Wednesday 7th January 2026
(2 days, 4 hours ago)
Lords ChamberCrime and Policing Bill 2024-26 View all Crime and Policing Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 111(Corrected)-VIII(a) Amendment for Committee (Supplementary to the Eighth Marshalled List) - (6 Jan 2026)
Lord Vaux of Harrowden
“Technology and telecommunications companies’ liability for APP fraud reimbursementWithin six months of the day on which this Act is passed, the Secretary of State must prepare and publish a report, and lay it before Parliament, setting out proposals for ensuring that technology and telecommunications companies—(a) owe a duty of care to their customers to prevent fraud being originated on platforms or services that they provide, and(b) contribute to the costs of reimbursing victims of Authorised Push Payment fraud, where such fraud has originated on services or platforms provided by the relevant company.”Member’s explanatory statement
This amendment would require the Secretary of State to bring forward proposals to ensure that technology and telecommunications companies have a duty of care to prevent fraud and meet a share of the costs of reimbursing APP fraud victims.
Lord Vaux of Harrowden (CB)
My Lords, we come back to fraud. As the Minister will be well aware, this is not the first time I have raised the issue of ensuring that the technology and telecoms companies take their share of responsibility for the use of their services or platforms by fraudsters and are made to contribute to the costs of reimbursing victims. I thank the noble Baroness, Lady Morgan of Cotes, and the noble Lords, Lord Young of Cookham and Lord Holmes of Richmond, for their support on this amendment.
On a previous group I mentioned the Fraud Act 2006 and Digital Fraud Committee, on which I was privileged to sit. Our report, Fighting Fraud: Breaking the Chain, which was published in November 2022, made the very clear conclusion:
“Until all fraud-enabling industries fear significant financial, legal and reputational risk for their failure to prevent fraud, they will not act”.
That has been borne out over the three years since. There has been no significant improvement, despite the voluntary charters that have been agreed. Only the banks are on the hook for the costs of fraud under the mandatory APP reimbursement rules that were brought in by the Financial Services and Markets Act 2023. The banks must now pick up 100% of the reimbursement liability, and there is evidence to suggest that this is having a positive impact on the efforts that the banks are making to identify and prevent fraud.
Similarly, the Payment Systems Regulator’s six-monthly reports on the performance of the banks has provided welcome transparency as to which banks and payment services are doing most, and least, to combat fraud. As an aside, it would be good to have confirmation from the Minister that the subsuming of the PSR into the FCA will not reduce the important reporting and oversight of APP fraud that the PSR has been providing.
The banks are picking up the liability, but they are not where the fraud originates. According to UK Finance statistics, around 70% by volume and 30% by value arises from online platforms, and 16% by volume and 36% by value arises from telecoms—calls and texts. Let us name names. According to the PSR, over half of APP scams originate on Meta platforms—Facebook and so on.
Nothing has changed that would change the conclusion of the committee that these industries will not take the issue seriously until they face liability for what they allow to happen on their platforms or services. The banks have sharpened up their acts, in part because of the mandatory reimbursement requirement that we have imposed on them. The banks face real liabilities for the fraud that goes through their accounts.
The Online Safety Act includes some important measures to prevent fraudulent content and scam advertising, but it does not make the companies liable for the losses. We have mandated that the banks should reimburse victims of APP scams after we decided that the voluntary code was not working, and it is now time that those who enable the frauds should pick up their share on a compulsory, not voluntary, basis. There are many possible ways to achieve this, so I have not been prescriptive in the amendment. It could be as simple as bringing the telcos and tech companies into the reimbursement requirements, or we could look at extending the new failure to prevent fraud offence so that it covers the use by third parties of services provided by a company. The failure to prevent offence currently covers only actions by employees or associates, so it would not cover scams in this situation.
Amendment 67 would simply require the Government to bring forward proposals for how to do this within six months of this Bill passing. It is not enough to keep publishing more fraud strategies. The one that is due to be published shortly, which I am sure the Minister will refer to, will be the third fraud strategy since I have been a Member of this House. The Minister said earlier that the fraud strategy would be published soon—I think he said, “in very short order”. I know that he cannot give a date, but it would be helpful to know whether that will be before Report. The content of the strategy might make this amendment unnecessary, so it would be very helpful if we could see it before Report.
Fraud and scam figures are not falling; they still make up around 40% of all crime in the UK. It really is time that we make those who allow their services to be used by the fraudsters, and those who enable the fraud, liable for their actions—or, rather, lack of action. It is the only way to make them take the issue seriously. I beg to move.
Baroness Doocey (LD)
We are very happy on these Benches to support this amendment. We all know the grim scale of fraud, now our most common crime. Authorised push payment scams are driven by online platforms, adverts on social media fuelling shopping and investment frauds, and hacked accounts enabling ticket scams. Yet, as has been said by the noble Lord, Lord Vaux, platforms such as Meta, which owns Facebook and Instagram, can still take six weeks to remove illegal content, allowing scammers to resurface again and again—so-called “life-boating”.
This amendment is designed to cut through that inertia. It would provide a clear statutory duty of care on tech and telecom firms to prevent scams at source, using their own AI and tools. It would also require them to share the financial burden with payment providers, which must already imburse many victims of authorised push payment fraud. That seems a fair step, given that the platforms host most of the scams and profit from the engagement that keeps users scrolling. Weak voluntary charters, non-binding Ofcom guidance and even the Online Safety Act’s proportionate measures have let these firms do the bare minimum—reacting to reports rather than proactively detecting fraud through verification, AI-driven scans and systematic audits. Big tech has unparalleled know-how—the AI, software and manpower to spot fraudster patterns and take them down. Banks cannot fight this alone and nor can the police. This amendment would compel these companies to protect their users, stopping scams upstream.
We hope that the Government’s fraud strategy follows the example of this amendment and goes even further with a failure to prevent fraud offence, backed by strong fines and tougher binding Ofcom standards. Meanwhile, Amendment 367 would provide some timely backbone, giving tech and telecom firms a real incentive to act swiftly before yet more victims lose potentially everything.
Lord Young of Cookham (Con)
My Lords, I put my name to the amendment moved by the noble Lord, Lord Vaux. I want to add a brief footnote to the speech that he made in support. In an earlier debate, the Minister was very complimentary about the work of the fraud committee on which we both served, and he can convert that praise into action by accepting one of the recommendations which we made in our report.
It is worth quoting the relevant sections of the report that led up to that recommendation. On page 162, paragraph 57 states:
“However, banks are the last link in the fraud chain and cannot be expected to foot the fraud bill alone”.
Then we come on to our recommendation:
“To incentivise companies to act on fraud and more accurately reflect the balance of responsibility for fraud, the Government must establish a mechanism by which fraud-enabling sectors—in addition to the outgoing and recipient PSP—are required to contribute to the costs of reimbursement in cases where their platforms and services helped to facilitate the fraud”.
That is a very clear recommendation. We came to that conclusion after taking evidence from, for example, TSB and academics. They all made the point that there was absolutely no incentive on the part of the telecommunications companies to do anything, because their business case rested on generating revenue and they faced no penalties. That was our recommendation.
Lord Davies of Gower (Con)
My Lords, I thank the noble Lord, Lord Vaux of Harrowden, for bringing forward this amendment, which addresses a very important issue. According to UK Finance, authorised push payment fraud accounted for almost 41% of fraud losses in the first half of last year, while unauthorised fraud decreased by 3% on the year. APP increased by 12%. It is clearly a pressing issue, and I am grateful that we have the opportunity to debate it.
The proposition in question would require technology and telecommunications companies, first, to owe a duty of care to their customers to prevent fraud occurring on their platforms and services in general. I do not see an issue with this in principle. Companies should attempt to protect their customers from fraud by implementing general safeguarding measures that prevent against common tactics such as impersonation. I would rather that this did not come from government intervention but was instead the product of a competitive industry, but I recognise that there is only so much that the market can achieve in the short term. I look forward to hearing the Government’s position on this.
I am a little more hesitant to offer support to the second condition of the noble Lord’s amendment, which would require technology and telecommunications companies to contribute to the costs of reimbursing victims of APP fraud that has occurred on their platforms or services. While I acknowledge that there is already an existing framework for company reimbursement in the form of the PSR’s mandatory reimbursement measures of October 2024, I am not certain that the policy is transferable to technology and communications companies.
