Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I speak in support of Amendment 4 and draw attention to my entry in the register, with regard to support from RAMP for this and later amendments.

It is vital that, in line with our international obligations, we uphold the human rights of men, women and children who seek asylum in the UK. It is worth remembering what Theresa May—no softy when it comes to immigration matters—said in the Commons:

“That matters because of the reputation of the UK on the world stage, and because the UK’s ability to play a role internationally is based on our reputation—not because we are British, but because of what we stand for and what we do”.—[Official Report, Commons, 13/3/23; col. 592.]


Related to this is a warning from the Council of Europe Commissioner for Human Rights in her letter to the Lord Speaker that the Bill, as summarised in Clause 1, would

“provide an incentive to other states, in Europe and beyond, to follow the UK’s lead in evading and abdicating its responsibilities to people in need of protection”.

Given that much of the Bill is justified with reference to incentives, one hopes that this warning might resonate with Ministers. If other countries follow suit, we could well find that we have more, not fewer, asylum seekers trying to cross our borders.

Of the conventions listed, I will focus just on those relating to refugees and children, although I also draw attention to the concerns raised by Redress, which warns that the Bill threatens to cause the UK to violate key provisions of the UN convention against torture. I will not repeat the highly damaging verdict of the UNHCR, other than to note, as did my noble friend, the unprecedented strength of its criticism, reflected in the stark warning that the Bill amounts to an “asylum ban” in contravention of the refugee convention. Every briefing that we have received, including from the EHRC and the Law Society, echoes these concerns about the refugee convention. Indeed, the UN special rapporteur on the human rights of migrants, and other UN rapporteurs, have urged the Government to halt the Bill’s passage so as to bring it

“in line with international human rights standards”.

However, according to the Home Secretary, such claims are “simply fatuous”. She put forward two arguments in the Commons to justify her position. The first is that while the

“convention obliges parties to provide protection to those seeking refuge. It does not require that this protection be in the UK”.

However, the UNHCR explains that, under the Bill, the Home Secretary

“will not be required to assess whether removal”

to a supposedly safe country

“would be safe or reasonable for a particular individual or whether they will be able to claim asylum there. Individuals would have very limited opportunities to present evidence of the risks they would face”.

Thus, it warns that the removal duty placed on the Home Secretary

“creates real and foreseeable risks of refoulement”.

This is echoed by the UN rapporteurs. The proposed responsibility-sharing arrangements lack the required safeguards to protect the rights of asylum seekers and refugees.

Secondly, the Home Secretary prayed in aid Article 31 of the convention which, she argued,

“is clear that individuals may be removed if they do not come ‘directly’ from the territory where their freedom is threatened. Denying those arriving illegally from France, or any other safe country”

is, she concluded,

“therefore, entirely consistent with the spirit and letter of the convention”.—[Official Report, Commons, 13/3/23; col. 580.]

However, the UNHCR is clear that it is not consistent. Its legal observations on the Bill are explicit:

“Mere transit in an intermediate country cannot be considered to interrupt ‘coming directly’”.


As the EHRC points out, because of geography, “direct” routes to the UK are rarely available. Exploiting our geographical position to abdicate responsibility for asylum seekers shames us as a country. I therefore repeat the question that I asked at Second Reading: can the Minister explain why we should accept the Government’s interpretation of the refugee convention over that of the body with supervisory responsibility for it? That body was recently described by another Lords Minister as “a key partner”.

The UNHCR also warns that

“The Bill is inconsistent with the UK's obligations under the UN Convention on the Rights of the Child … because of the many ways it threatens or undermines the safety and welfare of children”.


I will not go into detail here, because a number of amendments specific to children will follow, but it is worth noting now that, in the view of UNICEF, which is mandated by the UN General Assembly to uphold the UNCRC and promote the rights and well-being of every child, children should be removed from the scope of the Bill in order to uphold the Government’s

“duties to act in the best interests of the child”

as set out in the UNCRC. Similarly, the Children’s Commissioner, who has demonstrated a passionate concern about the Bill’s implications for children, has warned that it

“would place the UK in clear breach of its international law obligations under a range of children’s rights treaties”.

The equality impact assessment, which finally appeared on the morning of Second Reading, assures us that

“the Home Office will continue to comply”

with the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009

“to have regard to the interests of children as a primary factor in immigration decisions affecting them”.

