National Security Bill

Lord Beith Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, Amendment 72 seeks to narrow the definition of foreign power threat activity by removing the conduct of those who give support or assistance to individuals, as has been noted.

The definition of foreign power threat activity is a vital part of the Bill, ensuring that the police have the powers they need in support of investigations into state threats offences. It is important that foreign power threat activity has sufficient breadth to allow our law enforcement and intelligence agencies to act where a threat is posed to the safety of the United Kingdom.

There will inevitably be overlap between facilitating on the one hand and assisting or supporting individuals on the other to carry out certain harmful activity under the Bill. However, it is important to retain both elements as they serve distinct purposes. We do not wish to create a gap in the legislation that prevents us being able to act against persons who assist individuals involved in harmful activity, and therefore we cannot accept this amendment.

Both noble Lords implied that it is casting the net too broadly to say that it is not necessary to identify a specific offence or act. However, given the harm that can arise from state threats activity, it is right that the Government can act to disrupt individuals during the early stages of their conduct. Therefore, it will not always be possible to determine the end goal of their conduct. Indeed, in some cases an individual may not have even decided the precise outcome they seek to bring about but, none the less, they have an intention to engage in state threats activity. We therefore want to ensure that the provisions are robust enough to catch criminals in these cases. Waiting until we have a full picture of the act they wish to commit could mean that we have to wait until the act itself is committed.

Additionally, I reassure the House that the reference to

“conduct which gives support or assistance”

under Clause 31(1)(c) relates specifically to conduct falling under Clause 31(1)(a), as is made explicit through the reference to paragraph (a). The Government’s view is that it is implicit that the conduct in question must be support in relation to acts or threats under Clause 31(1)(a), rather than support in relation to any unrelated activity. Thus, the provision does not risk bringing activity wholly unrelated to state threats activity into scope.

[Lord Beith (LD)]

Can the Minister explain that? That is the only thing I can see that is covered by paragraph (c) which is not covered by paragraph (b)—the provision of support or assistance in matters which are nothing to do with the likelihood of the individual being involved in conduct falling within paragraph (a). The Minister has stated that paragraph (c) does not have the effect of proscribing conduct which has nothing to do with the provisions in paragraphs (a) and (b), but I do not know on what he bases that confidence.

[Lord Sharpe of Epsom (Con)]

I base that confidence on the explicit reference to Clause 31(1)(a) in Clause 31(1)(c). With that, I ask the noble Lord to withdraw the amendment.

Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2022

Lord Beith Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord German (LD)]

My Lords, we support these regulations, but I have a number of questions to ask the Minister and would like the whole House to reflect on the way regulations of this sort are dealt with by the House.

Early in January, there will be a debate on two reports from this House on the way in which secondary legislation is dealt with by Parliament, particularly the House of Lords. This particular set of regulations—what I am about to say has no effect on them—come under the enhanced affirmative procedure, which provides for regulations being placed in a draft form so that Parliament can assess them and then request the Government to make changes in summary. They would then bring forward amendments to it. In this set of regulations such a requirement was not in place, because the committee that looked at them, of which I am a member, did not make any recommendations about changes that might be required.

However, there are two points in respect of the way that Parliament deals with these matters. The first is that when the enhanced affirmative procedure is required, there is no specification as to which committee of this House will look at them. I will raise that matter in January, but we perhaps need to consider it. At the moment, the Secondary Legislation Scrutiny Committee looks at them, but not necessarily so: it is simply because there was nobody else. In the other place, it is “other committees” that look at this procedure, which is quite strange.

There is no question that, because there is no recommendation from the Secondary Legislation Scrutiny Committee, this procedure would have to form the amendment. It is very important that we have that opportunity to make changes to the secondary legislation; it is otherwise a take-it-or-leave-it procedure. A detailed discussion has been going on in this House about this, as we find it very strange for a Parliament to give such power to the Executive without having the opportunity to properly scrutinise and make appropriate changes.

I would like to ask the Minister some questions. First, which bit of the EU law, which resulted in the High Court’s decision, was problematic? This was a compendium case taken to the High Court, in which the Government defended themselves. This was one of several elements, and the Government were defeated on this element on the basis that they were breaching that EU law. Is the Minister satisfied that the EU law itself is appropriate and will therefore not necessarily need to be changed? It provides some fundamental rights, particularly against what people call the snoopers’ charter.

My second question concerns the operation of the OCDA. It is rather strange that the Minister and his counterpart in the other place talked about the OCDA being able to deal with these matters only during opening hours. It strikes me as being rather like a pub: you have opening hours, you have to place your order, and you cannot put anything in if the doors are closed. The question therefore arises: if you are applying to the OCDA during opening hours, how long would it take to give an answer? Clearly, the issue of understanding and defining what is urgent is very important. Having a definition that says that it is urgent only if it is closing time or they are gone would not be wholly appropriate. I understand the urgent nature of the legislation, but perhaps the Minister could describe how long the OCDA would take to provide an answer in ordinary circumstances where there is not such urgency. With those two questions, I am pleased to support these regulations. I hope that we can delve more into the process in January.

[Lord Beith (LD)]

My Lords, perhaps I might ask the Minister a couple of questions arising out of this. First, am I right in thinking that, to satisfy the court judgment, we must pass these regulations before the beginning of January? Perhaps he could clarify that. Secondly, looking in more detail at the position of the Security Service in particular in dealing with organised crime, I think I am right to say that the only change made by these regulations to satisfy the court judgment is that the urgency procedure would be able to address serious crime communications bids only if there is a matter of urgency, otherwise they would need to go through the normal process.

What slightly puzzles me about that is that I would expect the Security Service, which makes an enormous contribution in dealing with serious crime, to work in close conjunction with the police and, presumably, the National Crime Agency. Would it not be the police leading many such investigations? Would they not themselves be in a position to make the urgent request for communications data? I ask that simply for clarification, not out of any criticism of the fact that the Government have implemented the court’s decision.

