Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code A) Order 2022

Baroness Jones of Moulsecoomb Excerpts

Tuesday 10th January 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, I have tabled my amendment because the concession we reasonably believed we had secured from the Government, to limit new without-suspicion police stop and search powers to specific geographic areas, is not being delivered. As the Minister explained, the Government now want the new police powers to be used throughout England and Wales during the pilot.

As the Minister explained, the Police, Crime, Sentencing and Courts Act 2022 gives the police a new power to stop and search anyone who is subject to a serious violence reduction order, or SVRO, without any reason to suspect that they might be carrying something they should not carry. A court can place a serious violence reduction order on anyone convicted of any criminal offence if they, or anyone they were with at the time of the offence, had a knife on them, whether it was used in the commission of the offence or not. This goes far wider than making it easier for the police to stop and search those convicted of knife crime.

The key to violence reduction is not stop and search, but police and communities working together and turning offenders’ lives around. The former Commissioner of the Metropolitan Police said that the police could not arrest their way out of knife crime. The success of such schemes as Operation Trident in London were the result of the police and the black community working together, for example. Having visited projects there, I know that the success of knife crime reduction in Scotland has been based on turning offenders’ lives around, particularly at teachable moments when offenders have themselves been seriously injured.

You are 14 times more likely to be stopped and searched by the police if you are black than if you are white, using existing without-suspicion stop and search powers, with about one in every 100 searches resulting in a knife being found. Having such a large number of people being stopped and searched who are not committing any offence, and who the police have no cause to suspect are committing any offence, can lead to a breakdown in relations between the police and communities—one of the keys to successful violent crime reduction. Allowing the police to stop and search an unlimited number of times, without suspicion, someone who has already served their sentence and could well be trying to turn their life around, as these new powers allow, is likely to damage any attempts at rehabilitation. Those in danger of reoffending may see no point in trying to be good citizens when they are being treated by the police as criminals even when they are doing nothing wrong.

When these measures were debated, we believed the new powers could be counterproductive and we told the Government that we were prepared to vote against them, with the support of the noble Baroness, Lady Meacher, who led on amendments to this part of the Bill. As a result, the Government agreed to a pilot scheme, geographically limited to a few specific police areas—not court areas, police areas. The pilot scheme would be independently evaluated to establish whether the new powers reduced violent crime in those specific police areas. On that basis, we agreed not to vote against the measures. Following discussion with the police, the Home Office has now agreed to allow the new police without-suspicion stop and search powers to be used throughout England and Wales during the pilot, with the only geographic restriction being to limit the courts that are able to issue SVROs, limited to the specific police areas that were originally agreed.

We made it clear to the Government that it was the new police powers that we objected to, and it was on the basis that they would be limited to certain geographic police areas that we accepted the government concession. It was never discussed, let alone agreed, that the powers of the courts to issues SVROs would be treated separately from the powers of the police to enforce them. As a result, not only have our concerns about the use of these new police powers damaging police/community relations and offender rehabilitation been ignored, but it is difficult to see how the pilot can be effectively evaluated if part of it is limited geographically and the other part is limitless.

There are also practical problems with serious violence reduction orders, such as how police officers are supposed to know that someone is subject to an SVRO, particularly if the power can be exercised over such a wide geographic area, where those subject to them are not likely to be personally known by the officers. Someone innocently walking down the street who is not subject to an SVRO is under no obligation to provide their name and date of birth to the police—the minimum requirement for a check to be made on the police national computer to establish whether they are subject to an SVRO. In that case, can the Minister explain how these orders will work in practice?

The Police Federation, which represents the overwhelming majority of officers likely to use these new powers, was asked to comment on the debate in the other place on this statutory instrument. Among other things, its representative said:

“I imagine we would be deeply concerned about moving away from a form of stop and search that isn’t rooted in ‘Reasonable Grounds’. We could easily make a case that this leaves officers vulnerable to complaint, ‘post stop’, in an area which is already supercharged as an issue in many communities. Reasonable Grounds has a firm legal basis, is tried and tested, and therefore affords reassurance to our colleagues engaged in these stops. The SVRO removes that need … and inadvertently that reassurance. It also strikes me that they are predicated wholly on the stopping officers having prior knowledge of the person being searched, so what happens when this power is used to stop somebody and their identify cannot be confirmed—you then have no reasonable grounds to fall back on, and are potentially left wide open to the ‘you only stopped me because I am black’ allegation. On the face of it, the officers’ only rational [response] if such an allegation came their way would be ‘I believed you were subject to a SVRO’, confirming the allegation [‘that you only stopped me because I am black’] and not ending well when identity has been mistaken.”


That is the view of the representative of rank-and-file police officers: that these powers are likely to place them in jeopardy, particularly if they use them outside the pilot areas where those subject to SVROs are unlikely to be known to the officers carrying out the stop and search. What consultation was there with the Police Federation on these powers?

The Government need to rethink their plans for a pilot scheme. For these reasons, I beg to move the amendment in my name on the Order Paper.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I spend my life being furious at the Government, as I am sure some noble Lords will recognise. However, I want to spare a moment of sympathy for the Minister, who has had to bring this to your Lordships’ House. Clearly, this is going back on a promise; the Government are cheating. They are choosing not to honour a promise. That is really rather disgusting, as it shows a complete lack of respect for your Lordships’ House. I really hope that the noble Lord, Lord Paddick, who has made a brilliant opening speech, will take this to a vote, because clearly we would have voted on these issues before if we had had the chance. We trusted the Government, but this shows that we cannot. That is very depressing because, if you cannot trust your Government, the whole of democracy falls apart.

I am also worried about the fact that the Government are putting the police at a disadvantage. Trust in the police is at an all-time low, and I think these measures will make it much worse. We worry all the time about the police being distrusted. They cannot do their job if they do not have the support of communities. Of course, with this sort of measure, there will be social and racial barriers to implementing it, and there will be disparities about who the police target. The Government are actually making life much harder for the police. There should not be a power to search without reasonable suspicion.

While I am talking about not trusting the Government, I should say that they are also treating peaceful protest like gang and knife crime. I just do not understand why the Government cannot see the difference between those things. Dissent is healthy; it is part of our democracy. In measure after measure and legislation after legislation, it seems to me that this Government are saying, “We don’t like society the way it is. We are going to radically change it”—and make it much worse for the majority of people.

On the issue of knife crime, my Green Party colleague Caroline Russell, who is a member of the London Assembly, has repeatedly asked the police to stop posting pictures of knives on social media, because it makes things worse. The evidence says that young people feel more at risk and that it encourages them to carry knives. There are other measures that the police can use to reduce knife crime. We have to show young people that it is safer for them not to carry a knife.

All in all, I have two questions for the Minister. First, do this Government have absolutely no respect for this House and for democracy? My second and much smaller point is: why on earth are the Government doing this before the pilots are finished? Surely the pilots should show us the way forward. The Government seem very confused about what pilots are for. Why promise a pilot and then go ahead and introduce these measures anyway? I am disgusted with Lambeth.

[Lord Moylan (Con)]

My Lords, since the noble Baroness, Lady Jones of Moulsecoomb, spent much of last year calling the Prime Minister of the day a liar on the Floor of your Lordships’ House, I am surprised that she has only just now lost her trust in the Government. That was not my principal point in rising to speak; my point was to express a degree of support for the noble Lord, Lord Paddick. As he at least might recall, when we debated the insertion of serious violence reduction orders in the Sentencing Code during the passage of the then Police, Crime, Sentencing and Courts Bill last year, I expressed considerable concern about those orders. Indeed, I recall that in Committee I added my name to the amendment in the name of the noble Baroness, Lady Meacher, which raised these issues, principally on the grounds that I am extremely concerned by the increasing use of preventive justice, so to speak, by the Home Office and by police forces empowered by the Home Office, rather than taking coercive action on the basis of proven criminality or wrongdoing.

I have considerable sympathy with the noble Lord, Lord Paddick, but since we lost that point and the serious violence reduction orders were inserted in the Bill, it is right that the Government should carry out trials before they are extended throughout the whole country. I understand his point, but what is striking to me is that my noble friend the Minister has so far given no indication of what the tests are by which these trials are going to be assessed once they have been completed. What is success going to look like? What would persuade the Government to make amendments or changes or to drop the whole approach if we saw those results emerging from the trials? I hope my noble friend will be able to say something about that when he rises to respond to this short debate.

While I am on my feet, I say that Sections 60 and 61 of the same measure—the Police, Crime, Sentencing and Courts Act of last year—empowered the Home Secretary to issue statutory guidance to police forces on the enforcement of what are referred to as “non-crime hate incidents”. This has so far not appeared, despite the fact that my noble friend the Minister very kindly wrote to me last October saying that the Government hoped to table the new statutory guidance before Christmas, or at least before the end of 2022.

