right thing may have been done—because we are the ones in uniform, with personal protective equipment that makes us look quite tough. You have a passive protester, for example, or somebody at a vigil. Say it is an older person. To safely take that person away requires five officers—to take a corner each and the head. The newspaper photograph of that looks like a lovely old person being taken away by five militaristic-looking police officers. They are actually doing that because that is the duty of care they have—to safely remove that person who will not move. The reporting is usually of a very solid moment.
Something that could be interesting relates to the body-worn devices that we currently have, which we are using to invite the public to come after the fact and see how we have done and give us learning points and their views, particularly from communities that we have not necessarily always got the correct engagement with. The next generation of these will be live, and there might be some instances where we would invite affected members of the community in to watch what we are doing and give us live-time feedback. That will not necessarily always change decision making, but it is another part of the decision-making model to say, “Well, actually, that community impact we are describing”—
Tom Hunt
Q
Also, I just want a point of clarification—I think this discussion was again with Sir Peter—in terms of how we can improve things and how we can get to a point where perhaps there is a more dedicated team of people who are very trained and specialist. If we believe that these protests are becoming more frequent and more of an issue, although we do not want to go down the route of France, there have been occasions when I think that has been a temptation—when we have seen some of these out-of-control protests. I want to know what this new team that could help us get to a better place looks like.
Sir Peter Martin Fahy: Point No. 1 is that absolutely the police must never be swayed by a popularity contest. It is exactly what the chief superintendent says. Sometimes you have to stand above all that, and you are never going to win. Also, you might lose the battle, but you win the war. But the fact and the reality of policing is that you have to judge that. You have to talk to community leaders. You have to try to balance that. You have to make a decision. You have to try to involve people. One of the frustrations I had with that particular protest in Manchester is that I could not persuade anybody like the local council, the university or anybody to take this issue away from the street. It was an issue about what was going on in Palestine, and Israeli action. “Take this away”—but they would not do it. Sometimes, you need a mediation mechanism that takes that away from the street and that sort of public protest. It will not work on every occasion.
It is also about who makes that decision. Interestingly, the chief superintendent talked about using community panels to help you in your decision making. That was used with COP26 in Glasgow. Clearly, in Northern Ireland, they have the Parades Commission to make decisions on contentious protests and where they should and should not go. I find it interesting that we never mention police and crime commissioners, who are locally elected and, in some ways, should be representing local people. PCCs could possibly have a role in this, or it could be that more goes to the judiciary, so it is not so dependent on the police, with all the consequences for public confidence.
If you are looking at capability, there is a much wider debate, which the policing Minister will be aware of, about the structure of policing in 51 police forces and whether that is appropriate for the current situation. It is very difficult in our policing system, where we do not have paramilitary operation, policing is by consent and, rightly, the public have a particular attitude towards the use of force, to come up with something that would have the capability to deal with the sort of situations we are talking about. There would need to be a huge shift in the public mood and I think British policing is not really set up and does not have the mentality to use the degree of force that you see in other countries.
People do not realise that we are pretty unique. When you hear about the sophistication and negotiation the chief superintendent talked about, that is the British style. In all the protests it is escalation, which looks in the early stages like the police are being weak, but in the background they are talking to people and they are escalating. They are saying, “If you keep on coming back, we will use this power and that power. Have you heard about that?” That is the British style of policing. You do not start with the heaviest. You work up to it, and that then maintains the confidence in your legality and proportionality.
Matt Vickers
Q
Sir Peter Martin Fahy: It can get very low. Unfortunately, that is not part of the public discourse. I think the public think that there are lots of police officers sitting around in police stations doing nothing, whereas the reality is—somehow the police service needs to find a better way of articulating this—that no, even the Metropolitan police does not have loads of spare officers. So absolutely, that is part of the huge frustration for policing and where it sometimes feels it does not get the support of local politicians and the media—and, crucially, the courts—to deal with this.
Matt Parr: One of the things we criticise a lot, not just in London but across the country, is abstraction and the disruptive effect it has on building up long-term relationships. It is not necessarily detectives being taken off their work and therefore serious investigations not getting followed through. It is more likely to be neighbourhood policing that gets depleted, or response that gets depleted, and therefore you get longer response times or neighbourhood cops just not doing their job. It is rather difficult to quantify what the long-term effects of that are, but we definitely see in the inspectorate the negative effects of abstraction for a whole range of things, and this is one of the more serious ones.
Phil Dolby: At the same time that there are more protests—and more complexity around them—the service is also facing increased demand. There is a national shortage of the word “unprecedented” now because we have used it so much, but the demand that we are currently seeing as a service across the country is unprecedented. It is not only the amount of calls we are receiving—so volume—but, because hopefully we are doing better with our partners around vulnerability, more people are telling us about things that are really quite complex. The theft of a Mars bar is one call and “Twenty years ago, myself and my entire scout group were unfortunately the victims of something” is one call, but the complexity and the resource the latter needs is massive, and those are both going up at the same time.
There is not a standing army waiting to deal with protest. They come out of normal policing when they are required to do so, and the amount of neighbourhood policing that is affected by just keeping up with that demand is already quite acute. I just wonder whether, when we define organisations in the Bill, there is something about the organisations having some kind of responsibility to do what they can do to prevent— through their design, their target hardening and whatever staff they might put on—and to contribute to this as well and reduce it. Actually, we are talking about the cost of policing and the financial cost, but communities—with the reduction in policing that they are receiving—are the ultimate people bearing the cost. Perhaps we could do something with this, as we have with the Protect duty coming in under the terrorism Bill, putting responsibilities on local authorities and other people to do those kind of things.
We have had a very expensive protest recently around Amazon warehouses. Those drew in different forces and specialist policing. Some of the protesters were so long there in the cold that it became a medical emergency, and officers had to do some life-saving stuff around the protesters. With all those normal cops who have come away from other work, Amazon could have done more.
The Chair
I have to draw you to a close, Chief Superintendent. That is the end of the time allotted for the Committee to ask questions of this panel. On behalf of the Committee, I thank the witnesses for their evidence.
Examination of Witnesses
Olly Sprague, Stephanie Needleman and Martha Spurrier gave evidence.
The Chair
We will now hear from Olly Sprague, military security and police programme director, Amnesty International; Stephanie Needleman, legal director, Justice, via Zoom; and Martha Spurrier, director of Liberty. I should say to Ms Needleman, please alert us if any technical issues arise during the course of your evidence. We have until 4.55 pm for this session. I invite the witnesses to introduce themselves for the record.
Stephanie Needleman: I am Stephanie Needleman, the legal director of Justice. Justice is an all-party law reform and human rights organisation working to strengthen the UK justice system.
Martha Spurrier: I am Martha Spurrier, the director of Liberty, the human rights and civil liberties campaigning organisation.
Olly Sprague: I am Olly Sprague, programme head at Amnesty International UK for our work on military policing and security matters. This is my first physical Committee for two and a half years—it is good to be physically in the room.
Anne McLaughlin
Q
Martha Spurrier: There can be little doubt that a Government should spend time looking at the root causes of a protest, whether that is the climate crisis rather than climate protesters, or racism rather than Black Lives Matter protesters. Of course, it is not news to say that protest is a foundational right, and that it is an article of faith in any democratic country that if there is something you disagree with, you can take to the streets to make your voice heard. It is of great concern to Liberty and those of us who work in this area—I am a lawyer, and I have been working in this area for the best part of 15 years—to see provisions in a Bill that not only have been rejected by Parliament once, but significantly expand police powers, often doing so in a very over-broad and imprecise way, such that it is difficult to see how they will be effectively implemented.
We would expect a disproportionate impact on marginalised communities from the exercise of those powers. We would also expect that they will fundamentally undermine the right to protest, and will not do what they are purported to do—deal with a hard core of some supposedly extremely disruptive protesters—but will in fact have a dragnet effect of chilling people’s right to protest and free expression, and deter ordinary people from exercising their fundamental rights. There is a whole range of examples in the Bill that we could talk about where it is very difficult to see why those measures are proportionate and justified ways of dealing with the perceived problem, let alone whether there is a problem as articulated.
Olly Sprague: I echo what Martha said. For an organisation such as Amnesty, it is not a case of either/or: we do not want to balance the harm that might be caused by climate change versus the positive duty that all states have to uphold the right to freedom of assembly and association and the right to protest. You have to manage all things.
One of the things that we bring here is that we are an international human rights monitoring organisation: we look at human rights internationally, and we look at where the UK is on the standards, obligations and legal frameworks that exist. It is worrying to say that for most of the provisions in the Bill, we see a clear gap between what the international standards require of the UK and what the UK proposes here, and it is the wrong gap. The UK is on the wrong side of where it should be. I am sure we will have the opportunity to go into why we think that and the areas where we think that is the case, but that is a very worrying direction of travel, especially when in terms of its foreign, defence and security policy aspirations, the UK sees itself very much as a champion of civil society space. It sees and acknowledges the fact that the world is becoming increasingly authoritarian, and wants to do things to stop that.
As a quick example, in April this year, Lord Ahmad—a Government Minister from the Foreign, Commonwealth and Development Office—was giving his closing remarks to the 49th session of the Human Rights Council. In that, he made specific reference to a very important resolution about the need to promote and respect the rights of human rights defenders around the world. It was a resolution that was welcomed and strongly supported by the UK Government; it was a very important resolution. That resolution essentially requires that all states refrain from measures that excessively criminalise human rights defenders and their rights to freedom of expression, so you have a bit of a disconnect here between the statements that the UK puts out internationally and the role we see ourselves playing in the world community, and the kinds of measures we are putting in place on our own domestic legislative front. They are out of step with each other, and it is not joined up.
Stephanie Needleman: I completely agree with what Martha and Olly have said. Picking up on something that Olly said about the disconnect between what the UK is doing internationally and what we are doing domestically, there is also an internal disconnect in what we are doing domestically in the UK. The right to protest is an element of the right to freedom of expression and assembly. On the one hand, that is being championed under the Bill of Rights consultation and the Higher Education (Freedom of Speech) Bill, but on the other hand, it is being severely restricted in this Bill, so there is an internal inconsistency there as well.
Kerry McCarthy
Q
“Disruption” is such a vague term. What would a person have to have done for the police to be able to go down this route? I should probably ask the Minister, because I think the answer at the moment is that we do not really know, but how do you see this panning out?
Stephanie Needleman: I cannot see if Martha and Ollie are indicating that they will answer, but I can kick off, if that is helpful.
I think you have hit the nail on the head in raising the vagueness of when these serious disruption prevention orders can be imposed. They can be imposed not necessarily on conviction, as you said. The orders can cover an incredibly broad range of circumstances. Under clause 13(2)(a)(v), all you need to prove is that on two separate occasions somebody
“caused or contributed to the carrying out by any other person”—
they do not even have to have done the act even themselves; it could be done by someone else—
“activities related to a protest that resulted in, or were likely to result in, serious disruption”.
You do not need to have carried out the
“activities related to a protest”;
you just have to have “caused or contributed” to them. Those are incredibly vague and broad terms; they could cover almost anything done to assist someone doing anything related to a protest. For example, it could be driving somebody to a protest, or to shops selling paint or glue, if the person the glue is sold to subsequently glues themselves to something.
Linked to that, there does not seem to be any requirement for the person to have had knowledge that the protest activities were going to cause serious disruption when they “caused or contributed” to the carrying out of those activities. That could capture a vast range of behaviour.
Kerry McCarthy
Q
Stephanie Needleman: It has to be proved, but it only has to be found, on the balance of probabilities—the civil standard of proof—that one of the conditions has been met. As I said, the conditions are so broad and vague that it should not be that problematic for the police to approve. So yes, involvement would have to be proved, but given the vagueness and the broadness of the conditions, it is likely that it can be easily proved.
Martha Spurrier: It is right that, for example, legal aid would not be available to someone defending themselves against having one of those orders imposed on them, and of course they can be renewed; there is a suggestion in the Bill that they could be renewed indefinitely. Once the order was in place, you would not get legal aid for a lawyer’s assistance in dislodging it.
It is worth stepping back a little and looking at the serious disruption prevention orders. These have been proposed by the Met police before, under the name of protest banning orders. The Home Office was against bringing them in, on the grounds that they were neither compatible with human rights nor an effective deterrent that would solve the problem that they purported to. That relates to a slippage in principle and language that we see across the Bill. It is important to pay attention to it, because this is law; cases will be decided on these words. Article 10 of the European convention on human rights is of course not an absolute right. It can be interfered with. There is a balance to be struck between the interests of a protester and the interests of the wider community, for example.
There are many grounds on which you can interfere with the right to protest; one of them is crime and disorder, and another is the rights of other people. You already have a human rights framework for limiting protest in certain constrained situations, but what we see in this Bill is not the language of crime, disorder, or abuse of others’ rights, but the language of disruption, inconvenience and nuisance. That is a significant, conceptual, legal change in the language. As Stephanie says, it takes you into the territory of criminalising what we have hitherto understood to be non-criminal conduct—of criminalising protest tactics that have a long history and previously would not have been considered criminal acts. People who may have participated in a couple of protests over five years may suddenly find themselves within the purview of the criminal law, although hitherto both criminal and human rights law would simply never have brought them into that space. When thinking about all these definitions and new offences, it is important to recognise that significant paradigm shift in the concept of how you go about policing protest.
Add to that the fact that these new concepts, including the idea of serious disruption, will be defined in secondary legislation. This significant interference with the fundamental right of protest may result in terms being defined by a politician who gives the definition very little parliamentary scrutiny. The measures would then be implemented by a police service that interprets them as it sees fit; we do not need to go into the times when they get it right and the times when they get it wrong. There are lots of layers to this before you even get to the detail of what happens if someone is subject to one of these orders, how they would shift it, and whether being subject to an order would mean that they could no longer protest.
Olly Sprague: My colleagues have covered everything that I wanted to say on the domestic aspect. It is worth coming back to the question: where do the international standards sit? The United Nations Human Rights Committee’s general comment from 2020 is most useful here. It allows the criminalisation of individuals taking part in a demonstration only in very specific circumstances, and it sets the threshold at incitement to violence. It sets the time limit as “as short as possible”; it talks in terms of a few hours. The international standard allows individuals to be prevented from accessing a process, but the bar is very high. The Bill sets an extraordinarily low bar. There are two levels by which these orders can be put in place. One is based on a person having two previous convictions on the civil standard burden of proof; the other is not based on conviction at all, which is even worse. The UK is so far out of step with where it should be under international standards; it is quite alarming.
Kerry McCarthy
I could understand it to a point if somebody’s presence at a future protest could lead to a dangerous situation, which is what you say the international comparison would be; but under the Bill, basically your right to protest could be removed for five years because you had not behaved impeccably on previous protests.
Olly Sprague: The Bill would also potentially hold you responsible for the conduct of other people at a protest that you were organising. One of the great unfortunate misconceptions of protest, especially around violence and disruptive protest, is that a protest somehow gets characterised as being inherently violent because actions of violence occurred within it. It is perfectly legitimate for law enforcement officers to deal with and prevent those violent actions and make arrests. However, you cannot characterise a whole protest as violent just because some aspect of it was violent.
With the way the serious disruption prevention orders are drafted, you could, in theory, be held responsible for an altogether peaceful protest where a violent action that was completely beyond your control took place. You cannot really be held responsible for something that you were not responsible for, if that makes sense.
Kerry McCarthy
Q
Olly Sprague: We have to be careful when making international comparisons. We do not really not compare and rank countries in some kind of league table. We look at each country individually and see where it marks up. It is interesting, though, that there are not that many examples around the world of measures akin to a protest banning order.
Kerry McCarthy
Q
Olly Sprague: We have not looked at 600 different laws for the purpose of this sitting. However, where we have looked, we found corresponding powers of a similar nature in places such as Turkey, the Philippines, Belarus, Russia and Egypt, I think. In all the cases where they have a measure that is similar to a protest banning order, it has been on the organisation of protests, not the participation.
Kerry McCarthy
Q
Olly Sprague: Yes.
The Chair
Q
Stephanie Needleman: Yes, please. I want to add that when we talk about what these protest banning orders do, we should note that they do not necessarily just ban people from attending or organising protests. They have significantly wider, far-reaching applications into everyday aspects of people’s lives. As long as they are imposed for one of the purposes listed, the conditions that can be imposed when someone has been given one of these orders can be anything. Look at the conditions listed in the Bill: they can prevent people using the internet, associating with particular persons or participating in particular activities. It is not necessarily limited to protest. We are talking about activities that are far, far broader than just being prevented from attending protests.
Kit Malthouse
Q
Martha Spurrier: Well, there is a potential difference in how it would be applied, but the serious disruption prevention orders have the capacity to be absolute bans in the same way as the protest banning orders.
Kit Malthouse
Under judicial supervision.
Martha Spurrier: Yes, under judicial supervision—but, as we have said, to a low standard of proof, based on no criminal conduct.
Kit Malthouse
Q
Martha Spurrier: I don’t think so, because I do not think you could attach the same invasive conditions. I do not think you could have electronic monitoring, for example, if you had an injunction. That is my understanding.
Kit Malthouse
Q
Martha Spurrier: I would not describe them as unlimited powers, but judges absolutely can impose injunctions. It goes to the broader point of whether these additional powers are needed, and I know that there have been people giving evidence that—
Kit Malthouse
Q
Martha Spurrier: I do not understand the question. A civil injunction and an SDPO are both civil procedures with criminal sanctions attached.
Kit Malthouse
Q
Martha Spurrier: If you are going to face imprisonment, you will always have access to counsel—to legal aid. You may face those sanctions either directly from a breach of the criminal law or, if you are under a civil order that has criminal sanctions attached to it, from breaching that civil order. I cannot see an argument that any person is better off having an SDPO, as opposed to an injunction or any other offence. The fact of the matter is that an SDPO is a novel legal provision that, for all the reasons we have gone over, captures non-criminal conduct as well as criminal.
Kit Malthouse
Q
Martha Spurrier: Well, the impact of an SDPO is much, much wider, because you could end up having a civil order attached to you that has invasive conditions, such as electronic monitoring, that could be renewed indefinitely, and if you breach them you could face almost a year in prison and an unlimited fine. I do not think they are comparable at all. We do not have anything like that currently, whereby, for non-criminal acts, you could face that kind of civil or criminal sanction.
Kit Malthouse
Q
Martha Spurrier: You can. What I am saying is that you would not currently have an injunction based on non-criminal conduct—the kind of non-criminal conduct we are talking about with this Bill—that then has attached to it invasive conditions such as electronic monitoring. There is no comparison with what this Bill is doing.
Kit Malthouse
Q
Olly Sprague: I do not want to give a non-answer here. Obviously, policing is a devolved matter, so our offices in Scotland have an equivalent of me. They are involved in a number of policing and scrutiny panels, and they are actively involved in the human rights framework around public order policing. They were involved in a scrutiny panel for the COP protests, for example. These are discussions that our colleagues have with the Scottish Government all the time. I am not fully abreast of the details of those, but I can tell you that we have them. Where we are critical, we make that known.
Kit Malthouse
Q
Martha Spurrier: Liberty’s position on buffer zones is to support as limited a buffer zone as is possible to protect access to reproductive rights for the people who need to use the services of the clinic, while also protecting the right to protest. One of the amendments proposes a 150-metre buffer zone, and we think that that limit is acceptable, although it should be dependent on circumstances—if a narrower one is possible, that should be used. There are some aspects of the amendment that we agree with, and some that we think are too broad and could infringe the right to protest. I have to say that of all our concerns about this Bill, buffer zones around abortion clinics are not high on the list. There are much more egregious interferences with the right to protest in this Bill than those proposed in that amendment.
Kit Malthouse
Q
The Chair
Ms Needleman, would you like to comment?
Stephanie Needleman: Sorry; I could not hear very well. Were you asking me whether I wanted to comment?
The Chair
Order. I am going to come to you, Dr Huq, but I will decide who speaks and when. The Minister is currently speaking, and we are asking Ms Needleman, who is joining us by Zoom, whether she wishes to give a response.
Stephanie Needleman: I do not think I have that much to add—Justice, as an organisation, does not have a formal position on this—but I agree in terms of protecting the rights of women to access abortion services, obviously, and that should be done in a way that does not infringe the right to protest. The right to protest is not an unlimited right, so there is scope to do something, but it needs to be limited so that it is within the bounds of articles 10 and 11.
Olly Sprague: We agree totally with that. In general, we would take a very dim view of the idea of protest buffer zones, unless there are exceptionally good reasons. We would be looking at things like drawing on existing regulations around incitement to hatred and privacy rights—those sorts of things. A way of protecting rights on both sides would be seen as important. As Martha said, what mitigation could be allowed to make sure that one right does not overshadow the other, if that makes sense? But, obviously, this is an incredibly sensitive and difficult area.
Kit Malthouse
Q
Martha Spurrier: Liberty has a long history of working on the right to protest, both in terms of protestors and members of other communities. For example, we have a rich history of tackling the difficult issue of far right protest and incitement to hatred, where Liberty has very much supported the idea of communities needing to be protected when they are faced with far right, extremist protests. One of the other things that article 10 does, and that policing has had to grapple with since the advent of the Human Rights Act, is to protect counter-protests and protests. You very often have two protests going on at the same time where there is a clash. Again, Liberty has done lots of work to make sure that both protest groups, acting within the law, are protected with their article 10 rights upheld, in so far as that can be done, compatibly with each other.
I absolutely refute the idea that this is subject-specific. The abortion buffer zones case is a really good example. As with many other cases, it is a fact that we have public order laws in this country and we accept that things such as preventing violence and preventing incitement to violence, for example, are an important infringement on protest. Many of those considerations are in play when you think about abortion buffer zones. It is when you are dealing with rights that butt up against other rights that you have to make difficult calls, for sure, but we are saying that the Bill fundamentally gets the balance wrong.
I do not know whether we will have time to get on to the stop-and-search proposals or the offence of locking on. However, thinking about locking on as an example, just very briefly, those who are policing a protest are confronted with a dynamic situation. They are trying to work out at what point that crosses the line and might need to be shut down. If someone locks themselves to an animal testing centre—let us take it out of modern, current examples—the police have to work out at what point that person’s right to lock themselves to the testing centre becomes an infringement of other rights. It might be that the police think, “Actually, that guy can be there for two days and it doesn’t really matter. It’s a perfectly lawful and acceptable exercise of his protest rights. But, at a certain point, it is going to become a problem and we are going to consider removing him.”
If you create an offence of locking on—if you criminalise such specific protest tactics—the minute a man puts his padlock around that testing centre, he has committed a crime. There is no ability for the police to act in a dynamic way, to assess, and to do the balancing act of comparing competing rights. That is it: the tactic is criminalised and that man can be removed immediately, regardless of whether there is any impact on other people.
Of course, any of us who work in this area are really adept at trying to manage competing rights, and that is what the police have to do all the time. But the proposals in the Bill are blunt instruments that will criminalise hitherto lawful activity. They will have a chilling effect on the ability to protest, and they will not deter normal people who want to make their voices heard from trying to do so—instead, the Bill will just criminalise them. It will not deter the hard core, who have breaking the law as one of their tactics, because the provision just falls into what they already do.
Kit Malthouse
Q
Martha Spurrier: What should we do about protests?
Kit Malthouse
No, what should we do about the hard core that you are talking about?
Martha Spurrier: What about the hard core we already have? The police already have a whole range of measures to deal with hard-core protesters. We have criminal offences and we have specially trained police officers dealing with those people. Someone earlier talked about not living in perfect harmony. A measure of disruption and nuisance is going to be a factor of any protest about any hot political issue at any one time, whether you are talking about the civil rights movement in America, the movement for votes for women with the suffragettes in this country, or the climate justice movement now. You cannot take the sting out of it entirely, because then there would not be protest, and then we would not live in a democracy any more.
The Chair
Ms Needleman, do you wish to say anything?
Stephanie Needleman: On the measures that already exist, there is obviously the Police, Crime, Sentencing and Courts Act 2022, which has literally just been passed, which includes measures—the expanded circumstances —under which the police can impose conditions on protests. That just adds to the existing measures. I do not think these new measures have even come into force yet, so we do not know what effect they will have. There is no evidence base that further measures are needed.
Dr Huq
Q
The distance need not be 150 metres. We just took that from Ealing, because that is where the main road is, so then it is not in the eyeline. But it again comes back to this question of what is a vigil—those people would say they are doing a prayer vigil—what is a protest and what is harassment. In the eyes of the woman who is going in for a traumatic procedure, it feels like that, and it can be psychologically distressing. The French legislation allows for psychological distress to be considered.
Is there a right to privacy as well? I ask that because the London Borough of Ealing has acted under local authority powers, and only three local authorities in the whole country have done so since 2018, because the process is too onerous. Every time a case has gone to the High Court, the Court of Appeal or the Supreme Court, the privacy of the person having their procedure has trumped freedom of thought, expression, conscience, belief—all that stuff. I just wondered where the three of you stand on that. Again, I am disappointed, because with Sarah Everard, we said so many times, “This should never happen again; she was only walking down the street,” but, in my eyes, these people are just trying to access the pavement to have a perfectly legal procedure. As the Minister pointed out to me in the House the other day, this has been lumped in with the vax protests. I think it is about women—a marginalised community who should be protected, as you said at the start—being able to use the pavement. They should be able to do so unimpeded. What do you three of you think?
Martha Spurrier: Absolutely there is a right to privacy. One of the conditions in your amendment is to prohibit the filming and photographing of people using the services. We would say that no one has a right to capture someone else’s identifying information and record it. I do not have the amendment in front of me, but the points about harassment, being physically approached or being physically manhandled—anything of that nature—would be a breach of women’s rights and would fall down in favour of women and the buffer zone, not in favour of the protestors.
However, there are also conditions in the amendment on things such as seeking to influence and showing distressing imagery. Our view is that that falls on the other side of the line. People are entitled, as part of their right to protest, to seek to influence people, as long as they do not do so in a way that is harassing. Similarly, if you walk past certain embassies in London—the Chinese embassy, for example—there will often be very distressing images on show as part of protest against states’ policies. The same applies outside abortion clinics, where distressing images may be shown, but may be part of a legitimate right to protest. There is a balancing act.
Dr Huq
Q
Olly Sprague: The only thing I would add is that your location point is quite interesting. The mitigation measure or countermeasure that you might put in place to balance those two rights in a proportionate way might differ depending on the location. In the case you mentioned, it may well be the location of the pavement—I do not know where the clinic is—but for another clinic, there might be a more concealed side entrance or something else that could be used. You would have a different approach to maintaining the dignity and security of women having a perfectly lawful procedure, and managing a counter-protest. You could apply a different model depending on geography.
Dr Huq
Q
I want to ask about suspicionless stop and search—no one has said anything about it—which corrodes trust for BME communities, and about how body cameras could be a way out of completely suspicionless stop and search.
Martha Spurrier: Again, just to set the context, the proposal to extend suspicionless stop and search into this area is extraordinary. At the moment, suspicionless stop and search is available in the context of serious violence. It was available in the context of terrorism. It was struck down and Theresa May had to abandon it. That is in the context of crimes that will potentially kill many, many people.
We know that stop-and-search powers are implemented in a racist way. Under suspicion-led stop-and-search powers, a black person—a person of colour—is seven times more likely to be stopped than a white person. Suspicionless stop and search is twice as racist, at 14 times more likely. The idea that you would take a corrosive, racist and deeply controversial policing tool and apply it in the context of protest is extraordinary to us. We cannot see how it will do anything other than cause huge damage for particularly marginalised communities and have a chilling effect on seeking to exercise protest rights, particularly for them. There is a wealth of evidence on the detrimental impact of stop and search, and if there is a threat that people may be stopped and searched at a protest, there is every chance that they simply will not go and make their voice heard.
Olly Sprague: I agree 100% on suspicionless stop and search. It is enormously problematic and, on this one, Amnesty would say that the proposal fails the test of lawfulness—we talk about proportionate necessity, but there is also one of lawfulness. For example, the confiscation powers that go behind the stop-and-search powers around the locking-on offence capture an enormously broad range of items that an officer could argue might be capable of causing an offence. You have so many caveats that you will get into a situation where an ordinary person could have no idea why they were stopped, or why somebody might be taking an item off them that was completely lawful—everything from string to a bit of glue. It fails on that basic principle of lawfulness, which I think is incredibly problematic.
The Chair
Order. You will have to draw it to a close, Mr Sprague, because we are at the end.