As UNICEF reminds us, this duty was enacted in order to implement the UNCRC “best interest” requirement. Yet, the equality impact assessment tries to wriggle out of the duty by arguing that:

“The duty does not mean that it is the only factor that must be considered”.


In effect, it is being treated as a secondary rather than a primary factor, an issue to which I will return in a later group. We still await the child rights impact assessment called for by the Children’s Commissioner as essential to ensure consistency with the best interest requirements. It was promised “in due course” in a Written Answer on 17 May, so where is it?

Relevant here too is the position of the devolved nations. The Northern Ireland Human Rights Commission has warned that the Bill could contravene the Good Friday/Belfast agreement and Windsor Framework in a number of ways. Has the Minister read its critique, and will the Government be publishing a response to it? The Welsh Civil Society Forum points out that Wales’s “child first, migrant second” approach, in line with its incorporation with the UNCRC, risks being undermined. As the Constitution Committee points out in its critical report on the Bill, while

“international relations are reserved matters … observing and implementing international obligations are devolved”.

What is the view of the devolved legislatures?

In conclusion, we must take note of what national and international human rights bodies are saying about this Bill. To echo a point made by other noble Lords, if the Government genuinely believe that the Bill meets the obligations in the conventions listed in the amendment, why not accept it now? Refusal to do so will only reinforce the belief of the UNHRC and others that this Bill marks the abrogation of the UK’s global responsibilities.

[Baroness Butler-Sloss (CB)]

I would happily support all the amendments, although I would prefer Amendment 4, which I think expresses it more accurately, perhaps, than the others. I only really want to make one point because so many points have been made with which I entirely agree and they are almost unanimous across the Committee, as perhaps the Committee is noticing. We heard from other speakers that the Prime Minister put his name to that convention or treaty earlier in Reykjavik in which he is supporting international conventions. The Minister in the other place spoke about caring about international conventions. The question I want to ask the Minister is: looking at this Bill, looking at how it has been pulled apart in Clause 1, does the Minister really feel able to say that the Government care at all about international obligations?

[Lord Horam (Con)]

My Lords, I want to comment on the speech made by the right reverend Prelate the Bishop of Chelmsford just now. She made a very important point which the Committee should take note of. She said that the amount of work that went into the programme to deal with people fleeing Ukraine was significant and she praised that. She understood from her experience the amount of effort that the Home Office made in that particular case.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am not sure that I agree with the noble Lord. There is no requirement that powers should conceivably be expressed on the face of every Bill in such a way that they are trammelled by international obligations. That would be contrary to the dualist system, as my noble and learned friend Lord Wolfson made abundantly clear. I am reluctant to reopen that particular exchange at this juncture, given the time that we have remaining prior to the dinner break.

States take different approaches to their international law obligations. Some states treat international law as part of their domestic law, but the UK, like other countries with similar constitutional arrangements, including many Commonwealth countries, has the dualist approach that we have discussed before. In those states, international law is treated as separate from domestic law and international law is incorporated into domestic law only by decisions of Parliaments through legislation. That is a point we have already discussed. The effect of these amendments would be to make the provisions of all the listed international agreements effectively justiciable in the UK courts. It is legitimate for noble Lords to make the case for incorporation into domestic law of one or more of these international instruments, but that is not the Government’s position, and we should not be using this Bill to secure that outcome.

I hope that, in light of my explanation, the noble and learned Lord will be content to withdraw his Amendment 1.

[Baroness Butler-Sloss (CB)]

I wonder whether the Minister could help me. He said that the Government would apply—I gather—all the conventions that are in Amendment 4. May I suggest that it would be impossible for the Government to apply the United Nations Convention on the Rights of the Child? It is perfectly obvious that the best interests of a child throughout the Bill will not be recognised.

[Lord Murray of Blidworth (Con)]

Clearly, as I have already said, it is the Government’s view that nothing in the Bill requires the UK to breach its international obligations, whether in relation to the UN Convention on the Rights of the Child or any of the other listed international instruments. Of course, the United Kingdom takes compliance with its international obligations very seriously.