When the Minister responds, would he be able to give us a date by which he expects the Home Secretary to put the draft statutory instrument before Parliament, so that we can debate it and get some parliamentary grip on this contentious but very important area of criminal justice?

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[Lord Sharpe of Epsom (Con)]

That is no problem at all. I will do my best to clarify that by the end of this speech, but as I understand it, it is all constables, which I assume includes those who do not necessarily wear a uniform.

Regarding the territorial extent of the pilot and why we are piloting in these force areas and not larger ones, where the prevalence of serious violence is higher, all four forces that will pilot SVROs are in the 20 areas most affected by serious violence across England and Wales. They accounted for 80% of all hospital admissions for injury with a sharp object, with each individually accounting for 2% or more of admissions, rounded to the nearest percentage point. The West Midlands has the third-highest rate of knife crime in England and Wales, and Merseyside the sixth-highest. The pilot will allow us to build an understanding of the impact and effectiveness of the new orders before deciding whether they should be rolled out nationally to other force areas. I hope that answers the question.

I have heard what the noble Lord, Lord Paddick, had to say on this topic; however, stop and search powers are not enforceable across England and Wales. As the noble Lord, Lord Hogan-Howe, noted, individuals subject to SVROs could simply operate outside the pilot areas. The Government held a statutory consultation on the revised code. This issue was discussed at length with key stakeholders, who strongly supported allowing the use of stop and search powers by police constables both within and outside the police force areas. In answer to the question asked by the noble Lord, Lord Paddick, about the Police Federation, it is a member of the PACE board and as such was invited to provide a response. Whether it did, I do not know. Like the proposed approach to SVROs, knife crime prevention orders, which have been referred to, are being piloted in the Metropolitan Police area and can only be issued in that force area. However, the orders are also enforceable across England and Wales.

I stress that this is only a pilot, but we are revising the PACE codes because they outline the fundamental principles of fair and responsible stop and search. We want to ensure that officers have clear guidance on the use of the new powers in the SVRO pilot, including through PACE codes of practice. The search power can only be used against persons who are subject to an SVRO. An individual can be issued with an SVRO only if they are over 18 and have been convicted of an offence involving a bladed article or an offensive weapon, and if the court considers it necessary to make the SVRO to protect the public from the risk of harm involving an offensive weapon or bladed article, or to prevent the offender from further offending involving an offensive weapon or bladed article. Therefore, while the police do not require reasonable grounds for suspicion, it is not an unrestricted stop and search power. The code of practice is clear that the use of the power must not be based on prejudice. The use of the power is discretionary, and officers will be expected to use their judgment when choosing to conduct searches.

The noble Lord, Lord Paddick, asked how, if individuals are not legally required to give their identity when stopped by the police, officers will identify those subject to an SVRO. The police will have obtained the offender’s details at the notification stage of an SVRO—there is the requirement for an individual subject of an SVRO to notify the police of their name and address—and they should ensure that any stop and search under the power is targeted at offenders that have a SVRO only. In most cases, it is expected that offenders subject to an SVRO will be known to the police and officers will be able to identify the offender before conducting a search. Where an officer is unsure of an offender’s identity, they should seek to confirm that offender’s identity and whether they have an SVRO before using the stop and search power. It is an offence for an offender to tell a police constable that they are not subject to an SVRO if they are.

The Government fully support the police in the fair use of stop and search to crack down on violent crime and protect communities. The code of practice is one of many safeguards in place to ensure the fair and proportionate use of SVROs. Others include statutory guidance for the police on the use of the power, which we have laid in draft before Parliament, body-worn video, and extensive data collection. Stop and searches carried out using the SVRO power will be subject to the usual internal and external scrutiny panels to ensure that forces are continually reviewing and learning from officer stop and searches.

The noble Lord, Lord Coaker, and my noble friend Lord Moylan asked about the evaluation of the pilot. We of course recognise the need for transparency in how the orders are used, and clear and robust monitoring to reassure communities that the orders are being used appropriately and effectively. The Government are piloting SVROs to build an understanding of their impact before deciding whether they should be rolled out nationally. By definition, that implies that if they do not work and we do not get sufficient data, they will not be continued with.

We have appointed an independent evaluator, Ecorys, to carefully gather the data necessary to assess the impact of these orders. We will lay a report on the outcome of the pilot in Parliament. It is expected in late 2025 and will include an initial assessment of the impact of SVROs on the reoffending rates of offenders in respect of whom such orders have been made; include information about the exercise by constables of the powers; provide an assessment of the impact on offenders of being subject to an SVRO; and assess the impact of SVROs on people with protected characteristics within the meaning of the Equality Act 2010. We are also working with the SVRO working group and the National Police Chiefs’ Council to ensure that all forces are aware of the draft statutory guidance on SVROs and the revised PACE Code A.

The noble Lord, Lord Paddick, asked me about training. I do not think it is for me to discuss operational matters particularly, but the training is being worked on by the College of Policing. It will be interactive e-learning training and will ensure that officers in pilot areas understand the new civil orders, their responsibilities and the stop and search powers being provided. This learning platform will test officer knowledge, including when it would or would not be appropriate to use the powers.

To sum up, we do not accept that the availability of the stop and search powers across England and Wales for individuals subject to an SVRO warrants the amendment tabled by the noble Lord, Lord Paddick. The rationale behind the approach we are taking is clear and sensible, and there are strong safeguards in place. Ultimately, we have a responsibility to tackle crime and keep people safe, and that is and will continue to be a key priority for the Government.

I welcome the fact that the noble Lord, Lord Coaker, mentioned victims; I will go into some detail on the statistics. The latest police-recorded crime figures published by the ONS for the year ending June 2022 show that knife-enabled crime remained 9% lower—that is, 49,991 offences—than pre-coronavirus pandemic levels; in the year ending March 2020, the figure was 55,076. Police-recorded offences of possession of an article with a blade or point were 9% higher in the year ending June 2022, at 25,287 offences, than the year ending March 2020, when there were 23,242 offences. That is a 13% increase. The police recorded 679 homicide offences in the year ending June 2022, which is a 5% decrease compared with the year ending March 2020. Levels have increased by 13% since the year ending June 2021, during which social restrictions were still in place.

I understand the concerns around disproportionality and the impact of stop and search, particularly on black individuals. But, as the noble Lord, Lord Coaker, has just mentioned, we should not forget that, according to the most recent studies, young black people are 24 times more likely to be victims of homicide than young white people. That is a tragedy. Young people are dying, their families are suffering and their communities are being disproportionately impacted. I totally agree with the noble Lord, Lord Coaker: we absolutely have to do better. I go back to the point I made earlier: to be absolutely clear, an individual must have been convicted of an offence where a bladed article or offensive weapon was used or was present to receive an SVRO, and the stop and search power applies only where an individual has an SVRO.

I will read out a supportive quote from Patrick Green, CEO of the Ben Kinsella Trust. As a reminder, Ben was knifed to death at the age of 16 in 2008; he would now have been entering his 31st year. Patrick said:

“We are pleased that the Government is setting out to do more to take knives and those who choose to persistently carry them off our streets. Reoffending rates have been one of the scourges of knife crime. SVROs give us a chance to look again at stop and search and what more can be done in the courts to reduce offending.”


That very powerful statement speaks for itself.

The policy detail of SVROs was discussed at length during passage of the Police, Crime, Sentencing and Courts Act 2022. As mentioned, they will be piloted and we will conduct a full evaluation before any further rollout.

My noble friend Lord Moylan went slightly off topic when he asked me about non-crime hate incidents. I will endeavour to answer. The Home Secretary has asked officials to consider the issue of NCHI recording to ensure that the police are using their time most effectively. This work is currently under way and includes consideration of whether the Home Secretary will publish a code of practice on non-crime hate incident recording, as provided for in Sections 60 and 61 of the Police, Crime, Sentencing and Courts Act.

In closing, I offer again my thanks to all noble Lords who contributed to this short debate. I hope that I have covered the points raised during it. There is one that I have not: I will write to the noble Lord, Lord Coaker, on the subject of uniforms; I cannot clarify that at this precise moment. I hope the House will feel sufficiently reassured that the changes we are making to PACE Code A are a necessary safeguard to have in place before commencement of the pilot scheme for SVROs. I have made it clear that public safety is our foremost concern. I therefore commend the order to the House.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, before the Minister sits down, I did not hear an answer to my two questions. I do not expect one as to whether the Government respect democracy because I know the answer to that, but my other question was about the pilot scheme. Why promise a pilot and then do the whole rollout?

[Lord Sharpe of Epsom (Con)]

I am not entirely sure that I understand the noble Baroness’s question. If you are going to have a pilot you have to roll it out, surely.

[Baroness Jones of Moulsecoomb (GP)]

Why not wait for the pilot to finish before you decide to roll out the whole thing more widely?

[Lord Sharpe of Epsom (Con)]

We have not actually started the pilot and we are not rolling it out. It is stuck to four pilot areas. We are talking about the territorial extent of the stop and search powers.