Olly Sprague: Oh, I am sorry, Chair.
The Chair
It is not your fault; the Committee had determined certain timescales for the panels, and we have reached the end of the timescale for this panel. My apologies to those I was not able to call during this section.
My thanks to our witnesses—those in the room, and Ms Needleman, who has joined us by Zoom. We are grateful to all the witnesses for their contributions.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Online Safety Bill (Eighth sitting)
Thursday 9th June 2022
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 June 2022 - (9 Jun 2022)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Chair
I remind the Committee that with this we are discussing the following:
Clause stand part.
Clause 32 stand part.
That schedule 3 be the Third schedule to the Bill.
Clause 33 stand part.
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)
When the sitting was suspended for lunch, I was concluding my remarks and saying that where children are the victim of illegal activity or illegal content, all of that is covered in other aspects of the Bill. For areas such as gambling, we have separate legislation that protects children. In relation to potentially harmful content, the reason there is a “significant number” test for the child user condition that we are debating is that, without it, platforms that either would not have any children accessing them or had nothing of any concern on them—such as a website about corporation tax—would have an unduly burdensome and disproportionate obligation placed on them. That is why there is the test—just to ensure that there is a degree of proportionality in these duties. We find similar qualifications in other legislation; that includes the way the age-appropriate design code works. Therefore, I respectfully resist the amendment.
Question put, That the amendment be made.
Barbara Keeley (Worsley and Eccles South) (Lab)
I beg to move amendment 23, in clause 34, page 33, line 41, after “service” insert “that targets users”.
The Chair
With this it will be convenient to discuss the following:
Amendment 24, in clause 35, page 34, line 34, after “service” insert “that targets users”.
New clause 5—Duty to distinguish paid-for advertisements—
“(1) A provider of a Category 2A service must operate the service using systems and processes designed to clearly distinguish to users of that service paid-for advertisements from all other content appearing in or via search results of the service.
(2) The systems and processes described under subsection (1)—
(a) must include clearly displaying the words “paid-for advertisement” next to any paid-for advertisement appearing in or via search results of the service, and
(b) may include measures such as but not limited to the application of colour schemes to paid-for advertisements appearing in or via search results of the service.
(3) The reference to paid-for advertisements appearing “in or via search results of a search service” does not include a reference to any advertisements appearing as a result of any subsequent interaction by a user with an internet service other than the search service.
(4) If a person is the provider of more than one Category 2A service, the duties set out in this section apply in relation to each such service.
(5) The duties set out in this section extend to the design, operation and use of a Category 2A service that hosts paid-for advertisements targeted at users of that service in the United Kingdom.
(6) For the meaning of “Category 2A service”, see section 81 (register of a categories of service).
(7) For the meaning of “paid-for advertisement”, see section 189 (interpretation: general).”
New clause 6—Duty to verify advertisements—
“(1) A provider of a Category 2A service must operate an advertisement verification process for any relevant advertisement appearing in or via search results of the service.
(2) In this section, “relevant advertisement” means any advertisement for a service or product to be designated in regulations made by the Secretary of State.
(3) The verification process under subsection (1) must include a requirement for advertisers to demonstrate that they are authorised by a UK regulatory body.
(4) In this section, “UK regulatory body” means a UK regulator responsible for the regulation of a particular service or product to be designated in regulations made by the Secretary of State.
(5) If a person is the provider of more than one Category 2A service, the duties set out in this section apply in relation to each such service.
(6) For the meaning of “Category 2A service”, see section 81 (register of a categories of service).
(7) Regulations under this section shall be made by statutory instrument.
(8) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”
Barbara Keeley
I begin by thanking my hon. Friend the Member for Washington and Sunderland West (Mrs Hodgson) for her work on drafting these amendments and others relating to this chapter, which I will speak to shortly. She has campaigned excellently over many years in her role as chair of the all-party parliamentary group on ticket abuse. I attended the most recent meeting of that group back in April to discuss what we need to see changed in the Bill to protect people from scams online. I am grateful to those who have supported the group and the anti-ticket touting campaign for their insights.
It is welcome that, after much flip-flopping, the Government have finally conceded to Labour’s calls and those of many campaign groups to include a broad duty to tackle fraudulent advertising on search engines through chapter 5 of part 3 of the Bill. We know that existing laws to protect consumers in the online world have failed to keep pace with the actors attempting to exploit them, and that is particularly true of scams and fraudulent advertisements.
Statistics show a steep increase in this type of crime in the online world, although those figures are likely to be a significant underestimate and do not capture the devastating emotional impact that scams have on their victims. The scale of the problem is large and it is growing.
The Financial Conduct Authority estimates that fraud costs the UK up to £190 billion a year, with 86% of that fraud committed online. We know those figures are increasing. The FCA more than doubled the number of scam warnings it issued between 2019 and 2020, while UK Finance data shows that there has been a significant rise in cases across all scam types as criminals adapt to targeting victims online. The pandemic, which led to a boom in internet shopping, created an environment ripe for exploitation. Reported incidents of scams and fraud have increased by 41% since before the pandemic, with one in 10 of us now victims of fraud.
Being scammed can cause serious psychological harm. Research by the Money and Mental Health Policy Institute suggests that three in 10 online scam victims felt depressed as a result of being scammed, while four in 10 said they felt stressed. Clearly, action to tackle the profound harms that result from fraudulent advertising is long overdue.
This Bill is an important opportunity but, as with other issues the Government are seeking to address, we need to see changes if it is to be successful. Amendments 23 and 24 are small and very simple, but would have a profound impact on the ability of the Bill to prevent online fraud from taking place and to protect UK users.
As currently drafted, the duties set out in clauses 34 and 35 for category 1 and 2A services extend only to the design, operation and use of a category 1 or 2A service in the United Kingdom. Our amendments would mean that the duties extended to the design, operation and use of a category 1 or 2A service that targets users in the United Kingdom. That change would make the Bill far more effective, because it would reduce the risk of a company based overseas being able to target UK consumers without any action being taken against them—being allowed to target the public fraudulently without fear of disruption.
That would be an important change, because paid-for advertisements function by the advertiser stating where in the world, by geographical location, they wish to target consumers. For instance, a company would be able to operate from Hong Kong and take out paid-for advertisements to target consumers just in one particular part of north London. The current wording of the Bill does not acknowledge the fact that internet services can operate from anywhere in the world and use international boundaries to circumvent UK legislation.
Other legislation has been successful in tackling scams across borders. I draw the Committee’s attention to the London Olympic Games and Paralympic Games Act 2006, which made it a crime to sell a ticket to the Olympics into the black market anywhere in the world, rather than simply in the UK where the games took place. I suggest that we should learn from the action taken to regulate the Olympics back in 2012 and implement the same approach through amendments 23 and 24.
New clause 5 was also tabled by my hon. Friend the Member for Washington and Sunderland West, who will be getting a lot of mentions this afternoon.
Barbara Keeley
New clause 5 would tackle one of the reasons people become subject to fraud online by introducing a duty for search engines to ensure that all paid-for search advertisements should be made to look distinct from non-paid-for search results. When bad actors are looking to scam consumers, they often take out paid-for advertising on search results, so that they can give consumers the false impression that their websites are official and trustworthy.
Paid search results occur when companies pay a charge to have their site appear at the top of search results. This is valuable to them because it is likely to direct consumers towards their site. The new clause would stop scam websites buying their way to the top of a search result.
Let me outline some of the consequences of not distinguishing between paid-for and not-paid-for advertisements, because they can be awful. Earlier this year, anti-abortion groups targeted women who were searching online for a suitable abortion clinic. The groups paid for the women to have misleading adverts at the top of their search that directed them towards an anti-abortion centre rather than a clinic. One woman who knew that she wanted to have an abortion went on researching where she could have the procedure. Her search for a clinic on Google led her to an anti-abortion centre that she went on to contact and visit. That was because she trusted the top search results on Google, which were paid for. The fact that it was an advertisement was indicated only by the two letters “AD” appearing in very small font underneath the search headline and description.
Another example was reported by The Times last year. Google had been taking advertising money from scam websites selling premier league football tickets, even though the matches were taking place behind closed doors during lockdown. Because these advertisements appeared at the top of search results, it is entirely understandable that people looking for football tickets were deceived into believing that they would be able to attend the games, which led to them being scammed.
There have been similar problems with passport renewals. As colleagues will be very aware, people have been desperately trying to renew their passports amid long delays because of the backlog of cases. This is a target for fraudsters, who take out paid advertisements to offer people assistance with accessing passport renewal services and then scam them.
New clause 5 would end this practice by ensuring that search engines provide clear messaging to show that the user is looking at a paid-for advertisement, by stating that clearly and through other measures, such as a separate colour scheme. A duty to distinguish paid-for advertising is present in many other areas of advertising. For example, when we watch TV, there is no confusion between what is a programme and what is an advert; the same is true of radio advertising; and when someone is reading a newspaper or magazine, the line between journalism and the advertisements that fund the paper is unmistakable.
We cannot continue to have these discrepancies and be content with the internet being a wild west. Therefore, it is clear that advertising on search engines needs to be brought into line with advertising in other areas, with a requirement on search engines to distinguish clearly between paid-for and organic results.
New clause 6 is another new clause tabled by my hon. Friend the Member for Washington and Sunderland West. It would protect consumers from bad actors trying to exploit them online by placing a duty on search engines to verify adverts before they accept them. That would mean that, before their adverts were allowed to appear in a paid-for search result, companies would have to demonstrate that they were authorised by a UK regulatory body designated by the Secretary of State.
This methodology for preventing fraud is already in process for financial crime. Google only accepts financial services advertisements from companies that are a member of the Financial Conduct Authority. This gives companies a further incentive to co-operate with regulators and it protects consumers by preventing companies that are well-known for their nefarious activities from dominating search results and then misleading consumers. By extending this best practice to all advertisements, search engines would no longer be able to promote content that is fake or fraudulent after being paid to do so.
Without amending the Bill in this way, we risk missing an opportunity to tackle the many forms of scamming that people experience online, one of which is the world of online ticketing. In my role as shadow Minister for the arts and civil society, I have worked on this issue and been informed by the expertise of my hon. Friend the Member for Washington and Sunderland West.
In the meeting of the all-party parliamentary group on ticket abuse in April, we heard about the awful consequences of secondary ticket reselling practices. Ticket reselling websites, such as Viagogo, are rife with fraud. Large-scale ticket touts dominate the resale site, and Viagogo has a well-documented history of breaching consumer protection laws. Those breaches include a number of counts of fraud for selling non-existent tickets. Nevertheless, Viagogo continues to take out paid-for advertisements with Google and is continually able to take advantage of consumers by dominating search results and commanding false trust.
If new clause 6 is passed, then secondary ticketing websites such as Viagogo would have to be members of a regulatory body responsible for secondary ticketing, such as the Society of Ticket Agents and Retailers, or STAR. Viagogo would then have to comply with STAR standards for its business model to be successful.
I have used ticket touting as an example, but the repercussions of this change would be wider than that. Websites that sell holidays and flights, such as Skyscanner, would have to be a member of the relevant regulatory group, for example the Association of British Travel Agents. People would be able to go to football matches, art galleries and music festivals without fearing that they are getting ripped off or have been issued with fake tickets.
I will describe just a few examples of the poor situation we are in at the moment, to illustrate the need for change. The most heartbreaking one is of an elderly couple who bought two tickets from a secondary ticketing website to see their favourite artist, the late Leonard Cohen, to celebrate their 70th wedding anniversary. When the day came around and they arrived at the venue, they were turned away and told they had been sold fake tickets. The disappointment they must have felt would have been very hard to bear. In another instance, a British soldier serving overseas decided to buy his daughter concert tickets because he could not be with her on her birthday. When his daughter went along to the show, she was turned away at the door and told she could not enter because the tickets had been bought through a scam site and were invalid.
Kirsty Blackman (Aberdeen North) (SNP)
I rise to agree with all the amendments in this group that have been tabled by the Opposition. I want to highlight a couple of additional groups who are particularly at risk in relation to fraudulent advertising. One of those is pensioners and people approaching pension age. Because of the pension freedoms that are in place, we have a lot of people making uninformed decisions about how best to deal with their pensions, and sometimes they are able to withdraw a significant amount of money in one go. For an awful lot of people, withdrawing that money and paying the tax on it leads to a major financial loss—never mind the next step that they may take, which is to provide the money to fraudsters.
For pensioners in particular, requiring adverts to be clearly different from other search results would make a positive difference. The other thing that we have to remember is that pensioners generally did not grow up online, and some of them struggle more to navigate the internet than some of us who are bit younger.
John Nicolson (Ochil and South Perthshire) (SNP)
I speak with some experience of this issue, because I had a constituent who was a pensioner and who was scammed of £20,000—her life savings. Does my hon. Friend realise that it is sometimes possible to pressurise the banks into returning the money? In that particular case, I got the money back for my constituent by applying a great deal of pressure on the bank, and it is worth knowing that the banks are susceptible to a bit of publicity. That is perhaps worth bearing in mind, because it is a useful power that we have as Members of Parliament.
Kirsty Blackman
I thank my hon. Friend for his public service announcement. His constituent is incredibly lucky that my hon. Friend managed to act in that way and get the money back to her, because there are so many stories of people not managing to get their money back and losing their entire life savings as a result of scams. It is the case that not all those scams take place online—people can find scams in many other places—but we have the opportunity with the Bill to take action on scams that are found on the internet.
The other group I want to mention, and for whom highlighting advertising could make a positive difference, is people with learning disabilities. People with learning disabilities who use the internet may not understand the difference between adverts and search results, as the hon. Member for Worsley and Eccles South mentioned. They are a group who I would suggest are particularly susceptible to fraudulent advertising.
We are speaking a lot about search engines, but a lot of fraudulent advertising takes place on Facebook and so on. Compared with the majority of internet users, there is generally an older population on such sites, and the ability to tackle fraudulent advertising there is incredibly useful. We know that the sites can do it, because there are rules in place now around political advertising on Facebook, for example. We know that it is possible for them to take action; it is just that they have not yet taken proper action.
I am happy to support the amendments, but I am also glad that the Minister has put these measures in the Bill, because they will make a difference to so many of our constituents.
Chris Philp
I thank the hon. Member for Aberdeen North for her latter remarks. We made an important addition to the Bill after listening to parliamentarians across the House and to the Joint Committee, which many people served on with distinction. I am delighted that we have been able to make that significant move. We have heard a lot about how fraudulent advertising can affect people terribly, particularly more vulnerable people, so that is an important addition.
Amendments 23 and 24 seek to make it clear that where the target is in the UK, people are covered. I am happy to assure the Committee that that is already covered, because the definitions at the beginning of the Bill—going back to clause 3(5)(b), on page 3—make it clear that companies are in scope, both user-to-user and search, if there is a significant number of UK users or where UK users form one of the target markets, or is the only target market. Given the reference to “target markets” in the definitions, I hope that the shadow Minister will withdraw the amendment, because the matter is already covered in the Bill.
New clause 5 raises important points about the regulation of online advertising, but that is outside the purview of what the Bill is trying to achieve. The Government are going to work through the online advertising programme to tackle these sorts of issues, which are important. The shadow Minister is right to raise them, but they will be tackled holistically by the online advertising programme, and of course there are already codes of practice that apply and are overseen by the Advertising Standards Authority. Although these matters are very important and I agree with the points that she makes, there are other places where those are best addressed.
New clause 6 is about the verification process. Given that the Bill is primary legislation, we want to have the core duty to prevent fraudulent advertising in the Bill. How that is implemented in this area, as in many others, is best left to Ofcom and its codes of practice. When Ofcom publishes the codes of practice, it might consider such a duty, but we would rather leave Ofcom, as the expert regulator, with the flexibility to implement that via the codes of practice and leave the hard-edged duty in the Bill as drafted.
Barbara Keeley
We are going to press amendments 23 and 24 to a vote because they are very important. I cited the example of earlier legislation that considered it important, in relation to selling tickets, to include the wording “anywhere in the world”. We know that ticket abuses happen with organisations in different parts of the world.
Chris Philp
The hon. Lady is perfectly entitled to press to a vote whatever amendments she sees fit, but in relation to amendments 24 and 25, the words she asks for,
“where the UK is a target market”,
are already in the Bill, in clause 3(5)(b), on page 3, which set out the definitions at the start. I will allow the hon. Lady a moment to look at where it states:
“United Kingdom users form one of the target markets for the service”.
That applies to user-to-user and to search, so it is covered already.
Barbara Keeley
The problem is that we are getting into the wording of the Bill. As with the child abuse clause that we discussed before lunch, there are limitations. Clause 3 states that a service has links with the United Kingdom if
“the service has a significant number of United Kingdom users”.
It does not matter if a person is one of 50, 100 or 1,000 people who get scammed by some organisation operating in another part of the country. The 2006 Bill dealing with the sale of Olympic tickets believed that was important, and we also believe it is important. We have to find a way of dealing with ticket touting and ticket abuse.
Turning to fraudulent advertising, I have given examples and been supported very well by the hon. Member for Aberdeen North. It is not right that vulnerable people are repeatedly taken in by search results, which is the case right now. The reason we have tabled all these amendments is that we are trying to protect vulnerable people, as with every other part of the Bill.
Chris Philp
That is of course our objective as well, but let me just return to the question of the definitions. The hon. Lady is right that clause 3(5)(a) says
“a significant number of United Kingdom users”,
but paragraph (b) just says,
“United Kingdom users form one of the target markets”.
There is no significant number qualification in paragraph (b), and to put it beyond doubt, clause 166(1) makes it clear that service providers based outside the United Kingdom are within the scope of the Bill. To reiterate the point, where the UK is a target market, there is no size qualification: the service provider is in scope, even if it is only one user.
Barbara Keeley
Does the Minister want to say anything about the other points I made about advertisements?
Chris Philp
Not beyond the points I made previously, no.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Amendment 45, in clause 35, page 34, line 2, leave out subsection (1) and insert—
“(1) A provider of a Category 2A service must operate the service using proportionate systems and processes designed to—
(a) prevent individuals from encountering content consisting of fraudulent advertisements by means of the service;
(b) minimise the length of time for which any such content is present;
(c) where the provider is alerted by a person to the presence of such content, or becomes aware of it in any other way, swiftly take down such content.”
This amendment brings the fraudulent advertising provisions for Category 2A services in line with those for Category 1 services.
Government amendments 91 to 94.
Clause 35 stand part.
Amendment 44, in clause 36, page 35, line 10, at end insert—
“(4A) An offence under Part 3 of the Consumer Protection from Unfair Trading Regulations 2008.”
This amendment adds further offences to those which apply for the purposes of the Bill’s fraudulent advertising provisions.
Clause 36 stand part.
Barbara Keeley
I am aware that the Minister has reconsidered the clause and tabled a Government amendment that is also in this group, with the same purpose as our amendment 45. That is welcome, as there was previously no justifiable reason why the duties on category 1 services and category 2A services were misaligned.
All three of the duties on category 1 services introduced by clause 34 are necessary to address the harm caused by fraudulent and misleading online adverts. Service providers need to take proportionate but effective action to prevent those adverts from appearing or reappearing, and when they do appear, those service providers need to act quickly by swiftly taking them down. The duties on category 2A services were much weaker, only requiring them to minimise the risk of individuals encountering content consisting of fraudulent advertisements in or via search results of the service. There was no explicit reference to prevention, even though that is vital, or any explicit requirement to act quickly to take harmful adverts down.
That difference would have created an opportunity for fraudsters to exploit by focusing on platforms with lesser protections. It could have resulted in an increase in fraud enabled by paid-for advertising on search services, which would have undermined the aims of the Bill. I am glad that the Government have recognised this and will require the same proactive, preventative response to harmful ads from regulated search engines as is required from category 1 services.
Chris Philp
As we have heard already, these clauses are very important because they protect people from online fraudulent advertisements for the first time—something that the whole House quite rightly called for. As the shadow Minister said, the Government heard Parliament’s views on Second Reading, and the fact that the duties in clause 35 were not as strongly worded as those in clause 34 was recognised. The Government heard what Members said on Second Reading and tabled Government amendments 91 to 94, which make the duties on search firms in clause 35 as strong as those on user-to-user firms in clause 34. Opposition amendment 45 would essentially do the same thing, so I hope we can adopt Government amendments 91 to 94 without needing to move amendment 45. It would do exactly the same thing—we are in happy agreement on that point.
I listened carefully to what the shadow Minister said on amendment 44. The example she gave at the end of her speech—the poor lady who was induced into sending money, which she thought was being sent to pay off creditors but was, in fact, stolen—would, of course, be covered by the Bill as drafted, because it would count as an act of fraud.
The hon. Lady also talked about some other areas that were not fraud, such as unfair practices, misleading statements or statements that were confusing, which are clearly different from fraud. The purpose of clause 35 is to tackle fraud. Those other matters are, as she says, covered by the Consumer Protection from Unfair Trading Regulations 2008, which are overseen and administered by the Competition and Markets Authority. While matters to do with unfair, misleading or confusing content are serious—I do not seek to minimise their importance—they are overseen by a different regulator and, therefore, better handled by the CMA under its existing regulations.
If we introduce this extra offence to the list in clause 36, we would end up having a bit of regulatory overlap and confusion, because there would be two regulators involved. For that reason, and because those other matters—unfair, misleading and confusing advertisements —are different to fraud, I ask that the Opposition withdraw amendment 44 and, perhaps, take it up on another occasion when the CMA’s activities are in the scope of the debate.
Barbara Keeley
No, we want to press this amendment to a vote. I have had further comment from the organisations that I quoted. They believe that we do need the amendment because it is important to stop harmful ads going up in the first place. They believe that strengthened provisions are needed for that. Guidance just puts the onus for protecting consumers on the other regulatory regimes that the Minister talked about. The view of organisations such as StepChange is that those regimes—the Advertising Standards Authority regime—are not particularly strong.
The regulatory framework for financial compulsion is fragmented. FCA-regulated firms are clearly under much stronger obligations than those that fall outside FCA regulations. I believe that it would be better to accept the amendment, which would oblige search engines and social media giants to prevent harmful and deceptive ads from appearing in the first place. The Minister really needs to take on board the fact that in this patchwork, this fragmented world of different regulatory systems, some of the existing systems are clearly failing badly, and the strong view of expert organisations is that the amendment is necessary.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35
Duties about fraudulent advertising: Category 2A services
Amendments made: 91, in clause 35, page 34, line 3, leave out from “to” to end of line 5 and insert—
“(a) prevent individuals from encountering content consisting of fraudulent advertisements in or via search results of the service;
(b) if any such content may be encountered in or via search results of the service, minimise the length of time that that is the case;
(c) where the provider is alerted by a person to the fact that such content may be so encountered, or becomes aware of that fact in any other way, swiftly ensure that individuals are no longer able to encounter such content in or via search results of the service.”
This amendment alters the duty imposed on providers of Category 2A services relating to content consisting of fraudulent advertisements so that it is in line with the corresponding duty imposed on providers of Category 1 services by clause 34(1).
Amendment 92, in clause 35, page 34, line 16, leave out “reference” and insert “references”.
This amendment is consequential on Amendment 91.
Amendment 93, in clause 35, page 34, line 18, leave out “is a reference” and insert “are references”.
This amendment is consequential on Amendment 91.
Amendment 94, in clause 35, page 34, line 22, leave out
“does not include a reference”
and insert “do not include references”.—(Chris Philp.)
This amendment is consequential on Amendment 91.
Clause 35, as amended, ordered to stand part of the Bill.
Clause 36
Fraud etc offences
Amendment proposed: 44, in clause 36, page 35, line 10, at end insert—
“(4A) An offence under Part 3 of the Consumer Protection from Unfair Trading Regulations 2008.”—(Barbara Keeley.)
This amendment adds further offences to those which apply for the purposes of the Bill’s fraudulent advertising provisions.
Question put, That the amendment be made.
The Chair
Amendment 96 has been tabled by Carla Lockhart, who is not on the Committee. Does anyone wish to move amendment 96? No.
Alex Davies-Jones
I beg to move amendment 65, in clause 37, page 36, line 27, at end insert—
“(ia) organisations that campaign for the removal of animal abuse content, and”.
This amendment would add organisations campaigning for the removal of animal content to the list of bodies Ofcom must consult.
The Chair
With this it will be convenient to discuss the following:
Amendment 63, in schedule 4, page 176, line 29, at end insert “and
(x) there are adequate safeguards to monitor cruelty towards humans and animals;”.
This amendment would ensure that ensuring adequate safeguards to monitor cruelty towards humans and animals is one of the online safety objectives for user-to-user services.
Amendment 64, in schedule 4, page 177, line 4, at end insert “and
(vii) the systems and process are appropriate to detect cruelty towards humans and animals;”.
This amendment would ensure that ensuring systems and processes are appropriate to detect cruelty towards humans and animals is one of the online safety objectives for search services.
Amendment 60, in clause 52, page 49, line 5, at end insert—
“(e) an offence, not within paragraph (a), (b) or (c), of which the subject is an animal.”
This amendment brings offences to which animals are subject within the definition of illegal content.
Amendment 59, in schedule 7, page 185, line 39, at end insert—
“Animal Welfare
22A An offence under any of the following provisions of the Animal Welfare Act 2006—
(a) section 4 (unnecessary suffering);
(b) section 5 (mutilation);
(c) section 7 (administration of poisons);
(d) section 8 (fighting);
(e) section 9 (duty of person responsible for animal to ensure welfare).
22B An offence under any of the following provisions of the Animal Health and Welfare (Scotland) Act 2006—
(a) section 19 (unnecessary suffering);
(b) section 20 (mutilation);
(c) section 21 (cruel operations);
(d) section 22 (administration of poisons);
(e) section 23 (fighting);
(f) section 24 (ensuring welfare of animals).
22C An offence under any of the following provisions of the Welfare of Animals Act (Northern Ireland) 2011—
(a) section 4 (unnecessary suffering);
(b) section 5 (prohibited procedures);
(c) section 7 (administration of poisons);
(d) section 8 (fighting);
(e) section 9 (ensuring welfare of animals).
22D For the purpose of paragraphs 22A, 22B or 22C of this Schedule, the above offences are deemed to have taken place regardless of whether the offending conduct took place within the United Kingdom, if the offending conduct would have constituted an offence under the provisions contained within those paragraphs.”
This amendment adds certain animal welfare offences to the list of priority offences in Schedule 7.
Amendment 66, in clause 140, page 121, line 8, at end insert—
“(d) causing harm to any human or animal.”
This amendment ensures groups are able to make complaints regarding animal abuse videos.
Amendment 67, in clause 140, page 121, line 20, at end insert
“, or a particular group that campaigns for the removal of harmful online content towards humans and animals”.
This amendment makes groups campaigning against harmful content eligible to make supercomplaints.
Alex Davies-Jones
It is, as ever, a pleasure to serve under your chairship, Ms Rees. Amendment 65 would add organisations campaigning for the removal of animal content to the list of bodies that Ofcom must consult. As we all know, Ofcom must produce codes of practice that offer guidance on how regulated services can comply with its duties. Later in the Bill, clause 45 makes clear that if a company complies with the code of practice, it will be deemed to have complied with the Bill in general. In addition, the duties for regulated services come into force at the same time as the codes of practice. That all makes what the codes say extremely important.
The absence of protections relating to animal abuse content is a real omission from the Bill. Colleagues will have seen the written evidence from Action for Primates, which neatly summarised the key issues on which Labour is hoping to see agreement from the Government. Given this omission, it is clear that the current draft of the Bill is not fit for tackling animal abuse, cruelty and violence, which is all too common online.
There are no explicit references to content that can be disturbing and distressing to those who view it—both children and adults. We now know that most animal cruelty content is produced specifically for sharing on social media, often for profit through the monetisation schemes offered by platforms such as YouTube. Examples include animals being beaten, set on fire, crushed or partially drowned; the mutilation and live burial of infant monkeys; a kitten intentionally being set on by a dog and another being stepped on and crushed to death; live and conscious octopuses being eaten; and animals being pitted against each other in staged fights.
Animals being deliberately placed into frightening or dangerous situations from which they cannot escape or are harmed before being “rescued” on camera is becoming increasingly popular on social media, too. For example, kittens and puppies are “rescued” from the clutches of a python. Such fake rescues not only cause immense suffering to animals, but are fraudulent because viewers are asked to donate towards the rescue and care of the animals. This cannot be allowed to continue.
