Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023
(Limited Text - Ministerial Extracts only)
Read Full debate21:23 - Division on Lord Coaker’s amendment - Ayes: 177 / Noes: 141 - Amendment agreed.
21:35 - Division on Baroness Jones of Moulsecoomb’s amendment - Ayes: 64 / Noes: 154 - Amendment disagreed.
Lord Sharpe of Epsom
That the draft Regulations laid before the House on 27 April be approved.
Relevant document: 38th Report the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords for attending this debate. These regulations amend Sections 12 and 14 of the Public Order Act 1986, which grant the police the power to place necessary conditions on public processions and assemblies to prevent specific harms from occurring. One of these harms is serious disruption to the life of the community. These regulations do not create new powers but define this harm.
Once in force, these regulations will ensure that public order legislation is clear, consistent and current. They will carry over a definition of “serious disruption” which has already been approved by Parliament and provide greater clarity on the circumstances in which the police can exercise their powers to manage public processions and assemblies. Most importantly, they have given the House of Commons the opportunity to consider these measures.
Without these changes there is potential for confusion over what is the lawful extent of protest activity. The police and public will have to grapple with one threshold for criminal offences in the new Public Order Act and another for the use of discretionary police powers in the 1986 Act. With these changes, it will be easier for all to understand when disruption from a protest is no longer legitimate.
The provisions in these regulations are broadly similar to those brought to the Public Order Act 2023 as a government amendment during its passage through Parliament. The only difference is that these regulations do not allow the police to place blanket conditions on multiple protests. I will detail exactly what the regulations do shortly.
The government amendment was narrowly defeated by 14 votes in this House, and was not considered by the elected Chamber. This vote occurred before the vote for adopting the current definition of “serious disruption” in the 2023 Act, which was approved by both Chambers. As both Houses have agreed on a definition, we are sensibly extending it across the statute book and bringing further clarity to public order law. That is something which has been sought by senior police officers and by many in this Chamber today.
The Commissioner of the Metropolitan Police has said:
“The lack of clarity in the legislation and the increasing complexity of the case law”—
the increasing complexity that the case law is making between the right to protest and the rights of others to go about their daily lives free from serious disruption—
“is making this more difficult and more contested”.
The delegated power being used existed prior to the introduction of the Public Order Act 2023. The power was available for the Government to use during the passage of the Public Order Act 2023. These delegated powers were scrutinised by the Delegated Powers and Regulatory Reform Committee, which recommended that a definition of “serious disruption to the life of the community” be included on the face of the Police, Crime, Sentencing and Courts Act 2022, coupled with a power to amend the definition by affirmative procedure regulations. This recommendation was accepted and implemented in full.
It is entirely right that the Executive use powers conferred by both Houses of Parliament to allow the elected Chamber to consider the proposed change in law. The other place has now had the opportunity to consider these measures and has approved them following debate on the Floor of the House yesterday.
The Motion of the noble Baroness, Lady Jones, is highly unusual, and seeks to strike down legislation passed by the elected House and undermine sensible changes which bring clarity and consistency to the law. During the passage of the Public Order Act, the Government listened and responded to the strength of feeling in Parliament on many issues. Changes were made on many of those issues, including serious disruption prevention orders, protections for journalists reporting on protests, and others.
The need for clear powers to improve the management of highly disruptive protests has been well rehearsed, but I will reiterate them quickly. The current Just Stop Oil slow-walk campaign has resulted in the use of over 13,770 police officer shifts, diverting police attention away from local communities. Financially, this has cost the taxpayer £4.5 million in just six weeks, and this is in addition to the £14.5 million it cost last year. These near-daily protests—as of yesterday, I think it was 156 separate protests in six weeks—have pushed the public to their limit. We have seen people taking matters into their own hands. Therefore, as a Government, we must do what we can to empower the police to respond swiftly and effectively.