Police: Employment and Discipline

Baroness Jones of Moulsecoomb Excerpts

Monday 9th January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I respectfully disagree. I think that the appropriate process is to review this and, as I say, the review was announced in October. The terms of reference are under active discussion and will be published very soon.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, in view of all the legislation that we keep passing here, giving the police greater and greater powers, I would have assumed that there would be some urgency to this sort of revision. We need higher standards of discipline, self-control and integrity within our police forces if we are going to give them all these extra powers.

[Lord Sharpe of Epsom (Con)]

I completely agree with the noble Baroness; we absolutely need all those things.

National Security Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, our amendments in this group would all tighten the definition of the

“interests of the United Kingdom”

that are to be protected under the provisions of the Bill. They would make it clear that the interests to be protected from damage or prejudice by this National Security Bill should be the “security or defence” interests of the United Kingdom.

In opening group 1, I made the point that the aim of Part 1 was set out in the Long Title: the Bill is about “threats to national security”, not general concerns about the interests of the United Kingdom. This reflects a point, made by me and others at Second Reading, that the interests of the UK in the Bill as drafted are not restricted to the defence or security interests of the UK at all but that any interests of the United Kingdom are to receive protection.

For example, under Clause 1, obtaining records or disclosing “protected information” is to be criminalised. “Protected information” includes any information that is “restricted in any way”, or may be reasonably expected to be so restricted, for the purpose of protecting any interests of the United Kingdom, not just security or defence interests. There is no requirement that a genuine threat to the UK be shown, and there is no restriction on which areas the interests of the UK might be held to cover.

As the Minister said in responding to the Second Reading debate, the phrase “interests of the United Kingdom” has been interpreted by the courts as meaning

“the objects of state policy determined by the Crown on the advice of Ministers”.

He also said:

“This is notably different from protecting the particular interests of those in office.”—[Official Report, 6/12/22; col. 152.]


In a personal sense, that may be so, but the interpretation that he recited, which I accept is correct in law, means effectively that the interests of the UK are synonymous with government policy at a particular time. So if the Government of the day are pursuing a particular policy on environmental protection, for example—I mentioned fracking at Second Reading but it could just as easily be immigration or any commercial interest covering transport, planning, housing, safety standards, employment rights or whatever—then investigation and disclosure would be at risk of being criminal.

Under Clause 4, photographing, recording or even looking at any prohibited place for a purpose contrary to any interests seen as those of the UK—these interests are effectively determined by the policy of the Government of the day—would all be criminal. Worse still, the photography or the recording could all be from outside the prohibited place.

Under Clause 8, the Secretary of State may designate anywhere in the United Kingdom—or for that matter any vehicle—as a prohibited place if they consider it necessary to protect the unlimited and undefined interests of the UK. That would hand an unscrupulous Government the power to choke off much of the investigative journalism and broadcasting that is fundamental to our democracy. Consequently, informed discussion of what the national interest requires would be similarly choked off. The dissemination of information about government policy on almost any topic that the Government could claim bore on the national interest could be stifled by the imposition of government restriction at will.

As drawn, many of these provisions have nothing whatever to do with national security. All of our amendments in this group are designed to restrict the interests to be protected by the Bill to “security or defence” interests. That is sufficiently wide, and it is the aim of the Bill, as demonstrated by the Long Title. We therefore hope that the Government will accept these amendments, because we find it hard to believe that they would wish to arrogate to themselves such wide-ranging protection of all possible interests that could be designated as interests of the United Kingdom in a Bill that is rightly concerned with the protection of national security. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will make some simple arguments, because there are other noble Lords who can make much more complex arguments. I say very clearly that the Bill we are debating is the National Security Bill and, therefore, it ought to be about national security. The offences should not be able to be translated to other areas. The offences are drawn so badly and broadly that they will criminalise a huge range of conduct which might only vaguely affect the interests of the UK. The wording should be changed to “security or defence”, as the noble Lords, Lord Marks and Lord Purvis, have suggested in their amendment. It is a dangerous piece of legislation, because it is so broad that the police and security services will be able to turn it into something they can use against far too many people.

[Lord Evans of Weardale (CB)]

My Lords, I have reservations about this amendment, because it seems to me that, for the reasons outlined by the noble Lord, Lord Purvis of Tweed, we are talking about a grey-zone threat from foreign powers and not just the traditional threat which focused almost entirely on national security and defence in the traditional sense. If we are to have legislation which is fit for purpose for the current hybrid warfare that we face as a country, it needs to enable the intelligence and security services to take the appropriate action against not only narrowly defined national security and defence interests but the wider interests of the country—that is what the grey zone is about. While we may be talking about, for example, economic or political interests, it would be an error to focus solely on national security and defence, because, unfortunately, that is not the only area on which our opponents and enemies are focused.

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Finally, Amendment 66 would add an intentional element to the foreign power condition in Clause 29, which would make sense of that important clause. It would give the foreign power condition some bite. In the last group, the noble Lord, Lord Macdonald, relied on the foreign power condition as if it had bite, which it does not. Amendment 66 would give it bite and answer the objection to the foreign power condition by insisting that there should be an intention to prejudice the security or defence interests or safety of the United Kingdom. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

I have watched quite a number of debates in your Lordships’ House and am always struck that the Government invariably reject all the wonderful advice they get from their KCs and former judges. I appreciate that it is much harder when they disagree, but perhaps they ought to look a little more closely at these amendments, read Hansard and think about changing some of the Bill.

These are extremely serious offences. They are meant to protect national security, but currently they do not need intention to be proven. That is incredibly important. A person could unwittingly commit a serious criminal offence without having the foggiest clue that they were doing anything wrong. That is not to suggest that ignorance is a defence, but unintentional consequences to the UK’s interests should not be a serious criminal offence.

One example that is extremely important to me is journalists and whistleblowers exposing government wrongdoing. As the noble Baroness, Lady Ludford, said in the previous group, it is a perfectly legitimate activity that risks being criminalised by this legislation. The intention of journalists and whistleblowers is not to harm national security but to hold power to account. That is partly what your Lordships are doing in this House, so we should take every opportunity to support journalists and whistleblowers who do it too. I am concerned that they might be trapped by this legislation.

Likewise, the offence in Clause 15 risks criminalising people for receiving a benefit from an intelligence service. Those benefits include receiving information. A person could commit a criminal offence simply through a foreign intelligence service telling them some information which they may not want to hear, potentially completely against their will. Overall, these clauses are deeply flawed and need substantial rewriting.

[Baroness Ludford (LD)]

My Lords, I will speak to Amendments 16 and 21. I will get a bit repetitive in the debates on this Bill, since I am speaking to amendments stemming from the JCHR, whose job is to pay attention to human rights.

The problem that Amendment 16 seeks to address is that the conduct that could be criminalised is very wide and could include conduct that engages a number of human rights, most obviously freedom of expression, as the noble Baroness, Lady Jones of Moulsecoomb, said—journalism, other political expression and possibly whistleblowing—but also freedom of association and the right to protest. The Government have not sought to justify any interference with human rights in respect of this new offence in their human rights memorandum. It seems difficult to argue credibly a national security justification for bringing proceedings under this clause when there is no prejudice to the safety or interests of the United Kingdom in the test of the offence.

Conduct outside the UK is not caught unless it is

“prejudicial to the safety or interests of the United Kingdom”

but that test does not apply to conduct within the UK. I hope the Minister can explain why. The JCHR gives the example that the offence would seem to criminalise a French national in the UK who alerts the French intelligence authorities to a terrorist threat in the UK. Let us posit that they do not know how to alert the authorities in the UK. It does not seem very sensible to criminalise such behaviour. Amendment 16 suggests a requirement that the conduct must have the potential to harm UK interests—

Public Order Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Deben (Con)]

My Lords, I declare an interest as chair of the Environment and Climate Change Committee. I want to ask the Government to listen very carefully to this discussion. We have a very real issue when really serious matters, which threaten all of us, do not appear to some of us to be properly addressed. That is a very serious matter for any democracy, and those of us who are democrats do have to stand up for the rule of law and do have to say that extreme actions cannot be accepted.

But it has a second effect too, and that is that we have to be extremely careful about the way in which we deal with those extreme actions. I do beg the Government to take very seriously the fact that these extreme actions will continue, because people are more and more worried about the existential threat of climate change. The Climate Change Committee spends a great deal of its time trying to ensure that there is a democratic and sensible programme to reach an end that will protect us from the immediate effects of climate change, which we cannot change, and, in the longer term, begin to turn the tables on what we as human beings have caused.

It is not always easy to do that in the light of others who are desperate that we should move faster and that we should do more; who are desperate because they are seriously frightened and are not sure that those who are in charge have really got the urgency of the situation.