The PSR requires banks and payment firms to split reimbursement costs evenly between the sending and receiving institutions, and it is very easy to discern which companies are responsible and therefore liable for payment. Adding technology and communication companies into that framework is not so straightforward. These companies are essentially a third party in the actual fraud occurring: they are neither the sender nor the recipient of the defrauded money; they are the medium through which fraud is made possible but not through which it actually occurs. Responsibility for the fraud and subsequent reimbursement does not seem to me to be as clear cut with technology companies as it is with banks and payment firms.
Secondly, the second measure in the noble Lord’s amendment is not thorough enough to support, even if my worries were addressed. The PSR mandatory reimbursement policy, enacted a year and a half ago, was the product of almost seven years of deliberation and policy-making; extending this measure to a whole new industry should face more scrutiny than that which can be achieved for a single amendment. The amendment itself raises questions as to which companies will qualify, what will their contributions be, and how these will fit within the existing requirements placed upon banks and payment firms. These are just a few questions, but there are many more that will need answering if we are seriously to consider this measure as a law.
That is not to say that APP reimbursement has not proved an effective tool in mitigating the harmful effects of fraud. According to the 12 months of available data since the PSR introduced mandatory reimbursement for APP fraud victims by banks and payment firms, 88% of lost money in scope has been returned to victims. Nor is it to say that technology and communication companies will not in future be the vehicle by which APP is committed—ever-popular social media and the ever-increasing AI industry will make sure of that. It is simply to say that we do not know enough about the implementation of this measure to support it. I appreciate its aim, and I agree that something must be done to tackle this specific type of APP, but at the moment I am not sure that the amendment adequately achieves that, so I look forward to hearing what the noble Lord has to say in closing.
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, this Government are deeply concerned by the devastating impact online fraud can have on individual victims, both financially and emotionally. I am grateful to the noble Lord, Lord Vaux of Harrowden, for tabling this amendment, to the noble Lord, Lord Young, and to the noble Baroness, Lady Doocey, for helping us to understand and acknowledge the importance of this issue. The Government recognise the importance of preserving trust in digital communications and online spaces in order that all our hard-working businesses operating in the UK can grow and prosper. We recognise that incentives are important for accountability for all stakeholders.
The Government have seen a significant contribution from the banking sector in preventing fraud and supporting victims in response to the Payment Systems Regulator’s new authorised push payment scams reimbursement requirement. In the first nine months of the APP reimbursement scheme, 88% of eligible losses were reimbursed, with £112 million returned to victims. These figures reflect a strong and sustained commitment to protecting consumers—a positive trajectory that deserves recognition. While we are on the PSR scheme, the noble Lord, Lord Vaux, asked about the transition of PSR into the FCA. It is worth noting that we consulted on that planned merger of PSR into the FCA in September and October last year. We are currently considering the responses to that consultation and will bring forward further proposals in due course. He would expect me to say that we want to manage this process in a way that very much does not undermine the work that the Payment Systems Regulator is already doing to ensure that this system works well.
However, every part of an ecosystem must play a meaningful role in fraud prevention, including the telecommunications and tech sector. The Government have already taken steps to ensure that the tech and telecommunications sectors are rightly incentivised to proactively tackle fraud on their networks. The Online Safety Act requires in-scope companies to take proactive steps to stop fraudulent content appearing on the platform and to remove fraudulent material quickly when they become aware of it. If they do not, they risk facing the full regulatory costs of failing to comply, which can extend to 10% of their global revenue.
Ofcom’s duties on user-generated content are now in force in relation to several online harms, including fraud, and the regulator is already assessing platforms’ compliance. Further duties concerning action against fraudulent advertising will be consulted on this year and are likely to come into effect in 2027.
The telecoms sector is subject to regulation that requires providers to block calls that appear to be from scammers and to prevent scammers from using telephone numbers. It is fair to point out that there has been a fair amount of success already in that effort. Voluntary action has proved effective, and under the first telecoms charter operators have introduced firewalls that have stopped more than 1 billion scam text messages since January 2022, so that indicates the scale of both the problem and the progress that has been made.
We are also working with the sector and Ofcom on a number of innovative further actions to tackle the criminal abuse of telecoms networks. The Government launched the second Telecoms Fraud Charter in November 2025. This is an ambitious charter that covers 50 actions the telecoms industry will implement to tackle fraud within the sector. It includes developing new AI systems to detect and prevent fraud, building a new call-tracing system to track down fraudulent communications and upgrading the UK’s networks to enable new features to protect customers from spoof calls. This is a voluntary commitment from the telecoms sector that aims to strengthen efforts to further identify, block and disrupt telecoms fraud through enhanced industry collaboration and robust duty of care towards UK consumers and smaller telecoms businesses that have themselves been victims of fraud. The previous Telecoms Fraud Charter helped UK mobile network operators to block over 1 billion scam messages through the implementation of firewalls. We want to go further than that, which is what the new telecoms charter seeks to achieve.
In addition, Ofcom launched a consultation in October, outlining new rules on how mobile providers must stop scammers sending mobile messages. These proposals draw on existing best practice in the mobile sector and are intended to both prevent scammers accessing mobile messaging services and stop their activities where they have gained access. Last July, Ofcom also published a consultation on new rules to stop scammers outside the UK reaching people and businesses with calls that imitate UK mobile numbers, and these are likely to be introduced this year. We expect these measures to address gaps in the industry’s existing counterscam measures, and to significantly reduce the risk of individuals and businesses receiving scam messages.
Furthermore, in the upcoming fraud strategy, which we discussed earlier in Committee, and which was mentioned by the noble Lord, Lord Vaux, the Government will explore options to make it harder for criminals to exploit UK telecoms networks to commit fraud. The noble Lord tempted me to stray off the primrose path of prudence when it comes to timing; I am afraid I cannot do any better than repeat what my noble friend the Minister said: it will be coming in due course. Obviously, we have some time left even in Committee, let alone further stages of this Bill, so I am afraid I can make no commitments there.
The Government will continue monitoring developments in this area to ensure the telecommunications and tech industries remain accountable for delivering on their commitments to tackle fraud and the criminal abuse of their services, in line with the plan we will set out in our soon-to-be-published fraud strategy. However, where insufficient progress is being made in reducing abuse of telecoms networks or tech platforms for the purposes of fraud, the Government, and regulators, will not hesitate to take necessary measures to compel further action. I am on common ground with the noble Lord, Lord Davies, who critiqued the amendment, describing the concern it shows for the intermediary nature of the liability some telecoms platforms would be under. It is a fact that a tech sector reimbursement scheme would undermine the UK’s long-standing intermediary liability regime, which means that platforms are not liable for illegal content posted by users provided they are unaware of the unlawful activity, and which underpins the interactive internet and is a cornerstone of digital innovation. I share his concern that a departure from intermediary liability would leave the UK out of sync with our international partners and potentially threaten growth of the UK’s digital economy.
Therefore, in view of the clear plan we are putting in place to tackle fraud, it is the Government’s assessment that the measures set out in this amendment are not necessary at this time, and I invite the noble Lord to withdraw his amendment.
Lord Vaux of Harrowden (CB)
My Lords, I thank every noble Lord who has taken part in this short debate, in particular the noble Baroness, Lady Doocey, and the noble Lord, Lord Young, who both pointed out the question of incentivisation, which is core to this. We need to incentivise the people who are facilitating or enabling fraud, or enabling the fraudsters to make contact with the victims, to do the right thing.
“The right to protestBefore section 11 of the Public Order Act 1986 (advance notice of public processions), insert—“10A The right to protest(1) Everyone has the right to engage in peaceful protest, both alone and with others.(2) Public authorities have a duty to—(a) respect the right to protest,(b) protect the right to protest, and(c) facilitate the right to protest.(3) A public authority may only interfere with the right to protest, including by placing restrictions upon its exercise, when it is necessary and proportionate to do so to—(a) protect national security or public safety,(b) prevent disorder or crime, or(c) protect public health, or the rights and freedoms of others.(4) For the purposes of this section “public authority” has the same meaning as in section 6 of the Human Rights Act 1998 (acts of public authorities).”.”Member’s explanatory statement
This amendment would introduce an express statutory right to protest, imposing both negative and positive obligations on public authorities while recognising that the right to protest may need to be limited to protect other legitimate public interests.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group I have Amendments 369 and 371. Amendment 369 is co-signed by my noble friend Lady Doocey and the noble Baronesses, Lady Fox of Buckley and Lady Jones of Moulsecoomb, and is itself subject to two amendments by the noble Lord, Lord Blencathra—Amendments 369ZA and 369ZB. Our other Amendment 371 is co-signed by my noble friends Lady Doocey and Lord Strasburger, and by the noble Baroness, Lady Fox of Buckley. I am grateful to them all for their support.
