Public Order Bill

(Limited Text - Ministerial Extracts only)

Committee stage
Wednesday 16th November 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I thank noble Lords for that short debate, and I particularly thank the noble Baroness, Lady Chakrabarti, for her warm welcome to this Committee. It has been a fascinating exercise to conduct my first Committee stage.

The general intention of this group of amendments is to reduce the maximum fines and the maximum sentences listed in Clauses 1 to 8. The maximum fines and sentences attached to these offences reflect, in the view of the Government, the serious harm and disruption that can be caused by these actions. It may be helpful if I set out just one example of that harm for the Committee. During the targeted and reckless activity by Just Stop Oil in August 2022, protesters dug two tunnels in an attempt to disrupt access to an oil terminal in Essex. This particularly dangerous protest tactic not only disrupted the operation of the terminal but had a knock-on impact on many others. First, it led to full and partial road closures impacting the public, local and private businesses and the council. Secondly, it resulted in ambulances and fire and rescue services being on standby due to the risk of collapse in the tunnel, thereby impacting on availability of those emergency services. Thirdly, it consumed a huge amount of police resources in responding to the operation, impacting on the police as well as the public, as officers had to be diverted from other duties.

Given this example and countless others, the maximum sentences and fines set out in the Bill are not only proportionate to the harm and disruption caused but necessary. It is worth saying that these are maximum sentences and it is plainly not the case that every person convicted under these offences will be given these sentences and penalties. Indeed, it is right to say that the maximum penalties are used only in the most egregious cases. The courts will consider the appropriate penalty in each case and, in response to the point made by the noble Lord, Lord Paddick, they will be considered on a case-by-case basis. For these fundamental reasons, I therefore respectfully disagree with these amendments and ask that Amendment 12 be withdrawn.

[Lord Paddick (LD)]

Will the Minister address the issue that the noble Lord, Lord Ponsonby of Shulbrede, and I raised about how consistency in the levels of fines being imposed, particularly by lay magistrates’ Benches, will be achieved when there is absolutely no guidance in the legislation on the level of fine that should be imposed?

[Lord Murray of Blidworth (Con)]

It is, of course, frequently the case in legislation that there is no guidance on the face of the Bill as to the likely sentences that are imposed. It is very common for there to be sentencing guidelines formulated in the usual way by the judiciary. No doubt that is what will happen in relation to these offences. As I am sure the noble Lord, Lord Ponsonby, will agree, these are the guidelines to which prosecutors routinely refer the court before the court passes sentence.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who have participated in this all-too-sparse and short, but very important, debate about maximum sentences for new offences that are incredibly controversial. To address the Minister’s response directly, I am concerned that a briefing pattern is developing in the course of this Committee, where the Minister is given an example of something that protesters did that caused a lot of disruption and harm and so on, but we have yet to really understand why existing criminal law is not capable of addressing that. What is not being offered to the Committee—and perhaps not being advised to Ministers—is where the need is, given the scale of the public order statute book as it is. Within that, specific to this group, we are not being given a picture of where these offences sit in the hierarchy of criminal offences and criminal sentences.

Instead, we are being given a story about something outrageous that some protesters did and told that this is why the whole Bill is justified. We really need to get into a bit more specificity when we are playing with the criminal statute book and potentially sending people to prison or bankrupting them and so on. That is no disrespect to the Minister, his noble friend, his colleagues, or even his advisers. What is more traditional—certainly in this place—is that when offences are offered, and sentences to go with them, we are given a picture of where they sit within the current ecosystem of the criminal law; then we can really drill down into both the formulation of the offence and the sentence. People who disagree with me and, perhaps, welcome the offences, can nonetheless improve them and make sure that they are proportionate in their formulation and sentencing.

That has not happened in this debate, and it really must happen for us to do our duty as a Committee. That really must start to happen during the passage of this Bill, and it certainly will have to happen on Report. Concerns about incarceration, bankruptcy and maximum sentences, as well as fundamental concerns about the formulation of the offences themselves and even prior concerns about the need for them, are going to keep coming, group after group, in this Committee, and they will come again as we go down the road of consideration. I hope, therefore, that Ministers will take that in good part. For the time being, I beg leave to withdraw.

--- Later in debate ---

It is not good legislation, even by the Government’s standards. Even if you think the Public Order Bill is a fantastic piece of new legislation that will solve the problems we face, it is not tight enough in definition or objective. That is unacceptable. On Report, a number of amendments will be made—I think they will be passed—and the Bill will, quite rightly, be sent back to the House of Commons to ask Members to think again. Of course, the House of Commons has a constitutional right to pass its Bill, but we have a constitutional right to tell it when it is wrong and to try to put right some of the inadequacies in the Bill as it stands.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, once again, I thank all noble Lords for their contributions to the debate this evening. It has been a very lively and thoughtful discussion generally. I look forward—I think—to continuing to discuss these important issues next week. I first reassure the noble Baroness, Lady Chakrabarti, that I do not think she is rude. I may not agree, but I think the position she is coming from is highly principled. I also say to the noble Lord, Lord Coaker, that I do not think we have failed when it comes to definitions. We have committed to take that matter away and it is ongoing work.