It is very difficult to imagine that we are not going to have to cope with the uprising of real anger on this subject. As a democrat, I want us to cope. As a parliamentarian, I want us to be able to deal with these issues and ensure that the public are not threatened. I echo the Deputy Chancellor of Germany, a Green Member of Parliament, who makes it absolutely clear that the kinds of actions we have seen in this country from Extinction Rebellion and similar things in Germany are not acceptable in a democracy.

The other side of that argument is that we have got to be extremely careful about the way in which we enforce the law and how we deal with this issue. Journalists play the key part in this. They must be there to report on what happens. It is in our interest as democrats that that happens. If they are not there and cannot say what needs to be said without fear or favour, none of us can stand up and deal with the arguments of those who argue that democracy does not work and that somehow they have to impose their will.

I want the Government to recognise the importance of this. In this country, a journalist must have access without fear or favour. The police must not treat them in a way that has happened again and again, and which must stop happening. As the noble Baroness, Lady Chakrabarti, said, it is not happening because of what is in this Bill, which in general I do not have an objection to; it is what happens in any case. The fact that the police could hold a journalist for five hours knowing that they were a journalist is utterly unacceptable. You cannot do that in a democracy—and nor can we talk to other countries about these things if that happens here and we do not do something to enshrine in law the fact that it should not.

Earlier, I had to deal with the question of not opening coal mines in order to be able to stand up in the world and show that we too will carry out what we ask other countries to do. This is another, even more serious, case of that. We cannot talk about repression if we in this country can be shown not to have protected journalists in these circumstances.

It is a terribly simple matter. We must put on the face of the Bill, referring to all actions, that journalists should be in the position that the noble Baroness, Lady Boycott, suggests. It may be that her amendments could be better done; it may be that the Government have a different way of doing it. The only thing that I ask, in order to protect democracy and ourselves—those of us who are moderates and believe in the rule of law—is that we need to have this assertion.

[Baroness Jones of Moulsecoomb (GP)]

What great speeches; I am almost embarrassed to follow them. I support Amendments 117 and 127A. I wish I had signed Amendment 127A. I speak as the mother of a journalist and as somebody who had misfortune to be on a panel with the PCC for Herts Police—the force that arrested the journalist and the cameraman. His name is David Lloyd. He was saying “Yes, yes, yes, I’m all in favour of free speech, but the media have to be careful that they are not inciting these protests”. I pointed out that that was free speech on his terms, which is not actually free speech.

These amendments are crucial. I take the point made by the noble Baroness, Lady Chakrabarti, that if the Government do not want to accept any of them, they could probably accept Amendment 127A without too much pain. The noble Lord, Lord Deben, said that you cannot do this in a democracy, but actually the police did do it. They thought that perhaps they could get away with it, and that has happened before. So we really have to send out a signal that this must not happen.

It is crucial for people to be able to observe protests and see that the police and protesters are behaving properly and not inciting violence. Legal observers from organisations such as Green and Black Cross document police actions against protesters and provide support during any legal proceedings that follow. That is an incredibly important role. We need statutory protections to prevent police from harassing and arresting journalists, legal observers and others. This is extremely important.

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[Lord Coaker (Lab)]

Does the noble Lord not realise how disappointing his response is in many ways? As the noble Lord, Lord Deben, just said, what happened in Hertfordshire was a real challenge to us to respond to something which seems to threaten journalistic freedom to report on protests. All of us are saying that, for the Government to turn round and say, “Don’t worry: it was a rare occurrence and it won’t happen again—no need to worry” with a shrug of the shoulders is just not the sort of response that one would hope to get from the Government. As I said, I do not believe we live in a totalitarian state, but every now and again a challenge emerges which threatens to undermine aspects of our democracy, and in this case it is journalistic and broadcasting freedom.

I think that we, certainly I, would expect the Government to reflect on what the movers of the amendment said and on some of the many moving speeches, including from my noble friend Lady Symons, and whether there is a need for the Government to act in order to protect one of the cherished freedoms that we have. I think that is what people in this Chamber—if I read again what the noble Lord, Lord Deben, said; the noble Baroness, Lady Boycott, made the point through her amendment; and I have tried to do it through the words that I have said—are expecting from the Minister, rather than simply, “Well, it was just one of those things that happened and it won’t happen again.”

[Baroness Jones of Moulsecoomb (GP)]

Very briefly, what concerns me about this—well, lots of things concern me—is that the police, including the custody sergeant, should have known it was an illegal arrest, but they must have thought they could get away with it. That really irks me. It is the thought that the police were so high-handed, and that is why it has to be explicit so that they cannot in any sense claim ignorance of the law.

[Lord Sharpe of Epsom (Con)]

My Lords, in answer to the noble Lord, Lord Coaker, I am getting a strong sense of how disappointing I am being, but it is also very fair to say that I have been completely unequivocal in sharing completely his concerns about the protection of our democracy and institutions. As I said earlier, it is a vital part of democracy, and I would expect and also demand, that protests are reported on fairly and freely. Of course I am sorry that the noble Baroness is irked, but I cannot second-guess what the police were thinking and I will not stray into that territory.

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Moved by

[Baroness Jones of Moulsecoomb]

118: After Clause 18, insert the following new Clause—
“Repeal of section 73 of the Police, Crime, Sentencing and Courts Act 2022In the Police, Crime, Sentencing and Courts Act 2022 omit section 73 (imposing conditions on public processions).”Member's explanatory statement
This amendment is intended to remove the noise “trigger” that empowers senior police officers to impose conditions on public processions.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was very excited when I saw this grouping: I thought that I had got my own group to myself. However, I am afraid that others have butted in. I am very grateful for that, obviously.

The noble and learned Lord accused me of trying to waste a lot of time on this—he is not listening—but I promise I will not. My aim here is to highlight the fact that, when we pass all these things in a Bill, is it sometimes very easy to miss their cumulative effect. For me, there is a slippery slope of anti-protest laws under this Government. It will not play very well with the public, or with them when they are out of government.

Each Bill that we pass diminishes our rights, little by little. We tend to see each of these measures in isolation because that is how we deal with them, so it is easy to lose track of the cumulative effect of the Government’s anti-protest agenda. I really hope that the opposition Front Benches can join me in committing to repeal these anti-protest laws when we finally get this Government out of power. I have merely highlighted the parts of the Bill that are the most egregious from the Police, Crime, Sentencing and Courts Act 2022, and I am pointing out that they should not have been in there and we really ought to have struck them out.

[Lord Paddick (LD)]

My Lords, it is difficult to argue with the point made by the noble Baroness, Lady Jones of Moulsecoomb: if the Government, as they have, bring back those parts of the Police, Crime, Sentencing and Courts Bill that they want to reinstate, why can she not ask this House to remove those parts of Police, Crime, Sentencing and Courts Act 2022 that she does not want retained? The noble Lord, Lord Coaker, has adopted a less provocative approach in his probing amendment, Amendment 127, to establish how often the new noise trigger powers have been used by the police in relation to protests outside buildings—with or without double glazing.

We on these Benches vehemently oppose the provisions in the Police, Crime, Sentencing and Courts Act that the noble Baroness wishes to repeal, although we subsequently and reluctantly accepted the usefulness of Section 80. But that was then, and this is now. I believe that the Committee should perhaps operate on the basis of appeals in criminal trials and ask this: what new evidence is there to persuade Parliament that we should now reverse the decisions that it made a year ago?

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

I thank noble Lords. The public order measures in the Police, Crime, Sentencing and Courts Act 2022 have only just come into force, so, in the Government’s view, it is far too early to consider whether they should be repealed. These measures were debated at length during the passage of the Act, and the police have barely had the opportunity to make use of these new powers to manage public processions, assemblies, single-person protests and protests in the area outside Parliament. I therefore ask the noble Baroness to respect the democratic process and allow these measures to continue to be part of the statute book. It is no doubt clear that, as we have seen, the public continue to be able to protest as before since the commencement of the Police, Crime, Sentencing and Courts Act 2022.

I will not dwell long on the amendment lowering the maximum penalties for wilful obstruction of the highway. This House was clear in its position that the increase in sentences was appropriate, and I doubt that that position has changed in the last six months.

Amendment 123 would repeal the statutory offence of public nuisance and reinstate the common-law offence. In doing so, it would allow courts to place custodial sentences beyond the current 10-year maximum in the statutory offence. This would also have the effect of removing the reasonable excuse defence. I worry that this amendment undermines the benefits of the statutory offence, as recommended by the Law Commission.

I turn to the question asked by the noble Lord, Lord Coaker, on double glazing—I want to say, “for complete transparency”, but perhaps I should not. Parliamentarians asked for practical examples of when the power would and would not be used. This example is in the guidance to illustrate that the threshold is subjective, depending on its impact on people or organisations, which is why there is no decibel threshold.

When debating the measure covered by Amendment 123 during the passage of the PCSC Act, Parliament spoke at length about the meaning of “annoyance”. The Law Commission’s written evidence to the Public Bill Committee on this said:

“Annoyance in the context of nuisance is a legal term of art that does not connote merely feeling annoyed. It requires ‘a real interference with the comfort … of living according to the standards of the average man’”.