Amendment 369 seeks to enshrine in statute the right to protest as it has long been enjoyed in this country. The right to protest is, of course, enshrined in the ECHR. Article 10 concerns the right to freedom of expression and Article 11 concerns the right to freedom of assembly and association. The right to protest is, and always has been, circumscribed in English law, just as Articles 10 and 11 rights are circumscribed in the convention.
It is worth reminding ourselves reasonably briefly of the limits placed on the two freedoms by the convention. The right to freedom of expression under Article 10 expressly includes the
“freedom to hold opinions and to receive and impart information and ideas without interference by public authority”,
but it is limited, as it may be
“subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”,
and, most relevantly,
“in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals”,
or for the protection of the rights and freedoms of others. The Article 11 right to freedom of association and assembly accords to everyone
“the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests”.
It limits the restrictions that may be placed on those rights to those that are
“prescribed by law and are necessary in a democratic society in the interests of national security or public safety”,
and the list goes on in the same way as Article 10.
I repeat the words of the two convention articles not because they are in any sense new but because they demonstrate the balancing exercise that the state must carry out when considering how far it may or may not be legitimate to restrict the exercise of the convention freedoms in this country, not as a matter simply of compliance with the convention but as a matter of sound public policy.
The right to protest has never been explicitly enshrined in English or UK legislation, although the restrictions on it have been. Considerable changes were made by the Conservative Government in the Police, Crime, Sentencing and Courts Act 2022, with new statutory offences of public nuisance, more police powers to impose conditions on demonstrations that were deemed likely to be noisy or disruptive, and harsher penalties for obstructing highways.
The Bill now proposes further restrictions. For example, Clauses 118 to 121, to be considered in the next group, would create a new offence of concealing identity at protests in localities designated by the police. In the light of the development of live facial recognition technology, that looks and sounds ominous. Clause 121 will ban the use of pyrotechnic articles at protests, which I take to include any type of firework, unless exempted by the regulations. Collectively, the new restrictions on liberty and the further police powers, particularly taken with the new powers and conditions legislated for in the 2022 Act, mean that the right to protest is being progressively restricted. That highlights, we say, the need for a very public statement in domestic law of the right to protest and of the criteria to be applied when limiting it.
Our amendments seek to provide that in a way that is proportionate and balanced, but firm. We start Amendment 369 with the statement:
“Everyone has the right to engage in peaceful protest, both alone and with others”.
Our amendment then imposes on public authorities three-pronged duties to respect, protect and facilitate the right to protest. We appreciate that there are or can be significant resource implications for police and public authorities in policing protests. It can be an expensive exercise. We also appreciate that there is a difficult balance for the police to draw between overpolicing protests and underpolicing them, and that it is very often difficult to predict what is the right level of policing to maintain the balance between protecting the right to protest and risking disturbance if things go wrong. But the right to protest is a very valuable right, and it is extremely important to freedom and democracy that public authorities appreciate that they have the legal duty to respect, protect and facilitate it that our amendment describes. That legal duty must be backed by resources for the police and local authorities to ensure that this duty can be effectively performed.
The Government have appointed the noble Lord, Lord Macdonald of River Glaven, to carry out a review of public order and hate crime legislation. Its terms of reference were published last month, and the final report is expected next month, February 2026. In spite of the tight timescale, the noble Lord will, no doubt, carry out a thorough review of the law in this area, guided by the three principles that are set out in his terms of reference. The review will consider, first,
“whether the legislation is fit for purpose”,
secondly,
“whether it adequately protects communities from intimidation and hate”,
and thirdly,
“whether it strikes a fair balance between freedom of expression and the right to protest with the need to prevent disorder and keep communities safe”.
We maintain that proposed new subsections (2) and (3) in our amendment set out succinctly and clearly that balance. In order to be permissible, interference with or restriction of the right to protest must be necessary and proportionate and for the purpose of protecting national security or public safety, preventing disorder or crime, or protecting public health or the rights and freedoms of others. Those, we say, are the public interests that justify restriction of the right to protest.
In many ways, it is a pity that the Macdonald review was not commissioned before the Bill was introduced, given that deferring this legislation until after the report might have given the Government and Parliament a better opportunity to look afresh at some of the provisions in the 2022 Act and consider the proposals in the Bill. But we are where we are, and it is for Parliament to set out the policy objectives. So I suggest that it is more important than ever that we set out in statute the balance that is to be struck, even if this Bill will not be passed in its final form before the Macdonald review is published.
Our Amendment 371 seeks a review of the existing legal framework of protest and its interaction with Article 9, which covers freedom of thought, conscience and religion, as well as Articles 10 and 11, which I have considered above. If our Amendment 371 is accepted, that review will no doubt build on the work of the Macdonald review in the light of the passage of the Bill.
I turn to the two amendments proposed by the noble Lord, Lord Blencathra, with the balance between the right to protest and justifiable restrictions thereon as the touchstone. Amendment 369ZA would put public authorities under a duty to
“ensure that all other members of the public … are not hindered in any way from going about their daily business”,
and 369ZB would say that public authorities could interfere with the right to protest by restriction to
“prevent inconvenience to any member of the public”
or to
“permit any persons from going about their daily business”—
I suspect that the noble Lord must mean to “permit any persons to go about their daily business”.
The implication of both amendments is that it could be legitimately seen as necessary and proportionate to interfere with or restrict the right to protest for such a reason. Yet there is no requirement in either amendment that a significant number of people have to be inconvenienced or troubled in their daily business for a restriction to be justified. Far from it: Amendment 369ZA talks about any member of the public and Amendment 369ZB talks about permitting “any persons”. Those amendments are far too draconian.
Lord Blencathra
“(d) ensure that all other members of the public who are not protesting are not hindered in any way from going about their daily business.”Member’s explanatory statement
This amendment to Amendment 369 seeks to ensure that members of the public who are not protesting are able to go about their daily business.
Lord Blencathra (Con)
My Lords, I support the proposed new clause establishing an express statutory right to protest and will speak to my amendments which, I believe, would make that right workable, balanced and fair to all members of the public. I begin by saying that the right to protest is a cornerstone of any free society. It is a mark of confidence, not weakness, when a nation allows its citizens to gather, speak, dissent and challenge those in authority.
I support that principle wholeheartedly, but rights do not exist in isolation. They exist in a framework of mutual respect, where the rights of one group cannot simply extinguish the rights of another. That is why I have tabled these amendments: to ensure that alongside the duty to respect, protect and facilitate protest, public authorities must also ensure that those who are not protesting are not hindered in going about their daily business.
My amendment proposes a new subsection (2)(d), which makes that duty explicit. I have proposed two further subsections in Amendment 369ZB, (3)(d) and (3)(e), to make it clear that preventing inconvenience to any member of the public and permitting people to go about their daily lives are legitimate grounds for proportionate restrictions on protest.
This is not an attempt to water down the right to protest; it is an attempt to anchor it in the real world. As the noble Lord, Lord Marks, said, in the words of the convention, it is to protect the rights and freedoms of others as well. In the real world, “the public” is not an abstract; the public are individuals: it is a nurse trying to reach her shift on time; it is a carer who must get to an elderly relative; it is a parent taking their child to school; it is a worker who risks losing wages, even a job, because the road has been blocked; it is a small business owner whose customers cannot reach them; it is the disabled Peer in this wheelchair who could not get across Westminster Bridge three years ago because Just Stop Oil were blocking me getting across—I should have borrowed one of their banners and then the police would have helped me across.
All these people matter every bit as much as those who are protesting. Their rights are not secondary. Their needs are not trivial, and their lives should not be treated as collateral damage in someone else’s political campaign.
Some argue—I think the noble Lord, Lord Marks, said so—that inconvenience is a part of protest, but inconvenience is not a theoretical concept. Inconvenience has consequences—missed medical appointments, missed exams, missed care visits, missed wages, missed opportunities. For many people, what is dismissed as mere inconvenience is in fact material harm.
I want to be absolutely clear that a legitimate public interest does not need to be a crowd of thousands. It does not need to be a major national event. It does not need to be a threat to infrastructure. Sometimes a legitimate public interest is one person, one individual, who simply needs to get to work or go to school or go to hospital. A democracy protects minorities, and sometimes the minority is a minority of one.