Indeed, as part of its Cancel Out Cruelty campaign, the Royal Society for the Prevention of Cruelty to Animals conducted research, which found that in 2020 there were nearly 500 reports of animal cruelty on social media. That was more than twice the figure reported for 2019. The majority of these incidents appeared on Facebook. David Allen, head of prevention and education at the RSPCA, has spoken publicly about the issue, saying:
“Sadly, we have seen an increase in recent years in the number of incidents of animal cruelty being posted and shared on social media such as Facebook, Instagram, TikTok and Snapchat.”
John Nicolson
I totally agree with the points that the hon. Lady is making. Does she agree that the way in which the Bill is structured means that illegal acts that are not designated as “priority illegal” will likely be put at the very end of companies’ to-do list and that they will focus considerably more effort on what they will call “priority illegal” content?
Alex Davies-Jones
I completely agree with and welcome the hon. Gentleman’s contribution. It is a very valid point and one that we will explore further. It shows the necessity of this harm being classed as a priority harm in order that we protect animals, as well as people.
David Allen continued:
“We’re very concerned that the use of social media has changed the landscape of abuse with videos of animal cruelty being shared for likes and kudos with this sort of content normalising—and even making light of—animal cruelty. What’s even more worrying is the level of cruelty that can be seen in these videos, particularly as so many young people are being exposed to graphic footage of animals being beaten or killed which they otherwise would never have seen.”
Although the Bill has a clear focus on protecting children, we must remember that the prevalence of cruelty to animals online has the potential to have a hugely negative impact on children who may be inadvertently seeing that content through everyday social media channels.
Jane Stevenson (Wolverhampton North East) (Con)
The hon. Lady knows that I am a great animal lover, and I obviously have concerns about children being exposed to these images. I am just wondering how she would differentiate between abusive images and the images that are there to raise awareness of certain situations that animals are in. I have seen many distressing posts about the Yulin dogmeat festival and about beagles being used in laboratory experiments. How would she differentiate between images that are there to raise awareness of the plight of animals and the abusive ones?
Alex Davies-Jones
I thank the hon. Lady for her contribution. Like me, she is a passionate campaigner for animal welfare. It was a pleasure to serve on the Committee that considered her Glue Traps (Offences) Act 2022, which I know the whole House was pleased to pass. She raises a very important point and one that the Bill later explores with regard to other types of content, such as antisemitic content and racist content in terms of education and history and fact. The Bill deals specifically with that later, and this content would be dealt with in the same way. We are talking about where content is used as an educational tool and a raising-awareness tool, compared with just images and videos of direct abuse.
To give hon. Members a real sense of the extent of the issue, I would like to share some findings from a recent survey of the RSPCA’s frontline officers. These are pretty shocking statistics, as I am sure Members will all agree. Eighty-one per cent. of RSPCA frontline officers think that more abuse is being caught on camera. Nearly half think that more cases are appearing on social media. One in five officers said that one of the main causes of cruelty to animals is people hurting animals just to make themselves more popular on social media. Some of the recent cruelty videos posted on social media include a video of a magpie being thrown across the road on Instagram in June 2021; a woman captured kicking her dog on TikTok in March 2021; a teenager being filmed kicking a dog, which was shared on WhatsApp in May 2021; and videos posted on Instagram of cockerels being forced to fight in March 2021.
I am sure that colleagues will be aware of the most recent high-profile case, which was when disturbing footage was posted online of footballer Kurt Zouma attacking his cat. There was, quite rightly, an outpouring of public anger and demands for justice. Footage uploaded to Snapchat on 6 February showed Zouma kicking his Bengal cat across a kitchen floor in front of his seven-year-old son. Zouma also threw a pair of shoes at his pet cat and slapped its head. In another video, he was heard saying:
“I swear I’ll kill it.”
In sentencing him following his guilty plea to two offences under the Animal Welfare Act 2006, district judge Susan Holdham described the incident as “disgraceful and reprehensible”. She added:
“You must be aware that others look up to you and many young people aspire to emulate you.”
What makes that case even more sad is the way in which the video was filmed and shared, making light of such cruelty. I am pleased that the case has now resulted in tougher penalties for filming animal abuse and posting it on social media, thanks to new guidelines from the Sentencing Council. The prosecutor in the Zouma case, Hazel Stevens, told the court:
“Since this footage was put in the public domain there has been a spate of people hitting cats and posting it on various social media sites.”
There have been many other such instances. Just a few months ago, the most abhorrent trend was occurring on TikTok: people were abusing cats, dogs and other animals to music and encouraging others to do the same. Police officers discovered a shocking 182 videos with graphic animal cruelty on mobile phones seized during an investigation. This sickening phenomenon is on the rise on social media platforms, provoking a glamorisation of the behaviour. The videos uncovered during the investigation showed dogs prompted to attack other animals such as cats, or used to hunt badgers, deer, rabbits and birds. Lancashire police began the investigation after someone witnessed two teenagers encouraging a dog to attack a cat on an estate in Burnley in March of last year. The cat, a pet named Gatsby, was rushed to the vet by its owners once they discovered what was going on, but unfortunately it was too late and Gatsby’s injuries were fatal. The photos and videos found on the boys’ phones led the police to discover more teenagers in the area who were involved in such cruel activities. The views and interactions that the graphic footage was attracting made it even more visible, as the platform was increasing traffic and boosting content when it received attention.
It should not have taken such a high-profile case of a professional footballer with a viral video to get this action taken. There are countless similar instances occurring day in, day out, and yet the platforms and authorities are not taking the necessary action to protect animals and people from harm, or to protect the young people who seek to emulate this behaviour.
I pay tribute to the hard work of campaigning groups such as the RSPCA, Action for Primates, Asia for Animals Coalition and many more, because they are the ones who have fought to keep animal rights at the forefront. The amendment seeks to ensure that such groups are given a voice at the table when Ofcom consults on its all-important codes of practice. That would be a small step towards reducing animal abuse content online, and I hope the Minister can see the merits in joining the cause.
I turn to amendment 60, which would bring offences to which animals are subject within the definition of illegal content, a point raised by the hon. Member for Ochil and South Perthshire. The Minister will recall the Animal Welfare (Sentencing) Act 2021, which received Royal Assent last year. Labour was pleased to see the Government finally taking action against those who commit animal cruelty offences offline. The maximum prison sentence for animal cruelty was increased from six months to five years, and the Government billed that move as them taking a firmer approach to cases such as dog fighting, abuse of puppies and kittens, illegally cropping a dog’s ears and gross neglect of farm animals. Why, then, have the Government failed to include offences against animals within the scope of illegal content online? We want parity between the online and offline space, and that seems like a sharp omission from the Bill.
Placing obligations on service providers to remove animal cruelty content should fall within both the spirit and the scope of the Bill. We all know that the scope of the Bill is to place duties on service providers to remove illegal and harmful content, placing particular emphasis on the exposure of children. Animal cruelty content is a depiction of illegality and also causes significant harm to children and adults.
If my inbox is anything to go by, all of us here today know what so many of our constituents up and down the country feel about animal abuse. It is one of the most popular topics that constituents contact me about. Today, the Minister has a choice to make about his Government's commitment to preventing animal cruelty and keeping us all safe online. I hope he will see the merit in acknowledging the seriousness of animal abuse online.
Amendment 66 would ensure that groups were able to make complaints about animal abuse videos. Labour welcomes clause 140, as the ability to make super-complaints is a vital part of our democracy. However, as my hon. Friend the Member for Worsley and Eccles South and other Members have mentioned, the current definition of an “eligible entity” is far too loose. I have set out the reasons as to why the Government must go further to limit and prevent animal abuse content online. Amendment 66 would ensure that dangerous animal abuse content is a reasonable cause for a super-complaint to be pursued.
Chris Philp
The shadow Minister raises important issues to do with animal cruelty. The whole House and our constituents feel extremely strongly about this issue, as we know. She set out some very powerful examples of how this terrible form of abuse takes place.
To some extent, the offences are in the Bill’s scope already. It covers, for example, extreme pornography. Given that the content described by the hon. Lady would inflict psychological harm to children, it is, to that extent, in scope.
The hon. Lady mentioned the Government’s wider activities to prevent animal cruelty. That work goes back a long time and includes the last Labour Government’s Animal Welfare Act 2006. She mentioned the more recent update to the criminal sentencing laws that increased by a factor of 10 the maximum sentence for cruelty to animals. It used to be six months and has now been increased to up to five years in prison.
In addition, just last year the Department for Environment, Food and Rural Affairs announced an action plan for animal welfare, which outlines a whole suite of activities that the Government are taking to protect animals in a number of different areas—sentience, international trade, farming, pets and wild animals. That action plan will be delivered through a broad programme of legislative and non-legislative work.
Alex Davies-Jones
I thank the Minister for agreeing to look at this issue further. However, we do see it as being within the scope of the Bill, and we have the opportunity to do something about it now, so we will be pressing these amendments to a vote. If you will allow me, Ms Rees, I would also like to pay tribute to the former Member of Parliament for Redcar, Anna Turley, who campaigned tirelessly on these issues when she was a Member of the House. We would like these amendments to be part of the Bill.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
Clause 38 stand part.
That schedule 4 be the Fourth schedule to the Bill.
New clause 20—Use of proactive technology in private messaging: report—
“(1) OFCOM must produce a report—
(a) examining the case for the use of proactive technology in private messaging where the aim is to identify CSEA content; and
(b) making recommendations to whether or not proactive technology should be used in such cases.
(2) The report must be produced in consultation with organisations that have expertise and experience in tackling CSEA.
(3) The report must be published and laid before both Houses of Parliament within six months of this Act being passed.”
Alex Davies-Jones
On clause 37, it is welcome that Ofcom will have to prepare and issue a code of practice for service providers with duties relating to illegal content in the form of terrorism or child sexual exploitation and abuse content. The introduction of compliance measures relating to fraudulent advertising is also very welcome. We do, however, have some important areas to amend, including the role of different expert groups in assisting Ofcom during its consultation process, which I have already outlined in relation to animal cruelty.
On clause 38, Labour supports the notion that Ofcom must have specific principles to adhere to when preparing the codes of practice, and of course, the Secretary of State must have oversight of those. However, as I will touch on as we proceed, Labour feels that far too much power is given to the Secretary of State of the day in establishing those codes.
Labour believes that that schedule 4 is overwhelmingly loose in its language, and we have concerns about the ability of Ofcom—try as it might—to ensure that its codes of practice are both meaningful to service providers and in compliance with the Bill’s legislative requirements. Let me highlight the schedule’s broadness by quoting from it. Paragraph 4 states:
“The online safety objectives for regulated user-to-user services are as follows”.
I will move straight to paragraph 4(a)(iv), which says
“there are adequate systems and processes to support United Kingdom users”.
Forgive me if I am missing something here, but surely an assessment of adequacy is too subjective for these important codes of practice. Moreover, the Bill seems to have failed to consider the wide-ranging differences that exist among so-called United Kingdom users. Once again, there is no reference to future-proofing against emerging technologies. I hope that the Minister will therefore elaborate on how he sees the codes of practice and their principles, objectives and content as fit for purpose. More broadly, it is remarkable that schedule 4 is both too broad in its definitions and too limiting in some areas—we might call it a Goldilocks schedule.
I turn to new clause 20. As we have discussed, a significant majority of online child abuse takes place in private messages. Research from the NSPCC shows that 12 million of the 18.4 million child sexual abuse reports made by Facebook in 2019 related to content shared on private channels. Recent data from the Office for National Statistics shows that private messaging plays a central role in contact between children and people whom they have not met offline before. When children are contacted by someone they do not know, in nearly three quarters of cases that takes place by private message.
Schedule 4 introduces new restrictions on Ofcom’s ability to require a company to use proactive technology to identify or disrupt abuse in private messaging. That will likely restrict Ofcom’s ability to include in codes of practice widely used industry-standard tools such as PhotoDNA and CSAI Match, which detect known child abuse images, and artificial intelligence classifiers to detect self-generated images and grooming behaviour. That raises significant questions about whether the regulator can realistically produce codes of practice that respond to the nature and extent of the child abuse threat.
As it stands, the Bill will leave Ofcom unable to require companies to proactively use technology that can detect child abuse. Instead, Ofcom will be wholly reliant on the use of CSEA warning notices under clause 103, which will enable it to require the use of proactive technologies only where there is evidence that child abuse is already prevalent—in other words, where significant online harm has already occurred. That will necessitate the use of a laborious and resource-intensive process, with Ofcom having to build the evidence to issue CSEA warning notices company by company.
Those restrictions will mean that the Bill will be far less demanding than comparable international legislation in respect of the requirement on companies to proactively detect and remove online child abuse. So much for the Bill being world leading. For example, the EU child abuse legislative proposal published in May sets out clear and unambiguous requirements on companies to proactively scan for child abuse images and grooming behaviour on private messages.
If the regulator is unable to tackle online grooming sufficiently proactively, the impact will be disproportionately felt by girls. NSPCC data shows that an overwhelming majority of criminal offences target girls, with those aged 12 to 15 the most likely to be victims of online grooming. Girls were victims in 83% of offences where data was recorded. Labour recognises that once again there are difficulties between our fundamental right to privacy and the Bill’s intentions in keeping children safe. This probing new clause is designed to give the Government an opportunity to report on the effectiveness of their proposed approach.
Ultimately, the levels of grooming taking place on private messaging platforms are incredibly serious. I have two important testimonies that are worth placing on the record, both of which have been made anonymous to protect the victims but share the same sentiment. The first is from a girl aged 15. She said:
“I’m in a serious situation that I want to get out of. I’ve been chatting with this guy online who’s like twice my age. This all started on Instagram but lately all our chats have been on WhatsApp. He seemed really nice to begin with, but then he started making me do these things to prove my trust to him, like doing video chats with my chest exposed.”
The second is from a boy aged 17. He said:
“I’ve got a fitness page on Instagram to document my progress but I get a lot of direct messages from weird people. One guy said he’d pay me a lot of money to do a private show for him. He now messages me almost every day asking for more explicit videos and I’m scared that if I don’t do what he says, then he will leak the footage and my life would be ruined”.
Those testimonies go to show how fundamentally important it is for an early assessment to be made of the effectiveness of the Government’s approach following the Bill gaining Royal Assent.
We all have concerns about the use of proactive technology in private messaging and its potential impact on personal privacy. End-to-end encryption offers both risks and benefits to the online environment, but the main concern is based on risk profiles. End-to-end encryption is particularly problematic on social networks because it is embedded in the broader functionality of the service, so all text, DMs, images and live chats could be encrypted. Consequently, its impact on detecting child abuse becomes even greater. There is an even greater risk with Meta threatening to bring in end-to-end encryption for all its services. If platforms cannot demonstrate that they can mitigate those risks to ensure a satisfactory risk profile, they should not be able to proceed with end-to-end encryption until satisfactory measures and mitigations are in place.
Tech companies have made significant efforts to frame this issue in the false binary that any legislation that impacts private messaging will damage end-to-end encryption and will mean that encryption will not work or is broken. That argument is completely false. A variety of novel technologies are emerging that could allow for continued CSAM scanning in encrypted environments while retaining the privacy benefits afforded by end-to-end encryption.
Apple, for example, has developed its NeuralHash technology, which allows for on-device scans for CSAM before a message is sent and encrypted. That client-side implementation—rather than service-side encryption—means that Apple does not learn anything about images that do not match the known CSAM database. Apple’s servers flag accounts that exceed a threshold number of images that match a known database of CSAM image hashes, so that Apple can provide relevant information to the National Centre for Missing and Exploited Children. That process is secure and expressly designed to preserve user privacy.
Homomorphic encryption technology can perform image hashing on encrypted data without the need to decrypt the data. No identifying information can be extracted and no details about the encrypted image are revealed, but calculations can be performed on the encrypted data. Experts in hash scanning—including Professor Hany Farid of the University of California, Berkeley, who developed PhotoDNA—insist that scanning in end-to-end encrypted environments without damaging privacy will be possible if companies commit to providing the engineering resources to work on it.
To move beyond the argument that requiring proactive scanning for CSAM means breaking or damaging end-to-end encryption, amendments to the Bill could provide a powerful incentive for companies to invest in technology and engineering resources that will allow them to continue scanning while pressing ahead with end-to-end encryption, so that privacy is preserved but appropriate resources for and responses to online child sexual abuse can continue. It is highly unlikely that some companies will do that unless they have the explicit incentive to do so. Regulation can provide such an incentive, and I urge the Minister to make it possible.
Mrs Maria Miller (Basingstoke) (Con)
It is a pleasure to follow the shadow Minister, who made some important points. I will focus on clause 37 stand part. I pay tribute to the Minister for his incredible work on the Bill, with which he clearly wants to stop harm occurring in the first place. We had a great debate on the matter of victim support. The Bill requires Ofcom to produce a number of codes of practice to help to achieve that important aim.
Clause 37 is clear: it requires codes of practice on illegal content and fraudulent advertising, as well as compliance with “the relevant duties”, and it is on that point that I hope the Minister can help me. Those codes will help Ofcom to take action when platforms do things that they should not, and will, I hope, provide a way for platforms to comply in the first place rather than falling foul of the rules.
How will the codes help platforms that are harbouring material or configuring their services in a way that might be explicitly or inadvertently promoting violence against women and girls? The Minister knows that women are disproportionately the targets of online abuse on social media or other platforms. The impact, which worries me as much as I am sure it worries him, is that women and girls are told to remove themselves from social media as a way to protect themselves against extremely abusive or harassing material. My concern is that the lack of a specific code to tackle those important issues might inadvertently mean that Ofcom and the platforms overlook them.
Would a violence against women and girls code of practice help to ensure that social media platforms were monitored by Ofcom for their work to prevent tech-facilitated violence against women and girls? A number of organisations think that it would, as does the Domestic Abuse Commissioner herself. Those organisations have drafted a violence against women and girls code of practice, which has been developed by an eminent group of specialists—the End Violence Against Women Coalition, Glitch, Carnegie UK Trust, the NSPCC, 5Rights, and Professors Clare McGlynn and Lorna Woods, both of whom gave evidence to us. They believe it should be mandatory for Ofcom to adopt a violence against women and girls code to ensure that this issue is taken seriously and that action is taken to prevent the risks in the first place. Clause 37 talks about codes, but it is not specific on that point, so can the Minister help us? Like the rest of the Committee, he wants to prevent women from experiencing these appalling acts online, and a code of practice could help us deal with that better.
Kirsty Blackman
I absolutely agree with the points that have been made about the violence against women code of conduct. It is vital, and it would be a really important addition to the Bill. I associate myself with the shadow Minister’s comments, and am happy to stand alongside her.
I want to make a few comments about new clause 20 and some of the issues it raises. The new clause is incredibly important, and we need to take seriously the concerns that have been raised with us by the groups that advocate on behalf of children. They would not raise those concerns if they did not think the Bill was deficient in this area. They do not have spare people and cannot spend lots of time doing unnecessary things, so if they are raising concerns, those are very important things that will make a big difference.
I want to go a little further than what the new clause says and ask the Minister about future-proofing the Bill and ensuring that technologies can be used as they evolve. I am pretty sure that everybody agrees that there should be no space where it is safe to share child sexual exploitation and abuse, whether physical space or online space, private messaging or a more open forum. None of those places should be safe or legal. None should enable that to happen.
My particular thought about future-proofing is about the development of technologies that are able to recognise self-generated pictures, videos, livestreams and so on that have not already been categorised, do not have a hash number and are not easy for the current technologies to find. There are lots of people out there working hard to stamp out these images and videos online, and I have faith that they are developing new technologies that are able to recognise images, videos, messages and oral communications that cannot currently be recognised.
I agree wholeheartedly with the new clause: it is important that a report be produced within six months of the Bill being passed. It would be great if the Minister would commit to thinking about whether Ofcom will be able to require companies to implement new technologies that are developed, as well as the technologies that are currently available. I am not just talking about child sexual abuse images, material or videos; I am also talking about private messaging where grooming is happening. That is a separate thing that needs to be scanned for, but it is incredibly important.
Some of the stories relayed by the shadow Minister relate to conversations and grooming that happened in advance of the self-generated material being created. If there had been a proactive action to scan for grooming behaviour by those companies whose platforms the direct messaging was taking place on, then those young people would potentially have been in a safer place, because it could have been stopped in advance of that self-generated material being created. Surely, that should be the aim. It is good that we can tackle this after the event—it is good that we have something—but tackling it before it happens would be incredibly important.
Jane Stevenson
Online sexual exploitation is a horrific crime, and we all want to see it ended for good. I have concerns about whether new clause 20 is saying we should open up all messaging—where is the consideration of privacy when the scanning is taking place? Forgive me, I do not know much about the technology that is available to scan for that content. I do have concerns that responsible users will have an infringement of privacy, even when doing nothing of concern.
Kirsty Blackman
I do not know whether everybody draws the same distinction as me. For me the distinction is that, because it will be happening with proactive technology—technological means will be scanning those messages rather than humans—nobody will see the messages. Software will scan messages, and should there be anything that is illegal—should there be child sexual abuse material—that is what will be flagged and further action taken.
Alex Davies-Jones
I am not sure whether the hon. Member for Wolverhampton North East heard during my contribution, but this technology does exist, so it is possible. It is a false argument made by those who believe that impacting end-to-end encryption will limit people’s privacy. The technology does exist, and I named some that is able to scan without preventing the encryption of the data. It simply scans for those images and transfers them over existing databases. It would have no impact on anybody’s right to privacy.
Kirsty Blackman
I thank the shadow Minister for her assistance with that intervention, which was incredibly helpful. I do not have concerns that anybody will be able to access that data. The only data that will be accessible is when the proactive technology identifies something that is illegal, so nobody can see any of the messages except for the artificial intelligence. When the AI recognises that something is abuse material, at that point the Bill specifies that it will go to the National Crime Agency if it is in relation to child abuse images.
Jane Stevenson
My concern is that, at the point at which the data is sent to the National Crime Agency, it will be visible to human decision making. I am wondering whether that will stop parents sharing pictures of their babies in the bath? There are instances where people could get caught up in a very innocent situation that is deemed to be something more sinister by AI. However, I will take the advice of the hon. Member for Pontypridd advice and look into the technology.
Kirsty Blackman
In terms of the secondary processes that kick in after the AI has scanned the data, I assume it will be up to Ofcom and the provider to discuss what happens then. Once the AI identifies something, does it automatically get sent to the National Crime Agency, or does it go through a process of checking to ensure the AI has correctly identified something? I agree with what the Minister has reiterated on a number of occasions; if it is child sexual abuse material then I have no problem with somebody’s privacy being invaded in order for that to be taken to the relevant authorities and acted on.
I want to make one last point. The wording of new clause 20 is about a report on those proactive technologies. It is about requiring Ofcom to come up with and justify the use of those proactive technologies. To give the hon. Member for Wolverhampton North East some reassurance, it is not saying, “This will definitely happen.” I assume that Ofcom will be able to make the case—I am certain it will be able to—but it will have to justify it in order to be able to require those companies to undertake that use.
My key point is about the future-proofing of this, ensuring that it is not just a one-off, and that, if Ofcom makes a designation about the use of proactive technologies, it is able to make a re-designation or future designation, should new proactive technologies come through, so that we can require those new proactive technologies to be used to identify things that we cannot identify with the current proactive technologies.
Kim Leadbeater (Batley and Spen) (Lab)
I want to associate myself with the comments of the right hon. Member for Basingstoke and the hon. Member for Aberdeen North, and to explore the intersection between the work we are doing to protect children and the violence against women and girls strategy. There is one group, girls, who apply to both. We know that they are sadly one of the most vulnerable groups for online harm and abuse, and we must do everything we can to protect them. Having a belt and braces approach, with a code of conduct requirement for the violence against women and girls strategy, plus implementing new clause 20 on this technology that can protect girls in particular, although not exclusively, is a positive thing. Surely, the more thorough we are in the preventive approach, the better, rather than taking action after it is too late?
Kirsty Blackman
I agree 100%. The case that the shadow Minister, the hon. Member for Pontypridd, made and the stories she highlighted about the shame that is felt show that we are not just talking about a one-off impact on people’s lives, but potentially years of going through those awful situations and then many years to recover, if they ever do, from the situations they have been through.
I do not think there is too much that we could do, too many codes of practice we could require or too many compliances we should have in place. I also agree that girls are the most vulnerable group when considering this issue, and we need to ensure that this Bill is as fit for purpose as it can be and meets the Government’s aim of trying to make the internet a safe place for children and young people. Because of the additional risks that there are for girls in particular, we need additional protections in place for girls. That is why a number of us in this room are making that case.
Chris Philp
This has been an important debate. I think there is unanimity on the objectives we are seeking to achieve, particularly protecting children from the risk of child sexual exploitation and abuse. As we have discussed two or three times already, we cannot allow end-to-end encryption to frustrate or prevent the protection of children.
I will talk about two or three of the issues that have arisen in the course of the debate. The first is new clause 20, a proposal requiring Ofcom to put together a report. I do not think that is strictly necessary, because the Bill already imposes a requirement to identify, assess and mitigate CSEA. There is no optionality here and no need to think about it; there is already a demand to prevent CSEA content, and Ofcom has to produce codes of practice explaining how it will do that. I think what is requested in new clause 20 is required already.
The hon. Member for Pontypridd mentioned the concern that Ofcom had to first of all prove that the CSEA risk existed. I think that might be a hangover from the previous draft of the Bill, where there was a requirement for the evidence to be “persistent and prevalent”—I think that might have been the phrase—which implied that Ofcom had to first prove that it existed before it could take action against it. So, for exactly the reason she mentioned, that it imposed a requirement to prove CSEA is there, we have changed the wording in the new version. Clause 103(1), at the top of page 87, instead of “persistent and prevalent”, now states “necessary and proportionate”. Therefore, if Ofcom simply considers something necessary, without needing to prove that it is persistent and prevalent—just if it thinks it is necessary—it can take the actions set out in that clause. For the reason that she mentioned, the change has been made already.
Dame Maria Miller
I think my hon. Friend’s list goes on to page 37, which means there would be a number of different relevant duties that would presumably then be subject to the ability to issue codes of practice. However, the point I was making in my earlier contribution is that this list does not include the issue of violence against women and girls. In looking at this exhaustive list that my hon. Friend has included in the Bill, I must ask whether he might inadvertently be excluding the opportunity for Ofcom to produce a code of practice on the issue of violence against women and girls. Having heard his earlier comments, I felt that he was slightly sympathetic to that idea.
Chris Philp
Clearly, and as Members have pointed out, women and girls suffer disproportionately from abuse online; unfortunately, tragically and disgracefully, they are disproportionately victims of such abuse. The duties in the Bill obviously apply to everybody—men and women—but women will obviously disproportionately benefit, because they are disproportionately victims.
Obviously, where there are things that are particular to women, such as particular kinds of abuse that women suffer that men do not, or particular kinds of abuse that girls suffer that boys do not, then we would expect the codes of practice to address those kinds of abuse, because the Bill states that they must keep children safe, in clause 37(10)(b), and adults safe, in clause 37(10)(c). Obviously, women are adults and we would expect those particular issues that my right hon. Friend mentioned to get picked up by those measures.
Dame Maria Miller
My hon. Friend is giving me a chink of light there, in that subsection (10)(c) could actively mean that a code of practice that specifically dealt with violence against women and girls would be admissible as a result of that particular point. I had not really thought of it in that way—am I thinking about it correctly?
Chris Philp
My right hon. Friend makes an interesting point. To avoid answering a complicated question off the cuff, perhaps I should write to her. However, I certainly see no prohibition in these words in the clause that would prevent Ofcom from writing a particular code of practice. I would interpret these words in that way, but I should probably come back to her in writing, just in case I am making a mistake.
As I say, I interpret those words as giving Ofcom the latitude, if it chose to do so, to have codes of practice that were specific. I would not see this clause as prescriptive, in the sense that if Ofcom wanted to produce a number of codes of practice under the heading of “adults”, it could do so. In fact, if we track back to clause 37(3), that says:
“OFCOM must prepare and issue one or more codes of practice”.
That would appear to admit the possibility that multiple codes of practice could be produced under each of the sub-headings, including in this case for adults and in the previous case for children. [Interruption.] I have also received some indication from officials that I was right in my assessment, so hopefully that is the confirmation that my right hon. Friend was looking for.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Clause 38 ordered to stand part of the Bill.