Clearly, this restriction will not apply to other areas in which the intelligence agencies work. They will be able to make their own applications on their own initiative, even if it is not an urgent case, because it is within their core areas of activity. But when it comes to serious crime their responsibilities are shared with other bodies, which might be expected to take a lead on the requirement to use communications data.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for his opening comments. He has outlined what the statutory instrument does. These changes come as a result of the High Court ruling in June this year in the case of Liberty v the Secretary of State for the Home Department and the Secretary of State for the FCDO.

This SI will allow for the internal authorisation of the acquisition of communications data solely for serious crime purposes in urgent situations, as prescribed by Section 61A of the Investigatory Powers Act 2016. I understand that parts of the wider case were dismissed. However, the High Court ruled in favour of Liberty on one key point—namely, deeming it to be unlawful for the security services to obtain individuals’ communications data from telecom providers without having prior independent authorisation in certain circumstances.

In preparing for this debate, I read the blog of Neil Brown, who says he is an internet, telecoms and tech lawyer. He commented:

“I suspect, absent an appeal, there will be a tweak to the Investigatory Powers Act 2016, to provide for independent authorisation of requests by security or intelligence agencies before obtaining communications data, retained under Part 4 Investigatory Powers Act 2016, for the applicable crime purpose.”


This SI is indeed the tweak he refers to. He goes on:

“While important, this decision is unlikely to have a material impact on telecommunications operators, whether it applies to all communications data or only communications data retained by a telecommunications operator under Part 4. This is because it relates to what happens ‘behind the scenes’ before a Part 3 authorisation or notice is served on a telecommunications operator. The impact of a Part 3 authorisation or notice has not changed, nor has the obligation to provide data in response to a notice. I suppose that it might have an impact in the short term on the volume of requests, if OCDA”—


the Office for Communications Data Authorisations—

“is to have an increased workload—presumably, if that is the case, there would be a plan to increase OCDA’s staffing.”

My questions for the Minister arising from those comments are, first, does he believe that Neil Brown is accurate in his assessment that there is likely to be a lack of impact on the telecommunication operators through this SI? Secondly, is there a plan to increase the OCDA’s staffing if necessary?

We welcome the Government’s corrective action through this SI. We recognise that there needs to be an appropriate balance between our civil liberties and the fast-changing threats posed by serious and organised crime.

National Security Bill

Lord Beith Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, one of the considerations of the kind referred to by the noble Lord, Lord Carlile, is, of course, a fairly familiar debate parallel to this one which is about the economic well-being of the United Kingdom. Many of the powers exercised by security services can be exercised to defend the United Kingdom from physical threat, but they can also be used to defend the economic well-being of the United Kingdom. I have always been worried about the potential growth of that term, not its actual use. It is very easy to think of things that perhaps ought not to attract intelligence activity but which affect the economic well-being of the United Kingdom. The achievement by a particular firm of a particular contract in competition with another firm is a simple example.

We have some experience of trying to deal with this, and to move to an even wider definition of United Kingdom interests seems to me to open the door to criminal cases being mounted with serious potential penalties in circumstances which Parliament will not have envisaged, except in this short debate, when the matter arises in real life. I can see the intelligence agencies being put at some disadvantage by there being a suspicion that they can do things to favour one group of people over another in the economic interests of the United Kingdom or, as in this case, in the wider interests of the United Kingdom. There is a problem, and I think it needs to be addressed by tighter wording.

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend’s amendments. I respect the issue of the grey area of tactics, but I equally acknowledge that if we are seeking to secure convictions beyond reasonable doubt for life sentences and sentences of 14 years, then the burden has to be, in my view, on having the primary legislation as clear as it can be. I will come back to the wider areas of concern.

The Government have referenced that this is an update not a wholesale replacement of the 1911 Act, which states in Clause 1:

“safety or interests of the State”.

But that is a very specific reference to the penalties for spying. It does not go beyond that, so the reference for the understanding of the interests of the state with regard to that penalty and that part of the 1911 Act are very clear. The difficulty with this Bill, as my noble friend indicated, is that the Government are now using that across a series of different offences which are very broad in nature. We will no doubt come back to some of those within the Bill.

The Government have also said that we do not need to have it clarified in the Bill because they are relying on case law definition for this; they cite Chandler v Director of Public Prosecutions—1964 AC 763—as far as that is concerned. I looked at that case, which was specifically about a decision that was made about protesters seeking to access a site where nuclear bombers were going to be taking off. The court found that it was not for the courts to decide what were national security interests; that was a responsibility of the Executive. That is very understandable.

That decision has also been looked at in other cases including Secretary of State for the Home Department v Rehman in 2001. In that case, with regard to Chandler v DPP on national security issues, Lord Steyn said:

“But not all the observations in Chandler v Director of Public Prosecutions … can be regarded as authoritative in respect of the new statutory system.”


So purely relying on the definition of case law on a whole breadth of different offences under this Bill is not sufficient.

I was slightly concerned by what the Minister, Stephen McPartland, told the House of Commons in Committee. He seemed to imply that the real reason why the definition was so broad in this Bill was that the evidential threshold had to be low to secure prosecutions. He said of any further restrictions, as in my noble friend’s amendment:

“That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts”.—[Official Report, Commons, National Security Bill Committee, 12/7/2022; cols. 81-2.]


I am not a lawyer, but I imagine that our courts are fairly well equipped to handle such cases, which are sensitive or relating to national security, as they have in the past. I was troubled to read that the Minister gave the argument that we needed to keep the definition so broad to create a lower evidential threshold, but the penalty is life imprisonment. That surely cannot be right.

More alarmingly—this goes to the noble Lord’s point about wider interests—the Minister referred to the wider elements, not just national security but economic interests. He also referred to public health interests, saying that these areas would be covered in the Bill, and not just when they are used to threaten national security. So it is not just the grey tactics that concern us with regard to national security grounds, but the greyness of how, potentially, Ministers and prosecutors will seek to define that wider national interest. On the public health interest, I can understand that a malign interest may wish to use such a tactic, as I understand the North Koreans tried to do with malware and the NHS. Those are all tactics but, ultimately, these are national security concerns and not public health concerns.

Fundamentally destabilising our economy should be a national security interest. The examples my noble friend Lord Beith gave of undermining certain sectors or competition are not sufficient to meet a trigger for national security. Therefore, I believe that that triggering should be in the Bill, which is why I support my noble friend’s amendment.