Given the scale and impact of the disruption caused by slow walks and sit-ins on roads, it is in the public interest to clarify these police powers as a matter of urgency. The Government have always been clear that the delegated powers were needed to be able to respond quickly to evolving protest tactics. The intensive use of slow walks across London has proven that. Once in force, the regulations will provide the police with the legal clarity they need to protect the public from this tactic.
As I have already mentioned, these regulations do not grant new powers to the police, but clarify the extent of existing ones. Therefore, it was deemed disproportionate to carry out a full public consultation. Targeted engagement with the National Police Chiefs’ Council, the Metropolitan Police Service and other police forces was the appropriate approach. All have welcomed clarity in the law. The Metropolitan Police Service specifically welcomed clarity on how the police should consider serious disruption in relation to imposing conditions.
The regulations achieve this by making the following clarifications. First, these regulations will clarify that the police may consider the cumulative impact of concurrent and repeated protests in the same area when assessing whether “serious disruption to the life of the community” may occur. Although a single protest may not in itself cause serious disruption, it is undeniable that a community subjected to repeated or concurrent protests will suffer due to the compounding effect of multiple protests.
Secondly, they allow the police to consider the absolute disruption caused by a protest. That is to say, police should be able to consider the disruption a protest may cause, regardless of what disruption may be common in an area for other unrelated reasons. Without these regulations, “serious disruption to the life of the community” is often considered with reference to what is regarded as normal for a given area, rather than the nature of the disruption caused at that moment in time.
Thirdly, the regulations define the term “community” to mean,
“any group of persons … affected by the procession”,
or assembly, and not just those who live or work in the vicinity of that procession or assembly. This change clarifies that a broader definition of community is to be used when interpreting the meaning of “serious disruption to the life of the community”. This definition better reflects the modern way of life in major cities.
Finally, as I have previously mentioned, the instrument aligns the definition of “serious disruption” with that in the Public Order Act 2023, simplifying protest law. During the passage of the Public Order Act, the appropriate definition of “serious disruption” was debated at length. I would again like to thank all noble Lords for what was an exceptional debate with high-calibre contributions from all sides.
I remain of the view that the definition rooted in protest case law proposed by the noble and learned Lord, Lord Hope, strikes the right balance between legitimate and illegitimate protest. This definition has been scrutinised and approved by both Houses of Parliament. It should now be carried across to the Public Order Act 1986 to ensure consistency across the statute book.
As well as aligning public order legislation, the regulations also bring further clarity by building on the non-exhaustive list of examples of serious disruption to the life of the community to include
“the prevention of, or a hindrance that is more than minor to, the carrying out of day-to-day activities”,
such as making a journey. This provides legal clarity that it is entirely appropriate for the police to place necessary conditions on protests that are obstructing the public from going about their daily business.
Finally, I remind the House that the Government are legally required to publish a report on the operation of amendments made to Sections 12 and 14 of the Public Order Act 1986 by the Police, Crime, Sentencing and Courts Act 2022. The report must be published and laid before Parliament by 28 June 2024. I can confirm that this paper will also report on the operation of the changes made by this statutory instrument.
In summary, the regulations are necessary changes to the law to ensure that public order legislation is clear, consistent and current. They will improve the protection of the public—who this Government support —against the minority of protesters who repeatedly trample on their rights. Current and former police officers, as well as Peers and Members of the other place on both sides of the debate, have called for public order legislation to be both easy for officers to interpret and specific. This statutory instrument achieves these objectives. I beg to move.
Amendment to the Motion
Lord Paddick (LD)
My Lords, we on these Benches associate ourselves with the remarks of the noble Lord, Lord Coaker, on the tragic events in Nottingham.
Like the noble Lords, Lord Pannick and Lord Lisvane, I will not say much about the substance of the SI. If the Home Office had realised that the Public Order Act 1986 needed to be amended before the Bill had left the other place, we would not be here now.
I want to talk about the constitutional issue, described by the noble Lord, Lord Hunt of Wirral, of a Government changing primary legislation by means of secondary legislation within months of this House having voted against that primary legislation. As we have heard, this is unprecedented, or, as the noble Lord, Lord Pannick, put it, a constitutional outrage.