Schedule 4
Codes of practice under section 37: principles, objectives, content
Amendment proposed: 63, in schedule 4, page 176, line 29, at end insert “and
(x) there are adequate safeguards to monitor cruelty towards humans and animals;”.—(Alex Davies-Jones.)
This amendment would ensure that ensuring adequate safeguards to monitor cruelty towards humans and animals is one of the online safety objectives for user-to-user services.
Question put, That the amendment be made.
The Chair
Before we begin the next debate, does anyone wish to speak to Carla Lockhart’s amendment 97? If so, it will be debated as part of this group; otherwise, it will not be selected. The amendment is not selected.
Alex Davies-Jones
I beg to move amendment 48, in clause 39, page 37, line 17, at beginning insert—
“(A1) OFCOM must prepare the draft codes of practice required under section 37 within the period of six months beginning with the day on which this Act is passed.”
This amendment requires Ofcom to prepare draft codes of practice within six months of the passing of the Act.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clauses 42 to 47 stand part.
Alex Davies-Jones
This is a mammoth part of the Bill, and I rise to speak to clause 39. Under the clause, Ofcom will submit a draft code of practice to the Secretary of State and, provided that the Secretary of State does not intend to issue a direction to Ofcom under clause 40, the Secretary of State would lay the draft code before Parliament. Labour’s main concern about the procedure for issuing codes of practice is that, without a deadline, they may not come into force for quite some time, and the online space needs addressing now. We have already waited far too long for the Government to bring forward the Bill. Parliamentary oversight is also fundamentally important, and the codes will have huge implications for the steps that service providers take, so it is vital that they are given due diligence at the earliest opportunity.
Amendment 48 would require Ofcom to prepare draft codes of practice within six months of the passing of the Act. This simple amendment would require Ofcom to bring forward these important codes of practice within an established time period—six months—after the Bill receives Royal Assent. Labour recognises the challenges ahead for Ofcom in both capacity and funding.
On this note, I must raise with the Minister something that I have raised previously. I find it most curious that his Department recently sought to hire an online safety regulator funding policy adviser. The job advert listed some of the key responsibilities:
“The post holder will support ministers during passage of the Online Safety Bill; secure the necessary funding for Ofcom and DCMS in order to set up the Online Safety regulator; and help implement and deliver a funding regime which is first of its kind in the UK.”
That raises worrying questions about how prepared Ofcom is for the huge task ahead. That being said, the Government have drafted the Bill in a way that brings codes of practice to its heart, so they cannot and should not be susceptible to delay.
Chris Philp
The hon. Lady is very kind in giving way—I was twitching to stand up. On the preparedness of Ofcom and its resources, Ofcom was given about £88 million in last year’s spending review to cover this and the next financial year—2022-23 and 2023-24—so that it could get ready. Thereafter, Ofcom will fund itself by raising fees, and I believe that the policy adviser will most likely advise on supporting the work on future fees. That does not imply that there will be any delay, because the funding for this year and next year has already been provided by the Government.
Alex Davies-Jones
I appreciate that intervention, but the Minister must be aware that if Ofcom has to fundraise itself, that raises questions about its future capability as a regulator and its funding and resource requirements. What will happen if it does not raise those funds?
Chris Philp
The hon. Lady’s use of the word “fundraise” implies that Ofcom will be going around with a collection tin on a voluntary basis.
Chris Philp
I will find the relevant clause in a moment. The Bill gives Ofcom the legal power to make the regulated companies pay fees to finance Ofcom’s regulatory work. It is not voluntary; it is compulsory.
Alex Davies-Jones
I am grateful to the Minister for that clarification. Perhaps he should make that more obvious in the job requirements and responsibilities.
Chris Philp
The fees requirements are in clauses 70 to 76, in particular clause 71, “Duty to pay fees”. The regulated companies have to pay the fees to Ofcom. It is not optional.
Alex Davies-Jones
I am grateful to the Minister for that clarification.
The Government have drafted the Bill in a way that puts codes of practice at its heart, so they cannot and should not be susceptible to delay. We have heard from platforms and services that stress that the ambiguity of the requirements is causing concern. At least with a deadline for draft codes of practice, those that want to do the right thing will be able to get on with it in a timely manner.
The Age Verification Providers Association provided us with evidence in support of amendment 48 in advance of today’s sitting. The association agrees that early publication of the codes will set the pace for implementation, encouraging both the Secretary of State and Parliament to approve the codes swiftly. A case study it shared highlights delays in the system, which we fear will be replicated within the online space, too. Let me indulge Members with details of exactly how slow Ofcom’s recent record has been on delivering similar guidance required under the audio-visual media services directive.
The directive became UK law on 30 September 2020 and came into force on 1 November 2020. By 24 June 2021, Ofcom had issued a note as to which video sharing platforms were in scope. It took almost a year until, on 6 October 2021, Ofcom issued formal guidance on the measures.
In December 2021, Ofcom wrote to the verification service providers and
“signalled the beginning of a new phase of supervisory engagement”.
However, in March 2022 it announced that
“the information we collect will inform our Autumn 2022 VSP report, which intends to increase the public’s awareness of the measures platforms have in place to protect users from harm.”
There is still no indication that Ofcom intends to take enforcement action against the many VSPs that remain non-compliant with the directive. It is simply not good enough. I urge the Minister to carefully consider the aims of amendment 48 and to support it.
Labour supports the principles of clause 42. Ofcom must not drag out the process of publishing or amending the codes of practice. Labour also supports a level of transparency around the withdrawal of codes of practice, should that arise.
Labour also supports clause 43 and the principles of ensuring that Ofcom has a requirement to review its codes of practice. We do, however, have concerns over the Secretary of State’s powers in subsection (6). It is absolutely right that the Secretary of State of the day has the ability to make representations to Ofcom in order to prevent the disclosure of certain matters in the interests of national security, public safety or relations with the Government of a country outside the UK. However, I am keen to hear the Minister’s assurances about how well the Bill is drafted to prevent those powers from being used, shall we say, inappropriately. I hope he can address those concerns.
On clause 44, Ofcom should of course be able to propose minor amendments to its codes of practice. Labour does, however, have concerns about the assessment that Ofcom will have to make to ensure that the minor nature of changes will not require amendments to be laid before Parliament, as in subsection (1). As I have said previously, scrutiny must be at the heart of the Bill, so I am interested to hear from the Minister how exactly he will ensure that Ofcom is making appropriate decisions about what sorts of changes are allowed to circumvent parliamentary scrutiny. We cannot and must not get to a place where the Secretary of State, in agreeing to proposed amendments, actively prevents scrutiny from taking place. I am keen to hear assurances on that point from the Minister.
On clause 45, as I mentioned previously on amendment 65 to clause 37, as it stands, service providers would be treated as complying with their duties if they had followed the recommended measures set out in the relevant codes of practice, as set out in subsection (1). However, providers could take alternative measures to comply, as outlined in subsection (5). Labour supports the clause in principle, but we are concerned that the definition of alternative measures is too broad. I would be grateful if the Minister could elaborate on his assessment of the instances in which a service provider may seek to comply via alternative measures. Surely the codes of practice should be, for want of a better phrase, best practice. None of us want to get into a position where service providers are circumnavigating their duties by taking the alternative measures route.
Again, Labour supports clause 46 in principle, but we feel that the provisions in subsection (1) could go further. We know that, historically, service providers have not always been transparent and forthcoming when compelled to be so by the courts. While we understand the reasoning behind subsection (3), we have broader concerns that service providers could, in theory, lean on their codes of practice as highlighting their best practice. I would be grateful if the Minister could address our concerns.
We support clause 47, which establishes that the duties in respect of which Ofcom must issue a code of practice under clause 37 will apply only once the first code of practice for that duty has come into force. However, we are concerned that this could mean that different duties will apply at different times, depending on when the relevant code for a particular duty comes into force. Will the Minister explain his assessment of how that will work in practice? We have concerns that drip feeding this information to service providers will cause further delay and confusion. In addition, will the Minister confirm how Ofcom will prioritise its codes of practice?
Lastly, we know that violence against women and girls has not a single mention in the Bill, which is an alarming and stark omission. Women and girls are disproportionately likely to be affected by online abuse and harassment. The Minister knows this—we all know this—and a number of us have spoken up on the issue on quite a few occasions. He also knows that online violence against women and girls is defined as including, but not limited to, intimate image abuse, online harassment, the sending of unsolicited explicit images, coercive sexting and the creation and sharing of deepfake pornography.
The Minister will also know that Carnegie UK is working with the End Violence Against Women coalition to draw up what a code of practice to tackle violence against women and girls could look like. Why has that been left out of the redraft of the Bill? What consideration has the Minister given to including a code of this nature in the Bill? If the Minister is truly committed to tackling violence against women and girls, why will he not put that on the face of the Bill?
Kirsty Blackman
I have a quick question about timelines because I am slightly confused about the order in which everything will happen. It is unlikely that the Bill will have been through the full parliamentary process before the summer, yet Ofcom intends to publish information and guidance by the summer, even though some things, such as the codes of practice, will not come in until after the Bill has received Royal Assent. Will the Minister give a commitment that, whether or not the Bill has gone through the whole parliamentary process, Ofcom will be able to publish before the summer?
Will Ofcom be encouraged to publish everything, whether that is guidance, information on its website or the codes of practice, at the earliest point at which they are ready? That will mean that anyone who has to apply those codes of practice or those regulations—people who will have to work within those codes, for example, or charities or other organisations that might be able to make super-complaints—will have as much information as possible, as early as possible, and will be able to prepare to fully implement their work at the earliest possible time. They will need that information in order to be able to gear up to do that.
Dame Maria Miller
I have three short questions for the Minister about clause 40 and the Secretary of State’s powers of direction. Am in order to cover that?
Chris Philp
I will do my best to make sure that we come to it very quickly indeed, by being concise in my replies on this group of amendments.
On amendment 48, which seeks to get Ofcom to produce its codes of practice within six months, obviously we are unanimous in wanting that to be done as quickly as possible. However, Ofcom has to go through a number of steps in order to produce those codes of practice. For example, first we have to designate in secondary legislation the priority categories of content that is harmful to children and content that is harmful to adults, and then Ofcom has to go through a consultation exercise before it publishes the codes. It has in the past indicated that it expects that to be a 12-month, rather than a six-month, process. I am concerned that a hard, six-month deadline may be either impossible to meet or make Ofcom rush and do it in a bad way. I accept the need to get this done quickly, for all the obvious reasons, but we also want to make sure that it is done right. For those reasons, a hard, six-month deadline would not help us very much.
Alex Davies-Jones
Why does the Minister believe that six months is out of scope? Does he think that Ofcom is not adequately resourced to meet that deadline and make it happen as soon as possible?
Chris Philp
There are a number of steps to go through. Regardless of how well resourced Ofcom is and how fast it works, first, we have to designate the priority categories by secondary legislation, and there is a lead time for that. Secondly, Ofcom has to consult. Best practice suggests that consultations need to last for a certain period, because the consultation needs to be written, then it needs to open, and then the responses need to be analysed. Then, Ofcom obviously has to write the codes of practice. It might be counterproductive to set a deadline that tight.
There are quite a few different codes of practice to publish, and the hon. Lady asked about that. The ones listed in clause 47 will not all come out at the same time; they will be staggered and prioritised. Obviously, the ones that are most germane to safety, such as those on illegal content and children’s safety, will be done first. We would expect them to be done as a matter of extreme urgency.
I hope I have partly answered some of the questions that the hon. Member for Aberdeen North asked. The document to be published before the summer, which she asked about, is a road map. I understand it to be a sort of timetable that will set out the plan for doing everything we have just been debating—when the consultations will happen and when the codes of practice will be published. I guess we will get the road map in the next few weeks, if “before the summer” means before the summer recess. We will have all that set out for us, and then the formal process follows Royal Assent. I hope that answers the hon. Lady’s question.
There were one or two other questions from the hon. Member for Pontypridd. She asked whether a Secretary of State might misuse the power in clause 43(2)—a shocking suggestion, obviously. The power is only to request a review; it is nothing more sinister or onerous than that.
On clause 44, the hon. Lady asked what would happen if Ofcom and the Secretary of State between them—it would require both—conspired to allow through a change claiming it is minor when in fact it is not minor. First, it would require both of them to do that. It requires Ofcom to propose it and the Secretary of State to agree it, so I hope the fact that it is not the Secretary of State acting alone gives her some assurance. She asked what the redress is if both the Secretary of State and Ofcom misbehave, as it were. Well, the redress is the same as with any mis-exercise of a public power—namely, judicial review, which, as a former Home Office Minister, I have experienced extremely frequently—so there is legal redress.
The hon. Lady then asked about the alternative measures. What if a service provider, rather than meeting its duties via the codes of practice, does one of the alternative measures instead? Is it somehow wriggling out of what it is supposed to do? The thing that is legally binding, which it must do and about which there is no choice because there is a legal duty, is the duties that we have been debating over the past few days. Those are the binding requirements that cannot be circumvented. The codes of practice propose a way of meeting those. If the service provider can meet the duties in a different way and can satisfy Ofcom that it has met those duties as effectively as it would under the codes of practices, it is open to doing that. We do not want to be unduly prescriptive. The test is: have the duties been delivered? That is non-negotiable and legally binding.
I hope I have answered all the questions, while gently resisting amendment 48 and encouraging the Committee to agree that the various other clauses stand part of the Bill.
Question put, That the amendment be made.
The Committee divided:.
Public Order Bill (First sitting)
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text
The Chair
I have a few preliminary announcements. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings. Date Time Witness Thursday 9 June Until no later than 12.15 pm The National Police Chiefs’ Council Thursday 9 June Until no later than 1.00 pm High Speed 2 (HS2) Limited; National Highways Thursday 9 June Until no later than 2.45 pm United Kingdom Petroleum Industry Association; Thursday 9 June Until no later than 3.05 pm Adam Wagner, Doughty Street Chambers Thursday 9 June Until no later than 3.25 pm News UK Thursday 9 June Until no later than 4.10 pm Sir Peter Martin Fahy QPM, retired police officer; Matt Parr CB, HM Inspector of Constabulary and HM Inspector of Fire and Rescue Services; Chief Superintendent Phil Dolby, West Midlands Police Thursday 9 June Until no later than 4.55 pm Amnesty International; Justice; Liberty
We will consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, and a motion to allow us to deliberate in private about questions between the oral evidence sessions. In view of the time available, I hope that we can take these matters formally, without debate. I call the Minister to move the programme motion standing in his name, which was discussed on Tuesday 7 June by the Programming Sub-Committee for this Bill.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 11.30 am on Thursday 9 June) meet—
(a) at 2.00 pm on Thursday 9 June;
(b) at 9.25 am and 2.00 pm on Tuesday 14 June;
(c) at 11.30 am and 2.00 pm on Thursday 16 June;
(d) at 9.25 am and 2.00 pm on Tuesday 21 June;
(2) the Committee shall hear oral evidence in accordance with the following Table:
3. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 21 June.—(Kit Malthouse.)
The Chair
The Committee will proceed to line-by-line consideration of the Bill on Tuesday 14 June at 9.25 am.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Kit Malthouse.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee room and will be circulated to Members by email.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Kit Malthouse.)
The Chair
We are now sitting in public again and the proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make declarations of interest in connection with the Bill? No, I take it. We will now hear oral evidence from Chief Constable Chris Noble, lead for protest on the National Police Chiefs’ Council, who is joining us via Zoom. I remind Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings in the programme motion. The Committee has agreed that, for this session, we have until 12.15 pm. Can the witness please introduce themselves for the record?
Chris Noble: Good morning, Chair. My name is Chris Noble. I am the chief constable of Staffordshire Police.
The Chair
Thank you, Mr Noble. If, at any time, you have any difficulty in hearing the questions, please indicate and we will make the necessary technical adjustments.
The Minister for Crime and Policing (Kit Malthouse)
Q
Chris Noble: Thank you, Minister. There is a lot, in terms of looking back. There have been a number of trends. We have seen global causes land on our shores very quickly and having significant impacts. Black Lives Matter is a good example. We have seen causes overlapping, both in terms of membership and tactics. There have been some very novel—without giving them any credit—and highly disruptive tactics; that is reflected on the contents page of the Bill. If we look across the breadth of protest organisations and groups, we see that they are very aware of some of the legal gaps, inadequacies and shortcomings; that is very clear from their engagement with police, as well as their tactics. There is a focus, albeit not exclusively, around what we would call non-violent direct action, which is slightly different from previous protest phases, where violence was maybe more commonplace. That said, it is not completely exclusively non-violent.
Most protests are still relatively non-contentious. However, in terms of complexity, intensity and tactics, there has been a step up, and the assessment going forward is very clear that we will still see those challenges around complexity and the co-ordination and the adapting of protests, and we have significant gaps around our information and intelligence. Even though we will have our own, home-grown causes that people will wish to protest against, I anticipate that a lot of protest will potentially be generated from outside these shores. That is a little bit of the picture on what has been, and what may well be to come.
On impacts, there are safety challenges across the board, including safety risks to some of the protestors, challenges to members of the community on our roads or, indeed, in their communities, and challenges for police officers and private contractors in dealing safely with tactics that we will perhaps talk about. Also, there may be increasing cost as we try to deal with more complex issues—costs either to communities, the businesses impacted, or indeed the police, be it financial or opportunity cost, in terms of officers not being able to work in neighbourhoods, or in serious and organised crime, or in the other roles on which they clearly want to be focused. Those are real challenges, but still, the backdrop is that the vast majority of protest activity is relatively non-contentious. However, there is a hard core, a small element, that I do not see going away any time soon.
Kit Malthouse
Q
Chris Noble: In Staffordshire, we have a very experienced protest removal team, and on occasion they have dealt with individuals glued to the top of fuel tankers by cutting them loose, using cutting equipment. There are obvious risks in that. Equally, if you go on to a busy motorway and glue yourself to it, there is a raft of risks from traffic, and risk to police officers. Understandably, we have seen members of the public, through sheer frustration, look to take matters into their own hands. You can translate that to power stations and other vulnerable sites. Although this may be attention-grabbing and headline-grabbing, the risks to the protestors, the police and members of the public are becoming ever more significant.
Kit Malthouse
Q
Chris Noble: There is quite a disciplined training regime. The training is licensed through the College of Policing. You have command training at what we call gold, silver and bronze levels. The strategists—those who develop a plan—are at the silver level; those who carry it out on the ground are at the bronze level. There is not only initial very intense and comprehensive training for those individuals, but annual continual professional development, which is annotated and logged. There is also re-accreditation to ensure that people are still fit for operation. There are also annual inputs on what has changed—training on new legislation, new powers, learning from court cases, different protest tactics and emerging risks—so there is a continual learning cycle, as well as a very detailed pass-or-fail approach to training.
This week, we had an early morning dial-in with the vast majority of gold commanders across the country to break out some peer learning around Just Stop Oil. It was about what we could do differently, and how we could learn. There are specialist teams in policing that share information and liaise with the Health and Safety Executive and other bodies on how we do our very best to minimise danger to protesters, the wider public and police officers.
The challenge for policing is that training is at one point in time, and tactics and intentions are constantly moving. There is a constant challenge in making police training fit for purpose. The one thing that stays consistent—you alluded to this—is the police commitment to striking the balance between our positive and negative obligations to protest, and our ongoing responsibility to those impacted by protest.
Kit Malthouse
Q
Chris Noble: In short, yes, we would. You have already partly qualified that. For us, the more intrusive our tactics, the more they need to be focused on the harm being caused. In our approach, there has to be a constant test of what is proportionate, and that is subject to significant internal and external scrutiny.
We can see greater risk of harm to communities and protesters if things are left to run. An example was the G7 operation. I was speaking to one of the senior commanders recently, and they described a lack of powers around stop and search for people with items that could only have be used for generating a lock-on device. They had to intervene later in the day, with more significant powers, on a wider group of protesters, therefore interfering with more people’s rights. As long as early intervention and prevention are subject to proportionality tests, and are applied precisely, they are preferable to some of the risks that protesters place themselves under, and some of the significant disruption that they cause to other individuals.
Sarah Jones (Croydon Central) (Lab)
Q
Chris Noble: Sadly, I am no longer a practising operational commander, so I will talk vicariously. You also have Phil Dolby coming to speak to you. He will be able to give you a flavour of the west midlands region. There is a range of powers, but the policing operation begins with communication and engagement. As soon as we are aware of a protest, the first thing we will do is link in with the organisers and understand how we can do our very best to minimise any intrusion on their rights and safeguard the right to protest. Our most powerful tactic is engagement and communication.
Very, very rarely will we ever ban a protest. We hear the lazy soundbite at times that police are looking to ban protests. It has not happened in many years. Even when we apply conditions under sections 12 and 14 of the Public Order Act 1986, which were the subject of the Police, Crime, Sentencing and Courts Act 2022, their usage is limited. We will record those. They are tested, and they are very often subject to court testing as well.
Then we have a range of other powers, depending on the level of criminality or risk that we identify in the protest. We are able to seize items and search properties, but that would be under a plethora of legislation and would be very specific to what we know in advance. In current protests, we often know little until something presents, or until very close to the event time. We have a range of powers, but they are not particularly coherent in the light of what is often a very poor line of sight around protest activity.
Sarah Jones
Q
Chris Noble: Yes. I will take the example of obstructing the highway; those powers have recently been adjusted. With Insulate Britain and some of the obstruction of the M25 motorway, we were dealing with legislation that was drafted without those tactics or activities in mind. The powers are relatively low level, in terms of consequences; individuals who were arrested could be back on the scene the next day. The capability of some of those powers to deal with repeat protest or reckless protest is very limited, and I think a significant number of the protesters were very aware of that.
On criminal damage, there are opportunities, through those powers, for us to intervene where people are carrying specified items and going equipped to commit criminal damage. Aggravated trespass, which you alluded to, is particularly relevant. In the private space, there is no right to protest in anything like the way that there is in the public space. That is just a flavour of a number of the offences that most commonly come into play in protest. There are others that are perhaps a little more rare, including conspiracy to commit various offences.
Sarah Jones
Q
Chris Noble: We have tried to make an assessment about the impact of injunctions, especially around Insulate Britain and Just Stop Oil. The feedback we have had is that when they are appropriately framed and developed at an appropriate pace, they can be very useful in terms of what we are trying to control and how we are trying to shape people’s behaviour. I think, in general though, while they are a key tool, they are not the only one we need.
We have worked hard with private industry to give them information and knowledge about injunctions. I have worked closely with an industry on my own patch that is very up for taking on the responsibility along-side the police service for trying to target harder and prevent protest. On occasions, they will then look to obtain injunctions in terms of trying to prevent harm from being caused to their business, property and employees. Injunctions have been used increasingly frequently, but the challenge is framing them appropriately and securing them within a reasonable timescale so they can have maximum impact.
Sarah Jones
Q
Chris Noble: Yes.
Sarah Jones
Q
Chris Noble: Again, this is slightly outside my corporate memory, but there have been very lengthy conversations as far back as 2019 with policing, in terms of the public order and public safety portfolios, about the adequacy of some of the powers. That refined itself down into some further conversations around some bespoke powers, many of which appear in the Act you have just referred to.
There is an ongoing conversation around policy in terms of public order and public safety. For example, in some of the Just Stop Oil protests we have seen a cross-departmental approach. The police were clear in identifying where they see some inadequacies and in the effects that they want to achieve. In many ways, there is a rolling conversation around public policy, some of which will translate into legislation at one point or another.
Sarah Jones
Q
You also had some concerns about things in the Bill that he talks about—for example, the potential chilling effect on freedom of assembly that the stop-and-search powers, in particular, could have. Could you give us your view on the non-legislative suggestions that he had and how important they are? What is your view on his concerns about some of the things we are talking about, in particular the suspicionless stop and search and the scope of police power that that provides to you?
Chris Noble: For clarity, when you talk about non-legislative suggestions, what are thinking about?
Sarah Jones
Not changes in the law; most of the recommendations in his report are not about changing the law. They are about
“equipping police commanders with up to date, accessible guidance…ensuring that they consider the levels of disruption or disorder above which enforcement action will be considered; improving the way that police assess the impact of protests…improving the quality of police intelligence on protests…addressing a wide variation in the number of specialist officers available for protest policing throughout England and Wales”.
It goes on. They are all non-legislative recommendations. They are about how you train and support, gather intelligence and have the right people in the right place.
Chris Noble: Absolutely. Thank you. For me, having the right powers is clearly going to be very important. I think the policing ask about the powers is very current, in terms of being up to date with the challenges we face and clear about where the policing remit sits, and the powers being coherent and capable of being implemented. While the approach around legislation is important, there are some qualifiers on it.
Equally, you are right because, in some ways, irrespective of the legislation we are debating today, the overwhelming police commitment, around policing in a human rights-compliant way—policing by consent—fundamentally cuts across all the relevant legislation. That would probably be my key point.
I absolutely agree in terms of training, leadership and learning as we go what we do and do not do well. Having scrutiny around public order operations, whether they be protests or other things, is fundamental in terms of public confidence. This is also about making sure there is no unhelpful orthodoxy of approach within policing; constantly checking and evaluating our training; sharing information within policing; and listening to, and perhaps on occasion challenging, critical voices to make sure we pick up the wide perspective of views around how the police protest policing.
It is also about ensuring that we are accountable. I have a local police, fire and crime commissioner who has a real interest around protest policing and how it is delivered and relevant scrutiny panels, which will look at other matters, such as use of force or disproportionality. One part of the jigsaw is undoubtedly the powers we have. They are important, but as important, and in many ways more important, is how this is done and how policing maintains and secures public confidence.
On that note, I can talk about stop and search as the second element. Again, we recognise this is contentious. Whether this is within protest policing or tackling violent crime, the checks and balances are exactly the same, but there is a gap for us at the minute in terms of, as we alluded to earlier, being able to intervene earlier to try and prevent the more significant harm and disruption that takes place.
This is not about stopping someone protesting. I have no doubt there will be circumstances where we will stop and search and maybe even seize an item from someone, but they will still be facilitated in taking part in a protest. It is very much about recognising that particular articles and equipment are now being used to maximise disruption. Whether it is a suspicion-led or suspicionless power, we see real value in being able to intervene and ensure that the rights of everyone impacted by protest, as well as the rights of those expressing their views through protest, are protected.
Under the Police and Criminal Evidence Act 1984, code A will very much apply in terms of how it is done and how records are kept. If we move to a section 60 type power, which is similar to the one in the Criminal Justice and Public Order Act 1994, again, it would be a senior officer check and balance, and there will be appropriate scrutiny of how it is done. Of course, that can step into the realms of the inspection bodies reviewing it, and indeed of it ultimately being tested in court. We see it as a necessary power. There is a gap, but these things absolutely have to be done proportionately and transparently.
Sarah Jones
Q
Chris Noble: If we are talking about the serious disruption prevention orders, although the critical decisions will be made by members of the judiciary, obviously the police have a role to play in terms of potentially initiating these. Again, we would anticipate a high threshold. They will be for the most persistent and most reckless offenders, but we have seen a number of individuals who on occasions are making a mockery of not just the law, and less importantly the police service, but communities of interest in terms of their behaviours. I would not anticipate their being used on a common basis, but having the capability around some of the most persistent and reckless offenders would be helpful. There are significant checks and balances built in around capability and assurance in terms of who would grant those.
You are right that the powers exist in other parts of the criminal justice environment, with the supposed mantra being about controlling behaviour and not criminalising it, but we have heard quite a bit of noise from various parties about these things, so I think the rules and the protocols that exist, and the judicial test that would be applied, would be very important to ensure that orders are focused on the most potentially harmful individuals.
Lee Anderson (Ashfield) (Con)
Q
Chris Noble: It probably comes back a little bit to the challenge we talked about earlier about thresholds. Quite appropriately, whenever we look at protests, it is baked into part of a democratic society. In terms of articles 9, 10 and 11, from a police point of view, we of course respect those and want to give them appropriate regard. Social media, on the one hand, can be a help to us, in terms of getting a flavour of public sentiment, what is going to happen and where, and where the issues are. It can maybe give us a line of inquiry to follow, in terms of who we might want to engage with and maybe try to support and, where appropriate, in terms of shaping some of the protest’s behaviour and activities.