My amendments recognise that reality. They would ensure that the right to protest was balanced with the right of everyone else to live their lives. They would give public authorities clarity rather than ambiguity, because at present the police are often placed in an impossible position. If they intervene, they are accused of supporting protests. If they do not intervene, they are accused of failing to protect the public. My amendments would give them a clear statutory duty: protect protests, yes, but protect the public and ensure that daily life can continue.
This is not about silencing anyone; it is about ensuring that protest remains peaceful, proportionate and legitimate. If protests routinely prevent ordinary people going about their lives, public support for them will erode. When public support erodes, the right itself becomes more fragile. I think we all saw on television recently motorists getting out of their cars and dragging people off the road. That should not happen. They had to become vigilantes to clear the road. That was because they felt the authorities were not doing their duty in keeping the roads clear.
My amendments would strengthen the right to protest by ensuring that it was exercised responsibly, in a way that commands public respect rather than public resentment. The proposed new clause before them is well intentioned, but without my amendments it risks creating a one-sided right that elevates the interests of protesters above the interests of everyone else. That is not balance, that is not fairness, and it is not how rights should operate in a democratic society. My amendments would restore that balance. They recognise that the right to protest is vital but not absolute. They recognise that the rights of protesters must coexist with the rights of those who are not protesting. They recognise that sometimes the legitimate public interest is not a grand principle but a simple human need—the need to get to work, to keep an appointment, to reach a hospital or simply to go about one’s daily business without obstruction. I commend my amendments to the Committee. I beg to move.
Baroness Jones of Moulsecoomb (GP)
My Lords, it was quite difficult to sit here and listen to that, but I will come to that. I very strongly support Amendment 369, and I do so with a real sense of fury that we are in this position, that we actually have to do this, and that it is not obvious to any Government that in a democracy we need the right to protest to be protected. To engage in peaceful protest means irritating other people. I apologise to the noble Lord, Lord Blencathra, but, unfortunately, what he said just now was complete and utter nonsense.
Over recent years, we have seen a real erosion of protest rights through one Bill after another. I sat here and watched it all and protested at every single move. Each was justified on a narrow, technical or operational point but, taken together, they amounted to a clear political direction—making protests harder, riskier and much easier to shut down.
Amendment 369 does not invent new rights. It states in clear and accessible language that peaceful protest is a fundamental democratic right and that public authorities have a duty to respect, protect and facilitate that right.
Amendments 369ZA and 369ZB seek to qualify that right by reference to whether members of the public are “hindered”, experience “inconvenience” or are able to go about “their daily business”. These amendments fundamentally misunderstand the nature of protest. Almost all meaningful protest causes some degree of hindrance or inconvenience. If it does not, it is very easy to ignore. From the suffragettes to trade unionists to civil rights campaigners, protest has always disrupted business as usual, precisely because that is how attention is drawn to injustice. For example, proscribing Palestine Action was such a stupid move by the Government and has caused more problems for them and the police than if they had just left it alone and arrested its members for criminal damage and similar.
I come back to these embarrassing amendments. It is not just the problem of their intent, which I disagree very strongly with, but their vagueness. Terms such as “hindered” and “inconvenience” are entirely undefined. Being delayed by five minutes could be an inconvenience. Noise could be an inconvenience. Simply being reminded of a cause that one disagrees with could, for some, be considered an inconvenience. If those concepts become legal thresholds for restricting protest, the right itself becomes meaningless.
The noble Lord, Lord Blencathra, used the phrase “in the real world”. I live in the real world, and I understand what protest does and why it is needed. Under these amendments, any protest that is visible, noisy or effective could be banned on the basis that someone somewhere was inconvenienced. Democracy is by its nature sometimes noisy, disruptive and inconvenient. It is very inconvenient being here at night debating these issues, quite honestly, in a moderately cold Chamber.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
Moderately?
Baroness Jones of Moulsecoomb (GP)
All right, in a cold Chamber.
If we prioritise convenience over conscience, we should not be surprised when people feel shut out of political decision-making altogether. For those reasons, I support Amendments 369 and 371. In essence, protest law is a terrible mess, and we have got here by a long series of government decisions and government weirdnesses. The whole thing is confusing for the police, as we have been told by senior police officers. It means that police officers make mistakes based on their own judgment. That is a terrible thing to happen in a democracy. Let us get this into the Bill to make clear exactly what a democracy looks like.
Lord Pannick (CB)
My Lords, the right to protest, like most of the rights under the European Convention on Human Rights, requires a balance. A balance is required here between the rights of protesters and the rights of others.
The noble Lord, Lord Blencathra, is absolutely right. The noble Baroness, Lady Jones, may not wish to recognise that, but there are other rights that need to be balanced against the rights of protesters. For her to dismiss as “nonsense” the noble Lord’s concerns will trouble many people here in this Committee, because the protester has to accept that there are other rights and interests that need to be taken into account. So, I am with the noble Lord, Lord Blencathra, on this issue.
I am also unpersuaded that we need Amendment 369, which the noble Lord, Lord Marks, has eloquently advanced today. I doubt it because, as he rightly says, it echoes almost word for word what is in Article 11, read with Article 10, of the European Convention on Human Rights, which is already part of our law under the Human Rights Act. I am very doubtful that we need an express statutory provision that repeats what is already part of the law of this land.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have added my name to Amendment 369 because I like the fact that it creates a duty on public authorities to respect, protect and facilitate the right to protest so that:
“A public authority may only interfere with the right to protest, including by placing restrictions upon its exercise, when it is necessary and proportionate”.
That is the balancing that the noble Lord, Lord Marks of Henley-on-Thames, explained so well in his introduction. It is undoubtedly the case that there is a balancing act.
I am pleased to support the amendment because I feel it has never been more necessary to reassert why the right to protest matters. Despite the noble Lord, Lord Pannick, advising us to not panic—I did not mean that to be quite the pun that it came out as—I feel there is a danger of complacency here. I think that restating this in this amendment is essential. The fact that we need to restate the importance of the right to protest as a fundamental right in a healthy democracy gives us an urgency in championing and guarding carefully and closely what I think is under threat. It allows protest that, as the UN notes,
“enables individuals to express themselves collectively and to participate in shaping their societies”.
It is
“a system of participatory governance”.
I worry that if people believe that that right to protest is being eroded consistently, that leads them to take more dangerous, extreme measures. The right to protest is political free expression. We have all watched over the last week or so the protests in Iran and the absolute bravery of those protesters; it strikes me that we are happy to cheer them on and say how important it is. Closer to home, we have to carry on and expressly say that political ideas expressed on the streets that challenge the status quo allow people to express anger and their dissidence and opposition. That is worth restating.
I think there has been a relentless attempt at curbing such democratic expression. Since I have been in this House, which is for more than five years, there seems to have been a relentless stream of laws threatening the right to protest. As the noble Baroness, Lady Jones of Moulsecoomb, just explained, the Police, Crime, Sentencing and Courts Act 2022 and the Public Order Act 2023 have substantially expanded police powers to impose restrictions on protests and to arrest people for breach of these restrictions, as well as increasing sentences for peaceful protest offences and lowering the threshold for what would constitute serious disruption to the life of the community.
Those laws have been passed and are ongoing, and they have led to legislative crackdowns on peaceful protests—but here we are again, because it is never enough. It seems to me, as I have argued before, that every time the law is changed those laws are not enforced, or the police or people in authority say, “We can’t do anything. We need more laws and more restrictions”, and so it goes on and on. As this has been the third piece of primary legislation in less than five years to chip away at the right to protest, we should be worried.
That is why I put my name to Amendment 371 looking for a review of the existing protest framework. There is an awful lot of legislation now that can control and curb one’s right to protest. I am delighted about the Macdonald review, by the way, but we need to make sure that the law is fit for purpose. We should not just keep adding on laws all the time. I fear the impact of the Acts on freedom of association, freedom of expression and so on, so I support both amendments.
I want to admit something, though. I do not want to be naive. Despite what I have just said, I know that protests have changed in many ways. This is the balancing act. As we enter into a new discussion now on all aspects of protest, I am aware that I also need to be open-minded. I am completely principled on the right to protest, but I understand that we have to take certain things into account. I have watched demonstrations and protests over the last few years in which intimidation, antisemitic slogans and toxic, intimidating behaviour have happened. I have seen that myself; I cannot deny it. It is also true that there is a more violent vibe around some protests. I genuinely could not believe that pro-Palestinian protests happened after the Manchester synagogue murders; I just could not get over that.