Public Order Bill

Lord Beith Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I support Amendment 142A from the noble Lord, Lord Rooker, and his Clause 30 stand part. He has set out the concerns of the Delegated Powers and Regulatory Reform Committee pretty clearly. Noble Lords will be pleased that I will therefore speak briefly, but I will consider Clause 30 in the political context.

Having been a member of the Delegated Powers Committee for a full term, I am acutely conscious of the increasing tendency of the Government to avoid adequate parliamentary scrutiny of powers delegated to Ministers. Clause 30 is of particular concern, because the delegated powers enable Ministers to increase the already unacceptable police powers under SDPOs. I am very interested in this Bill, even though I have not been able to be involved until now.

As has been extensively debated in this House, it is extraordinary that these orders can apply to people who have not been convicted of any offence and who are not considered to be at risk of offending; that orders can last for up to two years and be renewed; and that a breach of any requirement under an SDPO can lead to six months in prison—for somebody who has not been convicted of an offence. As things stand, such powers do not sit comfortably in a democratic state, in my view. But with Ministers able to extend those powers and further interfere with citizens’ liberties, with only minimal parliamentary involvement—and if, as the noble Lord, Lord Rooker, said, they stick with the negative procedure—this Bill feels much more suited to a country such as Iran or China. I have never said such a thing about a piece of legislation in this House before, but this goes way beyond the pale. A few years ago, Clause 30 would not have been included in this Bill; I just do not think it would have happened.

In the DPRRC’s recent report, Democracy Denied?, we express our concern about

“an increase in the number of occasions on which ministers have been given power to supplement primary legislation by what is, in effect, disguised legislation”

—things such as guidance, which is not a delegated power in the normal sense—that is,

“instruments which are legislative in effect but often not subject to parliamentary oversight”,

being, as in this case, subject only to the negative procedure. That is one way of doing things.

Democracy Denied? expresses further concern about guidance where there is a requirement “to have regard” to it, which the noble Lord, Lord Rooker, also referred to. Although there is an element of choice, a requirement to have regard to guidance carries with it an expectation that the guidance will be followed unless there is a cogent reason for not doing so. In the context of this Bill, such guidance is completely unacceptable.

I very much hope that this House will deal with Clause 30 on Report. Our Delegated Powers Committee recommends that the guidance should be subject to the affirmative procedure. It would probably have been ultra vires for the committee to have gone further than that, but speaking personally, and not in the context of being a member of the Delegated Powers Committee, I really hope that the House considers removing Clause 30 from the Bill at the next stage.

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Rooker, has done a service to the House in focusing such clear attention on the Delegated Powers Committee report, and the issue that it raises. I simply want to pursue one of the points that he mentioned, which is one of the features of the guidance to which this power relates:

“guidance about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.

What does the Secretary of State know that the police do not know about who it would be appropriate to make serious disruption prevention orders about? On what basis does the Secretary of State know what the police do not know and therefore have to be advised about?

The only basis I can think of is not a helpful one for the Government. It is that there is a political reason here and that what the Government want to do is say, “Never mind those people who are protesting about this, go after those people who are protesting about that.” This is the very kind of power which we have always tried to avoid giving, in the form of direction to the police, to anybody, including police and crime commissioners. There has been a very necessary reluctance to have the police directed in a way which could become political, and in which the choice of where to deploy resources was based on whom the authority concerned—in this case, the Government—disliked and wanted to see penalised in some way.

I cannot see any respectable argument for the Secretary of State saying to the police “You do not realise what I realise; this is the guidance I am giving you about identifying appropriate persons.” It is the sort of thing that even the affirmative procedure would not give us a very good chance to deal with, because you cannot amend statutory instruments, even under the affirmative procedure. But to leave it simply to the negative procedure, which is so limited and so inadequate, particularly in the other Chamber, is simply not satisfactory. The Government’s response to the Delegated Powers Committee has been wholly inadequate so far.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I wish to make one or two brief observations in respect of the way these amendments tie together. The amendment in the name of the noble Lord, Lord Coaker, which I support, sees a good precedent in what Parliament sometimes does, which is to pass successive pieces of legislation without having in mind all the complexities of the earlier legislation. We saw this most clearly in my experience in relation to search warrants of premises, and I will come back to that in a moment. There is a huge advantage in having up-to-date guidance, and the best people to produce it are those who have practical experience—namely, the police institutions—so I warmly welcome that.

But its importance goes to Clause 30, because the question I ask myself is: why is Clause 30 there? Why can it not be dealt with in two other ways? One is the use of guidance given by independent police to other police, to get uniformity; and secondly, do not forget these are applications to a court, so can we not do what we did in relation to search warrants? That is, to provide in detailed form, through the Criminal Procedure Rule Committee, working closely with the police and other organisations, the information that needs to be put before a court to make the decision on the order. Now, if the Home Secretary feels that there are areas that you need to specify—for example, about the kind of person who should be asked to supervise or do something—why can the detail of what is required, the kinds of considerations, not be put properly and openly through an independent process of rules and forms? This worked for search warrants.

We ought to bear in mind the experience of ASBOs. It is not the time at this hour of night to go back to that rather unhappy chapter, but trying to supplement un-thought-through legislation of this kind with guidance is not the way forward; there are better mechanisms.

It seems to me, when one looks at Clause 30, one asks oneself, “What is it for?” In Clause 30(2)(c), the guidance is about

“providing assistance to prosecutors in connection with applications for serious disruption prevention orders.”

Is the intention that somehow the Home Office believes that the police do not help prosecutors? What guidance do they need? These are independent people and their independence should not be called into question. In most countries, the independence of the prosecution service, as in our country, is critical, and so is the independence of the police.

I do not want to go into the constitutional points under Clause 30, because I entirely agree with what has been said. I think one ought to look at this from a practical experience point of view to say that the clause is completely unnecessary. It should be possible to deal with the practical consequences of these orders in a way that takes into account experience. This is a criticism of the way in which the modern Civil Service is structured. There are probably few people in the Home Office who remember what I have just gone through. I thought a few grey hairs might remind people that there is a better way forward than this constitutional aberration, constituted by Clause 30.