On other occasions, there may well be offences committed on social media, which clearly we would need to look at, consider and progress with. Very often, most of the conversations taking place around protest are behind closed doors in social media, in various protected groups. Again, the thresholds that we currently work to would not allow us, as a general rule, to penetrate those and find out more information. So social media can be of use, but in terms of the most useful information about understanding the impact on the life of a community, some of that most significant information is not taking place in any sort of public forum at all.
Lee Anderson
Q
Chris Noble: We are open to using new technologies, whether digital technologies or the more traditional capabilities and assets that we have. I think that the challenge that we face, in terms of policing protests is that, again, whenever we look at the various elements of the Bill under discussion, around lock-ons and some other behaviours, there is a real complexity to the devices that, from a policing point of view, will take significant time to deal with, and, indeed, from a private company point of view, can take significant time and effort to deal with too.
Of course, the challenge is that a wide range of people are, on occasions, involved in protest—it might well be their first time within protest; it may well not—so in terms of offending behaviours and previous criminal records, some of the elements there, which may well be appropriate in bringing someone to account, may well not be there. We are open to using any and all tactics within protest, but as I say, probably the common theme around protest is around non-violent direct action; people who are very legally aware; flash protests, which emerge with limited notice; and some quite complex lock-ons, which individuals know we need to be very thoughtful in how we deconstruct, with regard to rights and safety.
There is no magic bullet to dealing with modern protest. It is a combination, as we have just heard, around legislation, engagement and appropriate tactics, and then constantly trying to be innovative in trying to strike the balance between competing rights.
Lee Anderson
Q
Chris Noble: This is very close to home. We have a live operation in Staffordshire, which has been running now for some time, involving a number of protesters. It is incredibly complex, clearly. We have a limited idea of what is going on under the ground, in terms of what risks might be there. Are they near utilities? What risk could there be in terms of collapse of tunnels? It is clearly not a safe environment unless it is done by professional tunnellers. There is an inherent risk there, as well as the impact on the legitimate business going on in that area.
At this point—this probably goes to the core of one of the key issues that police are keen to discuss within the Committee—the vast majority of that work is done by the landowners and private companies that are skilled and experienced within this work. While I have some dedicated resources allocated to that at present, if that responsibility was to significantly shift to policing, it would cost me probably in the region of £80,000 a day to resource that. It would need significant officer resources, which clearly would need to come from elsewhere, so it is not only inherently dangerous; it is costing significant money and it is undoubtably impacting on the genuine, legitimate business interests of various companies.
The key, for me, is not so much even, necessarily, an offence around tunnelling, because we may well have powers that, broadly speaking, exist to deal with it—we are keen to develop that conversation. The challenge is in preventing it in the first place, and then in how we can work with industry and landowners on how we could potentially remove individuals more quickly. However, we are concerned that we have seen tunnelling come back on the radar again, and people will be held to account for what they do.
Wendy Chamberlain (North East Fife) (LD)
Q
Chris Noble: From a gold point of view, we probably have two or three officers who are trained or just about to do a credit, but we are also able to draw on neighbouring forces for that strategic support and command role, and top that up as necessary. Silver-wise, it is probably more in the region of maybe a dozen officers, again either accredited or being trained. For bronze, it is probably more in the region of a couple of dozen officers.
Now, this is not their day job. They do not wake up every morning and become a bronze commander and that is all they do—they are neighbourhood officers, they work in the criminal investigation department, they work in public protection teams—so while we have significant numbers of command officers, they are constantly being drawn for other matters. Whenever we have environmental protests or protests around High Speed 2 or other areas, there is a drain of that leadership role from elsewhere. We maintain hundreds of other officers within Staffordshire with a range of public order skills and capabilities but, again, none are completely dedicated to it. We would have about two dozen officers trained, as a minimum, in some other specialist skills as well. It is a significant commitment to maintain that training, but Staffordshire has definitely attracted some significant protest activity, so it is a necessary investment.
Wendy Chamberlain
Q
Chris Noble: Training for the more specialist roles could be at least two or three weeks a year, in terms of the various skills that they need to maintain. For general public order trained officers, you are talking about two to three days per year to maintain that. From a command point of view, depending on refreshers, it could be a week a year. The bigger challenge is when they are deployed. If we take, for example, Just Stop Oil—we supported colleagues in a neighbouring force. Our protest removal team was essentially out of force for two weeks, consistently maintained within those deployments. There are abstractions around training, but we are finding because of the dynamics of the protest environment at the minute, either in force or supporting other parts of the country, those abstractions are increasing.
Wendy Chamberlain
Q
Chris Noble: I see your line of questioning. I suppose we would be hopeful that by being able to intervene earlier, we could maybe limit the impact of protest. I think the proof of that will come out in terms of whatever moves from the Bill into formal legislation.
The biggest challenge that policing has at the minute—one we are keen to discuss as the Bill progresses—is any shift from public realm protest policing. If we moved more into a private space than currently, we would see that as potentially being incredibly significant for money and opportunity lost in terms of policing communities. Those abstractions would probably quite fundamentally change my local model of policing, in terms of being able to maintain that. That does not mean that we are any less committed to working with businesses and organisations to try to minimise the extreme disruption that can be caused to them on occasions.
Wendy Chamberlain
Q
Chris Noble: Not within Staffordshire. That said, when you look at the challenge that is applied to policing of protest from those who protest, from those who are not happy with protest and those in the media looking on, I am not quite sure why some people would want to, but they do—they step up. They are excellent. They come back from training. They seek out the roles. They are open to feedback and learning and training. I have a huge amount of regard for them.
I have not found people being reticent to step up because, fundamentally, it is a core part of our democracy. Having local officers dealing with local protest, who are then policing those communities the next day, is incredibly important for me. I have not seen a reticence, but it is an incredibly challenging job. Very often, there is a perception that we do not get it right, when actually the inspection report was very clear that in the vast majority of occasions we did and a minor recalibration was required around the balance we needed to strike.
Wendy Chamberlain
Q
Chris Noble: There is a rolling assessment with a part of policing called NPoCC, which is the police co-ordination body. As it becomes clearer what legislation will take place, those conversations will step up in terms of what it might mean for other jurisdictions, whether the legislation applies and whether the learning transfers across. We are constantly in contact with the devolved Administrations, and with European colleagues more widely, about legislation, tactics and police capability. Rest assured that those conversations will continue.
The Chair
Andrew Bridgen and then Anne McLaughlin, but we will need quick questions and quick answers if everybody who wants to participate can get a chance.
Andrew Bridgen (North West Leicestershire) (Con)
Q
Chris Noble: No, not as yet, but we are very aware that as legislation is cast, people will look to see where it begins and ends, so I think it will be a constant piece of scrutiny from us.
Andrew Bridgen
Q
Chris Noble: I think it has that potential. Clearly, as to how it actually works on the ground, each circumstance will need its own assessment and its own operation. That will play through, but there is no doubt that a number of the elements in the Bill are clearly responding to current challenges for policing. But ultimately, this will still be down to individual choices, decisions made on the day and the attempt to try to balance the rights that are at play. This is not a science for police officers in day-to-day public order policing: it is an art, it is discretion and it is matters of judgment. As elected Members, I know that you appreciate that. As we said earlier, this is a key element around trying to have current and up-to-date legislation, but there are elements of the Bill where defining a bit more what they mean and do not mean would be very helpful for day-to-day policing, however we achieve that precision of language and detail.
The Chair
Anne McLaughlin and, if there is time, Rupa Huq, but we have to finish at 12.15 pm.
Anne McLaughlin (Glasgow North East) (SNP)
Q
Chris Noble: I do not want to broadcast too easily what people might want to use, but it is a good challenge. There will be very obvious elements, such as bamboo poles or scaffolding, which would probably give us a bit of a hint. But you are right: there are other, more innocuous items, such as bicycle locks—clearly, there are many cyclists around—glue and so forth. It will have to be very context-specific. It may well be relevant to other behaviours at the time—what else is going on, and have we picked up something on social media? It will be down to individual discretion. Again, this is not about criminalising people. The outcome we are looking for is minimising disruption, so the policing focus will be around how we do that, as opposed to how we criminalise someone for having an item that can be very difficult to prove exactly what it is for.
Anne McLaughlin
Q
“We agree with the police and Home Office that such orders would neither be compatible with human rights legislation nor create an effective deterrent.”
Do you agree with that? If not, could you say why, and how issuing one of these to someone without any criminal conviction is compatible with human rights legislation?
Chris Noble: The language is slightly different, albeit the concept is broadly similar—HMICFRS was looking at and discussing protest banning orders. From a policing point of view, unless we knew the exact circumstances of the individual it would be hard to say how exactly the orders could be justified. As I alluded to earlier, we would see them as potentially being relevant to more persistent and reckless offenders when other methods of intervening were not seen as successful or were not capable. The standard tests on proportionality would be applied, and ultimately it would be a matter for the relevant judge to make a decision as to how they could be justified or not. I would not rule out them ever being used—I see it very much as a top-end tactic or power—but I would not want to preclude the creativity and ingenuity of protesters meaning the orders might well be the only thing left open to us.
The Chair
Mr Noble, I wanted to allow you to finish that answer, but that brings us to the end of our allotted time. Thank you.
Examination of Witnesses
John Groves and Nicola Bell gave evidence.
The Chair
We will now hear oral evidence from John Groves, Chief Security and Resilience Officer at High Speed 2 Ltd, and Nicola Bell, Regional Director South East at National Highways. For this panel, we have until 1 pm. Will the witnesses please introduce themselves for the record?
Nicola Bell: Hello. My name is Nicola Bell and I am the regional director for National Highways in the south-east. On a day-to-day basis I am responsible for the day-to-day running of the motorway and A road network in the south-east of England.
John Groves: Good afternoon. I am John Groves and I am the chief security and resilience officer for HS2 Ltd. My role principally involves protecting and safeguarding HS2 and, in this context, dealing with the protestor risk.
Sarah Jones
Q
John Groves: As you say, we are under constant attack from illegal protest. We work closely with the police and seek their support in dealing with that, but in the past we have had to use three High Court injunctions on different parts of the route because we felt we were not getting where we needed to through using the police.
We have applied for a route-wide injunction, there has been a hearing and we are waiting for the outcome. Rather than going back every time to each parcel of land, we have asked the court to give us a full route-wide injunction, which we hope will have some effect on the behaviour of the illegal protestors. The decision by HS2 to seek that High Court injunction was taken in between the failure of the previous legislation and the introduction of this legislation. We hope the High Court injunction will have a positive effect, but it is still limited and we still look to the police to support us.
Sarah Jones
Q
John Groves: It can vary. We can secure a High Court injunction pretty quickly, depending on the circumstance, but it can take a long time—two to three months. Our application for the current injunction went in in March and there was a hearing at the end of May. We are still waiting for the outcome of that decision, and as soon as we hear, we will want to get moving on it.
Sarah Jones
Q
John Groves: As you said at the beginning, they are very expensive, and they do not always have the effect that we are seeking. Fundamentally, what we are seeking to do is deter illegal protester behaviour and stop it happening. What we have seen, as the chief constable alluded to, is that HS2 is running an operation right now in Staffordshire with people who have been subject to court action in the past, and just continue to come back and repeat the same behaviour against us. It is useful, but it is not having the full effect that we need.
Sarah Jones
Q
Nicola Bell: Absolutely. Just to put it in context, we look after something like 4,500 miles of motorway and A roads, and the difference we saw this time around was that they are not just related to a site, like HS2 for example. We had protesters literally popping up everywhere; you did not know where they were going next. The police were arresting them using their existing powers—obstruction of the highway, maybe—but they were telling us that that was not a deterrent to them coming back out literally the next day, which was why we then sought to get injunctions ourselves.
We ended up applying for four injunctions in total. We were granted all of them, and if those people then went back out again, ultimately we had to follow that through with committal proceedings, which take a lot of time and effort. That alone—those people breaching that injunction order—was the thing that meant they would be sent to prison or ordered to pay costs. In total, we ended up with 34 defendants. Some were sent immediately to prison, which I think ranged from 24 days to six months, and then you had 18 people who ended up with two-year suspended sentences, but it was for National Highways to pursue that, not the police, because the injunctions that we were granted did not come with a power of arrest. If you are a local authority, for example, you can get a power of arrest with an injunction. We are a private limited company, so we cannot, and therefore it is up to us to keep on going with the injunction process.
It is important to point out that you then have two processes running in parallel. The civil proceedings have now happened, and the police are only now starting the criminal proceedings, which will probably run until December this year. Remember, that is for protests that happened on our network at the tail end of last year. The first protest by Insulate Britain was on 13 September, and the last one was on 2 November, so we had over 30 protests in 15 locations in less than two months.
Sarah Jones
Q
John Groves: We have recorded 1,600 incidents against HS2 since the end of 2017. All of that is unlawful activity—trespass, violence against staff, criminal damage. Not all of those offences will lead to an arrest or any legal action. So, for us, this legislation is about the deterrent effect—absolutely. The extent to which it will cause a behavioural change in those who are participating is, I guess, the open question, but I would certainly see that tougher sentences and more police action would help—absolutely.
Kit Malthouse
Q
John Groves: Absolutely. It is probably everything and anything. We have seen violence against both staff and against those who are building the railway—so it is not just security staff who engage with them. These are protests that are taking place not just on the ground, but in tunnels. I am sure that you will all remember what happened at Euston; there was a 25-tunnel network under Euston. When we went in there to remove the protesters, the protesters were using lock-on devices sub-surface. There was violence against staff in there.
We have seen large-scale trespass. In Buckinghamshire, we did an operation to remove protesters from a site. We secured the venue, but they came back with about 100 people. They shone lasers in the eyes of staff members, they threw human waste around—I mean, it is the full panoply. What is different between what you see against HS2 as compared with other locations is that it is probably quite invisible to most of the public. Again, we have got an operation live at the moment. I have four protesters in a tunnel at the moment and they have been there since 10 May, and that is costing the taxpayer a huge amount of money. The safety risk to them, not just to the people who are working on the surface to support them, is significant. As you say, up until the end of March, £126 million of taxpayers’ money has had to go into protester removal or the cost to HS2 of the delay that these illegal protesters are causing us.
Kit Malthouse
Q
John Groves: Indeed, yes.
Kit Malthouse
Q
John Groves: Yes. I mean, if you consider the definition of “protest”, you have people protesting in Swynnerton, Staffordshire—they are not particularly visible to the public. Other than probably at Euston, that is what we have seen consistently right across the piece. I would say that nearly every day there is something—there is an incident, an unlawful act against HS2.
Kit Malthouse
Q
John Groves: I hope so. I mean, it is about the deterrent. The overwhelming issue for us is tunnelling, because it is the thing that causes us the most significant cost and delay. We can, with the support of specialist contractors, move people off our land, but when there are tunnels involved, or high structures, which we also see quite regularly—they will build structures on the surface, at height, and underground. However, the tunnels are the most significant, for us, in terms of removal and, again, the safety risk is significant.
Kit Malthouse
Q
Nicola Bell: Yes, absolutely. The thing is that I think a lot of people at the time thought that an injunction was the thing to go and do, but you must see it through; you must follow up with the committal proceedings, and it is that that then takes the time. We had to apply for a very urgent injunction, sometimes overnight, with things being prepared at pretty breakneck speed in order to try and protect what we were seeing. I am sure you are all aware of what we saw on the M25, with people either gluing themselves or sitting on the road. It is about the resource intensity that is needed to follow that up and follow that through. If I take the example of a day that they were protesting, on 8 October, by the time that got to court, that was at the end of November and by then Insulate Britain had called off its protests.
Kit Malthouse
Q
Nicola Bell: Yes, two years.
Kit Malthouse
Q
Nicola Bell: No. I think you heard from the chief constable earlier that the arrests being made on the day were being made for low-level criminal offence—I think they were the words the chief constable used—for obstruction of the highway. It was literally going to the police station, getting processed and, the very next day, often the same person going out to another part of the M25 to do the very same thing again.
Kit Malthouse
Q
Nicola Bell: Yes. I am a civil engineer not a lawyer, but—sorry.
Kit Malthouse
Q
So in your view, would it be a sensible move to combine the best of both? Effectively having a power of arrest for an offence that attracts a not dissimilar level of sentencing, which might act as a deterrent, that you would get under an injunction.
Nicola Bell: I think the level of offence is a matter for the police. For me, it is the same as John has mentioned. It is about the deterrent and, for me, it is really about safety. Walking on to a 70-mph road is not wise. If you look on Insulate Britain’s website, you will see evidence of the day they blocked the M25 at junction 25, where four protestors came out and sat on the road. They did exactly the same on the opposite side of the carriageway and that footage clearly shows the police in danger, my traffic officers in danger and the protestors in danger as people are trying to swerve, brake and avoid them. What is included in the Bill, I hope, offers that deterrent. That is what I would like to see given that my job is about trying to keep the motorway network flowing as freely and as safely as possible. If something deters them in terms of the locking on or interfering with infrastructure—of course, we have talked a little bit about the serious disruption prevention orders that might be available—maybe that might mean that you do not have to apply for an injunction because, actually, those repeat offenders could be tackled through that means.
Kit Malthouse
Q
Nicola Bell: I do not have the exact figure, but I will just give you a couple of examples. There is a day when they protested at Littlebrook interchange, just off junction 1A of the M25—maybe some of you will know it. Four protestors sat across our traffic signal control junction. You might have thought that was not going to cause too much impact because it is just a little bit off the M25. The impact was 4 km of slow-moving and queuing traffic over the Dartford crossing, and it took until lunchtime for the effects of that to disappear. The day they protested down at the port of Dover, they sat on the road, but two protestors climbed up the side of an oil tanker and glued themselves to the top of the oil tanker while we got rid of the people on the road. By mid-morning, the effects of that around the roads in Dover were felt until about half-past 5 in the evening. The economic impact of that alone, given the importance of road freight to the UK and goods coming in and out of Dover, probably speaks for itself.
Anne McLaughlin
Q
John Groves: I come back to the tunnel point I made earlier. I assume that those that participate in going on to land and trespassing on land and digging tunnels know that they are breaking the law. but they do not see the current law as a significant deterrent to stop them from doing that. The police will always seek the balance between lawful protest and the rights of the landowner or whoever. Invariably, that often means issues with access to sites.
Access to some of our sites has been delayed for about eight hours. We cannot do any work. We cannot move vehicles in or out of our sites, because protesters are sat down outside at the access point, sometimes locked on, sometimes not. The police are there but they will not take action because they are allowing the right to protest. Because the protestors are not on HS2 land, we cannot do anything about that. We cannot move them on—on the public highway, only the police can move them on.
My sense is that this Bill, if enacted, will provide a deterrent effect for the protestors. I come back to the safety point—I am sorry to keep going on about tunnelling. Four people in a tunnel is such a serious thing; I am concerned that we will have a fatality at some point in the future. We have been really lucky. We have had four or five tunnel incidents and we have yet to have any serious injury, but I suspect it will come one day, if it continues in the way it is going. If we look at our data, we are seeing protestors turning to tunnelling more readily. In the operation we have just run, there were four shafts on one piece of land; they moved on to another piece of land very quickly and they started to dig a tunnel. We were able to get in quickly and move them on. That is my principal concern.
Anne McLaughlin
Do you want to respond, Nicola? You do not have to.
Nicola Bell: No, it is the same as what I was talking about before. It is about the fact that the police recognised that there was nothing that would stop somebody just keeping on doing this. They could arrest them, but it was a low-level criminal offence and ultimately that was not going to deter what we were seeing, which was pretty unprecedented, really—that level of protest in the south-east of England over the tail end of last year.
Mrs Natalie Elphicke (Dover) (Con)
Q
I was hoping you could expand on your earlier answer to give the Committee more of a feel for the impact of this kind of traffic disruption on the Kent and Dover economy and its importance to the strategic network for the nation, and for some of the safety and other challenges in dealing with these incidents that are different from the ordinary traffic disruption that your team deal with on a more regular basis.
Nicola Bell: The bounds of my responsibility would be, for example, the traffic officers that you see as they patrol the network. On the day of a protest, our role would be to try and create a safe space for the police to then get in and do their job. For example, on the day that they protested down in Dover, that was about protecting the area to allow the police to get specialist people in to get protestors off the top of the tanker and to therefore get the port open again and get things running.
On your point about the economy, as I mentioned earlier, 80% of domestic freight still uses road, so that is a pretty big impact on the economy. We know that most of our goods come in and out of the port of Dover, so therefore the roads they take—the M20, the A20 and the A2—are very significant indeed. Ultimately, the cost also relates to people not getting to where they need to be on time—whether that is missed appointments or freight not getting to where it needs to get to on time. I do not have an exact figure for the impact on the economy. I know that some of that has been worked on, and we can perhaps provide that to the Committee in writing afterwards.
Tom Hunt (Ipswich) (Con)
Q
Nicola Bell: What we saw was that, first, they got themselves on to the road and sat down, then they waited until the police arrived, and then they started to lock on so that they were causing maximum delay. I would say that, on average, if you had 10 of them sat down, at least three quarters of them were glued.
Tom Hunt
Q
Nicola Bell: You can see in some of the footage, which is freely available on Insulate Britain’s website, that the police are trying to stop them putting their hands down on the road surface. As soon as they put their hand on the road surface, specialist teams need to come in to de-bond them, as it were. That adds to the safety risk but it also adds to the delay.
Tom Hunt
Q
John Groves: In the most recent experience I can talk about, the police were frustrated that they were not able to step in and deal with it. They were not on the ground immediately. Certainly, there is frustration from my team on the ground that the police are not more direct with some of the protesters; that is certainly true. Invariably, what happens on HS2 sites is that protests get there some weeks ahead of when we plan to take possession of land, so they are always looking forward and looking at what we are about to do. We publish all this information online about where the route is and when we will be taking possession, and they are always ahead of that.
Lee Anderson
Q
John Groves: It has a significant impact on morale. Invariably, my security team and my security contractors, who are somewhat used to dealing with difficult people—if I can put it like that—are subjected to verbal abuse pretty much all the time they are confronted with legal protestors.
Obviously, there is a broader range of people who are supporting and delivering for HS2 who did not sign up to being verbally abused or being chased around a field when they are trying to undertake an ecology assessment, for instance. We have also seen throughout our joint ventures that the tier 1 contractors that are doing the work of building the railway are having to invest in a lot more physical security and a lot more support for staff across a broad range, so it does have a significant impact.
Lee Anderson
Q
John Groves: Absolutely, that is an issue for the economy—job retention and retaining the skills we need to build the new railway. As you can see from my evidence, we are putting a lot of money into physical security, and we are working through the joint ventures, which have some responsibility for their own staff. Fundamentally, as I said earlier, if this legislation is enacted and it provides that prevention, those risks will reduce, our costs will reduce and, you would hope, the staff who have been impacted will feel far more comfortable and at ease in coming to work every day.
Sarah Jones
Q
I have a couple of follow-up questions. In the Police, Crime, Sentencing and Courts Act 2022, which has not yet come into force, there are lots of changes to protesting. They are not yet law, but they will become law as soon as the Government get around to doing that. One change is that obstruction of a highway will carry a prison sentence of up to six months. The Minister was talking about it being a fine—it will now be a prison sentence of up to six months. There is also a raft of stuff about imposing conditions on static protests, so, if you are organisers of static protests, there are conditions on those, and, again, you can be imprisoned for that.
What is your assessment of the impact that that legislation will have when it comes into force? There is a question as to whether we should implement that legislation to see whether it has an impact before we move on to other things. What is your assessment? Will it have an impact?
John Groves: From HS2’s perspective, it will be limited. Protest on the public highway is limited in terms of the impact it has on us.
Sarah Jones
Q
John Groves: It may have some positive effect, but—I am sorry to repeat myself—tunnelling is the biggest issue for us, and I do not believe the Bill deals with that. Lock-on, as well, has a serious impact on us.
Nicola Bell: From my perspective, it is about seeing what impact that has and what the outcome will be. Obviously, it will be for the police to decide whether or not they are going to then use that new power to do exactly as you said. It is really about the impact that it has and whether it will be enough to act as a deterrent against people coming back. If it does, that is positive as far as running the strategic road network on a daily basis is concerned.
Sarah Jones
Q
Nicola Bell: Yes.
Mrs Elphicke
Q
John Groves: Absolutely. The protestors state that in their social media posts and in the things they say directly to us when we are talking to them. They are intent on stopping the project. They want to stop the railway. They believe it is the wrong thing to do.
We have had to shift how we approach the removal operation by taking land earlier, to build in sufficient time for removal, so that it does not have a direct impact on the programme. We have learned as we have gone along and, as the protestor strategy has changed, our reaction to that has changed. Again, it is expensive work, having to have a High Court enforcement team, paramedics and mine rescue there 24/7, since 10 May, until they come out. Then we hand that over to the police and also probably the ambulance service.
Wendy Chamberlain
Q
John Groves: I would expect that, if the legislation is enacted and the police pursue charges against individuals who are breaking these laws, it will have a direct effect. At the moment, when you compare the number of incidents we are seeing against the number of prosecutions and convictions, there is a disparity. I would hope this legislation would initially have a significant effect, and hopefully the deterrent effect will tail off after that and we would see a reduction in it. That is how I see it.
Nicola Bell: Similar to what I said earlier, for me it is about that repeat offence, where people keep going back out. That is one of the biggest impacts for us—what could be used under the serious disruption prevention order. I guess it is about them having more powers. All I can say is that, with the system as it is working at the moment, the police are telling us they do not have anything to deter and so they continue this repeated behaviour—hence why the injunctions were sought.
Wendy Chamberlain
Q
John Groves: I do not know. In terms of the numbers of people we see protesting against HS2, we think there is roughly about 150 that are the core. Within that, there is a focused 20 people. It is not a big number, but we also see that they move between different causes and different protests. I suspect that we will see some of the people Nicola has been talking and vice versa. They will move. If there were a new Heathrow runway being built or a new nuclear build, they would probably move in those directions as well.
It is a relatively, I think, small community, albeit they draw in quite a large number every now and then. They will move on to other things, which is probably why the order would be helpful in that respect. At the moment, we are focused on HS2 actions in terms of our security and injunction work, but if the order has a broader effect across protester activity in general, that would be positive.
Andrew Bridgen
Q
John Groves: It is not just standard security for a site, which you would expect to see anywhere. The direct costs of protester activity to the taxpayer up to the end of March were £126 million. We estimate that by the end of next year, that could in a worst-case scenario reach £200 million.
Anne McLaughlin
Q
John Groves: Certainly, looking at the Bill when it was published, the things we have seen and discussed today are important. The introduction of the tunnelling amendment is very positive from our perspective. I have not got any comment on the timing of it.
Anne McLaughlin
I suppose that is a question for the Minister, but I am not allowed to ask the Minister.
The Chair
We are questioning the witnesses at this stage. In due course, I am sure you will have the opportunity to question the Minister.
Kerry McCarthy (Bristol East) (Lab)
Q
John Groves: All I can say is that it is about the penalty that could follow an arrest. As I said earlier, if you contrast the number of incidents we have seen on HS2 sites against the number of arrests, there is a disparity. If there are more arrests as a result of what they are doing today, and there are more penalties, that should have a deterrent effect. In terms of fines, it is interesting that we have seen some offences being prosecuted and resulting in a fine. What sometimes happens, and we have seen this in other places, is that they will crowdfund and those penalties will be paid by others.
Kerry McCarthy
Q
John Groves: We want the legislation to work so that it provides that deterrent. I do not think I can say any more than that.
Kit Malthouse
Q
John Groves: Absolutely.
Kit Malthouse
Q
Nicola Bell: To your first point, once people saw that injunctions were being followed through, committal proceedings were happening and people were going to prison, that did have a deterrent effect, because we have not seen a protest on the strategic road network since 2 November. Three of the injunctions, particularly covering the south-east—the M25, M25 feeder roads, and the roads down to Dover—still exist and are still in place. Certainly, the public mood was something that was different as the protest happened. By the time we saw things through in court the protests were finished. Nobody was seeing them every day, whereas the first time we went it was fresher in people’s memories. People were mostly peaceful but then realised the impact that it could have on their lives—that was clear.
The Chair
If there are no further questions from Members, I thank the witnesses for their evidence.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Public Order Bill (Second sitting)
(2 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text
The Chair
We are now sitting in public and the proceedings are being broadcast. We will hear oral evidence from Elizabeth de Jong, chair of the United Kingdom Petroleum Industry Association, and Steve Griffiths, managing director of London Stansted airport, part of MAG, the Manchester Airports Group. Welcome to our witnesses. This session will run until 2.45 pm. Please will the witnesses introduce themselves for the record?