It is not just on that question—I do not want to obsess on that question. There is a whole range of issues in which I am interested. When I have been to events, I have been approached, or rather screamed at, by masked-up, unpleasant, scary protesters. I do not want to deny that. I am also aware of the fact that, as the noble Lord, Lord Blencathra, pointed out—he was using the examples of the likes of Just Stop Oil in the past—in some protests it is almost as though disruption has been used to bully people into adherence rather than persuading the public to agree, and that has made me feel uncomfortable. But that is all the more reason why we need to review what is on the statute book. Is it fit for purpose? We cannot just keep adding laws, becoming more repressive and more draconian, and hoping that we are going to sort it all out. That is what I fear.
By the way, in response to the amendments from the noble Lord, Lord Blencathra, which I do not support, I remind him of the kind of disruptions that one gets at modern demonstrations. You have a situation where, for example, a protest outside an asylum hotel organised by the Pink Ladies—for those who know who they are—is met with Stand Up to Racism protesters, who are protesting against the protesters, and there is a clash. It is then argued that it is disrupting the local community and that both protests should be banned.
It strikes me that that is not very helpful, because it is perfectly legitimate, for example, to say that you are worried about people being put into local hotels as asylum seekers. I cannot just say that, because I support those concerns, I then want to ban the Stand Up to Racism protesters who are worried about them.
We also have to be aware of the fact that, as the noble Baroness, Lady Jones, has explained, protest does disrupt communities. Somebody—I cannot remember who now—talked about the farmers. I was actually outside Downing Street on a protest with farmers on Budget Day. What was shocking was that the farmers had been banned from driving their tractors even though, until the day before, it had been long agreed that they would be allowed to have a protest of tractors on that stretch. The night before, the tractors were banned and farmers were arrested for trying to drive them in the vicinity. I am aware that the argument that it is too disruptive and would disrupt people can be used in ways that are very unhelpful.
I would remind people as well about the terrible scandal that is emerging in relation to what happened at the Aston Villa match, from which Israeli fans were banned. I know people who went to that match. When protesters went in solidarity with the action of people who were fighting antisemitism, they organised a vigil at that football match in Birmingham. They were fenced in by the police and treated almost as criminals, even though in fact they were showing solidarity with Jewish people in the local area.
The reason I am giving those examples is that we have to admit that it is a bit complex. Therefore, just saying that protests that are disruptive of everyday life will be banned would be a very dangerous precedent, and I disagree with it. But I concede that it is a hard argument and we should therefore take it seriously, not just keep passing laws to ban protesting even more.
Lord Strasburger (LD)
My Lords, I draw the Committee’s attention to my interest as chair of Big Brother Watch. I will speak about Amendments 369 and 371 in the name of my colleague and noble friend Lord Marks.
Protest is the lifeblood of any vibrant democracy, and in the United Kingdom it is one of the most powerful ways for ordinary citizens to make their voices heard. Our democratic system depends not only on elections but on the active participation of the people between elections. Protest is essential because it allows us to challenge decisions, hold leaders accountable and demand change when systems seem slow or unresponsive.
Throughout our history, protest has driven meaningful progress. Universal male suffrage in Britain was pushed forward by mass movements such as the Chartists and later reform campaigns which used strikes, mass meetings and demonstrations to pressure Parliament into extending the franchise and paying MPs so that working-class men could serve. I say to the noble Lord, Lord Blencathra, that I imagine those were quite inconvenient to a few people. Women’s suffrage in the UK was won by the suffragettes only after decades of marches, processions, civil disobedience and hunger strikes, culminating in the Representation of the People Act.
Peaceful protest educates the public, sparks debate and creates the pressure necessary for reform. In a healthy democracy, disagreement is not a threat but a sign that citizens care deeply about their society. However, our right to protest is, as has already been said, under relentless attack. Through the Police, Crime, Sentencing and Courts Act 2022 and the Public Order Act 2023, the previous Government introduced multiple restrictions on our precious right to protest. Then last year, the current Government found a way to further suppress peaceful demonstrations by misusing terrorism legislation to stop protests. This led to 2,700 arrests of mostly elderly people who were protesting about what was happening in Gaza. We had the bizarre sight, week after week, of police arresting vicars and old ladies in Parliament Square when they posed no threat whatever to anyone.
Lord Pannick (CB)
Can I just point out to the noble Lord, if he will allow me to, that these people were not arrested for expressing a view about Gaza? They were arrested for supporting Palestine Action, which is a violent terrorist group.
Lord Strasburger (LD)
Not so far as I know.
It was absolutely farcical, but not very funny, when you consider that the hundreds of police officers involved had far more useful things that they could have been doing. But it seems even that was not enough for the Government. Through this Bill, they are attempting to introduce a raft of further constraints on the right of the British people to express themselves via peaceful street demonstrations.
The law surrounding protest is in a complete mess. Recent legislation has been knee-jerk and reactionary, leaving the legal landscape a complete muddle. Police often struggle to know how to police demonstrations properly, which usually leads to excessive heavy-handed policing and people being charged with all sorts of offences when they may not have been. This has also made the law extremely unpredictable: the mission creep of legislation and case law over recent years has meant that there is now a raft of serious criminal offences —that is, indictable offences—tried in the Crown Court that are no doubt adding to the unacceptable backlog in the courts. It is very easy for someone to attend a peaceful demonstration and inadvertently commit an offence or a more serious offence than they would have reasonably expected their conduct to amount to.
For example, a protester who temporarily blocks a road—as many do—would historically have been charged with wilful obstruction of the highway under Section 137 of the Highways Act. This was a summary-only offence, which used to have a maximum sentence of a fine, although this was increased to six months’ custody in the Police, Crime, Sentencing and Courts Act 2022. Section 7 of the Public Order Act 2023 introduced a new offence of interfering with national infrastructure, which includes all A and B roads, with a maximum sentence of 12 months’ custody. Section 78 of the Police, Crime, Sentencing and Courts Act 2022 also created a new statutory offence of public nuisance, which only requires the doing of an act that obstructs a public right. This is far wider than the old common-law offence that required the obstruction to be “significant”. The effect of all the above, as an illustration, is that someone who stands or sits in a road, as part of a protest, could be charged with any of the four offences that I have just mentioned. There is no real consistency in the charging decisions between different police forces or different CPS regions, meaning that people are often charged with very serious offences for minor conduct. There have even been cases in which different people are charged with different offences arising from identical conduct at the same protest.
The various laws about protest overlap with each other and have not been developed as a coherent framework. Protesters and police are unsure about which laws apply in particular situations. This results in inadvertently heavy-handed policing, inconsistent prosecution, miscarriages of justice, waste of the public purse and clogging up the courts. More importantly, it results in a cumulative chilling effect on our democracy and a stifling of debate. It is high time that the disorganised and disjointed framework of statutes covering the democratically vital activity of protest is subject to a root-and-branch review—one that is truly independent and thorough—and that is precisely what Amendment 371 calls for.
However, since Amendment 371 was laid, the Government have announced a review of public order and hate crime legislation. It is being chaired by the noble Lord, Macdonald of River Glaven, for whom I have the greatest respect. But the terms of reference for the review seem to be focused rather narrowly and do not appear to cover the matters I have just raised—namely, the unco-ordinated and overlapping legislation on protests. I doubt that, in the short period until the review reports next month, the noble Lord will be able to examine the different approaches to arresting and charging between the different police forces. Perhaps the Minister can reassure the Committee that the current review will be broad enough to cover all the shortfalls in the existing regime I have outlined. If he cannot give that assurance, Amendment 371 will need to be passed on Report to generate the full review that is needed.
Amendment 369, if passed, will hopefully prevent future Governments cumulatively eroding protest rights, as has been customary for the last few years.
Lord Hogan-Howe (CB)
My Lords, I would vote against Amendment 371. It is a difficult area and there has to be balance. The noble Lord, Lord Pannick, put it very well. We get more disruption from Remembrance Day every year across the country because roads are closed and people cannot do what they want to do. There are many times in society when we do things which cause disruption to others, but, if pushed, I would be more towards the position of the noble Lord, Lord Blencathra, than I would Amendment 371.
I have three points to make on Amendment 371. First, as the noble Lord, Lord Pannick, said, it duplicates what is already in the convention rights, and I cannot see the purpose of that. Secondly, it says nothing about the basic dilemma, which the noble Baroness, Lady Jones, demonstrated very well: most protest is intended to cause disruption in order to attract attention. People say that causing disruption is a right in a democracy, and I agree with that entirely, but I have to say that it is one of the most inefficient mechanisms for getting an argument over. A guy shouted about Brexit outside my office for about three years. All I could hear was one word about not liking Brexit; I never heard what his argument was. I am not sure a protest ever does any of that. It just attracts attention.