Public Order Bill

Baroness Butler-Sloss Excerpts

Consideration of Commons amendments
Tuesday 28th March 2023 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I did not plan to speak and do not have notes to speak from, and I will speak briefly, but I want to express my strongest possible support for the amendment in the name of the noble Lord, Lord Coaker. I regret that the noble Lord, Lord Hogan-Howe, who I respect a lot, has nitpicked through the amendment. The principle of the amendment is that stop and search without suspicion is a completely exceptional step to be taken in a democracy. If we were standing here in Moscow, or Beijing, we might well expect this sort of power to be given to the police in relation to public demonstrations. It is not for this country to be introducing these powers for the police, and I am so shocked, frankly, that our Government are attempting to do that.

The amendment is incredibly modest. It is saying that police officers do not take these powers and use them thoughtlessly without proper care, attention and, ideally, consultation with the community. This is an incredibly serious step for any police officer to take. That is the point of this amendment. Yes, we can say it should say this or that or something else. That is not the point. The point is that this power is outrageous; the police already have the powers they need to deal with demonstrations—they really do. Those police officers need the commitment of the community and to work with the community. This power will interfere with policing and reduce the safety of our communities up and down the country.

I hope that the House will support the amendment in the name of the noble Lord, Lord Coaker, as a clear statement that we know this power to be the dangerous step that it is and that police officers need to take the most extreme care in using it.

[Baroness Butler-Sloss (CB)]

My Lords, I say briefly that I am concerned about the use of these powers and I support the amendment in the name of the noble Lord, Lord Coaker.

[Lord Paddick (LD)]

My Lords, I will not repeat what I said last time, but since last time, as the right reverend Prelate the Bishop of Manchester, said, we have had the Casey review. The noble Baroness, Lady Casey of Blackstock, is quite clear about what she thinks about stop and search. In that review, she says, as the noble and right reverend Lord, Lord Sentamu, has already said:

“The use of stop and search in London by the Met needs a fundamental reset. The Met should establish a charter with Londoners on how and when stop and search is used, with an agreed rationale, and provide an annual account of its use by area, and by team undertaking stop and searches”.


It is unfortunate that the noble Lord, Lord Hogan-Howe, disagrees with the noble Baroness, Lady Casey, in coming to that conclusion. Elsewhere in the report she says:

“Stop and search—”

Black and Minority-ethnic Children: Police Strip-searches

Baroness Butler-Sloss Excerpts

Monday 27th March 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My noble friend is right. At the start of the process, 14 referrals involving strip-searches were received by the IOPC from the Metropolitan Police Service. On 1 August 2022, it confirmed that it is investigating five of these cases. It decided that six of them were suitable for local investigation by the force, and the remaining three are still being assessed to determine whether further action may be required by the IOPC. However, the IOPC has been asked to take a more general look at the framework. We expect its findings soon, and for it to opine a little more widely.

[Baroness Butler-Sloss (CB)]

My Lords, nearly 3,000 children have been strip-searched. Waiting for the IOPC is a long process, and it seems to me that the Government should intervene to see that the rules are complied with.

[Lord Sharpe of Epsom (Con)]

The noble and learned Baroness is absolutely correct that there has been a large number of these cases. Our problem with intervention is that data has only recently started to be collected on this. As I said, there is a great deal of incoming input, and it is appropriate to wait for that to make sure that we are properly informed.

Public Order Bill

Baroness Butler-Sloss Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I thank the Government for Motion C—yes, I did say that. In very turbulent and polarised times in our country, it is a real pleasure to be able to welcome it. Noble Lords will notice that there is a fairly minor tweak to the original amendment passed by your Lordships’ House. We said that a constable should not exercise powers for the principal purpose of preventing someone reporting, and the Government have replaced “principal purpose” with “sole purpose”. I for one am convinced that the precious and vital protection for journalists and others reporting on protests, rather than participating in them, is provided. The Minister wrote and said that they do not think that this is necessary but are doing it anyway. That is not ungracious. It is gracious, because I happen to think that this protection is vital. The Government disagree but they are doing it, so I am happy to thank them.

I remind noble Lords, as the Minister did, that the provision is in response to real cases: real journalists were arrested and detained last November, some for many hours, just for doing their job. The offence used when it was suggested that journalists were giving the oxygen of publicity to protesters was the fairly vague conspiracy to cause a public nuisance. While the Government have been consistent in their position that additional protection is unnecessary, no one at any stage of proceedings on the Bill could point to a single legislative provision on the current statute book that gives this protection. Therefore, I am grateful to the Minister for the way in which he has engaged with this and responded, not least to what I think was the largest defeat that the Government suffered on the Bill last time.