National Security Bill

Lord Beith Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, like previous legislation on intelligence and security, the Bill gives significant powers to agencies and Ministers, and it creates new offences. Its purpose is to help protect our citizens, but it is in the nature of these powers and this work that, in order to be effective, much of it must operate in secret, without the visible accountability we would normally expect. Therefore, there are alternative forms of accountability: commissioners, reviewers of terrorist legislation, the courts, the tribunal and the Intelligence and Security Committee, on which I will concentrate.

I was a member of that committee from its establishment in 1994 until 2008. One of the consequences of being on it rather a long time is that this debate is full of people from whom I took evidence during that period, not excepting the noble Lord, Lord West, the only present member of the committee in this House, who made such a valuable contribution to the debate earlier. The committee was created when, until very recently, the existence of the agencies was either denied or not acknowledged, and when the Five Eyes alliance was a secret. The result was that it was a battle—I suspect it still is—to get the level of access essential to the committee doing its job.

I see that job as having two principal purposes: to ensure that the secret parts of government operate competently and efficiently, with adequate resources; and to ensure that they do not do what Parliament would not allow them to do if they were openly accountable. I see it as a reassurance—or an intended reassurance—for Parliament that a representative group of colleagues not beholden to the Executive has sufficient access to the secret activities of government and sufficient independence of judgment to ensure that these objectives are properly met.

As time went on, the committee increased its access, helped by a new generation of agency heads, many of whom recognised that it was in the interests of their service to have effective accountability. We had many battles, particularly with Ministers. Battles continue, including the doomed attempt to instal Chris Grayling as the committee’s chairman. The Justice and Security Act 2013 strengthened the committee’s position, particularly in relation to operations and the important inclusion of defence intelligence in the committee’s remit. This Bill makes no further changes, but it creates further issues and processes for the committee to monitor. I want to focus on two examples of the problems it faces.

The first is the disengagement of Prime Ministers from the committee, which has occurred under several recent Prime Ministers. Because reports are redacted, the normal process of parliamentary and political reaction leading to improvement is severely limited. On some quite major issues, only the Prime Minister has full access to the committee’s conclusions. He or she needs to respond directly in discussion with the committee. Meetings between the committee and the Prime Minister were normal practice after the annual report was produced, and for some special reports as well. They should resume.

The second issue is what appears to be an obscuring of ministerial involvement in difficult and highly controversial issues where the agency’s actions may or may not have specific authorisation from the Minister. That brings me to Clause 28, which has been referenced. It provides a defence that “extra-territorial application” of the Serious Crime Act 2007 would not apply if the action or the assisting or encouraging of that action was necessary for

“the proper exercise of any function of the”

intelligence agencies or the Armed Forces. It is not a new problem, but it used to be dealt with by ministerial authorisation, which would be available only when the circumstances were exceptional and the action proportionate and defensible. As I understand it, ministerial authorisation is not required under this formula—or so it appears. It might not even be sought if it were thought better for the Minister not to know about it. That would be a very unhealthy state of affairs to encourage.

Serious issues may be raised by this provision. They range from very minor breaches of local law in intelligence-gathering right up to rendition resulting in torture. We should not have a situation in which the relevant Minister can claim that they were not fully consulted, briefed or asked for any specific authorisation. The ISC pointed out in its 2010 report on detainee mistreatment that:

“The Guidance is insufficiently clear as to the role of Ministers, and what (in broad terms) can and cannot be authorised. The Guidance should … make clear that Ministers cannot lawfully authorise action which they know or believe would result in torture.”


What if Ministers are never asked because of Clause 28? Ministerial approval, or its refusal, is an essential part of the chain of accountability, and it needs to be maintained and backed up by ISC scrutiny of Ministers’ actions in this area.

This brings me to my experience of the committee’s attempts to establish what submission was made to Ministers on the potentially controversial action outside the United Kingdom involving an intelligence agency. Several of our reports made reference to the stonewalling in this instance, with numerous mutually inconsistent excuses being offered for failing to provide the documentation. I refer right back to the 2006-07 annual report, under the chairmanship of the noble Lord, Lord Murphy of Torfaen, which reported that, at its meeting with the Prime Minister, the committee had been

“told that the matter would be reviewed once again, although this instruction does not appear to have filtered down to those concerned.”

Referring to the Government’s position as “untenable”, the committee revealed how many years it had been submitting this demand for the disclosure of specific documents. Although the paragraphs were published, No. 10 successfully demanded that the number of years the committee had been seeking this documentation would be redacted—and it was.

You cannot serve on the ISC without becoming aware of how many very able and, in some cases, very courageous people work in intelligence agencies and the related organisations on our behalf. Effective accountability in a form which is compatible with the secrecy of their work is in their interests, just as it is in the interests of the citizens they protect. It is also in their and our interests that the legislation they work under is fit for purpose. As noble Lords have indicated so far in this debate, there is considerably more work to be done to ensure that this Bill meets that test.

Public Order Bill

Lord Beith Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

A consultation is the best way to address any problems that arise in terms of intimidating or harassing behaviour at abortion clinics. That is a much more proportionate and reasonable response than introducing mandatory blanket zones which attempt to regulate essential free speech. This consultation will provide accurate information on whether there has been a change since the last report. I fully support the amendment put forward by my noble friend Lord Farmer to which my name is attached.

[Lord Beith (LD)]

My Lords, I speak to my Amendments 85, 88 and 90 to this clause. I make it clear that, although I have regularly voted to secure more protection for the unborn child under abortion law, I am opposed to the kind of protest outside clinics and hospitals to which Clause 9 is directed. I am deeply troubled by the extent to which this clause restricts free speech, indeed abolishes it within 150 metres of a clinic or hospital. I cannot vote to write into English law a clause which, as presently worded, makes it a criminal offence to seek to influence, persuade or even to express an opinion. I note that the noble Baroness, Lady Sugg, has an amendment which deals with the complaint I made at Second Reading in respect of the last of those words but not the others.