Disruption does cause that attention, but making Amendment 371 the only reason why the police would have to decide whether a march went ahead and if conditions were to be imposed would not address that basic dilemma. Nor would it address the dilemma that mass disobedience has, as the noble Lord, Lord Strasburger, said, achieved far more in the way of democratic change than many forms of parliamentary intervention. It is a mechanism, but a balance has to be struck. Individuals have a right, in addition to the police allowing them to do so, to make sure they can get to a hospital or that a fire engine can get through when it needs to, rather than simply when someone concludes that they will let it through.
Thirdly, the criminal law is the wrong place to state convention rights. If you are going to state them, there may be a place in law, but the criminal law is for declaring offences. If you want to start declaring rights, you might want to start declaring human responsibilities. The start of the Human Rights Act talks about human responsibilities but never got around to providing any enforcement mechanisms. All those things we ought to have as duties towards each other are articulated nowhere. Protestors can have their right to protest, but they do not have to worry about the rights of the poor child who cannot get to school or people who are trying to attend a place of worship. They have rights too, but the protestor apparently does not have to balance their rights when considering exercising his or her own.
My final point is a direct challenge to the noble Lord, Lord Marks, who I really like and respect, and the noble Lord, Lord Strasburger. The noble Lord, Lord Pannick, was quite right: it is quite unfair to criticise the police for arresting people at marches who are supporting a proscribed terrorist organisation. You may not like the proscription, but this place passed the legislation. We also passed legislation saying that it is an offence to support a proscribed organisation. Therefore, if you start waving banners about and saying you support these organisations, there will be a consequence. I do not see how it is okay to argue that the police, in taking action on the laws we passed, are doing something wrong. You may not agree with the law, but it is not right to blame the police for exercising it. That is a confusion that has arisen over the last few months, and it is one we can put right.
Lord Strasburger (LD)
The objection was to the way that terrorism legislation was misused to, in effect, suppress protest. It was misused by combining as a group Palestine Action with two other desperately terrorist organisations, so that MPs and Peers had no opportunity to decide on one and not the other two. It was a bit of a fix.
Lord Hogan-Howe (CB)
I understand the point from the noble Lord, Lord Strasburger. My only challenge is that I do not think it is fair or accurate to blame the police for that confusion. I would stand up for the police, of course, but it would be better of this place to acknowledge that dilemma without blaming them for exercising the powers that we gave them.
Lord Walney (CB)
My Lords, the hour is late, so I will resist the temptation to go further into the rights and wrongs and logical inconsistencies of some noble Lords’ views on the proscription of Palestine Action.
I hope that I offer the noble Lords, Lord Marks and Lords Strasburger, and the noble Baroness, Lady Fox, some reassurance that, in my view, they do not necessarily need to put Amendment 371 on the statute book or even wait for the review lead by the noble Lord, Lord Macdonald. There is an excellent review into protest law, Protecting our Democracy from Coercion, which I was privileged to lay before the House in my then role as the Government’s independent adviser on political violence and disruption. The review covers this whole area. I am pleased that the last Government enacted some of its recommendations, and I am still urging this Government to go somewhat further. It may not strike quite the same chord, but it is there, and it has been done. Some of the recommendations from that review are related to this topic, but they will come in later groupings, so we will get to them when we do.
I will offer a couple of brief thoughts on these fascinating amendments. Many noble Lords have mentioned the balance here, and clearly there is one. It is probably true that the amendments from noble Lord, Lord Blencathra, take a maximalist approach. I am not sure that even I would go that far, and it might well prove to be unworkable. However, it is important for any legislator looking at this area to understand where the public are on this. If we talk about defending democracy, but so gratuitously ignore and act against the very strongly held views of the public on this, then we are getting ourselves into a very difficult place.
None of this detracts from the right to protest. I mentioned my own review, which was published last year. In that review there is polling, which accords with a great deal of polling done by other sources, that shows just how strongly the public object to and oppose disruptive protests. Big majorities of the public are in favour of the right to protest, which is reassuring, but, as soon as it becomes disruptive, they oppose it by a margin of about nine to one.
The proposed new clause in Amendment 369 raises an interesting challenge by explicitly stating the right to protest. The noble Lord, Lord Pannick, is, of course, right that this is unnecessary, in the sense that the right is already enshrined in other areas. Further, where the proposers of this amendment seek to draw the balance glaringly omits the issue of disruption—it completely omits it.
The prospect of avoiding all disruption in protests is clearly not realistic and would go against the point. But we are in an era when much protest is increasingly organised and designed to cause significant economic damage through the disruption of people’s daily lives, often preventing working people from getting to work. I am seeing senior trade unionists scowl at me for making this point, but I would just ask those who have been in trade unions to consider what it feels like for working people to be stopped from being able to go to their workplace and contribute fairly, and being intimidated and shouted at as they go through the doors of their factory or try to go through them and are blocked.
Any attempt to place a balance, whether it is on the statute book, or in an attempt to create new laws, or to shift that balance, which does not acknowledge the harmful effect of disruptive protests on the economy or acknowledge that these things need to be properly balanced, is destined to make very bad law and be intensely unpopular with the public.
Lord Goodman of Wycombe (Con)
My Lords, I strongly commend the report of the noble Lord, Lord Walney, which I have read. My purpose in speaking, very briefly, is to interrogate Amendment 369, in the light of what we already have.
What we already have was very well put in a report by David Spencer of Policy Exchange, the director of which is my noble friend Lord Godson. David Spencer put the current balance very well, I think in his report A Long, Long Way to Go. He wrote:
“The Human Rights Act 1998 does not refer to a ‘Right to Protest’ – the relevant rights are the ‘Right to freedom of expression’ (Article 10) and ‘Right to freedom of peaceful assembly’ (Article 11). However, the sense that many of the recent wave of protests have been ‘peaceful’ by any ordinary understanding of the word – particularly when filled with antisemitic chanting through mobile sound amplifiers, calls for ‘jihad’ on the streets of London, or the use of criminal damage as a tactic – is clearly false. Further, Articles 10 and 11 are qualified rights”—
and this is the point about balance that other noble Lords have made—
“in that they can be restricted where it is necessary and proportionate to protect public safety, prevent crime and protect the rights and freedoms of others”.
I myself think that the balance in the Human Rights Act really puts the matter rather well when it refers to this right of peaceful assembly. Peaceful assembly surely does not mean that the protest must be meek and mild. One must expect protests to be noisy, turbulent, robust and, up to a point, disruptive. But the right of protests to be disruptive, as the noble Lord, Lord Walney, said a few moments ago, must be balanced against the right of others not to have their lives disrupted. That is the balance of the thing.
Furthermore, just in closing, there is a very difficult issue here that David Spencer raises very profoundly about some of the language that has been used in demonstrations that is very close to—trembling on the verge of—incitement. In a country where we have seen what happened in the synagogue in Manchester, and where attacks are carried out on other institutions, we have to bear that in mind.
In short, it seems to me this amendment is either reproducing what is already in the Human Rights Act, in which case it is unnecessary, or it is complicating it, in which case it should not really be there. My own sense is that it is complicating it, and that it makes no sense at all to scatter different rights willy-nilly in different pieces of legislation, rather than—if one is going to set positive rights out in statute—putting them in one place in the Human Rights Act, which is what has been done. So I think that the balance we have got is satisfactory and that the amendment does not really stand up to robust interrogation.
Lord Davies of Gower (Con)
My Lords, I thank the noble Lord, Lord Marks, for bringing forward these amendments. The importance of peaceful protest in a free and democratic society is of course a principle supported by all noble Lords. I want to be clear at the outset that no one on the Benches on this side questions either the legitimacy or the constitutional right to protest.
I first turn to Amendment 369, which seeks to place an express statutory right to protest into the Public Order Act 1986. This amendment risks solving a problem that does not exist. That is our belief. The right to protest is already deeply embedded in our constitutional and legal framework, as the noble Lord, Lord Pannick, has so carefully explained. It is recognised in common law, it long predates our membership of the European Convention on Human Rights and it has been repeatedly affirmed by the courts as a fundamental freedom in our democratic tradition. Crucially, this right has never been absolute. Historically, it has always existed alongside the equally important duties of the state to maintain public order, protect public safety and safeguard the rights and freedoms of others. That careful balance has evolved over centuries through common law and legislation. It is not at all clear that reinstating the right to protest in statutory form would add meaningful protection beyond what already exists.