I am particularly grateful to Charlotte Lynch, the LBC reporter who visited us last time, having experienced the really quite traumatic incident of being arrested, handcuffed, put in a police van and detained for seven hours. This causes her some anxiety even to this day. She carried on and reported on that experience, and that has been very important for future journalists in this country, I hope that noble Lords will agree.

I am grateful to the all-party group, Justice, and Tyrone Steele, who worked with us on this amendment. I am especially grateful to the five distinguished Conservative Members of your Lordships’ House, including the former governor of Hong Kong and a former leader of the Conservative Party, who did the very difficult thing of coming through the lobbies with Her Majesty’s Opposition. I give my absolute respect to them.

I am, of course, grateful to my noble friends, the Liberal Democrats and many Cross-Benchers who supported this vital protection. I give especial thanks to the co-signatories of the original journalists’ protection amendment, including the noble Baroness, Lady Boycott. It was a great comfort and support to have such a distinguished journalist and former newspaper editor on my side in this.

My enormous thanks also go to the noble and learned Lord, Lord Hope of Craighead. We disagree about some things, but not about this. In particular, I thank my co-signatory, the noble Lord, Lord Paddick, not only for co-signing this amendment and bringing his noble friends with him, but for a lifetime of public service in policing and in your Lordships’ House. He is the most diligent and distinguished face of the police service in this country. When we reform that service, it will better reflect his values. That career of public service could not be better demonstrated than by him being here today, after suffering such unspeakable loss in recent weeks.

I do not want to take your Lordships’ time on the next group, so will say now that I support the noble Lord, Lord Paddick, and my noble friend Lord Coaker in the remarks that they will make about suspicionless stop and search. Stop and search is always difficult and challenging for police community relations, but suspicionless stop and search is positively toxic and not something that we should be increasing in these troubled times in our country.

Finally, I come to the difficult question of the meaning of “serious disruption”, not for the purposes of some offences, but for the whole Bill. We have the narrow policy question of what the threshold should be before a number of criminal offences and intrusive police powers impugned what would otherwise be totally peaceful and innocent dissent. That is the narrow question.

We also have a rather deeper and broader—almost philosophical—question of common sense and the English language. Is “serious” significant, as I believe, or simply more than minor? Is it a simple binary, like a child’s 18th birthday that turns them from a minor into someone who has majority; or is there a whole range of disruption that one can face in one’s life from something that is minor to something that is really quite a lot more than minor—that is significant?

This is a serious question and the threshold should be high. I am reminded of George Orwell’s famous essay “Politics and the English Language”—my favourite writing of his—in which he reminded us that distortion of language can quickly lead to abuses of power. This is a Public Order Bill and this ought to be a very serious threshold. However, if noble Lords prefer their literature to be accompanied by music, I will invoke not George Orwell but Cole Porter:

“There’s no love song finer, but how strange the change from major to minor”.


I urge all noble Lords who care about these things, who take a bipartisan approach to fundamental rights and freedoms in our country, as those distinguished five Conservatives did last time, to support Motion A1 in the name of my noble friend Lord Coaker.

[Baroness Butler-Sloss (CB)]

My Lords, I have been reflecting on the speeches which we have just heard. Listening to the noble and learned Lord, Lord Hope, and his point about the threshold, I have been thinking about what would be more than minor that was not significant. Looking at the examples that the noble Lord, Lord Coaker, gave, it seems to me that if one discovered people tunnelling under an area that was going to be HS2, that is not only more than minor; my goodness me, it seems to me to be significant. I was also thinking about the closing of four or five motorways. So far as I am concerned, that seems to be both more than minor and significant. I just wonder, rather hesitantly, whether we are arguing about a position where the difference between “more than minor” and “significant” is extremely small. I cannot at the moment think of a word that I would use that was more than minor but not significant. That is where I stand—a slightly different position, I confess, from what I said on the last occasion.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I hope I do not cause offence here, but I disagree strongly with the noble and learned Lord, Lord Hope of Craighead, and the noble and learned Baroness, Lady Butler-Sloss. I shall give the House a few words that would be more than minor but less than significant: it could be “reasonable”, “measured, “limited” or “tolerable”. There are all sorts of stages between “more than minor” and “significant”. As a veteran protester, I have probably passed quite a few red lines in the past, although I have never committed violence—so far.