On Monday, this House will have the Second Reading of the British Nationality (Regularisation of Past Practice) Bill. This primary legislation retrospectively changes primary legislation by means of a two-clause fast-tracked piece of primary legislation. Not only is this the proper way of amending primary legislation but it shows that it can be done quickly and easily. There is no need for the will of this House, expressed through a recent Division, to be overruled by means of secondary legislation when a single-clause fast-tracked Bill could have done the same job without creating an unconstitutional precedent.
Noble Lords opposite may say that it is no big deal, but the Prime Minister said that his Administration would have
“integrity, professionalism and accountability at every level”.
I will return to the issue of integrity in a moment, but failing to amend the 1986 Act in the other place clearly shows a lack of professionalism, and failing to correct the mistake by means of primary legislation shows a clear lack of accountability because, as the noble Lord, Lord Pannick, said, scrutiny of secondary legislation is cursory.
On integrity and the Boris Johnson resignation honours row, Michael Gove, a senior Government Minister, said yesterday on the BBC Radio 4 “Today” programme:
“The appropriate procedure was followed”.
He went on to describe it as
“a process we are all familiar with as part of the constitution … it is appropriate to look at all these processes. They all have their own coherence in accordance with past practice and due process … All Governments work according to precedent … those are protocols that govern this particular procedure, and I think Governments overall have been criticised sometimes for departing from due process. I think it was appropriate and right that the Prime Minister and the Government followed due process in this way … I know it’s old fashioned to want to use precedent and independent institutions to establish how all these sorts of things should be decided, but then precedent and independent institutions are, I think, the two of the constitutional bulwarks that are important”.
This House is an independent institution, and this SI breaks long-established precedent. In answer to a question about changing precedent in connection with resignation honours, Michael Gove said:
“The inference of the question is that we should alter precedent, and that we should in some way say to independent institutions that they should operate in a different way from which they have been constituted. I think what we have here are the existing constitutional machinery working as it was designed to do”.
So there we have it: a Conservative Government who believe that independent institutions should not operate differently from how they have been constituted, and that precedent should not be altered apart from when it suits them. That is the very definition of a lack of integrity.
This House voted against the provisions in this statutory instrument by a majority in a Division on primary legislation in February this year. There is no precedent to overturn a decision of this House on primary legislation by means of secondary legislation. I am reminded of the words of the noble Lord, Lord Forsyth of Drumlean, addressing the amendment to deny the Illegal Migration Bill a Second Reading, which he considered unconstitutional. He said:
“I do not think that any Member of this House who respects its values and its role could possibly go through the Lobbies and vote for that amendment”.—[Official Report, 10/5/23; col. 1801.]
I adapt his words and apply them to this situation: I do not think that any Member of this House who respects its values and its role could possibly go through the Lobbies and vote to allow this statutory instrument to pass.
Noble Lords on the Labour Benches will be complicit in undermining the status of this House if they do not vote for the fatal amendment. The noble Lord, Lord Coaker, said that the Official Opposition will respect convention and not vote for the fatal amendment. Why, when the Government have not respected convention? I say to the noble Lords, Lord Reid and Lord Rooker: of course it is right that the other place should have the final say, but if we vote down this statutory instrument, the other place can introduce a one-clause Bill to achieve exactly what this statutory instrument is trying to achieve in a non-constitutional way.
If, as appears ever more likely with each passing day, there is a change of Government at the next general election, noble Lords on the Conservative Benches will have created a precedent that they are likely to regret for many years to come, when the incoming Government use this precedent to undermine the will of this House in future. We will vote for the fatal amendment.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for their contributions to what has been a fascinating and powerful debate. Before I start my response, I join the noble Lord, Lord Coaker, in his remarks about the situation in Nottingham. As he did, I thank the emergency services and express my sympathies to the victims and their families.