This clause as it stands is clearly inconsistent with the European Convention on Human Rights and imports into our law the dangerous concept that to express an opinion can constitute interfering. Once that concept has found its way into our law, such language would be welcomed by the anti-free speech brigade and we would find it sought after in other areas of legislative restriction. Those who advance the so-called right not to be offended in student union politics would latch on to such wording with enthusiasm.

I turn first to Amendment 85, which has the support of the right reverend Prelate the Bishop of St Albans. It seeks to protect the normal activities of a church, chapel, mosque or temple that finds that it is within the 150-metre zone of a clinic providing abortion services. I will come on later to how wide a range of areas that could be. In such a church, mosque or temple, what if a debate is organised on the arguments for and against abortion in the light of the religious convictions of those who worship there? What if a poster is put up outside the church to state that such a debate is to take place on a particular date with a brief indication of the points of view of the different speakers? What if a campaign meeting designed to enable the church to play a greater part in the public debate on this issue takes place there? These are normal activities of churches.

Let us remember that these churches and mosques have been sitting in these places for many years and, all of a sudden, the area they are in is determined to be one in which they cannot do what they did previously. They cannot have the kind of discussions and conversations which are normal to them. That is a point that the noble Baroness, Lady Sugg, also sought to cover in her Amendment 95 and I appreciate that.

I turn to my Amendments 88 and 90, which take out some of the words in this clause, to which I have referred, but they do not affect the provisions covering intimidation and harassment, which none of us favours at all. Amendment 88 takes out the ban on a person who “seeks to influence” within the 150-metre zone, while Amendment 90 removes the words

“advises or persuades, attempts to advise or persuade, or otherwise expresses opinion”.

I am astonished that that wording could ever have got into the draft of the clause. That there could be any part of the United Kingdom in which it is a criminal offence to express an opinion is, to me, quite extraordinary. This cannot be made consistent with the ECHR or historic rights of free speech. I hope that by Report the Government will be able to bring forward a significant redraft of this clause.

The noble Baroness, Lady Sugg, made some helpful suggestions but they are not enough. Amendment 95 relates to “persons accompanying”. I am glad that she has included that amendment, because it deals with a situation in which somebody is accompanying someone to an abortion clinic, and they are having a discussion about whether she should or should not go through with it—the pros and cons. That would be a criminal offence under the legislation, unless her amendment is accepted. It illustrates what dangerous territory we are in and how close we are to the cliff edge of losing our free speech.

I shall look at some other instances. What if a member of staff, perhaps a whistleblower, questioned some aspect of the policy or practice of the clinic and sought to get it changed, potentially affecting and limiting the provision of abortion services? What if that discussion was taking place, and the person thought that they could rely on a conscience clause, because in a certain case they thought that the wrong decision had been taken or a practice was dangerous? Is that person going to be guilty of a criminal offence for doing so? I find that extremely worrying. What about a picket in an industrial dispute, such as a nurses’ strike, which interrupted abortion services or access to some extent? That would appear to be covered by these provisions.

Amendment 84 from the noble Baroness, Lady Sugg, and Amendment 93A from my noble friend Lady Hamwee, also worry me, because they would extend the term “clinic” to any

“place where advice or counselling relating to abortions is provided”.

That is every doctor’s surgery in the land—a huge extension of the potential scope of this legislation. The free speech restrictions that it imports would seem inexplicable to somebody simply walking along the street in the vicinity of a doctor’s surgery, having a conversation about the rights and wrongs of abortion, who is overheard by somebody who reports them. Before long, a police officer is pursuing the case.

As to the amendments proposed by the noble Lord, Lord Farmer, I am very sympathetic to Amendment 98, which seeks to make the review the basis for action, which seems quite logical, but I am afraid I am not sympathetic to his Amendment 99. As he conceded, the amendment passes over to statutory instruments and delegated legislation the whole substance of this legislation. As the noble Viscount indicated in an intervention, that would deny the possibility of amendment of whatever was put forward. Those are very serious issues. I think on all sides we can agree that what the scope of the criminal law should be in this area is fundamental. It should be decided by primary legislation and, although I appreciate the reasons that the noble Lord, Lord Farmer, has felt obliged to use this mechanism, it is not the right one for such fundamental issues.

I hope that colleagues on all sides of the Committee, whatever their views on abortion, will address this issue so as to ensure that the criminal law is not so extended that historic rights of free speech are damaged and legitimate action by innocent people is neither prevented nor made the subject of criminal offences and prosecutions. I hope Ministers will look very carefully at my amendments and others and produce some workable and practicable redraft on Report, which we will also want to look at with the greatest of care.

[The Lord Bishop of Manchester]

I rise to address Amendments 85 to 88, 90 and 92, to which my right reverend friend the Bishop of St Albans has added his name. He regrets that he is unable to be in his place today. I also have sympathy with a number of other amendments in this group.

It is a heated and emotive debate on this clause, and it was heated and emotive when it was added in the other place. The danger is that we get dragged into debates about whether abortion is morally right or wrong. Indeed, I have had plenty of emails over the past few days, as I am sure other noble Lords have, tending in that direction. As it happens, I take the view that the present law on abortion strikes a reasonable balance; in particular, it respects the consciences of women faced, sometimes with very little support, with making deeply difficult decisions.

Moreover, history teaches us that the alternative to legal abortion is not no abortion but illegal abortion, with all the evils that brings in its train. Others, including people of my own and other faiths, may disagree with me on either side but that is not the focus of your Lordships’ deliberations this afternoon. Rather, as the noble Baroness, Lady Fox, reminded us, we are seeking to weigh the rights of women to access legal health services alongside the rights of others to seek peacefully to engage, persuade or simply pray.

However much we may disagree with the causes and tactics of those protesting, we need to remember that in a democracy not everything that is unpleasant should in consequence be made illegal. Harassment and abuse of the kinds to which the noble Baronesses, Lady Fox and Lady Sugg, and others have alluded must be condemned in the strongest possible terms. The use of legislation, including on harassment, to confront inappropriate behaviour is absolutely legitimate, but it already exists. If such behaviour is becoming more widespread, let us see the police and local authorities use those current powers more extensively so that they can create a safe and respectful atmosphere for vulnerable women.