I turn to Motion A1. Obviously I am upset, along with other noble Lords, I hope, at the fact that the other place immediately whips out all our good work and indeed our hard work. We spend time reading the Bill and thinking about it, which obviously the majority of people in the other place do not; they simply do whatever the Government tell them. I feel that the Government are trying to stop protest of virtually every kind—almost any protest imaginable—and that is so deeply oppressive that I could not possibly support it, so I wholeheartedly support Motion A1.

If the House will indulge me, I will mention the other two Motions as well so that I speak only once. I am horrified by Motion B2. I regret that Labour feels it cannot support Motion B1 in the name of the noble Lord, Lord Paddick. Sitting here, I have been thinking that I would vote against Motion B2, but that is probably too difficult. I do not even think I can abstain, so I think I am going to vote for it—but it will be through gritted teeth as it goes against all my libertarian views, and I am really annoyed with Labour for putting it in.

To finish on an upbeat note, there is Motion C. The Government make endless bad decisions. We are wallowing in an ocean of bad decisions nationally because of this Government, and some extremely unpleasant scenarios, with poverty and deprivation, are playing out because of them. But here they have done the right thing. It is incredible that the Government have come back with not just something that we generally asked for but with a slightly improved version of the Lords amendment, which I have to thank them for and say “Well done”—if that does not sound too patronising, or matronising. It is a win for civil liberties and the right of the public to be informed about protest and dissent.

On a final note, I have been saying that I am the mother of a journalist. That is a slight twist of the truth, because actually I am the mother of an editor, and I just know that she will be absolutely delighted with what the Government have done today.

Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Wednesday 8th March 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

Yes. Taking the noble Baroness’s points in order, I very much heed her words: it is very important that discussion of these issues happens in a calm and measured fashion. On her second point in relation to the cynicism that is born of the abuse of the generosity of the British people towards those seeking asylum and humanitarian protection, I could not agree more. Sadly, that has led to a reputation that these measures can be abused by those who are, in reality, wanting to come to Britain for reasons of economic migration rather than for genuine protection. Abusing those measures has led to a degree of cynicism among the public. Finally, on her final point as to whether there is toxicity, there is. The best way to deal with that is to stop the boats and have a system of asylum protection that brings people directly from neighbouring countries to those from which these people come and does not allow people to jump the queue by travelling across Europe and paying the people smugglers.

[Baroness Butler-Sloss (CB)]

The Modern Slavery Act 2015 was a landmark Act, followed by many parts of the world. Do the Government appreciate the impact across the world, in countries that have followed us, of the extent to which we are reneging on that Act under Clauses 21 to 25?

[Lord Murray of Blidworth (Con)]

I entirely agree that the Modern Slavery Act was a landmark provision, but sadly that too has been the subject of very extensive abuse. As we set out in the Statement, it is clear that people are being advised to claim that they are victims of modern slavery in order to avail of the respite and the long period for conclusive determination of modern slavery claims, which was passed by this House and the other place as a measure of compassion for modern slaves. The measures in this Bill do not undermine our principle of acting to stop this evil practice of modern slavery.

National Security Bill

Baroness Butler-Sloss Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I agree that it demands justification, which is that when terrorists carry out their activities, they are attacking in a random way the state itself. The attacks against women to which the noble Baroness referred are of course totally reprehensible, but do not attack the state in any way. They attack women for what they are and those offences are, of course, taken extremely seriously.

I accept that the Government’s amendments regarding civil legal aid on these offences send a message. I and the Labour Party accept and support that point. However, that needs to be ameliorated at the lower level and reviewed. That is why I will be testing the opinion of the House when we reach Amendment 188A.

[Baroness Butler-Sloss (CB)]

That does not clear a path in the Bill at all. I am rather shocked by Clause 89. I should like to ask the noble Lord whether he accepts the position regarding someone who was convicted of terrorism some years before and brings a civil claim, particularly, for instance, for eviction from housing. Is he or she entitled to a lawyer in order to be able to come before the court and put his or her case? If so, there is an absence of fairness if that person cannot afford the lawyer that he or she would need, and would have to represent himself or herself. That seems to be contrary to access to justice.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we in the Opposition are accepting the principle that terrorism is uniquely terrible and needs to be dealt with in that way. However, my amendment calls for a review of the impact of this on certain lower-level cases.