Elizabeth de Jong: Hello. I am Elizabeth de Jong, the chief executive of UKPIA, the Petroleum Industry Association. We represent companies involved with oil refining, fuel production, terminal operations and petrol stations, some of which have been targeted by Just Stop Oil.
Steve Griffiths: Good afternoon. I am Steve Griffiths, the managing director of London Stansted airport, the fourth largest airport in the UK. I have been invited today as an airport operator to discuss the scale and impact of any disruptions to airport operations.
Sarah Jones (Croydon Central) (Lab)
Q
Elizabeth de Jong: Our experience of protests until April this year was that they were mainly peaceful and occasional. However, their nature changed considerably in April; they have become more widespread, longer and more confrontational. Our main concerns include the safety of staff and protestors. There are significant safety risks, an impact on fuel supply, and increased costs.
In April 2020, 11 terminals were targeted for a number of days, and two forecourts suffered damage and were blocked. A significant number of arrests were made during that period. We followed the tweeting of Essex police, and halfway through April, they were talking about almost 500 arrests; some 12% of those arrested were arrested multiple times.
On the types of activities and the safety risks, there has been locking on, which is dealt with in the Bill. We have seen people lock themselves on, or attach themselves, to the top of stationary tankers, even when they are full, and when asked, they have not moved to empty ones, which would be safer. We have also seen locking on at height, which is when people attach themselves to machinery, pipes or vehicles high up, which means a risk of falls. People have even made their own stretchers to attach themselves to, which can be difficult to deconstruct safely. We have seen smoking on terminal storage tanks, with the safety risks that go with that. Cables have been cut on road tankers, which affects braking, and roads have been undermined—networks of tunnels have been dug under roads, affecting main and emergency access roads.
That causes great concern about safety. Refineries and terminals, as I am sure you can imagine, store potentially dangerous substances such as oil, other flammable substances, and substances that can cause chemical burns and can generate extreme heat. There can be a real danger of explosion and of falls from buildings. The activities on such sites are strictly regulated under COMAH—the Control of Major Accident Hazards Regulations 2015—and of course protestors are not following those regulations; they are putting themselves and staff in danger. There have also been impacts on fuel deliveries and costs to companies.
On what the police can do and what the response has been, the industry has increased security staffing at some sites. There is already fencing and closed circuit television, and there are inspections by operational staff. Some sites have increased security around the clock. However, security staff have limited powers; they can only ask people to leave. Companies have also taken out civil injunctions, which is an option open to them; a number of our members have done so. That is of limited effect, because they do not come with powers of arrest and they take time to put in place, which allows people to come back and target the locations while the injunctions are being put in place. We have encouraged local authorities to take out injunctions, which are a more powerful tool, but, again, they take time to put in place and are costly. During the protests in April, two were put in place, in Essex and Warwickshire.
Steve Griffiths: From my experience as an operator of Stansted airport, which is clearly very much a live operational environment where there are complex, high-risk operations, any protests pose a serious risk to human life—the lives of our staff, our customers, the travelling public, and the protesters—and cause major disruption to the operation.
Our last major significant event was back in 2017, and it related to a deportation flight to Africa. The protesters cut through the security fence around the airport, which ensures its safety and security, using bolt cutters, and breached the airfield. Fourteen protesters then locked themselves around a Boeing 767 jet, which was due to fly the deportation flight to Africa. The impact of that was that the runway was closed for approximately one hour. This was at night time, so there was no daytime visibility, and incoming and departing flights were grounded during that period. Approximately 25 flights registered delays during that hour, and 11 were cancelled, including the flight in question, which was due to fly to Nigeria. We estimated that about 1,700 to 1,800 passengers were impacted by that disruption.
The protesters were arrested by the police, but were ultimately acquitted. We understand from media reporting of the case that they were charged with intentional disruption of services at an aerodrome under the Aviation and Maritime Security Act 1990, but the court acquitted them because the offence requires some element of terrorist activity, which was not deemed to be present in this event. We understand that the Crown Prosecution Service charged the protesters with that offence because other offences that the perpetrators may have been charged with did not carry sentences that adequately reflected the seriousness of the circumstances that we experienced on that night—of forcibly gaining access to a security restricted live airport operation. That is the direct impact of the last major event.
Clearly, we support the right to protest at the airport, and we have designated areas, but this is about cases that infringe on parts of the airport outside those designated areas. I can talk only on behalf of London Stansted, but events have happened across UK airports.
Sarah Jones
Q
Elizabeth de Jong: Yes. I can see a direct reference to locking on. There are a number of elements in the Bill that will be helpful. These are new challenges for us, and the Bill makes a number of enhancements to mechanisms that will be available to the police. The police will, of course, give their view about whether they will help or not.
From what I have read, the Bill will give the police a power to arrest in a timelier and more straightforward way. The current way of giving powers through injunctions could lead to a patchwork of different injunctions in different places, and be confusing, which would mean that police felt less confident in making decisions. The Bill specifically refers to two things: locking on—that looks as though it will be potentially useful—and the definition of key national infrastructure; again, that would enhance the powers and make their use more practicable.
Sarah Jones
Q
I guess my question is whether an offence of locking on—I think that it has its own problems because of the very broad way it is drafted—will be any more helpful than those 500 arrests that the police made; you are talking about people who just come back afterwards.
Elizabeth de Jong: My understanding is that the legislation will reduce the time and cost spent getting the injunctions that allow the arrests. It clearly says, “This is an offence. We don’t need to go through the injunction process.” The issue is the time it takes to get the injunctions; that allows people to reoffend. There might be an opportunity for faster processing as well, but clearly local authority injunctions will allow court appearances to take place sooner.
Steve Griffiths: There is nothing I could add to that. I am really here to talk about the impact of disruption, and I am probably not qualified to comment intensely on the Bill; I leave that to the police.
Tom Hunt (Ipswich) (Con)
Q
Elizabeth de Jong: The particular areas are Kingsbury and Esso Purfleet; it has been around Essex and Warwickshire. It has also been nationwide, but those are the current ones that have been focused on.
Tom Hunt
Q
Elizabeth de Jong: Currently, but the difference that we are seeing in these protests is that they are more widespread, both in number and geography. I think it will be, potentially, that other aspects of supply chains are focused on in the future.
Tom Hunt
Q
Elizabeth de Jong: I do not have an opinion on the police response. We have been working together with them, but I am really focusing on what would make their role easy.
Tom Hunt
Q
Elizabeth de Jong: It has had an impact on fuel deliveries. It has been hard to estimate that, but, for example, I can give you evidence that for the week ending 3 April, there was a 9% drop, week on week, in fuel deliveries. We have calculated that.
Tom Hunt
Q
Elizabeth de Jong: I cannot equate that to an impact on cost; I can say just that there was an impact on deliveries. However, the costs of obtaining injunctions across our members and across the different sites, for example, have run into the hundreds of thousands of pounds—we estimate tipping over the £1 million mark. Our estimate for the cost of obtaining injunctions for local authorities is that they will also be spending that. The cost of security staff has also been at the hundreds of thousands of pounds mark, tipping into the millions. There is an increase in the cost base, and a need to repair for industry, but I am not here to comment on prices at all; that is not something that we address.
Mrs Natalie Elphicke (Dover) (Con)
Q
I want to explore the Stansted situation a bit more. You have your highly secure zone—that goes without saying for national infrastructure—and people break in through a security fence and close a runway. I think you said that 25 flights were grounded as a result.
Steve Griffiths: Yes.
Mrs Elphicke
Q
Steve Griffiths: Yes, indeed. Obviously, the security of the airport is critical to its safe operation, as you said. We have practices and procedures, CCTV and patrols, as well as what we call a “critical” part of the airport for maintaining security. We know about the security that we experience just as travelling passengers; that is equally important around the whole perimeter of the airport.
It is very serious, and any situation like that requires our staff to respond to it as well as ensuring the continued safety of the operation of incoming aircraft and aircraft that could be departing at that time.
Mrs Elphicke
Q
Steve Griffiths: No. Obviously, we work with the local police, so we very much have a partnership between the airport police and Essex Police, and they look at intelligence and so on. All the intelligence suggested that it was a protest rather than terrorism.
Mrs Elphicke
Q
“We recognise that the various summary-only offences with which the appellants were originally charged…might…not reflect the gravity of their actions.”
I think that underlines the importance of the matters before us. At the Court of Appeal, Lord Burnett referred specifically to disruption “likely to endanger” the safe operation of the airport or the safety of people there. We have heard from your evidence that the actions that were taken were grave and had real impacts on the airport’s operations and security.
Steve Griffiths: Yes, they did indeed.
Andrew Bridgen (North West Leicestershire) (Con)
Q
Elizabeth de Jong: We follow guidance produced by the Centre for the Protection of National Infrastructure. New guidance on the security of sites was issued in April by the Department for Business, Energy and Industrial Strategy, with the support of national counter-terrorism police and the National Police Coordination Centre. Lots of site security plans are already put in place using guidance and experience, and there are updates; that is continually being reviewed using the best available guidance. It is a tiered system, as people gain access and then further access into the site, but one of the points I wanted to make is that the sites are very large indeed. CCTV and fencing are already there, but it is very hard to stop a large number of people—
Andrew Bridgen
Q
Elizabeth de Jong: Large perimeters, and a large number of people who are determined to get in and willing to put their own safety at risk. Should security guards or other people want to remove them, they have almost no powers to do so, apart from asking them and pointing out that it is not safe. We have been relying on the police, and in my opinion, we need to make sure that the police have the powers of arrest in order to remove those people, for their safety as much as anybody else’s.
Andrew Bridgen
Q
Elizabeth de Jong: It would be a proper emergency catastrophe—explosions, fire, life-ending.
Andrew Bridgen
Q
Elizabeth de Jong: I do not have that figure off the top of my head, I am afraid, but all the sites that have been targeted, all the areas of the supply chain—the petrol stations as well—are places that have the potential for explosions. Safe working is needed in those areas, and that is what we are very concerned about. In fact, petrol stations are one of the areas that are specifically not included in the new Bill. One of our asks is for that to be considered, and for the scoping of the Bill to be as wide as possible in order to include all aspects of the supply chain, because petrol stations could endanger the public—in fact, arguably more so than oil terminals. That would put staff as well as protesters at risk.
Andrew Bridgen
Q
Steve Griffiths: Obviously, the Home Office determines those deportation-type flights and works with all of the UK airports. There is no doubt that that will become more public and more prevalent, and it does heighten the potential risk to us as an airport as well.
Mr Gagan Mohindra (South West Hertfordshire) (Con)
Q
Steve Griffiths: Certainly from my perspective, I do not feel qualified to answer that question, unfortunately.
Mr Mohindra
Elizabeth, do you want to give it a go?
Elizabeth de Jong: I have not researched that myself, but the companies we represent are international companies. If it would be of interest to the Committee, I could ask how that operates for them as well. Let me know if that is something you would like me to follow up on.
Mr Mohindra
Q
Elizabeth de Jong: That is exactly what we would be seeking as well. Just in the same way as we have seen an evolution in the last year of the types of protest down and around the supply chain, we would like the drafting to reflect the continued evolution of protests and to cover as much of the supply chain as possible, and what the next target might be. In terms of “key national infrastructure”, the “downstream oil” sector is very useful to have. I think it will give the police confidence that this is an area where they can intervene and make arrests. But we would like the definition of key national infrastructure to be more specific and to include roads as well as buildings, to include vessels—tankers, for example—and infrastructure under construction. All these things are important to the supply chain, but also very important for the safety of the protesters, staff and the public. Specifically, as I have mentioned, petrol stations have been excluded; we think that they are important for safety as well.
Mr Mohindra
Thank you. Steve, is there anything from you?
Steve Griffiths: No, nothing to add from me, thank you.
Anne McLaughlin (Glasgow North East) (SNP)
Q
Elizabeth de Jong: Steve, you have said, and I would agree, that we absolutely support the right to peaceful protest. We absolutely support the right to free speech. That is really important to us as a trade association. Free speech—debate—is very important for you as well. However, what we are looking at here is the impact on people’s safety. That is also very important.
Anne McLaughlin
I understand that, but I am asking about—
Elizabeth de Jong: Yes, I promise I will try to answer that. Our industry is vital to achieving net zero, and there is lots the oil industry is already doing, and is wanting to invest in, to be part of the solution. We are producing more low-carbon biofuels. We are delivering and manufacturing sustainable aviation fuels. We are running some of the biggest hydrogen and carbon capture projects in the country. We are delivering the electric vehicle charging network; we are producing lubricants for electric vehicles as well. Personally, we think dialogue is very important. That is the essence of our democracy. But we also support peaceful protests and free speech in all ways. But if we are focused on dealing with protests and spending money on protests, that money arguably could instead help continue the work that we are doing to achieve net zero.
Steve Griffiths: I would echo everything that Elizabeth has said. It is obviously important, from the perspective of the aviation industry, that the Government have set out a plan to achieve net zero carbon by 2050. That is a plan that all of the industry has signed up to. As the largest airport group in the UK, MAG has a plan to achieve that by 2038, which is 12 years ahead of the Government target. Again, contributions to further advancing that would only help our industry, and that is what we will be looking for. As we have said, we have no objections about the right to protest, but it should be done peacefully.
Anne McLaughlin
Q
The Chair
I think we are straying into the debate around net zero rather than the issue in hand.
Anne McLaughlin
What I am really trying to say is that they disagree with the answers that you have given me; if they have a different view, they must have the right to protest. How can they do that and make an impact, while dealing with the safety and disruption concerns we have talked about?
Steve Griffiths: I can only comment in a limited way on this. Advancing this subject is really about innovation, technology and research and development. Obviously, we have to be realistic about the step changes that we can make, which is why in the industry that I work in the Government have set out a very clear plan. I know that all parts of the industry are looking at ways to achieve that a lot earlier. At the heart will be design, research, innovation and technology—that will drive it. Those elements have to be at the top of the industry’s and the Government’s agenda if we are to achieve that.
Elizabeth de Jong: And creating the right investment environment for the investments and the innovation as well. It is that type of dialogue that can speed this along. Some 96% of energy used in the transport sector currently comes from oil, so to just stop oil would have quite catastrophic impacts on society and the economy, but there are plenty of ways to debate this and to look at the policies that are needed.
Matt Vickers (Stockton South) (Con)
Q
Elizabeth de Jong: I am afraid I am going to have to leave that for the police and those who work in that area who have studied what the best incentives are for people. We are definitely focused on how to make things safe in our industry and how our society can work more efficiently and effectively.
Steve Griffiths: I cannot really comment on that. It is really for the police to determine, but we obviously support their having the right tools because, at the heart of this, as Elizabeth has said, is the safety of the protesters, the general public and customers, as well as our colleagues. That is really important.
Matt Vickers
Q
Steve Griffiths: I am here to talk about the disruptions; I cannot really talk about the policy itself.
Elizabeth de Jong: The areas we have focused on are the definitions of key national infrastructure. Locking on is important, and it is important that petrol stations are included. We do not have views on the other areas of the Bill, around stop and search for example. That is for people who have studied and are expert in what deters people or does not deter people.
The Minister for Crime and Policing (Kit Malthouse)
Q
Steve Griffiths: That is clearly one obvious option, yes.
Kit Malthouse
Q
Steve Griffiths: Yes, certainly. We work with the police on intelligence and they do a lot of scanning to try to look at risks that are presented at the airport, but certainly, having those facilities to stop people directly and search them would be helpful.
Kit Malthouse
Q
Steve Griffiths: Yes, we have a very well-defined plan that is a joint plan between the airport, the airport police and Essex police. That is really around the seriousness with which we take breaches on the airport. We have to have a very clear escalation plan and very clear, constant monitoring in place, because the seriousness of the disruption it causes, and also the threat to safety, is significant to us as an operating airport.
Kit Malthouse
Q
Elizabeth de Jong: Yes. Site security and risk assessment per se, given that we work in such a tightly regulated and potentially dangerous environment, are very much at the core of all operations throughout the downstream oil sector.
Kit Malthouse
Q
Elizabeth de Jong: Indeed.
Sarah Jones
Q
Also, there seem to be slightly different issues. The issue with the flight was a slight one-off, in that people were objecting to that particular flight going away. There is a particular problem, it seems, with people trying to block entire infrastructure programmes across the country. They are two quite different things and I think they need a slightly different response.
I want to confirm with you, Mr Griffiths, that the police arrested the people but that the issue was that the charge was not right. It was not that they were not arrested and taken away; it was just that the charge did not stick because the right charge was not there, if you see what I mean.
Steve Griffiths: Yes, you have the fact that the incident occurred in the first place and then, as you say, the perpetrators were arrested, but then the subsequent charge fell apart because of, presumably, a gap in legislation, in that the route taken for prosecution did not stand up. On your first question, I do not have that answer with me today.
Elizabeth de Jong: I have some information on the first one. We received police intelligence about the attacks and that intelligence was broadly correct.
Sarah Jones
Q
Elizabeth de Jong: It was very helpful indeed.
The Chair
If there are no further questions from Members, I thank our witnesses for the evidence. We will move on to the next panel.
Examination of Witness
Adam Wagner gave evidence.
The Chair
We will now hear oral evidence from Adam Wagner, a barrister at Doughty Street Chambers. We have until 3.5 pm for this session. Will Mr Wagner introduce himself for the record?
Adam Wagner: Good afternoon. My name is Adam Wagner and I am a barrister at Doughty Street Chambers. I practice in human rights law and public inquiries, and I do a lot of work on protest law.
Sarah Jones
Q
Adam Wagner: Okay. I will start with the general question about what I think of the legislation. It is important to frame this debate properly. In this country, our tradition is that protest is something that is permitted. It is not seen as a social evil; it is seen as a social good. A certain level of disruption is inevitable in any successful protest. That is how you get people’s attention: you disrupt, and you put yourself in front of them. That is not a new thing; it is very old. It goes back to the suffragettes, who I am sure many people giving evidence will mention.
Every social movement in history that has a protest element has always used an element of disruption, and there will of course be times when disruption steps over the line into violence and such serious disruption that society will not tolerate it. At that point, the criminal law will intervene, and there is always an uneasy balance between where you put the line, because you accept that conscientious protest about important issues is something that democracy needs for the public to communicate directly to the rest of society and to you—the people who are in charge. That is always the context.
All the court authorities on these kinds of issues recognise that protest is disruptive, unruly and something that annoys people, particularly if they do not agree with the views. If somebody does not agree with a view, that is a very good reason to not allow them to be in charge of whether the person can be express it. That is why it is very dangerous to start tinkering with a law because of views you do not approve of, because the next lot will come along and do the same for the views you do approve of. So we keep a level of tolerance towards protest—that is the way I would frame it.
For the most part, the mechanisms that the Bill puts in place essentially criminalise peaceful protest. That is what the Bill does: it criminalises peaceful protest in a way that has not been done before. It treats peaceful protest like knife crime, drug dealing or terrorism. I do not mean that metaphorically; I mean it directly. Serious crime disruption orders and terrorism disruption orders stop people doing something in future—those are the kinds of methods we have used to disrupt terrorism, knife crime, drug dealing and gang violence. I have been involved in lots of cases involving those kinds of orders. If the Bill is used by police—they will be under pressure to use it in particular instances—the end result will be lots more protesters in the criminal courts, in very long and complicated trials that involve looking at the proportionality of the protest in question, as we saw with the Colston statue case. But it will be 100 times more, because all these offences have a reasonable excuse—I can come to that. I think that is one thing you will see.
The other thing you will see is a lot more protesters in prison—and a lot more peaceful protesters in prison. I do not have any issue with, and I do not think human rights law has any issue with, violent protesters being treated as criminals—the European convention on human rights entirely accepts that violent protest does not fall under the protection of the right to protest—but all these provisions are about peaceful protest, and it will end up with hundreds and hundreds of protesters in the prison system. I see that from my own work. An increasing amount of protesters are going to end up in prison because of the injunctions. That is my general view, but I can talk about specifics.
Sarah Jones
Q
Also, we heard from previous witnesses about cases in which people have glued themselves to motorways in a dangerous way, and about people locking themselves on and tunnelling under things—doing things that are criminal and dangerous. That is the problem that the Bill is seeking to tackle: the small number of people who are repeatedly doing things that are dangerous for themselves and others. It would be helpful for you to explain how that marries with your view that the Bill will affect loads of peaceful protesters.
Adam Wagner: Hard cases make bad law, is the aphorism. I think that is true. I listened to a previous witness say that locking on is a new phenomenon; the suffragettes were locking on and Gandhi was locking on—these are very old protest methods. Anybody that breaks into an airport or an oil refinery, or blocks a motorway, can be arrested and charged under existing criminal law. That is absolutely uncomplicated.
One of the misapprehensions about the Insulate Britain protests—I read it in the newspapers—was that the police could not arrest people until there was an injunction in place. That is completely the wrong way round. Injunctions do not give powers of arrest to the police; court enforcement officers gain powers of arrest from injunctions, but the police can arrest people for obstruction of the highway in the same way that they have been able to for a long time. There are all sorts of other criminal offences that can be used—aggravated trespass is the other catch-all one. When someone is on the road they can still be trespassing if they are not using it for a permitted purpose. Aggravated trespass applies to any private land, including airports, oil refineries and petrol stations.
In terms of dealing with the issue at the time and on the ground, the Bill is not going to make any difference at all. The police can go in and arrest people—there is nothing stopping them. They can use reasonable force to unlock people who are locked on. The police will have exactly the same powers to do that under all these new offences. The difference—to use a term that has come up—is the downstream. Instead of those people potentially going to prison for a bit, or not going to prison at all, they will end up going to prison for a long time. The clauses of the Bill create a culminative effect—it is like being a petty criminal: once you start and are in the criminal justice system, you get longer and longer sentences and everything stacks up, one after the other. The courts have more and more draconian powers that they can use against you. The Bill creates that culminative effect for peaceful protesters.
Sarah Jones
Q
Adam Wagner: A serious disruption prevention order follows the model of lots of other such orders in our laws, such as serious crime prevention orders, gang orders and drug dealing prevention orders. It is the same exact model. As drafted, a serious disruption prevention order allows a court a power if someone is convicted of any offence under the new offences.
For example, having superglue in their pocket would be an offence under the regulations, because it could be used for a lock-on. Arguably, too, a bicycle lock on their bicycle could be used for a lock-on. Once that is triggered and they get convicted of an offence, the court can then look at their background and, if they have been involved in a protest that even potentially might cause serious disruption, that is all that is needed—
“capable of causing serious disruption to two or more”—
and could trigger the power for the judge to impose an order of up to two years that prevents them from doing all sorts of things. They might not be allowed into a town centre for two years, or to associate with particular people, or they could be given electronic tagging requirements. Once that is in place, they could be dragged back in if they breach a requirement and be given a prison sentence as a result. It is a protest banning order, effectively.
In fact, there are two different kinds of order: clause 13, which is the serious disruption prevention order, and then another one, whereby a police officer—even if the person has not been convicted of an offence, but just so long as they have participated in a protest and the judge thinks they might participate in another or maybe take some superglue along with them—can prevent them from going into a town centre or associating with particular people. The orders can even be applied to organisations, so it is not just individuals; it could be a charity or a campaigning organisation. It is a really huge expansion of court powers against protesters.
Let me talk a bit about the psychology of some of the people I represent, who are some of the more hardcore protesters who are at the centre of a lot of these movements. They will not be deterred by this legislation. If we look at Insulate Britain, which I guess is on the extreme end of disruption versus expressing the right to protest—it is not directed; the people they were disrupting were not the people they were protesting against, which makes the courts the least sympathetic to those actions—a lot of them said, “Well, I will go to prison for the cause.” A lot of environmental and Black Lives Matter protesters—whichever cause you think of—will say, “It’s going to be a badge of honour to go to prison.”
The prison system will start to be full of those people. It will not deter them; the people it will deter are the people who are not willing to go to prison, but who will also not be doing anything illegal at protests. They will just not want to go along, “Because I don’t want to be caught with a bicycle lock. I have a bicycle outside; I don’t want to be caught with a bicycle lock. What happens if I get arrested because I have a bicycle lock? I didn’t know one of these orders allowed police to do suspicionless search.” It will deter those people; it won’t deter the people you are worried about or the previous witnesses were worried about. It will deter lots of other people who you are not worried about, but you should be worried about.
Kit Malthouse
Q
I want to ask you a couple of questions. First, you seem to be quite happy for those who profess to be protesters to go to prison in certain circumstances. So, if someone glues themselves on to a fuel gantry, bringing themselves and others into danger, you are quite happy for those people to go to prison—the only question in your mind is for how long. I presume you accept that part of the role of sentencing is not just to punish, but to deter. In circumstances where somebody is persistently committing those offences, whether or not they are subject to the order that you talked about, would you not expect them to get increasing sentences as they reoffended?
Adam Wagner: The first thing I would say is that I have come here voluntarily. I did not come here to have someone be personally rude to me, and I really do not appreciate it. I do not understand the benefit of that to anyone.
The second point is that I am not happy for any protester to go to prison. That is the criminal law as it is. The question this Committee is asking is: does the criminal law need to change to deal with the problems that the Bill is supposedly dealing with? I just do not think it does. If the aim of the Bill is to send a lot of peaceful protesters to prison, it will do that. By peaceful, I mean non-violent. Locking on to something is not a violent protest. It is disruptive and annoying for the people who are trying to do whatever they are going to do in the location the protester has locked on to, but it is a classic form of protest. It is something that has always been used. It is something that society generally tolerates.
If we want lots more people like that to go to prison, this is the Bill to do it. However, if you want to stop people blocking roads, oil refineries or fracking sites—whatever the cause at the moment is—this is not the Bill to do that. I can tell you that, because I know these people; they will continue doing what they are doing. The difference is that they will end up in prisons all around the country, and I am not sure that is a good look for the country.
Kit Malthouse
I understand. I apologise if I was rude before.
Adam Wagner: Thank you.
Kit Malthouse
Q
Adam Wagner: First, it depends on whether the police are charging under that. I have not really talked about the relationship between the police and the public. The police will have to think really carefully about whether they want any of the aggravation of having to recommend for charging people who are not violent criminals, but are, in fact, peaceful protesters expressing their views.
Secondly, you cannot guarantee at all that the judges will send people to prison. There has been a step change through Insulate Britain. I have acted in a lot of these contempt cases—where people breach injunctions. The big difference with Insulate Britain is that these people are being sent to prison, and the courts’ reasoning, as I said, is that the protest is not directed at the social evil that the protesters are protesting. They are blocking the highway, and not blocking anybody who is insulating or not insulating anything. That is why they are sending people to prison.
However, what the judges have not done is send to prison people who, like my clients, were protesting at the entrance of a fracking site in Blackburn at Preston New Road, or people protesting on the HS2 line. The courts have said very directly: “We tend not to send people to prison for that.” It is quite possible that the courts will not oblige. Who knows? The powers will be there.
Kit Malthouse
Q
The Chair
A short answer, Mr Wagner, because we are in the final minute.
Adam Wagner: It is a mixed bag. You might end up with a judge who is not very used to the criminal law, because a lot of them are in civil courts, but you also might end up with a whopping cost order at the end of it. For some of the cases I have been involved in, it has been tens of thousands of pounds. It is a mix, but civil injunctions have their own problems more widely.
The Chair
That brings us to the end of the time allotted for the Committee to ask questions of you, Mr Wagner. I thank you, on behalf of the Committee, for your evidence.
Examination of Witness
David Dinsmore gave evidence.
The Chair
Q
David Dinsmore: I am David Dinsmore, chief operating officer at News UK. For the purposes of this, News UK is the owner of Newsprinters Ltd, which prints a lot of the newspapers in this country.
Sarah Jones
Q
David Dinsmore: This started on the evening of 4 September 2020 and continued to midday on the 5th. We have three print sites across the UK: one at Broxbourne to the north of London, one in Knowsley in Merseyside, and one at Eurocentral, between Glasgow and Edinburgh. At the Eurocentral site, there was a small, peaceful protest that broke up very quickly and did not get in the way of any of our business. However, at both Broxbourne and Knowsley, starting at about 9.45 pm, a collection of vans, boats on trailers and a bamboo superstructure were put in place at the exits to the plants. In the Broxbourne case, 50-plus people got on to those structures, many of them locking themselves on. At Knowsley, I think the number was about 30. Certainly, there were 51 arrests at Broxbourne, and 30 arrests and 28 charges at Knowsley.