I understand that no one has ever demonstrated that widespread abuse is prevalent or that new powers are necessary. At the least, we need clear research, as the noble Lord, Lord Farmer, proposes, to underpin such extensive new measures. In line with other provisions of this Bill, many of which we have already discussed, there is a need for the Government and police to take proportionate action while maintaining the strongest possible safeguards for freedom of speech, expression and assembly. Those are at the core of our nationhood. I do not think that Clause 9, as drafted, takes that proportionate approach.

I respect the views of those noble Lords who take a harder line against abortion and the many who reject the position from a more liberal standpoint. However, I cannot accept that it is desirable to legislate against expression of opinion on the matter or providing advice and guidance, even if one is in one’s own home or a place of worship. I cannot believe or accept that seeking to provide information could be met with a six-month prison sentence. I believe Amendments 88, 89 and 90 would help set a better balance on these provisions around freedom of speech. They would leave those things that are genuinely egregious in the clause and extract those things that are not.

Amendment 85 clarifies that Clause 9 cannot apply within an area

“wholly occupied by a building which is in regular use as a place of worship”.

Again, I do not expect or demand that religious positions on abortion are respected any more than others, but I worry that a minister of a religion holding views that are mainstream within his or her faith tradition—and are demonstrably legal to hold—could be barred under this legislation from expressing that view within their own place of worship.

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[Baroness Thornton (Lab)]

My Lords, I did not expect to say how much I agree with the noble Viscount, Lord Hailsham. It means that I do not need to say an awful lot. I regret that the people moving the amendments which seek to water this down very significantly, starting with Amendment 80, have not addressed the amendments moved by the noble Baroness, Lady Sugg, which seek to turn this into a reasonable working clause.

[Lord Beith (LD)]

My Lords, I quite openly accepted that the noble Baroness, Lady Sugg, sought in a number of respects—though not in all—to reflect the issues raised at Second Reading. I gave credit for that.

[Baroness Thornton (Lab)]

I accept that. However, others who support this suite of amendments have been asked about the amendments tabled by the noble Baroness, Lady Sugg, and have clearly not read or addressed them. That is a great shame. I support the noble Baronesses, Lady Sugg, Lady Barker and Lady Watkins, and my noble friend Lord Ponsonby, in seeking to make this clause acceptable. I hope the Minister sees this as a positive step forward for the next stage of the Bill.

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[Lord Davies of Gower (Con)]

My Lords, Clause 16 closes a gap in existing powers at Part 2 of the Public Order Act 1986 for policing public processions and assemblies which may result in serious disorder. It does this by harmonising the position between on the one hand the territorial police forces—that is to say those covering a geographical force area—and on the other hand the British Transport Police and Ministry of Defence Police.

The present position is that the territorial forces are able to exercise these powers, but the British Transport Police and Ministry of Defence Police are not. Clause 16 extends to the British Transport Police and Ministry of Defence Police some of the powers at Part 2 of the 1986 Act in relation to their respective jurisdictions, where there is an operational case for doing so.

For example, the power may be used in a situation where a trespassory assembly is planned or is occurring on the railway or on railway property. This could be within a station, outside a station or in a retail area owned by the railway. In this case, the British Transport Police may be the most appropriate force to exercise the power. The railway is a unique and complex environment with specific risks which British Transport Police specialise in managing while minimising disruptive impact on the operation of the rail network.

To be clear, Clause 16 does not create any new powers, nor does it broaden the existing ones. It simply serves to close a potential gap in jurisdiction by extending certain existing powers to those two additional, non-territorial police forces. The powers contain various limitations and safeguards; for example, there is provision that only the most senior of the officers present may exercise the powers and a requirement that the officer must reasonably believe that the assembly may result in certain forms of serious disorder. Clause 16 reads these across, with necessary transpositions for the jurisdiction and functions of the British Transport Police and the Ministry of Defence Police.

While the provisions concerning the Ministry of Defence Police are reserved, as policing and railway are devolved matters, the provisions concerning the British Transport Police have practical application only in England and Wales. Following discussions, the Scottish Government have requested these powers be extended to the British Transport Police in Scotland. We have therefore tabled minor, technical amendments to the clause to facilitate the extension of the powers to Scotland.

[Lord Beith (LD)]

My Lords, the Government are stretching credulity if they say this creates no new powers; it creates new powers for the British Transport Police and Ministry of Defence Police. It is mostly on the British Transport Police that I want to concentrate.

This police force is not locally accountable. It is the police force of the operators of the railway system. It has its own structures and is essentially a nationally organised force with certain centres of activity. There are many cases where police support is needed, and we certainly see this in Berwick. The local police have to come on the scene some time before British Transport Police can come from 70 miles away to take part in whatever problem there may be. We have to be a bit careful about so readily extending powers to a very different kind of police force, which does not have the chain of local accountability that our civil police forces have.

If anyone thinks that the arrangements are all very smooth and there is not a problem in relations between local police and British Transport Police, they should read the proceedings of the Manchester Arena inquiry. They will discover some pretty uncomfortable things about how co-ordination between British Transport Police and other agencies is meant to work but does not always work in practice. I was slightly surprised that Scottish Ministers decided they wanted to extend the powers included here, but it is with the approval—if the case is in Scotland, it is not to the Secretary of State—of Scottish Ministers.

I will take the Minister back to an incident in the 1960s which he is too young to remember. It shows that these are not new problems requiring drastic new powers. A railway line called the Waverley route between Edinburgh and Carlisle was closed. Before it managed to get itself closed—it has since been partially reopened—people in the village of Newcastleton between Hawick and Carlisle protested vigorously. One night, when the night sleeper was heading towards Carlisle, the minister of the local kirk and some of his congregation and others gathered on the crossing and stopped the train. On the train at the time was Lord Steel of Aikwood, then the young MP for the Borders area. This incident was handled by the police quite smoothly and locally, without any involvement of the British Transport Police—I doubt very much that they ever got there.