I am obviously going to refute the allegation that this is in some way unconstitutional, or indeed an outrage. I have already set out why the Government have brought forward the measures, and the fact that it is indeed proper. The sequencing of debates and votes during the passage of the Public Order Act 2023 meant that the House of Commons was unable to consider the measures. Now that the elected House has approved the measures, we must respect its will and do the same—a point that has been made powerfully by a number of noble Lords.
The delegated powers being used existed prior to the introduction of the Public Order Act 2023. The powers were available for the Government to use during the passage of the Act—these are comments I made in my opening speech. Those powers were scrutinised by the Delegated Powers and Regulatory Reform Committee, which recommended that a definition of
“serious disruption to the life of the community”
be included in the Police, Crime, Sentencing and Courts Act 2022, coupled with a power to amend the definition by affirmative procedure regulations. This recommendation was accepted and implemented in full.
It is entirely right that the Executive use powers conferred by both Houses of Parliament to allow the elected Chamber to consider the proposed change in law. The other place has now had that opportunity to consider these measures and has approved them, following debate on the Floor of the House. So this is not defying the will of Parliament, as some have suggested, or committing a constitutional outrage. As the noble Lords, Lord Reid and Lord Rooker, pointed out, we are actually respecting it. This cannot be sent back, so to not do this now would be to enshrine a lack of clarity and consistency in protest law, as my noble friend Lady Stowell noted. That will affect the police, the public and of course protesters themselves. Any delay in this fast-moving situation risks, as I pointed out in my opening remarks, continuing to encourage the public to take matters into their own hands—a point that was very well articulated by my noble friend Lord Jackson.
To the noble Baroness, Lady Fox, who knows I respect her greatly, I say that this is enabling the police to do their job with more clarity—a point that the noble Lord, Lord Hogan-Howe, made with considerable force.
My noble friend Lord Hunt asked some very sensible and searching questions about the Explanatory Memorandum, which I would like to address. To the noble Lord, Lord Lisvane, I say that the Government published the Explanatory Memorandum and have updated it. The primary focus of an Explanatory Memorandum is to provide clarity on the content of a statutory instrument’s provisions. Additionally, the vote excluding the similar measure from the Public Order Act was only held earlier in the year. All the information on the vote is readily available in Hansard.
That said, we recognise the Secondary Legislation Scrutiny Committee’s criticism and the importance of transparency in Explanatory Memoranda. So I can confirm, as has been noted, that the updated memorandum has been published. It was not published before the debate in the House of Commons, but the changes to the Explanatory Memorandum are relatively minor; they do not add new information. They reference the votes and clarify the extent of targeted engagement, and are in direct response to concerns raised by the Secondary Legislation Scrutiny Committee. The Home Secretary set this out clearly in yesterday’s debate in the other place.
On the consultation, another subject that has been raised, I again have to refer back to my opening remarks. This statutory instrument does not create new powers. The Government have always been clear that the delegated powers were needed to be able to quickly respond to evolving protest tactics. As they do not grant new powers to the police but clarify the extent of existing powers, it was deemed disproportionate to carry out a full public consultation. Targeted involvement with the National Police Chiefs’ Council, the Metropolitan Police Service and other police forces was the appropriate approach. All have welcomed clarity in the law, and the Metropolitan Police Service specifically welcomed clarity as to how the police should consider serious disruption in relation to imposing conditions.
The noble Lord, Lord Coaker, suggested that new powers were being created and referenced the Chief Constable of Greater Manchester Police. As I have mentioned, and I have to stress again, these measures do not create new powers but clarify existing ones. The Commissioner of the Metropolitan Police Service, the force most affected by protest in England and Wales, has asked for further clarity in the law. I think it is very evident from the events we are seeing at the moment how significant and necessary that clarity is.
I do not think there is much point in me saying very much else in answer to the questions. I think I have addressed the majority of the issues that I did not address in my opening remarks. As I said earlier, I am grateful for the constructive and helpful questions. I will take some of these reflections back to the department and to my noble friend the Leader of the House, who is not here at the moment. These regulations are designed to ensure public order legislation is clear, consistent and current. They will also support the police in striking the correct balance between the rights of protesters and the public. I commend them to the House.