In common law, “annoyance” and “inconvenience” were already within the consequence element of the common-law offence.

Amendment 127, tabled by the noble Lord, Lord Coaker, probes the use of the powers to prevent noise from public processions, and presumably assemblies and single-person protests, from causing harm. I am sure that the noble Lord is aware that the Government are legally required to table a report on the operation of these new powers to manage public processions, assemblies and single-person protests by 28 June 2024. In the meantime, I can inform him that I am not aware of the new powers relating to noise being used—but I remind the House that the use of conditions on protests and other gatherings is relatively infrequent. The noble Lord, Lord Coaker, asked about instances of the noise provision being used. As I say, there is no record of the police using this power.

For the reasons I set out, I invite the noble Baroness to withdraw her amendment.

[Baroness Jones of Moulsecoomb (GP)]

Did the advice’s definition of “discomfort” really use the word “man”, so it does not apply to women? Is that real?

[Lord Murray of Blidworth (Con)]

I was quoting from the Law Commission’s written evidence, which referred to the

“standards of the average man”.

In that context, as in many legal documents, the word “man” implies “mankind”.

[Baroness Jones of Moulsecoomb (GP)]

I suggest that legal sources need to brush up on equality these days—that is ridiculous.

With my amendments, I was trying to give the Government the opportunity to see that the legislation they have brought in is extremely unpleasant and repressive. I wish I had done a little more homework, like the noble Lord, Lord Coaker, and highlighted some of the ridiculous things in the Act. He highlighted a real deficit in the Government’s reading of legislation and their concentration on these things, which let such things through. There was a lot of laughter in the Chamber when the noble Lord, Lord Coaker, presented that part of the Bill, as it was. I argue that the drafting of some of these Bills is absolutely appalling, and that highlights it. I will of course withdraw my amendment, but this Government are awful.

Amendment 118 withdrawn.

National Security Bill

Baroness Jones of Moulsecoomb Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the speakers’ list for this Second Reading debate is a terrifying assortment of people who know what they are talking about, whether it is the law, foreign agents or hostile acts by other states. Unlike the noble Baroness, Lady Manningham-Buller, I will not hesitate to refer to things that have already been referred to, but I will do so more briefly and through the narrow lens of civil liberties and, of course, justice.

Call me untrusting of this Government, but I am always sceptical when they come to your Lordships’ House and ask for more power, especially under the vague guise of national security. Over the last two decades there has been a steady erosion of civil liberties, under both Labour and Conservative Governments, and this has become an absolute landslide in the past few years, given the legislation that has gone through your Lordships’ House.

The test for any such legislation is: what powers are being asked for, for what purposes and how might they be misused? As the mother of a journalist, I am particularly concerned about the Bill’s potential misuse against journalists, and the Government’s refusal of a public interest defence in the other place. Similarly, there are many concerns about the widely drafted offences being committed by civil society organisations that receive some funding for international work on environmental, human rights, press freedom, asylum or other issues. The Bill undermines the rule of law and our international reputation by shielding Ministers and officials from accountability for serious crimes such as torture, and by denying compensation to victims on the basis of vague national security factors in a crucial area.

There is also the question of what the Government are leaving out. As is often the case, the Bill is found lacking. There is a minor section in it about foreign interference in elections, but how is anyone supposed to judge whether this is sufficient when the Government have not published their 2019 Russia report? The country is still in the dark about the nature and circumstances of Russian interference, even if it did not achieve very much. Tinkering with election offences does not come close to giving reassurances that our elections are free and fair. So I only have one question for the Minister today: will the Government publish the Russia report before Committee, so that we can understand what is actually being said?

The Security Minister in the other place recognised that there are

“some important points and challenges that we will have to look at.”—[Official Report, Commons, 16/11/22; col. 760.]

The Government have had some months to look at the important points, and I hope the Minister will bring amendments to resolve them.

Metropolitan Police: Crime and Misconduct

Baroness Jones of Moulsecoomb Excerpts

Thursday 1st December 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was brought up in the 1950s and taught by my parents that you could trust a policeman—if you ever needed help, you could go to a police officer and they would do what they could to help. However, that is just not possible any more, is it? I doubt many parents teach their children that particular trope.

I am not alone in my distrust. Trust in the police is extremely low, which is very concerning, and I am glad the new commissioner has picked up on that aspect. I do not doubt that he has a difficult job to do, as more and more reports come in of very poor decisions by officers, whether that is policing protests by arresting journalists, being in WhatsApp groups that show racism, homophobia and sexism or even state-sponsored crimes that officers have committed—when undercover, for example, especially the spy cops who infiltrated campaigns through abusive misogynistic relationships with women campaigners. That inquiry has been drawn out for many years, partly because the Met have not co-operated in releasing vital information. It has preferred to protect officers’ criminal actions.

The new commissioner has vowed to improve recruitment, conduct and discipline in the force. All those aspects are relevant. For example, the issues of police violence towards women, sexism and misogyny need dealing with urgently. Officers need training and supervision as well as punishments for infringements, and the Met needs support for whistleblowers. The behaviour of Wayne Couzens over a period of many years, which was accepted and joked about by other officers, is a dire warning of widespread bigotry and very disturbing conduct being allowed.

A senior officer asked me this week what areas of policing the police were getting right—and I could not reply. I could not think of one. It is entirely possible that the two units I massively supported when I was a member of the Metropolitan Police Authority during the 12 years of its existence, the traffic unit and the wildlife crime unit, are still doing a superb job. I trust that they are. They were both amazing and the public pretty much supported them.

The Government have a role here, of course; they cannot leave the police to do this on their own. Legislation has to be clear. I think one of the factors in the police losing public support in lockdown was the fact that the Government poured on laws, guidance and advice that often conflicted, and therefore the police were quite often left not knowing what the appropriate tool was to do their job. That really did not help. It created a lot of conflict between police and public.

I argue that the Public Order Bill is a good example of what the Government should not be doing. It has been drafted poorly. There are all sorts of weird gaps in it and some very confused terms which will not help the police to police protests. The Bill is designed to prevent protests and stifle dissent, most currently about the climate crisis, but we all know that emissions are not slowing. Scientists warn of a possible permanent collapse of our food and water supply, and of civilisation itself. Our Government are quelling the dissent not by acting and improving on the situation with things that would, in the long term, save massive amounts of public money; they are dealing with the symptom, which is people going out on the streets and saying, “This isn’t right”. The police are having to deal with problems caused by the Government and become distracted by the real crime committed by the Government themselves.

Manston Update

Baroness Jones of Moulsecoomb Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

The answer is clear from Dame Jenny Harries that those with diphtheria contracted it prior to entering the UK. It seems that the conditions through which they travelled in other countries were such that clearly they were able to contract the condition—and that is most unfortunate.

As to the reason why it has taken us so long to take steps in relation to it, I remind the noble Baroness that comprehensive health screening has been available at Western Jet Foil and Manston. As recently as late October, only five cases of diphtheria were found to be present in the population at Manston, and those were not sent onwards to accommodation without being treated. As the noble Baroness, Lady Brinton, pointed out, diphtheria is one of those conditions which can present without symptoms, so it is difficult to screen for. Further steps are being taken to preclude that occurring, as I have outlined.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the Minister said that the speed at which Manston was emptied was unfortunate—but of course that was not the problem, was it? The problem was the speed at which Manston was crowded, and for how long those people were held like that. Has the Minister in his department seen any embarrassment or even shame at these events?

[Lord Murray of Blidworth (Con)]

I agree with the noble Baroness that the reason these problems arose was the speed with which people were crossing the Channel illegally: that gave rise to the condition. The noble Baroness may shake her head, but the reality is that, if these people were not crossing the Channel illegally, the situation would not have occurred.

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[Lord Murray of Blidworth (Con)]

As the noble Baroness is aware, the vast majority of those crossing the channel are single young men, so the issue has arisen in relation to single men. I do not know the answer about accommodation for any potential family members, but I will certainly ask the department and inform the noble Baroness of the outcome.

[Baroness Jones of Moulsecoomb (GP)]

May I have an answer to my question about shame or embarrassment?

[Lord Murray of Blidworth (Con)]

I am not sure that that is in order.

Public Order Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

Can the Minister tell the Committee what the Government’s estimate is of the projected increase in the prison population resulting from the increase in the number of offences for which a term of imprisonment can be given and increases in maximum penalties, brought about by measures such as this, since the Conservatives have been in power? How much is the resultant building of additional prison places costing the UK taxpayer? These are not rhetorical questions. Will the Minister write and place a copy in the Library? These police stop and search powers in relation to protest should not stand part of the Bill.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I do not know if I am breaking the rules of the House in saying this, but I feel that some of the speakers in the last debate were slightly self-indulgent. I am appalled that we are still only on group 2. Would the Minister and the Whip take that back to the Chief Whip and the Leader of the House and suggest that people show a little more restraint in their agonising over certain bits of the Bill while somehow not agonising over the rest of it, which is plainly very similar to what they were arguing against?