Local police are used to dealing with these situations. I fear from the provisions we have now that, given the nature and scope of this Bill, someone proposing to have either a group of people in a station protesting against imminent cuts to the service, or a single protestor in the station building by the ticket office saying “Your service is going to be halved from next week—join me in a protest”, will find themselves subject to the powers of the Public Order Act. There will be an unnecessary level of police involvement by the British Transport Police. Without the powers here, they would be able to deal with it in the normal way, as the local police would. We are in some danger if we get the British Transport Police into the state of mind that they are policing protest. It is really not what they are good at and not what they are supposed to be good at.

[Lord Paddick (LD)]

My Lords, I support the comments of my noble friend. The only observation I was going to make about the powers being given to the British Transport Police is that it is primarily funded by the rail industry and whoever pays the piper calls the tune. Can the Minister confirm that the BTP is accountable to the British Transport Police Authority, the members of which are appointed by the Secretary of State for Transport? What does the Minister believe to be the consequences, for example, for protests at railway stations, of such funding and accountability mechanisms?

[Lord Coaker (Lab)]

My Lords, Clause 16 covers the British Transport Police in England and Wales. It is reasonable that, as the Minister explained, the government amendments also cover the BTP in Scotland, since that has been requested by the Scottish Government. We disagree with the premise of the Bill, as was visible in many of the groups, not least the last one, but we understand recognising the specific roles that the MoD and British Transport Police play as part of the wider policing family. Can the Minister confirm—this is part of what the noble Lords, Lord Paddick and Lord Beith, said—that the use of their powers is strictly limited to the areas under their jurisdiction?

Prior to today’s debate, I asked the Minister why the Civil Nuclear Constabulary was not referenced in the clause. Helpfully, he responded. I received a letter that said:

“we have not seen assemblies outside civil nuclear establishments and … the public do not have access to this land, so any assembly outside them … falls under the jurisdiction”

of the usual territorial force. I take that to mean that it is not included because no need has been identified for it to have these powers, which is welcome. It would be handy if the Government had applied that logic elsewhere in the Bill.

Does the Bill allow the Government to extend these powers to the Civil Nuclear Constabulary, should they wish to do so? In other words, we have just seen the Government announce and give the go-ahead to the building of Sizewell C, and the Civil Nuclear Constabulary would presumably be involved in and around that sort of site. Would the Government have to come back to Parliament to get primary legislation through in order to give the Civil Nuclear Constabulary similar powers to those in the Bill? Is some secondary legislation tucked away that would allow them to do that, without us being able to properly scrutinise that to determine whether we believe the Civil Nuclear Constabulary should have these protest-related powers?

[Lord Beith (LD)]

I remind the noble Lord that the Civil Nuclear Constabulary is armed. It was armed by the late Anthony Wedgwood Benn, when he was Secretary of State for Energy.

[Lord Coaker (Lab)]

That is a very good point—I was going to make that point and ask whether that made any difference. What makes this even more important is whether, tucked away in the Bill, there is some mechanism by which the Government could extend these protest-related powers to the Civil Nuclear Constabulary. The Government are saying that, at the moment, there is no need for it to have these powers because there have been no protests and it has not been appropriate—that is the information I received. All that I am asking—this is particularly relevant given the point of the noble Lord, Lord Beith, about it being armed—whether the Bill gives the Government the opportunity to do that, should they so wish, or whether they would have to come back and pass primary legislation to do that. It would be useful to find that out.

On Amendment 106 of the noble Lord, Lord Beith, which probes the breadth of the powers, can the Minister give us more clarity on the power to make an order prohibiting specified activities for a specified amount of time? What is the amount of time in scope, and who grants the order?

The clause references assemblies

“on land to which the public has no right of access or only a limited right of access”.

Would that activity therefore be covered under existing trespass offences? I am just asking for clarity on one or two of the specifics with respect to these amendments.

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I hope your Lordships will agree that this is a sensible and desirable outcome, and that, while I recognise his admirable intention, the noble Lord can be persuaded to not move his amendment.

[Lord Beith (LD)]

The Minister asked me whether I would be kind enough not to move the amendment. I am not entirely satisfied; he has promised to write on a couple of issues. The evidence that has not been brought forward is any inability of the local police forces to manage these situations if they arise. It does not appear to me that there have been situations where the lack of British Transport Police powers has made it impossible to deal with the situation. My worry is that giving it new powers will lead it to use them in circumstances that are not really envisaged by the Bill. At this stage, I am happy not to press the amendment.

[Lord Coaker (Lab)]

The Minister said, quite rightly, that he will write to the noble Lord, Lord Beith. For the benefit of the Committee, it would be useful for it to be put in the Library. The letter writing is fine but I sometimes worry about it because it means it is not in Hansard. For those people who read our deliberations, I think that could be a bit of flaw in them being able to understand what is going on. The answers often are in a letter or in the Library and not as widely available as they would be if they were in Hansard. It is a point that has increasingly bothered me, to be frank.

Public Order Bill

Lord Beith Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[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.

[Lord Paddick (LD)]

My Lords, on Amendment 5, in the name of the noble Baroness, Lady Jones of Moulsecoomb, we agree that there needs to be far more clarity as far as the offence of locking on is concerned.

On Amendment 18, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, to which I have added my name, we agree that the scope of going equipped for a locking-on offence should be limited to where the person intends to use the object for locking on, rather than including an object that may be used for locking on. There is a real danger of innocent people carrying innocuous objects being drawn into this offence, as my noble friend Lord Beith has just illustrated.

If we look at a similar offence in Section 25 of the Theft Act 1968, “Going equipped for stealing, etc.”, we see that the wording is:

“A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat.”


There is no mention of any article that may be used in the course of or in connection with the substantive offence. Can the Minister explain why there is a difference in this case from the Theft Act’s “going equipped” and these “going equipped” offences?

Amendment 19 in my name, supported by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Fox of Buckley, probes what “in connection with” means; in this case, “in connection with” locking on. Can the Minister give an example of where an object can be used in connection with locking on but is not used to actually lock on? Similarly, Amendment 48 in my name, supported by the noble Baroness, Lady Fox of Buckley, seeks to establish what “in connection with” means in relation to offences of going equipped to tunnel. Can the Minister give an example where an object can be used in connection with tunnelling but is not used to actually construct, or even to be present in, a tunnel?