The amendments in this final group take issue with the some of the offences listed in Clauses 1 to 8. Clause 1 is a key part of the Government’s plan to protect the public from the dangerous and disruptive protest tactic of locking on. Recent protests have seen selfish individuals seek to cause maximum disruption by locking themselves to roads, buildings, objects and other people. This has seen traffic disrupted, public transport delayed and the transport of fuel from terminals grind to a halt—to name just a few examples. Such tactics cause misery to the public, with people unable to access their place of work or their schools, or to attend vital hospital appointments.

I turn next to Clause 2, which is inextricably linked to Clause 1. During fast-moving protest situations, the police must be able to take necessary proactive action to prevent lock-ons occurring. Along with the associated stop and search powers, which the Committee will scrutinise later, this new offence will allow the police to prevent lock-ons before they occur and deter others from considering doing so.

Lastly, Clause 5, along with Clauses 3 and 4, is designed to make clear that the protest tactic of building tunnels to disrupt legitimate activity will not be tolerated. I am afraid there is a degree of repetition here, but projects such as HS2 have been targeted on multiple occasions by tunnels which have contributed to an enormous cost of £146 million to the project. Aside from the cost, these tactics are enormously reckless, putting not just protesters themselves at risk but those called upon to remove them and repair the damage inflicted.

There is one further amendment in this group: Amendment 69, in the name of the noble Baroness, Lady Chakrabarti, which seeks to remove the delegated power for the Secretary of State to amend, add or remove the list of infrastructure in the legal definition of “key national infrastructure”. Throughout the debate, we have heard about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power that will allow us to respond effectively to emerging threats. But I reassure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.

Before concluding tonight’s debate, I will respond to speeches made by many noble Lords, but specifically the noble Lords, Lord Paddick, Lord Coaker and Lord Carlile of Berriew, and the noble Baroness, Lady Chakrabarti, about the necessity of the powers taken in the Bill. I have spoken about the three key general differences between the Bill and existing public order offences and legislation. First, it is about sentencing lengths; secondly, it is about offences that take place on private land; and, thirdly, it is about introducing more pre-emptive powers, providing the police with the ability to stop serious disruption before it happens.

It would be appropriate to acknowledge at this point that some of the commentary from the police is a little contradictory. Chief Constable Chris Noble, the National Police Chiefs’ Council lead on protests, said:

“There have been some very novel—without giving them any credit—and highly disruptive tactics; that is reflected on the contents page of the Bill. If we look across the breadth of protest organisations and groups, we see that they are very aware of some of the legal gaps, inadequacies and shortcomings; that is very clear from their engagement with police, as well as their tactics.”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 5.]


Of course we work with the police, and we will obviously continue to do so.

I will try to address some of the key existing offences that have been mentioned and talk about how the Bill differs and builds on these important offences. I turn first to Sections 12, 14 and 14ZA of the Public Order Act 1986, as amended by the Police, Crime, Sentencing and Courts Act 2022, which allows the police to place necessary and proportionate conditions on public assemblies and processions to prevent certain harms occurring—namely, serious disruption to the life of the community. These powers are for the safe management of large protests where many people assemble or march. They do not provide the police with the means to tackle non-violent direct action of the sort that Just Stop Oil engages in.

I turn now to public nuisance and obstruction of the highway offences. We are pleased to have put the public nuisance offence on to a statutory footing, and noble Lords are quite right that it can be used to deal with some of the highly disruptive protests that we have seen recently. As the noble Lord, Lord Coaker, indicated, both these and other criminal offences are currently being used to arrest and charge Just Stop Oil protesters.

But we have to remember that there are offences that can cause serious disruption but do not meet the threshold for the public nuisance offence, which is extremely high. At the moment, such protesters manage to find loopholes to get acquitted or are subject to low penalties. These new offences are therefore essential to give the police the powers that they need to deal with these offenders. Although many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, these offences do not necessarily apply to tactics such as those that have targeted HS2 Ltd. Therefore, new criminal offences covering tunnelling and locking on are necessary.