There is a real risk that codifying such a broad and long-standing right in statue could have unintended consequences. By setting out open-ended duties on public authorities to respect, protect and facilitate protest, the amendment would inevitably invite further litigation and judicial interpretation. Decisions about the proper balance between protest rights and competing public interests, such as disruption to essential services or public safety, could increasingly be determined in the courts rather than by Parliament or accountable Ministers. That risks further frustrating the will of the Executive and of Parliament. I do not believe that placing an express right to protest into statute is either necessary or desirable. Our system has functioned for generations without such a provision and it is not evident that this long-standing settlement is now deficient.
I turn to Amendment 371, which would require an independent review of the existing legislative framework governing protest. We on these Benches are unconvinced of the case for such a review. The Acts listed have been subject to extensive parliamentary scrutiny and their compatibility with the European Convention on Human Rights has been debated at length in both Houses. We do not support proposed new subsection (5) in this amendment, which would require the review to have regard to the impacts of legislation on the exercise of rights under the ECHR. The ECHR is already subject to unwelcome litigation which brings about perverse outcomes that were never intended at its commencement: there are plenty of examples of that. An additional independent review would be unnecessarily burdensome and duplicative, consuming time and public resources without a clear or compelling purpose. For these reasons, we on these Benches do not support either amendment. I look forward to hearing the Minister’s response and to further discussion of how best to uphold both the right to protest and the rule of law in a balanced and proportionate way.
Lord Hanson of Flint (Lab)
I hope it does not surprise noble Lords if I confess that I have been on the odd protest in my time. I have quite enjoyed the freedom to have a protest. I have protested against the apartheid Government, against the National Front and, if the noble Lord, Lord Blencathra, will bear with me, against his Government when he served as a Minister.
The right to peaceful protest is an important part of our democratic society. It is a long-standing tradition in this country that people are free to gather together and demonstrate their views, provided they do so within the law. This Government are committed to protecting and preserving that right. I hope that that gives some succour to the noble Lords, Lord Marks and Lord Strasburger, the noble Baroness, Lady Jones of Moulsecoomb, and indeed others who have spoken in favour.
The noble Lord, Lord Marks, set out his case for the two amendments on public order. Amendment 369 seeks to introduce a statutory right to protest into the Public Order Act 1986, along with a duty on public authorities to respect, protect and facilitate that right. I understand the concerns that he has put and I accept and appreciate those concerns, but, as has been said, not least by the noble Lord, Lord Pannick, these protections are already firmly established in UK law. Public authorities are required under the Human Rights Act 1998, passed by a previous Government in which I was pleased to serve, to act in accordance with the rights to freedom of expression and assembly set out in Articles 10 and 11 of the European Convention on Human Rights.
However, as has been said by a number of noble Lords today, including the noble Lords, Lord Hogan-Howe and Lord Davies of Gower, and as set out in the amendments from the noble Lord, Lord Blencathra, these rights are qualified. This point is illustrated by Amendments 369ZA and 369ZB, put forward by the noble Lord, Lord Blencathra. On that qualification, I am not going to get into the argument between the noble Lords, Lord Marks and Lord Blencathra, but for the noble Baroness, Lady Fox of Buckley, and others who have argued for the amendment today, the key point is that that right, as has been said, can be restricted only where restriction is lawful, proportionate and justified. The right to peaceful protest is also recognised under the common law and creating a separate statutory provision risks duplicating existing protections, which could lead to confusion in how the law is interpreted and applied. It might also complicate operational policing without offering any additional legal safeguards.
I have to say that I agreed with the noble Lord, Lord Goodman of Wycombe, that there is a fundamental right to protest. But I respectfully submit, as I think he argued in his contribution, that the amendment would not strengthen that commitments and might indeed introduce uncertainty into the law. That is a very valid and important point, because existing legislation under the Human Rights Act 1998 and Articles 10 and 11, qualified rights under the European Convention on Human Rights, set out the issues that again were ably outlined by the noble Lord, Lord Pannick. I say to the noble Lord, Lord Marks, that the right to protest exists: it is one that I cherish and have exercised myself and may even exercise myself again in the future, who knows? It is an important right, but his amendment would cause confusion and water down the ability to provide that security of protest under the existing legislation. Therefore, I ask him ultimately to not press it further.
I turn to Amendment 371, which would require the Government to commission an independent review of the existing protest legislation within 12 months of the Bill receiving Royal Assent. The noble Lord, Lord Strasburger, said that the Government called the review post the tabling of this amendment. We proposed the review on 5 October last year. The Home Secretary announced an independent review of public order and hate crime legislation on 5 October last year and I suggest that Amendment 371, in the name of the noble Lord, Lord Marks, would essentially be what the Government have already ordered and would, if agreed today, negate the purpose of what the Government have already ordered and extend the review that we have already ordered still further by establishing that review in law.
We announced the review on 5 October because of the very issues that all noble Lords have mentioned about balancing the right to peaceful protest and the right to enjoy non-harassment, the right to potentially go to a synagogue, or the right to go about your daily business. Those issues are extremely important, which is why the Home Secretary has appointed the noble Lord, Lord Macdonald of River Glaven, KC, a former Director of Public Prosecutions, as one of the people to undertake the review. His independence and expertise will ensure a rigorous, impartial review. He will have the help and support of former assistant chief constable Owen Weatherill, who brings operational experience from his role with the National Police Chiefs’ Council as lead for civil contingencies and national mobilisation. That independent review reaffirms this Government’s ongoing commitment to keep public order legislation under review.
Lord Strasburger (LD)
I am sorry to intervene so late. Could the Minister please confirm whether the review led by the noble Lord, Lord Macdonald, will consider the issue I was raising, which was the incoherence and overlap between the various pieces of legislation on protest?
Lord Hanson of Flint (Lab)
The terms of the noble Lord’s review have been published and they are available to the Committee now. The review will examine whether current public order legislation is fit for purpose in the light of contemporary protest tactics, community impacts and the need to safeguard democracy. It will examine how effectively police are using the powers available to them. It will consider whether further measures are needed to reassure the communities who are most affected by current tensions, while respecting the right to protest. Those are all important issues. The noble Lord, Lord Macdonald, expects to submit the review to the Home Secretary by spring 2026 and, in doing so, will give an overview of all the legislation that is in place.
The noble Lord, Lord Strasburger, commented on Palestine Action and the right to protest of Palestine Action. I want to reaffirm that both the House of Commons and this House had an opportunity to vote in favour or against that legislation. Both the House of Commons and this House voted in favour of the legislation, which is why, as the noble Lord, Lord Hogan-Howe, said, police officers are implementing the legislation that was passed by both Houses. As I recall, although I cannot remember the exact figures, a number of Members of this House voted against that order, including Members from my own side. It was a difficult debate in July. It was a free vote; many Members voted against it in the Commons and this House, but both measures were passed in both Houses.
It is not illegal for anybody to go outside now and campaign against the Israeli Government or any actions by the Israeli Government, or to campaign in favour of the Palestine organisations that are seeking to change the status quo in that part of the Middle East. What is illegal is to show support for an organisation that I, Ministers and the Government, on advice from the security services and others, determined was engaged in activities that crossed the threshold of the Terrorism Act. The noble Lord, Lord Walney, is well aware of the complexities of that, as a former adviser, but that was the advice we got.
If an organisation is breaching the threshold for terrorism, it is the duty of this Government to act, and that is what we did in those circumstances. So I want to place on record again, for clarity, that the noble Lord, Lord Strasburger, can go outside tonight and campaign for a Palestine state and against the Israeli Government, and no police will arrest him or, as he mentioned, any grandparent, teacher or professional. But if he goes out and supports Palestine Action, which has been determined to have crossed the threshold of the Terrorism Act, he will face the full force of the law. If he does not like the law, he can try to change it, but that is the law passed by both Houses and therefore the police have a duty to uphold it. It does not stop peaceful protest.
Baroness Jones of Moulsecoomb (GP)
I would love to reopen the Palestine Action debate, because I was the person who pushed for the vote and, as we exited the Chamber, several Peers said to me, “This is going to cause trouble”. So people knew.
However, on the review led by the noble Lord, Lord Macdonald, can the Minister say whether the noble Lord set the time limit or whether the Government did, because it seems a lot of work for such a short time?
Lord Hanson of Flint (Lab)
I always try to be helpful to the House. I was not directly party to the issue with the Home Secretary and the noble Lord, Lord Macdonald, about the time limit, so I cannot say with any certainty whether the Home Secretary said to the noble Lord, Lord Macdonald, to do it by April, or the noble Lord, Lord Macdonald, said that he will deliver it by April. If the noble Baroness wants me to write to her to make that point, I will do so.