Violence Against Women and Girls: Stalking

Baroness Butler-Sloss Excerpts

Thursday 23rd February 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, would it be wise to have some publicity about non-domestic stalking? The Minister says that it comes under harassment, but are the police altogether aware of it—and, indeed, the public who suffer?

[Lord Sharpe of Epsom (Con)]

I would hope that the police are already aware of it. As regards the public, the noble and learned Baroness makes a sensible point; it probably ought to be better known.

Prostitution

Baroness Butler-Sloss Excerpts

Tuesday 21st February 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My noble friend is right to bring up the subject of adult services websites. We recognise that criminals can and do use prostitution and sex work to target and exploit vulnerable people for their own commercial gain. Adult services websites are the most significant enabler of sexual exploitation linked to trafficking, so we are developing, across adult services agencies, a websites approach and we are investing additional resources to support the police. It is important to come back to an earlier question: we are also tackling demand by targeting users of adult services websites to raise awareness of sexual exploitation on those sites through the use of things such as Google ads.

[Baroness Butler-Sloss (CB)]

My Lords, carrying on from the last question, the police on one occasion took me around north London for an evening and, as we were leaving, they pointed out a considerable number of brothels in the Tottenham area, in which, they said, the people were almost all trafficked women. This is a very serious matter, and if there are to be premises for women—and sometimes for men—to work, does the Minister agree that we must bear in mind that a great many of them have been trafficked?

[Lord Sharpe of Epsom (Con)]

I think that the noble and learned Baroness is absolutely right; it is something we need to be aware of. Again, a lot of this comes down to reducing demand for sexual services. It is worth point out that the improved guidance has highlighted that Section 53A of the Sexual Offences Act makes it illegal to pay for the sexual services of a prostitute subjected to

“force, threats … or any other form of coercion, or … deception.”

That is a strict liability offence, meaning that it is not a valid defence that the defendant did not know that the prostitute had been subject to force or coercion. That should probably be more widely known.

Public Order Bill

Baroness Butler-Sloss Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, when my younger son was 18 or 19, he went around with black friends, and he was stopped three or four times a day with his black friends—but when he went out with his white friends, he was not stopped at all.

I am particularly concerned about Clause 11, and not only for what the noble Lord, Lord Deben, has said. With Clause 11, you start with

“a police officer of or above the rank of inspector”.

You then go to

“a police officer of or above the rank of superintendent”.

But in Clauses 6 to 8, it is a constable. So a constable can—without authority from anyone above, as far as I can see under the clause—stop and search someone without suspicion. We should be very cautious about that.

Public Order Bill

Baroness Butler-Sloss Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I would have thought that the necessity for the Lord Speaker to retire for five minutes might be termed a “serious disruption” of the working of this House. However, the point I want to make, briefly, concerns the use of the phrase “capable of causing”. According to Amendment 48, a senior police officer will make the decision. What on earth will he base the decision on? It would certainly be easier with Just Stop Oil or Extinction Rebellion, but, as we know, there are many other processions and disturbances—particularly in London but right around the country—that he would not know to what they were leading or what they would be like. How on earth is he to assess whether they are capable of causing serious disruption? I find the issue very difficult to understand. I hope the Minister will explain what is really meant by a police officer deciding what is “capable of causing” serious disruption.

[Baroness Chakrabarti (Lab)]

My Lords, it is a pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, and a daunting privilege, as always, to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood. My views on the necessity and desirability of this proposed anti-terror-style legislation are no secret. But whether noble Lords are for or against this Bill—whether they are for or against its new offences, including thought crimes, stop and search powers, including without suspicion, and banning orders, including without conviction—all noble Lords must agree that the concept of “serious disruption” has been used throughout the Bill as a justification and trigger for interferences with personal liberty.

So, “serious disruption” should be defined. However, His Majesty’s Government resisted any definition at all, all the way through the Commons stages of the Bill and in this House, until this late stage, notwithstanding attempts by some of us on this side to provide a single overarching definition very early on, in Committee, and despite even senior police requests for clarity. What a way to legislate, bearing in mind that we are here at all only because of late amendments to last year’s bus—sorry, Bill—the police et cetera Bill, which would have had this whole Bill dropped into it, again at a very late stage.