I turn to the offence of aggravated trespass, which criminalises intentionally obstructing, disrupting or intimidating others carrying out lawful activities on private land. The maximum penalty is three months’ imprisonment or a £2,500 fine, or both. This broad offence captures many activities that trespassers, protesters or others may engage in. The maximum penalty is not proportionate to the seriousness of some of the tactics used by protesters, which can put lives at risk. This is a broad offence that covers many non-protest behaviours, and it would not be appropriate to increase the maximum sentence for it. Therefore, new criminal offences that apply to private land are needed: locking-on, tunnelling and infrastructure-related offences.

I turn to stop and search. Section 1 of the Police and Criminal Evidence Act 1984 allows a constable to search individuals whom they reasonably believe are carrying something that could be used to commit specific criminal offences, including criminal damage. Furthermore, the police can search individuals after having arrested them. For example, after arresting Just Stop Oil protesters for conspiracy to commit public nuisance, the police searched their car and seized items suspected to be used in the course of the offence.

Finally, the noble Lord, Lord Paddick, queried the necessity of the measures given that HS2—which has experienced significant protest action at huge cost, as we have discussed many times—was able to secure a nationwide injunction. We agree that injunctions can be helpful for preventing the types of serious disruption we have seen, which is why we have introduced our own measure which provides a specific mechanism for a Secretary of State to seek an injunction against protest activity where it is in the public interest to do so. However, this is only one piece of the puzzle and we have seen from the M25 protests that injunctions do not necessarily stop people breaking the law.

I have tried to set out how the measures in the Bill will bolster the police powers to respond more effectively to disruptive and dangerous protests, to protect our key national infrastructure and major transport works from interference, and to better balance the rights of protesters with the right of the general public to go about their lives free from serious disruption and harm. For those reasons, I respectfully ask noble Lords not to press their amendments.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords for sticking it out and will try to be brief, given the hour. I am also particularly grateful to the Minister for reminding me that I did not speak to my Amendment 69, which, as he rightly said, would remove the ability to change the criminal offence of interfering with national infrastructure by adding further infrastructure. I stand by my concern that this kind of thing should not be done by way of secondary legislation, because it has such a profound effect on the rights and freedoms of people in this country to dissent peacefully. It would be very easy to abuse that power and it is not appropriate for secondary legislation. We will no doubt return to issues of powers of that kind at a later stage.

Once more, I must thank the noble Lord, Lord Carlile of Berriew, for pointing out what the courts are having to grapple with: a burgeoning statute book with more and more offences, which police forces must deal with too. This menu of potential powers and offences just gets bigger by the year. The idea that, every time there is an innovative or novel protest, something must be done and there will be a new offering of legislation is not a coherent way to operate the rule of law in a constitutional democracy. Lots of dangers will come from this.

I take the point about the police service not speaking as one on any of these issues, and maybe it should not. I was particularly grateful to the noble Lord, Lord Paddick, for pointing out, as a former police officer, that there is quite a strength of police opinion and scepticism about the powers in the Bill. I was also grateful to him for reminding me that the offence of going equipped for locking on is, in a way, even worse than the offence of locking on. Locking on is incredibly broad, as I think the Minister accepted in some of his earlier responses. Yes, linking arms is sometimes terribly disruptive too, but going equipped for locking on is a proper thought crime and one of the reasons I am particularly concerned about that offence. It is a thought crime that is supportive of a crime that is, in itself, incredibly broad and will, theoretically, capture some activities that some people think are just natural to humans and innocent.

I was grateful to the noble Baroness, Lady Hamwee, for addressing a very important process point. I totally understand the need for Ministers to write to noble Lords later, particularly in answer to the Questions we have each day. However, writing later should not be a central tactic of defending and promoting a Bill that has been some time in gestation. I was grateful to the Minister and his colleagues for coming up with a little more about the existing statute book in the latter part of this evening, but that will require a lot more examination. I know that noble Lords in Committee will be reading Hansard very carefully tomorrow and there will be more to discuss about that.

Ultimately, there are some protesters who, rightly or wrongly, care so much about the climate catastrophe, race equality, Brexit or whichever other issue that they are prepared to go to prison. There are some in that category for whom there is no new offence that will prevent their actions. So be it; that is life.

What I am concerned about, with the ever expanding public order statute book, are the people who are not in that category and who will get caught up in this kind of thing, as happened last week to the journalist who was detained for, in total, about seven hours, with five in a police cell, just for reporting on the protests. When you keep adding to police powers, adding to the public order statute book and catching more and more innocent activity, more injustice will follow. It will not be about catching the people who we all agree are going too far sometimes—and who are prepared to go too far for their cause; that is their conscience. There will be more and more innocent bystanders—journalists, people from racial minorities—who get caught up in this very broad blank cheque that noble Lords and Ministers are proposing to hand to the police. The police are from us; they are a part of our community and are imperfect as we are. It is not fair to hand this blank cheque to them and, when it goes wrong, to blame them. We have that on our conscience if we pass these powers.