The key thing at the heart of Amendment 371 tabled by the noble Lord, Lord Marks, is that it provides for the review to be undertaken within 12 months of the Bill receiving Royal Assent. I say to the noble Lord, Lord Marks, that the review we are doing currently will have been completed by April 2026.
Lord Walney (CB)
Many of us in this Committee would be absolutely amazed if the noble Lord, Lord Macdonald, stuck to his timetable of being able to publish something next month. He does not need to take four years, as I did, but it is a ferociously tight timetable.
If you follow the logic of those arguing that people who were protesting in support of Palestine Action should not face legal charge, is it not the case that they would then have to say that support for any terrorist organisation, if it was so-called peaceful, should be allowed—so you should be able to peacefully give your support for Hamas or any violent organisation? If that is their argument they need to properly say it, because many people would have problems with that.
Lord Hanson of Flint (Lab)
I agree with the noble Lord, Lord Walney, on that point. The right to free speech is extremely important, and there is no stopping the right to free speech about the issue of Palestine in any way, shape or form. If a determination is made under the Terrorism Act 2000 that an organisation has crossed that threshold, the Government have a duty to act on that, which is what we have done in this case. With due respect to the noble Lord, Lord Strasburger, I just did not want to allow the comments he made to colour the position on a protest around Palestine. He can protest around that, but he cannot support an organisation that still has some outstanding court cases and has undertaken some severe action to date.
Lord Marks of Henley-on-Thames (LD)
May I press the Minister on that? I quite understand his analysis of the law: that the Palestine Action group became a proscribed organisation when Parliament said it should and, as a result of that, it follows from the terms of the Terrorism Act that there were and are continuing to be prosecutions of people who express support by perhaps sitting wearing a placard, or by wearing an item of clothing that expresses such support.
The proscription is of course the subject of challenge in the courts here and may well be the subject of challenge in the European Court of Human Rights, so I will say nothing further about that. But subject to that, have the Government not had any concern about the fact that because of the way the Terrorism Act works, the proscription of any organisation means that any expression of support, as the noble Lord said —however peaceable or however others might regard it as simply peaceable protest—renders it illegal and renders the person expressing such support liable to being prosecuted? Do the Government not feel that this is a reason for having a review of the validity and sense of the law in this area, where the Terrorism Act carries, as it stands, that unfortunate consequence?
Lord Hanson of Flint (Lab)
We have strayed, with due respect to all noble Lords, slightly wider than the amendment. I just wanted to make the point about Palestine Action because the noble Lord, Lord Strasburger, mentioned it.
The noble Lord, Lord Macdonald of River Glaven, is looking at all aspects of prosecution and all aspects relating to legislation. We keep all matters under review at all times.
The 2000 Act sets down certain criteria. That threshold was passed and crossed in this case. I defended that in this House, and the House supported it on a cross-party basis. That is political life. The noble Lord can move an amendment at any time to strike that legislation down, if he wishes to.
I hope that the noble Lords will not press the amendments before us today. The right to peaceful protest is vital. The Government support it. The Government are making changes still to allow that right but also to try to get a fair balance so that communities and others can also enjoy life when a protest occurs. We have the wider review from the noble Lord, Lord Macdonald of River Glaven, which will report in due course and which will colour, no doubt, further discussions. I hope that the noble Lord will withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will be as brief as I can. On the amendment from the noble Lord, Lord Blencathra, I welcome his support for the principle of Amendment 369, but our amendment does fully respect the rights and freedoms of others and does so expressly in proposed new subsection (3)(c). That does not mean that any inconvenience to citizens should be accepted as a reason for restricting the right to protest. I make the point that the noble Baroness, Lady Jones, and others have made: that nearly all protests cause some inconvenience and noise without unduly infringing the rights of others. I suggest to the noble Lord, Lord Blencathra, that, certainly as they are framed, his amendments smack of intolerance in their failure to countenance any inconvenience.
All noble Lords have accepted that the rights of neither side of the argument are absolute—the noble Lords, Lord Walney and Lord Goodman, made the same point. I believe, along with others, that the toleration of some inconvenience is the price of the democratic right to protest.
The noble Lord, Lord Pannick, is absolutely right that we have the ECHR rights, and he knows that I regard them as of critical importance. He makes the point—supported by the others, and it would be echoed by me—that Amendment 369, in part, duplicates the ECHR rights; I am bound to say that I do not regard it as likely that there will be satellite litigation about the difference between the two sets of rights. One point that bears on his argument is that the statement in domestic legislation that directly bears on the right to protest—whereas the Article 10 and Article 11 rights do bear on it but not as directly as our amendment —is of great importance. But that is only part of the picture.
I am also absolutely clear that I am not criticising and have at no stage criticised the police for enforcing the law. Indeed, as it happens, I take the contrary view. I do not believe that the police should have discretion not to enforce the law except on quite serious grounds of convenience.
I criticise the fact—I say it is relevant, when the Minister said it was not relevant—that the need for reconsideration of the Terrorism Act in the light of what has happened, and it has left us in the position that peaceful protest can lead to prosecutions that are unintended, means that a full review is necessary. I, of course, welcome the review of noble Lord, Lord Macdonald of River Glaven, and I welcome the fact that the Government have put that in train, but a further full review over a longer period is necessary.
However, the absolutely crucial point about the need for Amendment 369 is the one the noble Baroness, Lady Fox, made: it would impose an express statutory duty on public authorities to respect, protect and facilitate the right to protest, which is not anywhere in the ECHR. There may be resource implications to that, but it only reflects the importance we place on preserving democracy and the right to protest along with it.
For the time being, I will of course seek leave to withdraw the amendment, but I will reconsider the position between now and Report, having regard to the support I have received from some quarters around the House, but not universally.
The Deputy Chairman of Committees (Viscount Stansgate) (Lab)
My Lords, the noble Lord is slightly premature. Technically, we are debating Amendment 369ZA, to which the noble Lord, Lord Blencathra, is entitled to reply.
Lord Blencathra (Con)
Yes, my Lords, procedurally I have to be the tail-end Charlie here and seek leave to withdraw the amendment. However, I am so pleased that the noble Lord, Lord Marks, was able to get in and do a summing up of his amendment.
As soon as I saw Amendment 369, I thought, “This is too extreme; it is unbalanced, and I’ve got to rebalance it”. But I could not rebalance it by tweaking it, so I adopted the maximalist approach of the noble Lord, Lord Walney, and that approach, which I agree is also slightly unbalanced, managed to provoke an important debate on the balance of rights and the right to protest. Of course, it provoked the noble Baroness, Lady Jones of Moulsecoomb, but if one is to be beaten up in this House, there is no one better to beat me up than the noble Baroness, because she does it with a smile on her face. I know that, deep down, she does not mean it.
I was delighted to be defended by the noble Lord, Lord Pannick. He was right: we already have all the law we need here—we do not need a new statute. I was interested in one of the points the noble Baroness, Lady Fox, made, which I have seen too. Protests have changed. She said that they have become more violent and toxic and that she was screamed at by nasty protesters. That is not very good. I like what the noble Lord, Lord Hogan-Howe, said: that disruption does not often work but persuasion does. He said that disruption is a mechanism for change, but people have rights as well, and that the criminal law is not the place to put in a new law on rights.
I am also grateful for the wise contribution of the noble Lord, Lord Walney. You cannot ignore the public’s views on the disruption protesters cause, and if the protesters go too far, the public will take their own action and will rebel. I mentioned seeing motorists getting out of their cars and dragging protesters off the roads. The noble Lord also mentioned the damage to the economy, and I agree with him on that.
I agree with my noble friend Lord Goodman, who gave an excellent exposition of the balance of rights and duties. I thank my noble friend Lord Davies of Gower. I agree with him and welcome his view that the amendments are not essential.
Finally, I say again to the noble Lord, Lord Marks, that I profoundly disagree with his amendment and what he said, but he had a very powerful and persuasive case, and I congratulate him on the way he set it out.
In his usual courteous way, the Minister took all our points of view into account, and he agreed with the noble Lord, Lord Pannick, that we already have all the rights we need and do not need a new law. So with that, and at this wonderful hour of the night, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Viscount Stansgate) (Lab)
It is now appropriate for the noble Lord, Lord Marks, to tell the Committee whether he wishes to withdraw Amendment 369.
Lord Marks of Henley-on-Thames (LD)
I apologise for intervening too early, and I seek leave to withdraw my amendment.