The noble Lord, Lord Paddick, has summed up extremely well. He often says things that I wish I had said. He was absolutely right to raise both the inherent potential racism in these measures and the prison population. We are already one of the most imprisoned nations in the world, even with Iran having corralled 15,000 or 16,000 protesters against its repressive regime. Adding to the prison population will be a complete folly.

I also oppose Clauses 10 and 11. I am very worried about Clauses 10 to 14, because they give the police extensive new powers to stop and search anyone in the vicinity of a protest and confiscate items from them. Under Clause 11, a police inspector can designate a whole area in which the police can stop and search anyone without suspicion. That means people taking part in a protest, people walking past, journalists—anyone in the area. That is ludicrous and repressive. It beggars belief that the Government think this is okay to include. It also includes stopping vehicles and searching them, again without suspicion.

My Amendment 101 exposes some of the risks. With this offence of locking on, any cyclist who has a bike lock in the vicinity of a protest could have it confiscated. This could even include a random person cycling past. Anyone cycling past is likely to have a bike lock on them, because if they are not cycling then the bike lock is likely to be on their bike. This exposes endless innocent cyclists to being stopped, searched and having their bike locks confiscated. There are similar risks for anyone who has glue, Sellotape or presumably anything that police do not like the look of—jam sandwiches or anything.

Like the other protest clauses in this Bill, this one is far too broadly drafted. The Government are so obsessed with fighting climate activists that they will expose anyone to being stopped and searched and having things confiscated. The Government are seeking in this Bill to make protest a crime instead of a right. That simply is not just.

[The Lord Bishop of Manchester]

My Lords, first, I declare my interest as co-chair of the National Police Ethics Committee for England and Wales, though I am speaking on my own behalf. I want to focus my remarks on the amendment opposing the question that Clause 12 stand part of the Bill, to which I am a signatory, but also on those opposing the questions that Clauses 10, 11, 13 and 14 stand part of the Bill. I am grateful to the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones, for the way they have introduced this debate.

It is deeply concerning that the Bill seeks to extend suspicion-less stop and search powers to the context of protest. If brought forward, such measures would open a Pandora’s box for the further misuse of such powers that have in many contexts caused trauma, both physically and mentally, particularly to those in marginalised communities. The proposers of these clauses may have in mind the current environmental protesters, who appear, somewhat unusually, to include a large proportion of those from white, middle-class backgrounds, notably one of my own clergy. But history tells us that such powers, after a short time, are almost invariably and disproportionately used against minorities, especially ethnic minorities.

I would not be involved with the police in the way that I am if I was not passionate that our forces should gain and hold the confidence and respect of all sections of our society. But I know all too well how fragile that respect and confidence are. Police powers that are not grounded in suspicion create suspicion, and they create suspicion in those parts of society, as the noble Lord, Lord Paddick, has so eloquently indicated, where we can least afford it.

We must note when considering the Bill’s creation of a new stop and search power in relation to specified lists of protest offences that there is—as has been referred to—no agreed position among police forces that such a power is either necessary or wanted. When you add to this the fact that the definition of “prohibited objects” is so broad—the noble Baroness, Lady Jones, has referred to bike locks, but it could be posters, placards, fliers or banners—I am not sure about jam sandwiches, but I suspect it fits in somewhere; all could become suspect. How would the police ascertain that such objects were in fact for use at a protest? There are lots of legitimate reasons why you have household objects with you. The Joint Committee on Human Rights states:

“A suspicion of such an offence, even a reasonable one, in the course of a protest represents an unjustifiably low threshold for a power to require a person to submit to a search.”


There are serious risks here for people’s ability and willingness to exercise rights that are fundamental in a democratic society.

The Bill attempts to address what it refers to as “public nuisance”. But its scope is too broad—arguably, any form of protest risks “public nuisance”. Indeed, in these very halls of Parliament, four suffragettes chained themselves to statues to bring attention to their demands for votes for women; we must ask ourselves whether our contemporary context allows space for similarly important issues to be protested on. As things stand, these clauses risk a disproportionate interference with people’s Article 8, 10 and 11 rights as set out in the Human Rights Act.

This country has long prided itself on being a democracy, this Parliament is at the heart of that, and one of our duties is to ensure that the rights and freedoms necessary to such a system of governance are not undermined. Those rights and freedoms include the right to peaceful protest. Therefore, should these provisions remain at a future stage, I will vote to oppose the questions that Clauses 10 to 14 stand part of the Bill.

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[Baroness Blower (Lab)]

If I might just press the point: of course, if the young woman has the presence of mind to simply ask for proof of identity, that may very well not be obstruction, but she may be frightened by this and seek to move away or to respond in some other way, but not to assault the police officer. I just see that there is a danger in this situation, and I am not hearing anything that I could tell women who are asking me about what we are doing in the Public Order Bill so that they do not need to have any concern about suspicionless stop and search. We heard before about it being perfectly reasonable to respond in such a way that you can categorically assure yourself that a person is a police officer. Frankly, I have never seen a police identity badge, so I do not know what they look like. The previous Metropolitan Police Commissioner talked about flagging down buses if you are not happy about what is going on. I want to press the Minister on this point, because although I absolutely accept that asking to see a badge is not necessarily chargeable with obstruction, other things could befall.

[Baroness Jones of Moulsecoomb (GP)]

To add to that, women were also told to consider refusing to get into a police car, and even if you did see the badge, Wayne Couzens was carrying a perfectly legitimate police badge, whether or not you recognise it is beside the point. While I am on my feet, will the Minister answer my point about the prison population already being incredibly high?

[Baroness Hayman of Ullock (Lab)]

This is so important. I do not think the Minister or the Government appreciate how vulnerable women can feel walking, particularly in the dark or on their own, and it gets dark very early in the winter. This is really serious. I also do not think they realise how much young women, particularly if they are attractive, can get hassled. If you have been hassled a lot, you can snap because you are sick and tired of it. I really do not think this has been thought through.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, Clause 17 is very dubious. It is bad enough when private companies use civil injunctions, which have become quasi-criminal private tools against protesters. I was up at Preston New Road and I saw this in action by fracking companies. The fact is, of course, that the protesters who had injunctions brought against them were proved to have been entirely on the right side of history, yet they were targeted by the fracking companies, very unfairly, because their trying to halt the companies’ damage to the environment was perfectly appropriate. We have seen injunctions used against tree protectors as well. Of course, breach of an injunction is contempt of court, with the risk of fines and imprisonment. It is actually quite onerous, and it is bad enough when a private company chooses to do it, but it is pretty concerning when a Secretary of State decides to do it.

I think we have all agreed that, if not completely overcome by corruption, this Government do at least have filaments of corruption winding their way through the whole body politic. Therefore, we have to be very careful that we do not introduce other ways for corruption to happen within government. Clearly, the Government should review the situation and propose reforms, because this really is not how injunctions are supposed to be.

[Baroness Blower (Lab)]

My Lords, not being a lawyer, I would never have dreamed of writing amendments of the technical nature of Amendments 114 and 115. None the less, having heard the speech of my noble friend Lady Chakrabarti and having discussed it with her before she made it, it is evident to me that these are vital amendments should Clause 17 stand part—which, of course, it absolutely should not. If there is any sense, as my noble friend Lady Chakrabarti has powerfully persuaded me there is, that Clause 17 is constitutionally dubious, that really should give the Government pause for thought. I genuinely believe that anyone—the person on the Clapham omnibus—who read this and found that the Government can substitute a prosecution for a private company at the public expense would, frankly, be rather appalled and find it very odd legislation.

Clause 17 (5) states:

“the Secretary of State must consult such persons (if any) as the Secretary of State considers appropriate, having regard to any persons who may also bring civil proceedings in relation to those activities.”

That just does not seem appropriate. Surely, the purpose of the law is to make sure that the onus for things lies in the proper place, and the onus for proceedings such as those conceivably envisaged here cannot possibly lie with the Government and the public. Amendments 114 and 115, in the name of my noble friend Lady Chakrabarti, at least tighten up the possibilities here. The Secretary of State would be required to publish a range of things, as she has already said, including

“the reasons for any decision not to consult, the results of any consultation, any representations made to the Secretary of State as to a proposed exercise of the power, an assessment of why other parties should not finance their own proceedings”.

It seems to me that we are allowing the Secretary of State to do something which, if I had just read this myself and come to a view on it, I would have considered to be ultra vires, if that is the correct term, because this is not something we should be spending public money on. Amendments 114 and 115 would go some way towards tightening up Clause 17, but as other noble Lords have said, those of us who have read this in detail and given it some consideration genuinely believe that it should not stand part of the Bill.