The police were called immediately and were on the scene within half an hour, but they did not start removing people properly until 4 am at Broxbourne and 11 am at Knowsley. Both sites were finally cleared at midday on the 5th. This was a Friday, into Saturday. Saturday is the biggest newspaper sale of the week. Between The Sun and The Times, we would normally expect to sell about 2 million papers that day. We also print for The Daily Telegraph. We print some of the Daily Mail and some of the Financial Times, and we also deliver a direct-to-consumer service, although we do not print them, for The Guardian out of the Broxbourne site, so you will see that we are at the heart of the news industry in the country, whatever your flavour may be.
All the exits were blocked, which meant that all our trucks and drivers were blocked inside. Although we printed the run of about 2.5 million papers, they all had to be pulped. We had to use other print sites around the country to print those newspapers, and we delivered from them. The net result was that we lost a significant sale, as we did not get to many newsagents until past midday. The cost to us as a company was about £1.2 million. I would say we had 155 staff who were trapped on site until midday the following day, and we still have senior staff attending court hearings. They have had to block out of their diaries about 150 man/woman days—they are not having to attend court, but there is definitely serious disruption.
The final point I would make is that those 51 people at Broxbourne were all charged under obstructing highways, and those at Knowsley were charged under the aggravated trespass legislation. Some of the people at Knowsley have been found not guilty because it was not clear whose land they were trespassing on, and at Broxbourne, most people who have been found guilty have been given conditional discharges—costs of £150. One of them even glued himself on to the court table and still got a conditional discharge.
It feels to us to be a major, serious and co-ordinated attack. It caused considerable material disruption and continues to do so. The legislation is not in place to provide a deterrent to this. There is not even a catch-all law that people can be charged under, even if they do commit the crime. It felt like we were powerless to do anything other than work around this huge disruption, which had a massive impact. There is another impact worth mentioning. We go to wholesalers, who were hugely disrupted, and then we go to 44,000 retailers, who were similarly disrupted. That ends up with 2 million or 3 million customers who cannot get their paper when they turn up to buy it in the morning. The disruption to freedom of speech and our democracy in this instance was huge.
Sarah Jones
Q
David Dinsmore: My understanding is that you need specialist teams to remove protesters who are locked on at a height.
Sarah Jones
Q
David Dinsmore: It was chains. At Broxbourne, they brought a purpose-made bamboo super structure, which they were able to erect at speed and put themselves on to.
Sarah Jones
Q
David Dinsmore: We call it the nightly miracle that we get from literally a blank sheet of paper at 9 o’clock at night to 44,000 retailers at 6 o’clock the following morning around the country. While I like the aspiration, the idea that we could get specialist teams there and remove blockages and get all that cleared without having significant disruption to the network and that delivery is, I think, pretty ambitious.
Sarah Jones
Q
David Dinsmore: Indeed.
Anne McLaughlin
Q
The Chair
We cannot go into the detail. The concept of how a protest can be taken forward is, however, a legitimate question.
Anne McLaughlin
Q
David Dinsmore: News brands are a very good channel for campaigning. We would see ourselves as giving a voice to the voiceless. One of the ironies of this particular protest was that on page 10 of The Sun that day, there was a piece from David Attenborough about exactly what Extinction Rebellion were campaigning on. They were going after one of the vessels that would probably be a good way of disseminating protest and counter-voices. Newspapers have campaigned legally and peacefully for centuries on many issues successfully and got law changes. If we want to go into the details of the great Sunday Times investigation campaign on thalidomide, I think there are many routes through which you can get outcomes that do not require the law to be broken.
Anne McLaughlin
Q
David Dinsmore: On the Black Lives Matter issue, we have, as an organisation, carried a huge amount of coverage. We have done things explicitly and internally on diversity. It is something that we do take very seriously. The Sun has recently run a series on Black History Month, et cetera, et cetera. I will not go into the detail, but I can give you much more on what we do as an organisation on those kinds of issues.
There are many, many routes to protest in this country. I am just giving you the specifics around our particular route. There are petitions and social media. There are many ways in which you can get a story, a campaign or a point of view across without disruption and breaking the law.
Andrew Bridgen
Q
David Dinsmore: I think the best example we have got is the pandemic we have just lived through and the requirement for quality, trustworthy information. That showed how vital and valuable that is. We, as professional journalists, provide that information on what used to be a daily basis and is now a minute-by-minute basis, and the public need that more than ever.
Andrew Bridgen
Q
David Dinsmore: But it could be just as easily threatened by this kind of protest.
Mrs Elphicke
Q
David Dinsmore: I do think that the way the law is structured protects the rights of the few against the rights of the many. That feels to me to be anti-democratic. So, without going into the specifics of it, yes, I do think that. On that point of “you can get it online”, there is still a significant cohort in the community—principally older readers—who cannot or do not get it online, and do get their news in print.
Kit Malthouse
Q
David Dinsmore: I do not know if we know for a fact that that is the case. However, certainly, in a lot of protests that we see—and believe you me, we see a lot of protests—an anti-Murdoch element always comes out. We are big, grown-up girls and boys, and we deal with most of that in our daily work, but on that occasion, the level of disruption caused was well beyond what would be acceptable.
Kit Malthouse
Q
David Dinsmore: Apart from the fact that it was Extinction Rebellion, I would need to go back. I think there was a lot of assumption about what it was against—I think they did some tweeting at the time, but I will need to come back to you with the specifics around what was actually said and claimed at the time.
The Chair
Do any Members wish to ask further questions? On that basis, Mr Dinsmore, I thank you for your evidence.
Examination of Witnesses
Sir Peter Martin Fahy QPM, Matt Parr CB and Chief Superintendent Phil Dolby gave evidence.
The Chair
Q
Sir Peter Martin Fahy: I am Peter Fahy. I was the chief constable of Greater Manchester police and, before that, the chief constable of Cheshire constabulary. I was a police officer for 34 years and a chief constable for 13 years.
Matt Parr: I am Matt Parr. I am one of four of Her Majesty’s inspectorates of constabulary. My focus is primarily on the Met and non-Home Office forces. In specialism terms, I look at such things as counter-terrorism policing and, in this case, public order.
Phil Dolby: Good afternoon. My name is Phil Dolby. I am a chief superintendent for West Midlands police and I am a trained and accredited tactical public order/public safety commander and have been for some time, and I have been through quite a few adventures.
Wendy Chamberlain
Q
Sir Peter Martin Fahy: The first thing I would say is that there is a threat to public confidence in policing from the police not being seen to be effective when they are dealing with issues like those we have heard about—issues like the Insulate Britain protest—but there is a danger that this Bill is trying to produce the wrong solution. The problem we have, as you heard from the gentleman from News UK, is that we do not have a standing army of police officers in this country. We are not like France, Spain and Italy, which have paramilitary police forces. If this had happened in France, they would have turned out the CRS very rapidly. They are very highly specialist and trained: they would use water cannon, they would probably use rubber bullets, and essentially the French population would accept that level of force. Thankfully, we do not live in a country like that, and the trouble is that when these events happen—I had a similar thing in Cheshire, with milk protests outside Morrisons and Tesco—in the middle of the night, it is extremely difficult to get together enough officers to safely disperse that protest. If anything, that has got far worse, because in those days we did not have everything filmed and on social media and all those things.
Essentially, it seems to me that we have three problems. The first is the inability to get officers quickly together, with the right equipment—I would like to be able to move lorries, vans and stuff like that quickly—because that is not how British policing is set up. The second issue is that you then have to clear and arrest people, and the trouble is that the rules on bail are very narrow. In most cases, the police have to release that person on bail, which makes them free to go back and rejoin the protest. Even if you are able to get them to court immediately, the court will probably bail them out, because they plead not guilty and are back out on the street again. That is essentially the problem: they are able to keep on going back and repeat their behaviour.
Wendy Chamberlain
Q
Sir Peter Martin Fahy: No, it will not deal with any of these three practical issues unless you address the issues of a lot more police officers being available; the public appetite for those officers to be able to use force, confident that the public, the media, and even people like the Independent Office for Police Conduct will support that use of force; and court procedures being able to deal with that and, if necessary, keep people in custody if they are persistent in going back. Just having more powers does not really solve any of those practical issues. Some people will be deterred by harsher sentences, but we know that a lot will not be.
On the other hand, part of that is absolutely that there is a danger to public confidence. That is really critical. I just visited Westminster Abbey and saw the statue of Sir Robert Peel, who laid down some remarkable principles of policing way back in the 1820s. It was very much about the police being impartial, acting under the rule of law, and not seeming to follow any particular initiative. There is absolutely a risk in this. Most protests are short-lived and move on very quickly. We have talked largely today about national protests, such as those on the M25, where there is not really a local community, but most protests and the most difficult protests are often very local protests about things like fracking and road developments, where there are very strong local public emotions. Yes, there may be some outsiders who join it, but most of it is very local people. If the police are involved in gathering intelligence around those people and criminalising them in a way that those local people do not think is fair, and it destroys their confidence in what their local police force is there to do, there is absolutely a risk in that.
Very quickly, I found the Sarah Everard vigil that Matt did a review of interesting in a way, because most of the police service were really clear that that gathering was illegal under the coronavirus regulations. The inspectorate did an inspection and said, “No, it was a very good policing operation done very well.” It didn’t matter. Media, most politicians and public opinion said, “No, that was wrong”, on the basis of two images that ended up on the front of the Sunday newspapers. That is the difficult environment that police officers are operating in, some of them very junior and without the chance to have a great deal of training, and dealing with very complex issues, such as more legislation, more powers and more definitions of what is serious disruption, whether something is national infrastructure or not and whether something is the highway or private ground. Those are difficult issues for individual police officers, even inspectors, to make sense of in the heat of the moment, with strong emotions and the potential need to use force on people.
Wendy Chamberlain
Q
Sir Peter Martin Fahy: Yes. We cannot be naive: the training level for police officers is still very poor. There is no formal qualification for superintendents. They do their best, but we put them into very difficult situations with complex consequences if they get it wrong.
Wendy Chamberlain
Q
Phil Dolby: Certainly from a West Midlands police perspective it is extremely difficult when we have a protracted protest, because all of those cops come from the normal, business as usual police, often at the front end of demand, as opposed to detectives or safeguarding officers. They are the first response and are often the ones trained to be ready to police such events. The opportunity cost, as well as the financial costs, can be significant.
The British model of policing of protests in the last 10 years has matured and advanced. There is more to do, but work has been done on balancing the rights of all; trying to make sure that it is seen as a community issue and not just a policing issue, so the officers do not come into an area and then leave, and how that affects the community; and protest liaison officers who are specialists in how to engage and try to negotiate before we use force.
Wendy Chamberlain
Q
Matt Parr: I suspect I am here because I wrote not just the report on the Sarah Everard vigil but the report you mention, at the Home Secretary’s request, on what was then a series of proposals, some of which have made their way into the Bill and some of which have not. That report covered much more than legislation: it made the point that getting the legislation right is not a panacea. A dozen or so recommendations were made in the report, and they covered issues such as greater expertise, increased training, better intelligence and more debriefing afterwards. The problem is not solved by legislation. It is solved by a mixture of legislation, greater training, awareness and preparation for decision-makers and police.
Wendy Chamberlain
Q
Obviously, your report from 2021 considered protest banning orders, which was something suggested by the Met. Your report stated that
“such orders would neither be compatible with human rights legislation nor create an effective deterrent.”
What are your views on the serious disruption orders in the Bill, given what you have said previously?
Matt Parr: I can only comment on what we said in the report. We looked at them and at what the Home Office said about a protest ban at the time. It opposed a ban, saying that it
“essentially takes away a person’s right to protest and…would very likely to lead to a legal challenge…Consequently, we believe it unlikely the measure would work as hoped.”
The report agreed. We said:
“We remain unconvinced that such orders would either be compatible with human rights legislation or create an effective deterrent.”
We supported many of the other measures, some of which have not made it into the Bill.
Wendy Chamberlain
We shall find out from the Minister why he has changed his mind.
Sarah Jones
Q
Sir Peter Martin Fahy: You mention the level of resources. Certainly, when you look at the number of officers per head of population in the UK roughly compared with France, Italy and Spain, you see that we have about half the number that they have. Why is that? Because they have national police forces and paramilitary police forces that essentially are part of the military, live in barracks and are able to respond in that militaristic way. That is not our history whatsoever and I would absolutely not want it to be, but it possibly gives you some indication of the level of resource.
Even if the chief superintendent had double the number of officers, I am not sure that he would necessarily want to put them into this form of policing, because he is absolutely right that when officers had to be on motorway bridges at the time of Insulate Britain to try to be available to clear the protests, they were officers who would have been investigating rapes, burglaries or whatever. There is a practical issue here: could we ever have the level of resources to be able to effectively—? The fact is that the protesters will always be fleeter of foot than the police, because they have the element of surprise.
In terms of what can be done to help people like Newsquest, Morrisons and other people I have dealt with who were absolutely very concerned about the future of their businesses, for me it is about being prepared to look at issues like bail. In the more immediate sphere, it is for the courts to be able to keep people in custody, rather than having to wait for a court case a few months down the line, or for one of these particular orders.
I would still doubt whether the appetite would be there—the judicial appetite. Police officers are very wary, and you heard the exact reason for that from Newsquest: when cases get to court, the judiciary or the magistrates often give out very minor sentences—whatever might be allowed in the legislation. They find, as happened with the Sarah Everard case, that higher courts then disagree and bring in human rights legislation, or bring in a different interpretation that is in the legislation, which then completely takes the legs of the police from underneath them.
That can only really be covered partly by legislation but essentially by judicial practice, because you can bring in all the laws you like—it will not actually solve those practical issues that the police face. There is also a real difficulty with definitions. This Bill talks about “protests”. Previous legislation, such as the Public Order Act 1986, talks about “gatherings”. We seem to have brought in this word “protests”, and I am not sure there is a legal definition of what is a protest.
The 1986 Act uses the phrase,
“serious disruption to the life of the community”.
I dealt with a really difficult protest in the centre of Manchester, which essentially put the Jewish community and the Muslim community at odds. I actually contacted the Home Office and said, “Please can you tell me the definition of serious disruption to community life?” They said, “The legislation’s never been used. We can’t tell you.” I was left wondering whether I should go around the shops of Manchester and try to work out whether their takings were up or down as a result of the protest.
With words such as “serious disruption”, on the face of it, yes, they are common sense and everybody knows what it looks like. In reality, however, when it gets into the courts that is exactly where the lawyers make their money from, but it absolutely undermines the police action and seriously means that police forces may be sued for unlawful arrest, and officers may be more liable to receive complaints because the conviction was not secured. It is a really complex issue, as Matt has said, and it needs a range of things, but just having more legislation without dealing with those other issues—you would certainly need an absolutely huge investment in training.
That would be my concern about this legislation. It is quite complex legislation. How, for instance, are West Midlands police supposed to train that, with all the day-to-day of policing? There is no time in policing for training. Again, those officers who are going to be on training courses have to be taken away from other duties. In my time, in my early stage there was very little change to the law. It is now changing almost month by month, and trying to keep police officers—who, with due respect to them, do not have the sort of professional background on how to interpret legislation—up to date with that is really difficult, because we are putting them into a totally different scenario, in terms of their level of accountability and the level of transparency that has now come from mobile phones and social media.
Sarah Jones
Q
The third question is just about any thoughts you might have on things in the Bill that you have not looked at. You might not have had thoughts because the Government have not asked you to do a report on it—I think I am right that they have not asked you. Do you have any thoughts on things that you have not looked at before?
Matt Parr: I will deal with the easiest one of those questions first. The policing response to our report has been possibly the most professional and thorough response that I have seen in any report I have done in six years as one of Her Majesty’s Inspectors. The then National Police Chiefs’ Council lead picked it up, gathered a group together, and it has been a model of how policing as a whole should respond to a report. That has been really good. We have not been back to inspect, but I am pretty confident that progress has been made against every recommendation we made. I think they have almost all been ticked off. That is very encouraging. That is not standard fare with reports from us, sadly.
On your point about what bits of the legislation we looked at, we were asked to look at five changes. The history of this is that in 2019 the Home Secretary wrote to the commissioner of the Met, and the commissioner then wrote back with a series of 19 potential changes to the law. There was a big roundtable involving the Home Office and lots of people in policing in mid-2020. After that it was decided that they would take forward five. We supported all five of those—with a little bit of teeth-sucking about a couple. Generally, we thought that they all had the potential to improve the efficiency and effectiveness of the policing of protests, and would help achieve the “modest reset” I referred to in the report.
The Bill contains one of those changes, and that is the one about extending stop and search to look for lock-ons. It contains other changes that were not in there: obstructing major transport works; interference with key national infrastructure; serious disruption prevention orders, which we have already mentioned; and, lastly, lowering the rank in the Met for authorisations.
On extending stop and search, we said that because of its preventive nature it has the clear potential to enhance police effectiveness. It would also act as a deterrent. We recognised it was controversial, and we registered concerns about modelling it on current section 60 legislation—we thought that was potentially problematic. It is trying to achieve two very different things. We were nervous about a potential effect on minorities, and therefore we would like to see strong safeguards around that.
Finally, we said there must be appropriate thresholds and correct authority levels. I think the Bill says inspector, which is probably as low a rank as I would want to go. However, in general we remain supportive. There was broad support for the stop and search proposal from across the National Police Chiefs’ Council, and policing generally. Some people raised some difficulties, but we concluded:
“our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency”.
I have mentioned that we were not supportive of SDPOs. We did not really look at the others. I will touch on changing the minimum rank of assistant commissioner to commander in the Met. That strikes me as entirely pragmatic. If you look at the Met, the real expertise in public order tends to be at commander rank, rather than above, where people get a bit more generalist. The deep professional experts in London, in my experience, are the commanders. That strikes me as perfectly sensible. The other two changes we simply have not looked at. I would say that they strike me as consistent with the aim I was in support of. Currently, the balance is not being got right on a regular basis; the level of disruption between those who have a right to protest, and those who are bystanders and affected by protest, is not in the right place. Those changes strike me as consistent with resetting that balance.
Everybody I talked to in the course of this inspection or since—every police officer and everybody involved in this—absolutely recognises the right to protest. There is no question about that. Frankly, I think some of the criticism of the Bill, and some of the interpretation of it, goes too far. It is not a police state.
Sarah Jones
Q
Matt Parr: Both. Any changing of where the pendulum sits does not automatically mean the introduction of a police state. To me, they look like sensible measures to redress the balance. I note that the Government’s note accompanying the Bill links to a YouGov survey that shows where the public are on this issue, and those findings were entirely consistent with the survey we did as part of the Bill. To be honest, I was quite surprised at the time, but the YouGov poll is in exactly the same place.
Sarah Jones
Q
Phil Dolby: No one protest is the same as any other, even if it might be about the same cause. Some of the most challenging ones we have had have not necessarily been Extinction Rebellion or High Speed 2. The issues in Gaza led to some go-slow protests that were going to churn up the city, which I had to deal with.
Another protest was in the paper a few years ago. A school was hoping to do a teaching element about same-sex relationships, and some of the local Muslim community were upset about that. We have also had Sikh tensions at the Indian consulate general, the Kisan protests and so forth. Sometimes you can start your tour of duty and something appears on Al Jazeera—suddenly, you can feel the tension rising during that same tour of duty.
The first thing is very much: what relationships do we have with communities before there is a protest? What kind of neighbourhood local policing service do we have? What is our community engagement across the spectrum of age, ethnicity, communities and so on? That is the most important. One of the most important briefings I give to everyone—including protesters—at the beginning of any operation, be it pre-planned or spontaneous, is always about the style and tone of what we are about to do. That is about being a fair service that is not afraid to make decisions when it needs to.
I will give you a couple of quick examples, starting with when we had the go-slow. Like most cities, Birmingham has a ring road, and it does not take much for that artery to suddenly be blocked, which means that nobody is going anywhere. We had a protest about Gaza whereby they were going to do a go-slow with their vehicles and do a circuit around the city. Because it kept moving, we tolerated that. We did some traffic management around it, kept the city moving and made sure that really important things, such as hospitals and so forth, were not affected. They then went for a second lap, and that was where I had a threshold with a gold commander who had given me a strategy that said, “That’s enough now, because everyone else in the city has the right to peaceful enjoyment of the transport system and to get around.”
We currently have a power under section 12 of the Public Order Act 1986—this goes to Sir Peter’s point—that already has the term “serious” within it. There is a test called 3DI—serious damage, disorder, disruption or injury —but the definition of “serious” is still quite open to interpretation. You also need to have an organiser. During the pandemic, people did not want to show that they were organisers, because they would then be potentially prosecuted under the coronavirus regulations. That has kind of stayed. Before then, people were quite happy to say, “I was the organiser,” but that is less so now.
The go-slow had no clear organiser, but through the CCTV around the city, I was able to see who the organiser was. There were probably about 200 vehicles involved in it, and I just gave a warning about the police’s power to who I was evidentially satisfied was the organiser. I negotiated and said, “Look, I’ve got this power. It’s ready, and here it is. Do you want to carry on, or can I encourage you to stop? You have had your opportunity, and you need to move on.” There was a negotiated approach that I thought tried to keep the balance for everyone.
Similarly, Extinction Rebellion recently blocked a fairly minor road. We were a little confused about the road they chose. If we had been doing it, we would have chosen a different one. They had a tactic whereby instead of staying in the middle of the road all the time, they would use the pelican crossing but let the traffic stop by the traffic furniture. They would then occupy the road for about five minutes and when the traffic built up, they would move away. That was an interesting application of the law but, again, what we did was start negotiations with them.
We have our protest liaison teams, and there is a five-step appeal that officers go through, which we document and fill, giving every opportunity for the protesters to reach the decision themselves. Eventually, I said, “Okay. There is a power here to stop you. This is an unlawful assembly because it is now causing serious disruption. There’s a children’s hospital that is starting to be affected, so now that’s enough.”
I brought forward the van that is a mobile prison cell—kind of a show of strength, really—and said, “That is what I am prepared to use”. They said, “Okay”, and that was enough. Again, both the powers were available to us. They were being prepared to be used. We were not just tolerating it; there was a negotiated approach, and both of those are examples of where that has been successful. On the serious disruption element in the Bill, I would encourage as much precision for that definition as possible.
Mrs Elphicke
Q
Matt Parr: We made that point in the report. There are certain things that probably would have a deterrent effect—the £37 million is something that we referred to. I think it is relevant. It is difficult to say that you cannot put a price on articles 10 and 11 and, of course, you are right. However, just for context, the two operations we looked at in London cost £37 million. That is twice the annual budget of the violent crime taskforce, so it does have a significant effect.
The other general observation I would make is that protest has been increasing and the complexity and demand on policing has increased. It does not seem likely to us that it will go in a different direction in the years to come, so something has to be done to prevent it becoming too much of a drain. Yes, I think that some of these act as a deterrent, of course. It rather depends on how they end up progressing through the courts—if, indeed, they are brought to court—and if it turns out that they are not meaningfully prosecuted and there are not meaningful convictions, any deterrent effect will pretty soon dissipate after that, I would have thought.
Sir Peter Martin Fahy: I would make the same point. Anything that could be put in the legislation to clarify the issue about “serious”, which absolutely could be some financial calculation, would be extremely useful. You have to remember that it was quite clear that the vast majority of people thought the Insulate Britain protests were extremely disruptive and pointless.
There are certainly some protests where you have two sides. Therefore, you will get pressure from one side to use this legislation, and we should not be naive about the pressure that police leaders come under from local politicians to do that. I will be honest: they were some of the most uncomfortable times in my police career when that happened. Therefore, having clarity about the legislation is really important, as is anything that can be put in to help that.
I do not know whether there is actually any evidence that people are deterred. Common sense says that some people will be deterred by harsher sentences and the threat of a conviction in court, but clearly some people are so determined, and have a certain lifestyle where it does not really have any consequence for them, that—if anything—it makes them martyrs. Certainly, as Matt said, if they are not convicted or get found not guilty, if anything that gives them a greater status as a martyr and leads to further criticism of the police.
Phil Dolby: I want to make a point on the precision of the legislation. When looking to consider stop and search without suspicion, I think no matter how hard you try, there will be a complete, solid line in the public discourse between that and section 60, which is the existing power to have targeted stop and search around violence principally. That is a tool that is being used increasingly with the challenges we are all facing around youth violence and knife crime. It is also something around which communities have not always necessarily experienced fair treatment.
With all that we are trying to do now, it is still a key point of discussion and, sometimes, contention. We have the community coming in and scrutinising how we have used it. They watch our body-worn video of what we tried to do. We have even got youth versions of that for young people. I do not know how you would do the same kind of thing with protest. I think there is something that needs to be done there. There is best practice advice on how to conduct stop and search, and I think there is potentially some real thinking if those go ahead to start with that position as opposed to learning those lessons as we go along.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Q
Sir Peter Martin Fahy: On your point about the Sarah Everard vigil, there is a question about what the difference is between a vigil and a protest, which is really critical for policing. Again, I would come back to that point: it did not really matter how legal or professional the police operation was. Because of that wider context, the public view of it is really clear.
Going back to what the chief superintendent said, you have to take into account absolutely the feelings of your local community. I would say that on things like this extension of stop and search, for me there would need to be a well-documented community impact assessment, where the police worked with other agencies and community groups to assess what the impact is going to be. I am not sure about the psychological impact. It is about the fact that this is how policing is judged now, and that is the risk.
I would bring in the issue of disruption orders. Anything that is about gathering intelligence is extremely problematic. Even if you go way back to the 1970s and the big scandal about undercover policing, that came from a desire to try to gather intelligence about protesters, and look where it got the police service. This is about what could be a group of people here organising a protest against a local road development and the police using the local council CCTV to try to show that, for instance, three people had met and a gentleman had put something on Facebook to bring about the protest. That is the form of intelligence gathering that I would suggest some of your constituents, if they were involved in something that was local and very emotional, would find extremely disturbing.
I think the police service has to be very careful about going down that route. Again, I think most people would say that we want the police to use intelligence gathering against serious criminals. It would need to be a very serious degree of public protest and disruption for the police to be using some of those tactics, in terms of the degree of trying to hold on to public confidence in law and police powers and tactics.
Matt Parr: As the person who conducted the study into that vigil, I was genuinely shocked. I had a team significantly composed of female senior police offers—mostly detectives or people with firearms backgrounds. Therefore, they had done relatively little public order in their careers. I found astonishing the look on their face at some of the evidence they saw from that night and the abuse that the police took. There was a very, very clear difference between an entirely well conducted and peaceful vigil that lasted until a certain time of the night, and the disorder that—
Dr Huq
That was what it looked like. It was like—
Matt Parr: Exactly. The vigil and the disorder that came after were two entirely different things. That is a significant point as well, of course, because we talked at the start about getting the resources and it is increasingly difficult, in many forces, to persuade people to volunteer to do public duty, for reasons of the social media aspect and also, frankly, because to do so means you will be on the receiving end of some real nastiness from certain—not all, by any means—members of the public.
When it comes to your wider point about how you take into account the seriousness and the psychological aspects and the presentational aspects, I think they are all absolutely relevant factors to take account of. One of our recommendations in the report was that police decision makers should be given better tools to be able to assess what serious disruption looks like. It cannot be as simple as financial cost; it has to be far more complex than that. At the moment, we have seen a number of cases where senior decision makers had clearly been left floundering by not understanding the nature of the disruption that was likely to be a consequence of a particular protest and therefore they shrank from making sensible decisions. Better tools for understanding when the thresholds for the nature of disruption have been crossed strike me as an essential part of this.
Phil Dolby: There is a sense in which we are always doomed to look like we are failing in some of these incidents—even though the right thing may have been done—because we are the ones in uniform, with personal protective equipment that makes us look quite tough. You have a passive protester, for example, or somebody at a vigil. Say it is an older person. To safely take that person away requires five officers—to take a corner each and the head. The newspaper photograph of that looks like a lovely old person being taken away by five militaristic-looking police officers. They are actually doing that because that is the duty of care they have—to safely remove that person who will not move. The reporting is usually of a very solid moment.