Just over a week ago, via a Sunday afternoon No. 10 press release—because No. 10 press officers never rest on Sundays—and with no amendment even attached to that press release, we learnt that there was to be some sort of definition so that

“police will not need to wait for disruption to take place”.

The government amendments and signatures to amendments from other noble Lords were not published until about 24 hours later, so there was a whole media round of debate the next morning—this was before the conviction of Police Constable Carrick—concerning unpublished amendments. I hope that the Minister will tell us when he first knew about this new approach of having a definition, and why it was heralded by press release rather than discussion in your Lordships’ House.

As for the substance of the issue, government amendments are confusingly piecemeal and set the bar too low before a number of intrusive police powers and vague criminal offences kick in: “more than minor” hindrance is not serious disruption. More than minor is not serious enough. They cannot be serious.

I face more than minor hindrance in congested London traffic every day or even when walking through the doors and corridors of your Lordships’ House at busy times. The definition of civil nuisance at English common law involves “substantial interference” with the use and enjoyment of my property. Should it really be harder to sue my neighbour for polluting my private land than it will be under the Government’s proposal to have my neighbour arrested for protesting against pollution in the public square? Obviously not—or at least, not in a country that prides itself on both civil liberty and people’s ability to rub along together and even disagree well.

Instead, the single overarching and more rigorous Amendment 1 defines “serious disruption” as

“causing significant harm to persons, organisations or the life of the community”.

That is the overarching definition, and it includes “significant delay” in the delivery of goods and “prolonged disruption” of access to services, as set out in the Public Order Act 1986. To help the noble Lord, Lord Pannick, the concept of prolonged disruption is already in the 1986 Act as amended by last year’s bus, the police et cetera Act, so that is not a novel concept. We are really talking about significant harm instead of more than minor hindrance. I urge all noble Lords, whether they are for or against the Bill in principle, to vote for that.

--- Later in debate ---

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

My Lords, at Second Reading and in Committee there was much discussion on the meaning of “serious disruption”, and many noble Lords spoke to the need to provide a clear definition in the Bill. I thank all noble Lords who have participated in what has been a fascinating debate. At Second Reading, I agreed with many of the comments made by your Lordships and committed to take the matter away. What we are debating today is the matter of thresholds, as all noble Lords who spoke noted. The debate is not about whether these measures ban protests: quite simply, they do not, and I thank the noble Lord, Lord Coaker, for his comments emphasising that fact. We are trying to ascertain the point to which protesters can disrupt the lives of the general public. This Government’s position is clear: we are on the side of the public.

I thank the noble Lord, Lord Coaker, for tabling his amendment, which provides a definition of “serious disruption” for offences in the Bill. I agree with the purpose of his amendment but do not believe that the threshold is appropriate. The Government want to protect the rights of the public to go about their daily lives without let or hindrance. I do not believe that his amendment supports this aim; therefore, I cannot support it. I make no secret of what the Government are trying to do. We are listening to the public, who are fed up with seeing, day after day, protesters blocking roads: they make children late for school; they make people miss hospital appointments; and they make small businesses struggle. Any change in law must address this, and I do not believe that the noble’s Lord’s proposed threshold does.

In this vein, I turn to the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, which also provide a definition of “serious disruption”, but for the specific offences of locking on, tunnelling and causing disruption by being present in a tunnel. His amendments follow the judgment handed down by the Court of Appeal following the Colston statue case. The court found that the right to protest does not extend to acts of criminal damage that are violent or where the damage is to more than a minor or trivial degree:

“We cannot conceive that the Convention could be used to protect from prosecution and conviction those who damage private property to any degree than is other than trivial.”


We agree with the judiciary and believe that this threshold should be consistent across the statute book. Although the court concerned itself with the matter of damage to private property, the same principles apply to obstructing the public from enjoying their right to go about their business without hindrance. That is why the Government support the noble and learned Lord’s amendments; I am very pleased we were able to surprise him in that regard. They provide a threshold for “serious disruption” that is rooted in case law. I thank him for tabling this amendment and, indeed, for explaining it in such a detailed and precise way. It provides both clarity to the law and a threshold that addresses the public’s frustration with disruptive protests.