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[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for giving way. He made a kind offer to consider this argument; when he is considering it, could he think about transparency versus corruption and the public expense? He has made his arguments about the new co-ordinating role of the Secretary of State, standing in the shoes of a consortium, if you like, of local government, business and central government, but there is still this issue about transparency versus corruption. When he takes this away, will he think about a scenario in which a press baron or an oil baron—whichever noble Baron, or ignoble Baron, it is—says to a Home Secretary, or a putative Home Secretary, “I’m sick of these legal fees, and I think it would be a jolly good idea if the Home Department brought these proceedings against these pesky demonstrators in my shoes”? Will he think about the risks to public trust in the good use of public money that might result if there is not transparency about this new power?

[Baroness Jones of Moulsecoomb (GP)]

My Lords, before the Minister resumes his speech, may I ask him about a word he used? I do not know if I misheard—and I have quite a good vocabulary—but I think he used the word “dubiety”. Does that mean dubiousness?

[Lord Murray of Blidworth (Con)]

Yes.

[Baroness Jones of Moulsecoomb (GP)]

Right, I will add that to my vocabulary.

[Lord Murray of Blidworth (Con)]

I thank both noble Baronesses for their interventions. Turning to the question about transparency, we will certainly engage on that, and I appreciate it. It is always important that government actions are transparent. It is clearly an important public principle, and on that we agree.

As to corruption, in this context, it is really not a terribly likely hypothetical scenario. I say that because, if one were an ignoble baron seeking to pursue an injunction to preclude some sort of serious disruption, it is unlikely that the cost of pursuing an injunction would be sufficiently high to warrant seeking the assistance of the Secretary of State in bringing that injunction. It would be more likely that such costs would be borne by the company or person themselves, given the urgency and the much larger costs incurred by the disruption occurring. While I accept that there is a hypothetical concern, therefore, I find it unlikely in reality that such an envisioned scenario would eventuate.

I thank the noble Lord, Lord Paddick, for tabling Amendment 116. Let me start by saying that I, again, recognise the sentiment in this amendment. It is important that the Government intervene only in matters that are serious and proportionate to the public interest. However, I wish to remind noble Lords that causing nuisance or annoyance to the public can have a far-reaching impact when it occurs on a widespread scale. The recent protests targeting the M25 have shown just that. Furthermore, while a Secretary of State may apply for the power of arrest to be attached to an injunction, it is for the courts to decide whether or not this is an appropriate measure.

Finally, I turn to Amendment 145, tabled by the noble Lord, Lord Coaker. Again, I understand and have considered the need for scrutiny and transparency, as I touched on earlier, and therefore I entirely understand the logic of the tabling of that amendment. None the less, it is the Government’s view that while a review is not needed to ensure that activity relating to these provisions is necessary, it is important that transparency is carefully considered, and I will ensure that that is done.

There are already several clear provisions in the Bill that serve to ensure that the use of these powers by a Secretary of State will be subject to scrutiny and safeguards. As has already been noted, of course, in Clause 17(5) there is a requirement for consultation as may be appropriate ahead of initiating civil proceedings. Moreover, as we have already touched on, civil proceedings can be issued in the interest of the public only when it is considered expedient to do so in the judgment of the judiciary hearing the claim. As I have already committed to the noble Baroness, Lady Chakrabarti, I will nevertheless consider what further clarity could be provided on the circumstances in which a Secretary of State might seek to initiate such proceedings. I therefore invite the noble Lord to withdraw his amendment.

Public Order Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

I do not claim to have found the perfect solution; my aim is to invite the noble Lord and his Bill team to recognise the importance of providing a definition. If they agree with the suggestion that it is important to do so, and if my amendments are not acceptable, I invite them to come up with a more suitable, or perhaps more proportionate and carefully phrased, set of amendments than I have put forward. I hope I have made my position clear; it is about the meaning of words, which are of particular importance when one has regard to the significance of this particular phrase with which my amendments are concerned.

[Baroness Jones of Moulsecoomb (GP)]

I cannot sit still any more. I am starting to feel sorry for the Minister, who is on a very sticky wicket because this is clearly rubbish legislation. I do not understand how it got through or who directed the civil servants to write it. It is absolute rubbish. We have heard all of the arguments about how it is so broadly written and will criminalise too many people—many more than the peaceful protesters whom the Government are trying to target. I just wonder where the idea came from. This is so right-wing; it is not an appropriate Bill for a democracy.

The noble Lord, Lord Paddick, has beautifully laid out the lack of a definition of “serious disruption”, and I cannot better that. But, for example, what about arresting the Government for serious disruption to the NHS over the last 12 years? I would support that. But we would obviously have to know exactly what “serious disruption” meant.

The criminal courts in this country are crumbling and cannot cope with the number of cases that they have at the moment. Yet here the Government will insist on more cases, sometimes on very specious grounds, which will clog up the courts even more and make life even more difficult for people who care about justice and law. I beg the Minister to meet with some of the more learned noble Lords here and perhaps start either to clarify the Bill or to scrap it altogether.

[Lord Carlile of Berriew (CB)]

My Lords, I will make a very serious request of the Minister, who is dealing with this difficult Bill with great courtesy and who is very amenable to comment, even if he disagrees. I ask him to take the trouble, before he replies to this debate, to read Section 78 of the Police, Crime, Sentencing and Courts Act 2022—it is only one page, and I will lend him my iPad if he needs it. In this country, we have training for magistrates and judges, which is provided by the Judicial College— certainly for judges; indeed, I see the noble Lord, Lord Ponsonby, nodding that this is the case for magistrates as well. One of the reasons why this training is provided is to ensure consistency between courts around the country.

If there are two sets of legislation—this Bill and Section 78 of the 2022 Act—the Government cannot control who charges whom with what. It is quite likely that, in “Lonechester”, the police will charge someone who glued themselves to the passageway of the cathedral with this new law, while in “Scuddersfield” they will charge them with Section 78 of the 2022 Act. They are quite different: the Bill is basically a summary trial on these offences and has very low sentencing powers, but the 2022 Act, which we have already passed, has a maximum sentence of 10 years’ imprisonment, as the noble Lord, Lord Paddick, said. We cannot expect police officers to know these differences when they are busily rushing around trying to save the public from being stuck on the M25 for seven hours. But they can expect the law to make life easier for them by ensuring that it has that consistency. At the moment, we are breaking the rules which we generally set ourselves to scrutinise legislation so that we do not create ambiguity and inconsistency. In the context of what we are discussing now, nothing in the Bill is not covered under Section 78 of the 2022 Act, which has already had the scrutiny of your Lordships’ House.

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Moved by

[Baroness Jones of Moulsecoomb]

5: Clause 1, page 1, line 15, at end insert—
“(1A) In this section, “attach” means to connect by mechanical means, and does not include circumstances where persons, objects or land are merely touching, holding or being held, or seated or placed upon each other.”Member’s explanatory statement
This amendment probes the definition of “attach” in the Clause 1 offence of locking on, and whether it includes for example holding hands or sitting down.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am not going to describe all the amendments in this group. I am hoping that noble Lords will introduce their own.

I have one point to make about the arrest of Charlotte Lynch. I had the dubious pleasure of sitting on a panel with David Lloyd, the PCC for Hertfordshire, who seemed to suggest that it was the journalist’s fault and that journalists should not report on protests. He believed in a free press, but not always, so I was slightly worried about the Minister’s reaction, but he said that he used the wrong word.

All these offences deserve to be probed because they are so badly drafted, so broadly drafted, that we cannot be sure what they mean. For example, the Bill names the offence of locking on, but the definition is much broader. The Bill talks of a person attaching themselves or an object to another person, another object or land. What does “attach” mean? Does it mean people linking arms or holding hands? What if they were tied together by a ribbon with a loose bow that you could undo? Would that be attached? Exactly what does it mean? If it is easy to remove the attachment, does it count? Is it still criminal? It seems that these offences are absurd. I do not understand where the threshold is for criminal conduct. It makes the whole Bill worthless if we cannot be sure what it means, and certainly the courts are going to have a field day with this. I beg to move.

[Lord Beith (LD)]

My Lords, the noble Baroness has raised the absurdity of the locking-on offence and the problems that will arise, which are addressed by some of the amendments in this group.

I want to introduce the Minister to an issue he may not be familiar with—perhaps it does not happen in his part of the country. Quite a lot of young couples go about carrying padlocks. Why do they do that? It might not be immediately apparent to a constable that they are wishing to pledge their lifelong devotion to each other. They go to a place such as the High Level Bridge in Newcastle, and they attach the padlock to the bridge; they then throw the key into the water. Explaining that that is what you are about to do might be pretty difficult when your average police constable says that you are carrying a padlock, obviously intending to lock on to somewhere. But they do not lock on to anything—except perhaps each other, and they might be caught by that, as the noble Baroness just pointed out. That is simply one example.