Something that could be interesting relates to the body-worn devices that we currently have, which we are using to invite the public to come after the fact and see how we have done and give us learning points and their views, particularly from communities that we have not necessarily always got the correct engagement with. The next generation of these will be live, and there might be some instances where we would invite affected members of the community in to watch what we are doing and give us live-time feedback. That will not necessarily always change decision making, but it is another part of the decision-making model to say, “Well, actually, that community impact we are describing”—
Tom Hunt
Q
Also, I just want a point of clarification—I think this discussion was again with Sir Peter—in terms of how we can improve things and how we can get to a point where perhaps there is a more dedicated team of people who are very trained and specialist. If we believe that these protests are becoming more frequent and more of an issue, although we do not want to go down the route of France, there have been occasions when I think that has been a temptation—when we have seen some of these out-of-control protests. I want to know what this new team that could help us get to a better place looks like.
Sir Peter Martin Fahy: Point No. 1 is that absolutely the police must never be swayed by a popularity contest. It is exactly what the chief superintendent says. Sometimes you have to stand above all that, and you are never going to win. Also, you might lose the battle, but you win the war. But the fact and the reality of policing is that you have to judge that. You have to talk to community leaders. You have to try to balance that. You have to make a decision. You have to try to involve people. One of the frustrations I had with that particular protest in Manchester is that I could not persuade anybody like the local council, the university or anybody to take this issue away from the street. It was an issue about what was going on in Palestine, and Israeli action. “Take this away”—but they would not do it. Sometimes, you need a mediation mechanism that takes that away from the street and that sort of public protest. It will not work on every occasion.
It is also about who makes that decision. Interestingly, the chief superintendent talked about using community panels to help you in your decision making. That was used with COP26 in Glasgow. Clearly, in Northern Ireland, they have the Parades Commission to make decisions on contentious protests and where they should and should not go. I find it interesting that we never mention police and crime commissioners, who are locally elected and, in some ways, should be representing local people. PCCs could possibly have a role in this, or it could be that more goes to the judiciary, so it is not so dependent on the police, with all the consequences for public confidence.
If you are looking at capability, there is a much wider debate, which the policing Minister will be aware of, about the structure of policing in 51 police forces and whether that is appropriate for the current situation. It is very difficult in our policing system, where we do not have paramilitary operation, policing is by consent and, rightly, the public have a particular attitude towards the use of force, to come up with something that would have the capability to deal with the sort of situations we are talking about. There would need to be a huge shift in the public mood and I think British policing is not really set up and does not have the mentality to use the degree of force that you see in other countries.
People do not realise that we are pretty unique. When you hear about the sophistication and negotiation the chief superintendent talked about, that is the British style. In all the protests it is escalation, which looks in the early stages like the police are being weak, but in the background they are talking to people and they are escalating. They are saying, “If you keep on coming back, we will use this power and that power. Have you heard about that?” That is the British style of policing. You do not start with the heaviest. You work up to it, and that then maintains the confidence in your legality and proportionality.
Matt Vickers
Q
Sir Peter Martin Fahy: It can get very low. Unfortunately, that is not part of the public discourse. I think the public think that there are lots of police officers sitting around in police stations doing nothing, whereas the reality is—somehow the police service needs to find a better way of articulating this—that no, even the Metropolitan police does not have loads of spare officers. So absolutely, that is part of the huge frustration for policing and where it sometimes feels it does not get the support of local politicians and the media—and, crucially, the courts—to deal with this.
Matt Parr: One of the things we criticise a lot, not just in London but across the country, is abstraction and the disruptive effect it has on building up long-term relationships. It is not necessarily detectives being taken off their work and therefore serious investigations not getting followed through. It is more likely to be neighbourhood policing that gets depleted, or response that gets depleted, and therefore you get longer response times or neighbourhood cops just not doing their job. It is rather difficult to quantify what the long-term effects of that are, but we definitely see in the inspectorate the negative effects of abstraction for a whole range of things, and this is one of the more serious ones.
Phil Dolby: At the same time that there are more protests—and more complexity around them—the service is also facing increased demand. There is a national shortage of the word “unprecedented” now because we have used it so much, but the demand that we are currently seeing as a service across the country is unprecedented. It is not only the amount of calls we are receiving—so volume—but, because hopefully we are doing better with our partners around vulnerability, more people are telling us about things that are really quite complex. The theft of a Mars bar is one call and “Twenty years ago, myself and my entire scout group were unfortunately the victims of something” is one call, but the complexity and the resource the latter needs is massive, and those are both going up at the same time.
There is not a standing army waiting to deal with protest. They come out of normal policing when they are required to do so, and the amount of neighbourhood policing that is affected by just keeping up with that demand is already quite acute. I just wonder whether, when we define organisations in the Bill, there is something about the organisations having some kind of responsibility to do what they can do to prevent— through their design, their target hardening and whatever staff they might put on—and to contribute to this as well and reduce it. Actually, we are talking about the cost of policing and the financial cost, but communities—with the reduction in policing that they are receiving—are the ultimate people bearing the cost. Perhaps we could do something with this, as we have with the Protect duty coming in under the terrorism Bill, putting responsibilities on local authorities and other people to do those kind of things.
We have had a very expensive protest recently around Amazon warehouses. Those drew in different forces and specialist policing. Some of the protesters were so long there in the cold that it became a medical emergency, and officers had to do some life-saving stuff around the protesters. With all those normal cops who have come away from other work, Amazon could have done more.
The Chair
I have to draw you to a close, Chief Superintendent. That is the end of the time allotted for the Committee to ask questions of this panel. On behalf of the Committee, I thank the witnesses for their evidence.
Examination of Witnesses
Olly Sprague, Stephanie Needleman and Martha Spurrier gave evidence.
The Chair
We will now hear from Olly Sprague, military security and police programme director, Amnesty International; Stephanie Needleman, legal director, Justice, via Zoom; and Martha Spurrier, director of Liberty. I should say to Ms Needleman, please alert us if any technical issues arise during the course of your evidence. We have until 4.55 pm for this session. I invite the witnesses to introduce themselves for the record.
Stephanie Needleman: I am Stephanie Needleman, the legal director of Justice. Justice is an all-party law reform and human rights organisation working to strengthen the UK justice system.
Martha Spurrier: I am Martha Spurrier, the director of Liberty, the human rights and civil liberties campaigning organisation.
Olly Sprague: I am Olly Sprague, programme head at Amnesty International UK for our work on military policing and security matters. This is my first physical Committee for two and a half years—it is good to be physically in the room.
Anne McLaughlin
Q
Martha Spurrier: There can be little doubt that a Government should spend time looking at the root causes of a protest, whether that is the climate crisis rather than climate protesters, or racism rather than Black Lives Matter protesters. Of course, it is not news to say that protest is a foundational right, and that it is an article of faith in any democratic country that if there is something you disagree with, you can take to the streets to make your voice heard. It is of great concern to Liberty and those of us who work in this area—I am a lawyer, and I have been working in this area for the best part of 15 years—to see provisions in a Bill that not only have been rejected by Parliament once, but significantly expand police powers, often doing so in a very over-broad and imprecise way, such that it is difficult to see how they will be effectively implemented.
We would expect a disproportionate impact on marginalised communities from the exercise of those powers. We would also expect that they will fundamentally undermine the right to protest, and will not do what they are purported to do—deal with a hard core of some supposedly extremely disruptive protesters—but will in fact have a dragnet effect of chilling people’s right to protest and free expression, and deter ordinary people from exercising their fundamental rights. There is a whole range of examples in the Bill that we could talk about where it is very difficult to see why those measures are proportionate and justified ways of dealing with the perceived problem, let alone whether there is a problem as articulated.
Olly Sprague: I echo what Martha said. For an organisation such as Amnesty, it is not a case of either/or: we do not want to balance the harm that might be caused by climate change versus the positive duty that all states have to uphold the right to freedom of assembly and association and the right to protest. You have to manage all things.
One of the things that we bring here is that we are an international human rights monitoring organisation: we look at human rights internationally, and we look at where the UK is on the standards, obligations and legal frameworks that exist. It is worrying to say that for most of the provisions in the Bill, we see a clear gap between what the international standards require of the UK and what the UK proposes here, and it is the wrong gap. The UK is on the wrong side of where it should be. I am sure we will have the opportunity to go into why we think that and the areas where we think that is the case, but that is a very worrying direction of travel, especially when in terms of its foreign, defence and security policy aspirations, the UK sees itself very much as a champion of civil society space. It sees and acknowledges the fact that the world is becoming increasingly authoritarian, and wants to do things to stop that.
As a quick example, in April this year, Lord Ahmad—a Government Minister from the Foreign, Commonwealth and Development Office—was giving his closing remarks to the 49th session of the Human Rights Council. In that, he made specific reference to a very important resolution about the need to promote and respect the rights of human rights defenders around the world. It was a resolution that was welcomed and strongly supported by the UK Government; it was a very important resolution. That resolution essentially requires that all states refrain from measures that excessively criminalise human rights defenders and their rights to freedom of expression, so you have a bit of a disconnect here between the statements that the UK puts out internationally and the role we see ourselves playing in the world community, and the kinds of measures we are putting in place on our own domestic legislative front. They are out of step with each other, and it is not joined up.
Stephanie Needleman: I completely agree with what Martha and Olly have said. Picking up on something that Olly said about the disconnect between what the UK is doing internationally and what we are doing domestically, there is also an internal disconnect in what we are doing domestically in the UK. The right to protest is an element of the right to freedom of expression and assembly. On the one hand, that is being championed under the Bill of Rights consultation and the Higher Education (Freedom of Speech) Bill, but on the other hand, it is being severely restricted in this Bill, so there is an internal inconsistency there as well.
Kerry McCarthy
Q
“Disruption” is such a vague term. What would a person have to have done for the police to be able to go down this route? I should probably ask the Minister, because I think the answer at the moment is that we do not really know, but how do you see this panning out?
Stephanie Needleman: I cannot see if Martha and Ollie are indicating that they will answer, but I can kick off, if that is helpful.
I think you have hit the nail on the head in raising the vagueness of when these serious disruption prevention orders can be imposed. They can be imposed not necessarily on conviction, as you said. The orders can cover an incredibly broad range of circumstances. Under clause 13(2)(a)(v), all you need to prove is that on two separate occasions somebody
“caused or contributed to the carrying out by any other person”—
they do not even have to have done the act even themselves; it could be done by someone else—
“activities related to a protest that resulted in, or were likely to result in, serious disruption”.
You do not need to have carried out the
“activities related to a protest”;
you just have to have “caused or contributed” to them. Those are incredibly vague and broad terms; they could cover almost anything done to assist someone doing anything related to a protest. For example, it could be driving somebody to a protest, or to shops selling paint or glue, if the person the glue is sold to subsequently glues themselves to something.
Linked to that, there does not seem to be any requirement for the person to have had knowledge that the protest activities were going to cause serious disruption when they “caused or contributed” to the carrying out of those activities. That could capture a vast range of behaviour.
Kerry McCarthy
Q
Stephanie Needleman: It has to be proved, but it only has to be found, on the balance of probabilities—the civil standard of proof—that one of the conditions has been met. As I said, the conditions are so broad and vague that it should not be that problematic for the police to approve. So yes, involvement would have to be proved, but given the vagueness and the broadness of the conditions, it is likely that it can be easily proved.
Martha Spurrier: It is right that, for example, legal aid would not be available to someone defending themselves against having one of those orders imposed on them, and of course they can be renewed; there is a suggestion in the Bill that they could be renewed indefinitely. Once the order was in place, you would not get legal aid for a lawyer’s assistance in dislodging it.
It is worth stepping back a little and looking at the serious disruption prevention orders. These have been proposed by the Met police before, under the name of protest banning orders. The Home Office was against bringing them in, on the grounds that they were neither compatible with human rights nor an effective deterrent that would solve the problem that they purported to. That relates to a slippage in principle and language that we see across the Bill. It is important to pay attention to it, because this is law; cases will be decided on these words. Article 10 of the European convention on human rights is of course not an absolute right. It can be interfered with. There is a balance to be struck between the interests of a protester and the interests of the wider community, for example.
There are many grounds on which you can interfere with the right to protest; one of them is crime and disorder, and another is the rights of other people. You already have a human rights framework for limiting protest in certain constrained situations, but what we see in this Bill is not the language of crime, disorder, or abuse of others’ rights, but the language of disruption, inconvenience and nuisance. That is a significant, conceptual, legal change in the language. As Stephanie says, it takes you into the territory of criminalising what we have hitherto understood to be non-criminal conduct—of criminalising protest tactics that have a long history and previously would not have been considered criminal acts. People who may have participated in a couple of protests over five years may suddenly find themselves within the purview of the criminal law, although hitherto both criminal and human rights law would simply never have brought them into that space. When thinking about all these definitions and new offences, it is important to recognise that significant paradigm shift in the concept of how you go about policing protest.
Add to that the fact that these new concepts, including the idea of serious disruption, will be defined in secondary legislation. This significant interference with the fundamental right of protest may result in terms being defined by a politician who gives the definition very little parliamentary scrutiny. The measures would then be implemented by a police service that interprets them as it sees fit; we do not need to go into the times when they get it right and the times when they get it wrong. There are lots of layers to this before you even get to the detail of what happens if someone is subject to one of these orders, how they would shift it, and whether being subject to an order would mean that they could no longer protest.
Olly Sprague: My colleagues have covered everything that I wanted to say on the domestic aspect. It is worth coming back to the question: where do the international standards sit? The United Nations Human Rights Committee’s general comment from 2020 is most useful here. It allows the criminalisation of individuals taking part in a demonstration only in very specific circumstances, and it sets the threshold at incitement to violence. It sets the time limit as “as short as possible”; it talks in terms of a few hours. The international standard allows individuals to be prevented from accessing a process, but the bar is very high. The Bill sets an extraordinarily low bar. There are two levels by which these orders can be put in place. One is based on a person having two previous convictions on the civil standard burden of proof; the other is not based on conviction at all, which is even worse. The UK is so far out of step with where it should be under international standards; it is quite alarming.
Kerry McCarthy
I could understand it to a point if somebody’s presence at a future protest could lead to a dangerous situation, which is what you say the international comparison would be; but under the Bill, basically your right to protest could be removed for five years because you had not behaved impeccably on previous protests.
Olly Sprague: The Bill would also potentially hold you responsible for the conduct of other people at a protest that you were organising. One of the great unfortunate misconceptions of protest, especially around violence and disruptive protest, is that a protest somehow gets characterised as being inherently violent because actions of violence occurred within it. It is perfectly legitimate for law enforcement officers to deal with and prevent those violent actions and make arrests. However, you cannot characterise a whole protest as violent just because some aspect of it was violent.
With the way the serious disruption prevention orders are drafted, you could, in theory, be held responsible for an altogether peaceful protest where a violent action that was completely beyond your control took place. You cannot really be held responsible for something that you were not responsible for, if that makes sense.
Kerry McCarthy
Q
Olly Sprague: We have to be careful when making international comparisons. We do not really not compare and rank countries in some kind of league table. We look at each country individually and see where it marks up. It is interesting, though, that there are not that many examples around the world of measures akin to a protest banning order.
Kerry McCarthy
Q
Olly Sprague: We have not looked at 600 different laws for the purpose of this sitting. However, where we have looked, we found corresponding powers of a similar nature in places such as Turkey, the Philippines, Belarus, Russia and Egypt, I think. In all the cases where they have a measure that is similar to a protest banning order, it has been on the organisation of protests, not the participation.
Kerry McCarthy
Q
Olly Sprague: Yes.
The Chair
Q
Stephanie Needleman: Yes, please. I want to add that when we talk about what these protest banning orders do, we should note that they do not necessarily just ban people from attending or organising protests. They have significantly wider, far-reaching applications into everyday aspects of people’s lives. As long as they are imposed for one of the purposes listed, the conditions that can be imposed when someone has been given one of these orders can be anything. Look at the conditions listed in the Bill: they can prevent people using the internet, associating with particular persons or participating in particular activities. It is not necessarily limited to protest. We are talking about activities that are far, far broader than just being prevented from attending protests.
Kit Malthouse
Q
Martha Spurrier: Well, there is a potential difference in how it would be applied, but the serious disruption prevention orders have the capacity to be absolute bans in the same way as the protest banning orders.
Kit Malthouse
Under judicial supervision.
Martha Spurrier: Yes, under judicial supervision—but, as we have said, to a low standard of proof, based on no criminal conduct.
Kit Malthouse
Q
Martha Spurrier: I don’t think so, because I do not think you could attach the same invasive conditions. I do not think you could have electronic monitoring, for example, if you had an injunction. That is my understanding.
Kit Malthouse
Q
Martha Spurrier: I would not describe them as unlimited powers, but judges absolutely can impose injunctions. It goes to the broader point of whether these additional powers are needed, and I know that there have been people giving evidence that—
Kit Malthouse
Q
Martha Spurrier: I do not understand the question. A civil injunction and an SDPO are both civil procedures with criminal sanctions attached.
Kit Malthouse
Q
Martha Spurrier: If you are going to face imprisonment, you will always have access to counsel—to legal aid. You may face those sanctions either directly from a breach of the criminal law or, if you are under a civil order that has criminal sanctions attached to it, from breaching that civil order. I cannot see an argument that any person is better off having an SDPO, as opposed to an injunction or any other offence. The fact of the matter is that an SDPO is a novel legal provision that, for all the reasons we have gone over, captures non-criminal conduct as well as criminal.
Kit Malthouse
Q
Martha Spurrier: Well, the impact of an SDPO is much, much wider, because you could end up having a civil order attached to you that has invasive conditions, such as electronic monitoring, that could be renewed indefinitely, and if you breach them you could face almost a year in prison and an unlimited fine. I do not think they are comparable at all. We do not have anything like that currently, whereby, for non-criminal acts, you could face that kind of civil or criminal sanction.
Kit Malthouse
Q
Martha Spurrier: You can. What I am saying is that you would not currently have an injunction based on non-criminal conduct—the kind of non-criminal conduct we are talking about with this Bill—that then has attached to it invasive conditions such as electronic monitoring. There is no comparison with what this Bill is doing.
Kit Malthouse
Q
Olly Sprague: I do not want to give a non-answer here. Obviously, policing is a devolved matter, so our offices in Scotland have an equivalent of me. They are involved in a number of policing and scrutiny panels, and they are actively involved in the human rights framework around public order policing. They were involved in a scrutiny panel for the COP protests, for example. These are discussions that our colleagues have with the Scottish Government all the time. I am not fully abreast of the details of those, but I can tell you that we have them. Where we are critical, we make that known.
Kit Malthouse
Q
Martha Spurrier: Liberty’s position on buffer zones is to support as limited a buffer zone as is possible to protect access to reproductive rights for the people who need to use the services of the clinic, while also protecting the right to protest. One of the amendments proposes a 150-metre buffer zone, and we think that that limit is acceptable, although it should be dependent on circumstances—if a narrower one is possible, that should be used. There are some aspects of the amendment that we agree with, and some that we think are too broad and could infringe the right to protest. I have to say that of all our concerns about this Bill, buffer zones around abortion clinics are not high on the list. There are much more egregious interferences with the right to protest in this Bill than those proposed in that amendment.
Kit Malthouse
Q
The Chair
Ms Needleman, would you like to comment?
Stephanie Needleman: Sorry; I could not hear very well. Were you asking me whether I wanted to comment?
The Chair
Order. I am going to come to you, Dr Huq, but I will decide who speaks and when. The Minister is currently speaking, and we are asking Ms Needleman, who is joining us by Zoom, whether she wishes to give a response.
Stephanie Needleman: I do not think I have that much to add—Justice, as an organisation, does not have a formal position on this—but I agree in terms of protecting the rights of women to access abortion services, obviously, and that should be done in a way that does not infringe the right to protest. The right to protest is not an unlimited right, so there is scope to do something, but it needs to be limited so that it is within the bounds of articles 10 and 11.
Olly Sprague: We agree totally with that. In general, we would take a very dim view of the idea of protest buffer zones, unless there are exceptionally good reasons. We would be looking at things like drawing on existing regulations around incitement to hatred and privacy rights—those sorts of things. A way of protecting rights on both sides would be seen as important. As Martha said, what mitigation could be allowed to make sure that one right does not overshadow the other, if that makes sense? But, obviously, this is an incredibly sensitive and difficult area.
Kit Malthouse
Q
Martha Spurrier: Liberty has a long history of working on the right to protest, both in terms of protestors and members of other communities. For example, we have a rich history of tackling the difficult issue of far right protest and incitement to hatred, where Liberty has very much supported the idea of communities needing to be protected when they are faced with far right, extremist protests. One of the other things that article 10 does, and that policing has had to grapple with since the advent of the Human Rights Act, is to protect counter-protests and protests. You very often have two protests going on at the same time where there is a clash. Again, Liberty has done lots of work to make sure that both protest groups, acting within the law, are protected with their article 10 rights upheld, in so far as that can be done, compatibly with each other.
I absolutely refute the idea that this is subject-specific. The abortion buffer zones case is a really good example. As with many other cases, it is a fact that we have public order laws in this country and we accept that things such as preventing violence and preventing incitement to violence, for example, are an important infringement on protest. Many of those considerations are in play when you think about abortion buffer zones. It is when you are dealing with rights that butt up against other rights that you have to make difficult calls, for sure, but we are saying that the Bill fundamentally gets the balance wrong.
I do not know whether we will have time to get on to the stop-and-search proposals or the offence of locking on. However, thinking about locking on as an example, just very briefly, those who are policing a protest are confronted with a dynamic situation. They are trying to work out at what point that crosses the line and might need to be shut down. If someone locks themselves to an animal testing centre—let us take it out of modern, current examples—the police have to work out at what point that person’s right to lock themselves to the testing centre becomes an infringement of other rights. It might be that the police think, “Actually, that guy can be there for two days and it doesn’t really matter. It’s a perfectly lawful and acceptable exercise of his protest rights. But, at a certain point, it is going to become a problem and we are going to consider removing him.”
If you create an offence of locking on—if you criminalise such specific protest tactics—the minute a man puts his padlock around that testing centre, he has committed a crime. There is no ability for the police to act in a dynamic way, to assess, and to do the balancing act of comparing competing rights. That is it: the tactic is criminalised and that man can be removed immediately, regardless of whether there is any impact on other people.
Of course, any of us who work in this area are really adept at trying to manage competing rights, and that is what the police have to do all the time. But the proposals in the Bill are blunt instruments that will criminalise hitherto lawful activity. They will have a chilling effect on the ability to protest, and they will not deter normal people who want to make their voices heard from trying to do so—instead, the Bill will just criminalise them. It will not deter the hard core, who have breaking the law as one of their tactics, because the provision just falls into what they already do.
Kit Malthouse
Q
Martha Spurrier: What should we do about protests?
Kit Malthouse
No, what should we do about the hard core that you are talking about?
Martha Spurrier: What about the hard core we already have? The police already have a whole range of measures to deal with hard-core protesters. We have criminal offences and we have specially trained police officers dealing with those people. Someone earlier talked about not living in perfect harmony. A measure of disruption and nuisance is going to be a factor of any protest about any hot political issue at any one time, whether you are talking about the civil rights movement in America, the movement for votes for women with the suffragettes in this country, or the climate justice movement now. You cannot take the sting out of it entirely, because then there would not be protest, and then we would not live in a democracy any more.
The Chair
Ms Needleman, do you wish to say anything?
Stephanie Needleman: On the measures that already exist, there is obviously the Police, Crime, Sentencing and Courts Act 2022, which has literally just been passed, which includes measures—the expanded circumstances —under which the police can impose conditions on protests. That just adds to the existing measures. I do not think these new measures have even come into force yet, so we do not know what effect they will have. There is no evidence base that further measures are needed.
Dr Huq
Q
The distance need not be 150 metres. We just took that from Ealing, because that is where the main road is, so then it is not in the eyeline. But it again comes back to this question of what is a vigil—those people would say they are doing a prayer vigil—what is a protest and what is harassment. In the eyes of the woman who is going in for a traumatic procedure, it feels like that, and it can be psychologically distressing. The French legislation allows for psychological distress to be considered.
Is there a right to privacy as well? I ask that because the London Borough of Ealing has acted under local authority powers, and only three local authorities in the whole country have done so since 2018, because the process is too onerous. Every time a case has gone to the High Court, the Court of Appeal or the Supreme Court, the privacy of the person having their procedure has trumped freedom of thought, expression, conscience, belief—all that stuff. I just wondered where the three of you stand on that. Again, I am disappointed, because with Sarah Everard, we said so many times, “This should never happen again; she was only walking down the street,” but, in my eyes, these people are just trying to access the pavement to have a perfectly legal procedure. As the Minister pointed out to me in the House the other day, this has been lumped in with the vax protests. I think it is about women—a marginalised community who should be protected, as you said at the start—being able to use the pavement. They should be able to do so unimpeded. What do you three of you think?
Martha Spurrier: Absolutely there is a right to privacy. One of the conditions in your amendment is to prohibit the filming and photographing of people using the services. We would say that no one has a right to capture someone else’s identifying information and record it. I do not have the amendment in front of me, but the points about harassment, being physically approached or being physically manhandled—anything of that nature—would be a breach of women’s rights and would fall down in favour of women and the buffer zone, not in favour of the protestors.
However, there are also conditions in the amendment on things such as seeking to influence and showing distressing imagery. Our view is that that falls on the other side of the line. People are entitled, as part of their right to protest, to seek to influence people, as long as they do not do so in a way that is harassing. Similarly, if you walk past certain embassies in London—the Chinese embassy, for example—there will often be very distressing images on show as part of protest against states’ policies. The same applies outside abortion clinics, where distressing images may be shown, but may be part of a legitimate right to protest. There is a balancing act.
Dr Huq
Q
Olly Sprague: The only thing I would add is that your location point is quite interesting. The mitigation measure or countermeasure that you might put in place to balance those two rights in a proportionate way might differ depending on the location. In the case you mentioned, it may well be the location of the pavement—I do not know where the clinic is—but for another clinic, there might be a more concealed side entrance or something else that could be used. You would have a different approach to maintaining the dignity and security of women having a perfectly lawful procedure, and managing a counter-protest. You could apply a different model depending on geography.
Dr Huq
Q
I want to ask about suspicionless stop and search—no one has said anything about it—which corrodes trust for BME communities, and about how body cameras could be a way out of completely suspicionless stop and search.
Martha Spurrier: Again, just to set the context, the proposal to extend suspicionless stop and search into this area is extraordinary. At the moment, suspicionless stop and search is available in the context of serious violence. It was available in the context of terrorism. It was struck down and Theresa May had to abandon it. That is in the context of crimes that will potentially kill many, many people.
We know that stop-and-search powers are implemented in a racist way. Under suspicion-led stop-and-search powers, a black person—a person of colour—is seven times more likely to be stopped than a white person. Suspicionless stop and search is twice as racist, at 14 times more likely. The idea that you would take a corrosive, racist and deeply controversial policing tool and apply it in the context of protest is extraordinary to us. We cannot see how it will do anything other than cause huge damage for particularly marginalised communities and have a chilling effect on seeking to exercise protest rights, particularly for them. There is a wealth of evidence on the detrimental impact of stop and search, and if there is a threat that people may be stopped and searched at a protest, there is every chance that they simply will not go and make their voice heard.
Olly Sprague: I agree 100% on suspicionless stop and search. It is enormously problematic and, on this one, Amnesty would say that the proposal fails the test of lawfulness—we talk about proportionate necessity, but there is also one of lawfulness. For example, the confiscation powers that go behind the stop-and-search powers around the locking-on offence capture an enormously broad range of items that an officer could argue might be capable of causing an offence. You have so many caveats that you will get into a situation where an ordinary person could have no idea why they were stopped, or why somebody might be taking an item off them that was completely lawful—everything from string to a bit of glue. It fails on that basic principle of lawfulness, which I think is incredibly problematic.
The Chair
Order. You will have to draw it to a close, Mr Sprague, because we are at the end.
Olly Sprague: Oh, I am sorry, Chair.
The Chair
It is not your fault; the Committee had determined certain timescales for the panels, and we have reached the end of the timescale for this panel. My apologies to those I was not able to call during this section.
My thanks to our witnesses—those in the room, and Ms Needleman, who has joined us by Zoom. We are grateful to all the witnesses for their contributions.
Ordered, That further consideration be now adjourned. —(Scott Mann.)