I will now speak to government Amendments 48 and 49. The Commissioner of the Metropolitan Police Service has asked for further legislative clarity on police powers to manage public processions and assemblies. These powers are conferred by Section 12 of the Public Order Act 1986 for processions and Section 14 for assemblies. They allow the police to place reasonable and necessary conditions on protests to prevent specific harms from occurring. One of these harms is

“serious disruption to the life of the community”.

These two amendments provide clarity to this phrase for both Sections 12 and 14. The noble Lord, Lord Paddick, was quite right in anticipating that I would be quoting Sir Mark Rowley, who said:

“I welcome the Government’s proposal to introduce a legal definition of ‘serious disruption’ and ‘reasonable excuse’. In practical terms, Parliament providing such clarity will create a clearer line for police to enforce when protests impact upon others who simply wish to go about their lawful business.”


These amendments, supported by the police, prioritise the rights of the law-abiding majority. First, they carry over the noble and learned Lord’s definition of “serious disruption”. Secondly, they define the meaning of “community”. Thirdly, the police may consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly. In answer to the comments of the noble Lord, Lord Paddick, that these are too complicated, I say that the Home Office will work closely with the NPCC and the College of Policing to ensure that appropriate guidance and training are developed. Mirroring the definition of the noble and learned Lord, Lord Hope, will provide consistency across the statute book. As I have said, this is welcomed by the police. I point out that the definition specifies that the disruption is caused by physical means only.

The noble Lord, Lord Coaker, raised in the Policy Exchange paper the use of “minor” in the definition. These amendments protect the daily activities of the public; it is clear that the public are fed up with the disruption caused by protesters, and that is what these amendments address. Many protests that do not disrupt the lives of others occur on a regular basis. The noble Lord, Lord Hogan-Howe, made a very good point: that we should not allow the protesters themselves to determine the scale of disruption. Many protesters are able to express themselves and place pressure for change without blocking roads.

Currently the term “community” is undefined. The police should be able to use their powers to protect anyone who is detrimentally impacted by serious disruption from protests, not just those who live, work or access amenities where the protest occurs. The police must consider the absolute disruption caused to the public, as opposed to the disruption relative to what is typical for an area. The measure will give officers the confidence that they can use to respond to disruptive protests, even in areas routinely subject to spontaneous disruption such as traffic jams. To prioritise the rights of the public, the amendment allows the police to consider the cumulative impact of protests and separate protests. It is wrong that the public must repeatedly put up with disruptive protests, in part because each time there is a new protest, the police must consider the level of disruption afresh and in isolation from what has previously happened and what may be planned. If multiple protests cumulatively ruin the daily activities of a community, they must be considered collectively. Following from this, if the police are to manage the collective impact of protests, they must be able to apply the conditions on separate but connected protests. For example, a large protest campaign made up of multiple small protests that disrupt a large area should be subject to blanket conditions. Allowing the police to consider the cumulative impact of protests by requiring them to manage each individually complicates the operational response unnecessarily. Collectively, these measures will allow the police to protect the public from the disruptive minority who use tactics such as blocking roads and slow walks. The public are clear that they want the police to protect them from these tactics. In turn, the police have asked for clarity and law to confidently and quickly take action and make arrests where appropriate. The Government have listened to both, and I hope this House does the same and supports the amendment.

I will speak collectively to the amendments tabled by the noble Lord, Lord Paddick. These measures do two things to the locking-on and tunnelling offences. First, they lower the threshold of the offence so that acts capable of causing serious disruption are not in scope. Secondly, they alter the mens rea so that only intentional acts, and not reckless ones, are in scope of the offence. It is clear that the public do not want to see police officers sit by while criminal protesters disrupt their lives; lowering the threshold would mean that the police will have to do so. Why should an officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause serious disruption to the public? As for the mens rea, as I have said already, the Government are concerned with the disruption caused to the public. It does not matter whether it is caused recklessly or intentionally; what matters is the impact it has on people’s daily lives. For all these reasons, I encourage all noble Lords to support the amendments in the name of the noble and learned Lord, Lord Hope, and those by the Government and reject the others.

[Baroness Butler-Sloss (CB)]

Can the Minister deal with the issue of “be capable of causing” as opposed to actual disruption?

[Lord Sharpe of Epsom (Con)]

I did deal with that when I was talking a little about the tunnelling and locking-on offences. Why should the officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause, or be capable of causing, serious disruption to the public? Certainly in terms of tunnelling, I think that is very clear.