Another obvious example which has been raised by noble Lords before is that of bicycle padlocks. People have to carry them whenever they are going to use their bicycle. Again, these are pretty obvious cases for the locking-on offence as the Government have conceived it.

These are things that just happen in ordinary life. When you compound the offence created in the Bill with the offence of obstruction of a constable, you can see really difficult situations arising, where citizens with no intention of creating serious disruption are nevertheless caught because they are carrying such things in the vicinity of somewhere where serious disruption might be about to arise, or might be known to be about to arise.

I really think that the Government have got to clean up this Bill if they want to proceed with it, and remove from it things that drag ordinary citizens into conflict with the criminal law when they have no criminal intent at all—and do not need to have for the purpose of some of these offences—and are not involved in serious protest. Serious protest is itself, of course, an often justifiable activity, as the courts have demonstrated in some recent cases. Quite apart from the problems faced by those who want to engage in legitimate protest, we should not be passing legislation that simply confuses ordinary citizens as to what they are allowed to do.

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[Lord Sharpe of Epsom (Con)]

My Lords, I am afraid I do.

[Baroness Jones of Moulsecoomb (GP)]

I thank all noble Lords who have contributed to this debate. I have really enjoyed it and I think we are expecting some better answers in the future. The Minister said something about probing us on what we thought, but it is our job to probe him about what this legislation means. So far, it is not coming out very well.

Personally, I hope it gets thrown in the rubbish bin because, quite honestly, we are spending an awful lot of time and energy debating it when we know it is awful. It is not as if we can see a glimmer of hope that it might solve some problems. The Minister talked about the damage and disruption that these protesters are doing. In fact, the Government have done more damage and disruption to our social fabric than XR, Insulate Britain or Just Stop Oil could ever do. They have had 12 years and made the most horrendous mess.

Getting back to the Bill, the Minister did not answer my question about “attach”. I still do not know what “attach” means. I am happy to wait and hear a longer answer, if he has one, on another occasion.

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Moved by

[Baroness Jones of Moulsecoomb]

9: Clause 1, page 1, line 18, at end insert—
“(2A) It is a defence for a person charged with an offence under subsection (1) that their actions were likely to avoid greater disruption or were otherwise in the public interest.”Member's explanatory statement
This amendment creates a defence for actions that are in the public interest or which avoid greater disruption.

[Baroness Jones of Moulsecoomb (GP)]

Again, I will just talk to my two amendments. The noble and learned Lord, Lord Hope, and I are probing the Government from both ends with our amendments. I am probing on the basis that the offences are so broadly drawn that they require equally broad defences to protect innocent people from being criminalised. I imagine that the noble and learned Lord is being rather more forgiving on the drafting of the offence, and therefore trying to ensure that it works by not making the defences overly lenient. I am happy to be corrected, but both perspectives can be true. That is why the drafting is so bad. These issues will not just detain us here—she says, bitterly—but will create hours, days and weeks of legal arguments in the courts, which is very much to be avoided.

There is an opportunity in this legislation which I might explore later: that fossil fuel companies and other environmentally destructive actors could be prosecuted and convicted for locking on. For example, if a fracking company attaches a drilling rig to land, that potentially causes serious disruption to two or more individuals. It could leak or cause earthquakes; it could contribute to climate change, or two people might have wanted to walk through that field but now there is a rig in the way. Local people could be seriously inconvenienced by having to protest against the fracking rig, rather than pursuing their hobbies such as birdwatching.

The Government probably do not mean to criminalise fracking and other oil and gas extraction, but this is a logical consequence of such broadly drafted offences. I rather suspect that people such as those at Greenpeace or the Good Law Project might enjoy some time in court with private prosecutions of that kind. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to my Amendments 11, 30, 34, 41, 57 and 63. That may seem a bit of a mouthful but they are all in exactly the same terms. They refer to the reasonable excuse defence in Clauses 1, 3, 4, 6 and 7. Perhaps I should preface my remarks, particularly in the light of the comments made by the noble Baroness, Lady Jones of Moulsecoomb, by saying that I very much subscribe to the view that these measures are not needed at all. These are laws we do not need and they may cause confusion, but I have to take the Bill as it is. I am making my remarks with reference to the Bill as we find it, not as I would like it to be.

The Constitution Committee examined the phrase “reasonable excuse” and its implications, and said that it is

“constitutionally unsatisfactory to leave to the courts the task of determining what might be a ‘reasonable excuse’ without Parliament indicating what it intends the defence to cover”.

There are two points in particular: first, it invites argument over whether certain, but not other, political motivations might constitute an excuse—how serious they are and their consequences, and so forth; secondly, and perhaps even more important, is whether the defence of reasonable excuse should be available at all in cases where serious disruption has been caused. This is exactly the other side of the argument that the noble Baroness put forward a moment ago. The committee’s recommendation was that unless a precise definition of reasonable excuse is provided, the defence should be removed from Clauses 1, 3, 4 and 7 altogether.

The point is really this: if the wording remains in the Bill as it is, it opens the door to arguments that bodies such as Extinction Rebellion and Just Stop Oil use to justify their actions. I recall the lady who was sitting up on a gantry when she was interviewed on television. With tears in her eyes, she said, “I know I’m causing terrible disruption to many people”—you could see all the cars stuck behind the police cordon—“but I’ve got no alternative. Look at the serious disruption that climate change is giving rise to; that’s my case. We’ve got to do something about it, so I don’t mind how much disruption I cause to however many people because I’ve got to get that message across.” The problem with the reasonable excuse defence is that it opens up that kind of argument.

The committee’s recommendation was, as I say, that unless a precise definition is provided it should be removed. My amendments propose that the question

“is to be determined with reference to the immediate interests or intentions of the individual, not any public interest which that person may seek to invoke”.

The immediate interest point would cover the case of the journalist Charlotte Lynch, who was arrested by the police. In her position, she could obviously say that as a journalist she was doing her job. That would undoubtedly be a reasonable excuse if she was having to defend a charge in this situation, and one could think of many other examples, so the opening words of my amendment are designed to deal with people of that kind. But they are intended to meet the very point on which the noble Baroness, Lady Jones, focused on so clearly: the position of protesters who are protesting because of climate change, for example, or other big public interests that people feel it necessary to protest about.

There are various problems with leaving the words as they are. The offences described in Clauses 1 and 6 are to be tried summarily before magistrates. I am conscious that the noble Lord, Lord Ponsonby, is here with his experience but I suggest that leaving it to magistrates to decide whether a particular public interest excuse is reasonable, without any guidance from Parliament, is not satisfactory. There is a risk of inconsistent decisions between one bench of magistrates and another but there is another problem, too. These arguments, if they are to be raised in a magistrates’ court, may take up a great deal of time. I have heard at second hand of a case where one of these issues was raised in a magistrates’ court and it took hours and hours as people deployed their arguments. The magistrates’ courts are not equipped for that kind of interference in their ordinary business, so one has to have regard to the consequences of leaving it to them to decide issues of this kind. That important factor needs to be borne in mind.

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[Lord Murray of Blidworth (Con)]

I thank the noble Lord for his intervention. The short answer is that these cases are always going to be fact-specific. If there was a serious disruption in a London Underground tunnel, I suspect that there would potentially be many offences being committed other than those under this Bill. As my noble friend Lord Sharpe has already said, this situation will be considered and we will come back to the noble Lord. I invite the noble Baroness to withdraw her amendment.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I thank all noble Lords who have contributed. I enjoyed the critique of reasonable defence from the noble and learned Lord, Lord Hope, and I was delighted that the noble and learned Lord, Lord Judge, has come into the debate. However, I ask both of them not to be helpful to the Government—I just want to vote against everything in this Bill and they are making it difficult.

Asylum Seekers: Accommodation and Safeguarding

Baroness Jones of Moulsecoomb Excerpts

Wednesday 9th November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for his question. No error was made by Mr Jenrick when he addressed the other place. He was correct to say that the conditions facing the border staff at Manston are unprecedented. We have never had this number of unlawful crossings of the channel. The situation has not been faced before. As the noble Lord rightly observes, there is a problem with the processing of asylum claims. Every effort is being made to accelerate the pace at which asylum claims are resolved. It is clear that there is a backlog, and work is being carried out at pace to develop a method by which that backlog can be reduced.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am not a member of Labour but I resent that snipe from the Dispatch Box. It is not appropriate here. We are not a student debating society; we are not even the Commons. We respect each other so, please, no more snipes like that.

Secondly, back in July a report said that detention was already often for much longer than 24 hours and that there was overcrowding. Why did the Government not act then? They clearly did not.

[Lord Murray of Blidworth (Con)]

The height of the numbers at Manston was on 30 October. The Government acted as rapidly as they could from that date to reduce the numbers held. They reflected the conditions and the numbers crossing, which therefore led to an increase in the numbers held for processing at Manston. Clearly, the Government’s intention is to return Manston wholly to a processing facility not performing any accommodation function.