Amendment 20, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, and signed by me, includes the question around the term “in connection with” but extends to whether it should also include items for use by someone else, through the term “by any person”. This is the substance of my Amendment 21, signed by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Fox of Buckley, which would replace “any person” with “them.”

As in the Theft Act example, surely it makes no difference if the person carrying a pair of handcuffs with the intention of committing an offence of locking on is the person who is actually going to chain themselves to the railings. If the thief and his mate go looking to break into cars, but the person carrying the crowbar is not the thief who is actually going to use it, the thief’s mate is still guilty of the offence of going equipped to steal. Why then is it necessary to include “by any person” in this offence when it is not present in the offence under Section 25 of the Theft Act 1968?

Similarly, Amendment 49 in my name, supported by the noble Baroness, Lady Fox of Buckley, seeks to understand why “any person” is included in the offence of going equipped for tunnelling when there appears to be no need for this widening of the offence.

Amendments 51 and 52 in my name, and supported by noble Lord, Lord Coaker, seek to understand what would be caught within the offence of obstructing major transport works by including Clause 6(1)(a)(iii), which includes obstructing someone

“taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works”.

This seems to be extraordinarily wide, to the extent that it is almost impossible to understand what would or would not come within the remit of the offence. For example, if a construction worker working on a major transport works is prevented from filling her car with petrol the day before she is due at work—a car she uses to get to work—is that caught within the remit of this offence? Where is the line drawn? Can the Minister give a clear understanding of what is included in the offence, and if not, how does he expect protestors to know whether they are going to be committing an offence?

Amendment 53 in my name, and supported by the noble Lord, Lord Coaker, seeks to probe why Clause 6(1)(b) is necessary. It refers to interference with apparatus, for example. Can the Minister explain how interfering, moving or removing apparatus relating to the construction or maintenance of any major transport works would not amount to obstructing the construction or maintenance, an offence under Clause 6(1)(a)? If it did not amount to obstructing the construction or maintenance, why should it be a criminal offence?

Amendment 65, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, and signed by me, seeks to narrow the scope of the criminalisation of interference with the use or operation of key national infrastructure to cases where the use or operation of the infrastructure is prevented to “a significant” extent, rather than to “any extent”. In other parts of the Bill, reference is made to serious disruption, so why is there no such caveat in this part of the Bill? Would teenagers involved in horseplay, for example, where one throws the other’s mobile phone on to the train tracks, resulting in staff temporarily halting trains so that the phone can be retrieved, be guilty of an offence under this section as drafted?

Amendments 66 and 67 in my name are intended to probe what Clause 7(5) means. It states that

“infrastructure is prevented from being used or operated for any of its intended purposes … where its use or operation for any of those purposes is significantly delayed.”

That makes sense, and that would be the effect of Amendments 66 and 67. Can the Minister explain how adding “The cases in which” at the beginning of that subsection and “include” in the middle of the subsection extend the offence beyond the specific example of significant delay? What else would count as preventing its use or operation?

We support Amendments 69 and 78 in the name of the noble Baroness, Lady Chakrabarti, to probe whether “broadcasting and telecommunication services”, as well as “newspaper printing infrastructure”, should be included in the definition of “key national infrastructure”.

We also support Amendment 70 from the noble Lord, Lord Coaker, which I have signed, to narrow the definition of “road transport infrastructure” to A roads rather than both A and B roads, as recommended by the Joint Committee on Human Rights. Highway obstruction is already an offence for which a custodial sentence can be given, and the enhanced penalties for this offence should be limited to key roads such as motorways and A roads.

We support Amendments 71 and 72 in the name of the noble Lord, Lord Coaker, which I have also signed, recommended by the JCHR, to probe the extent of “rail infrastructure” and “air transport infrastructure”. Does “rail infrastructure” include, for example, the Romney, Hythe and Dymchurch railway, a narrow-gauge steam service used solely for tourism purposes? Does “air transport infrastructure” include small, private airfields or airstrips with little or no air traffic? In what way are they part of “key national infrastructure”?

We also support Amendments 73 to 76 in the name of the noble Lord, Lord Coaker, which I have signed, to probe what facilities would be considered as being used “in connection with” infrastructure, in relation to

“harbour infrastructure … downstream oil infrastructure … downstream gas infrastructure … onshore oil and gas exploration and production infrastructure … onshore electricity generation infrastructure”.

Finally in this group, my Amendment 79 seeks to probe whether all periodicals and magazines should be included in the definition of “newspaper”. Noble Lords will be able to think of several disreputable or trivial titles that should not be considered part of “key national infrastructure”.

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[Lord Beith (LD)]

Can the Minister help the Committee by saying how he would answer this question, and if he has asked himself this question? If he were one of the people carrying something that a constable challenged him for—maybe the padlock that I talked about earlier that a young couple were going to put on a bridge, or maybe a packet of cable ties—what would his answer be to the constable who challenged him? Does he think it would result in him not being charged?

[Lord Sharpe of Epsom (Con)]

My Lords, these things are judged on a case-by-case basis. It would depend entirely on where I was, what I was doing and also the intention as described in Clause 2 of the Bill.

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[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.

[Lord Beith (LD)]

Could the noble and learned Lord explain whether he thinks that phrasing the clause in this way dispenses with the proportionality issue, which was so important in the Supreme Court judgment in the Colston statue case?

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord because I am coming on to deal with exactly that. Indeed, it leads me into the next paragraph in my notes. I am just making the point that one has to consider the practical consequences for prosecutors and the police of leaving this expression as wide as it is and without qualification of some kind. Of course, I am pointing to a particular qualification that needs to be made.

The Supreme Court, in a well-known case called Ziegler in 2021, held that protesters had been rightly acquitted of obstructing a highway when protesting about an armament fair. That is not an easy judgment to read or understand, not helped by the fact that there were two dissents in a court of five, but it has been thought to support the view that invoking the public interest defence in that context is acceptable. However, a series of decisions in the Court of Appeal have narrowed the window that Ziegler left open. The point is that we are dealing now, in the offences that we are considering in the Bill, with offences that require proof of serious disruption. The Court of Appeal’s point is that that changes the balance between what is proportionate and what is not, which is at the heart of this issue. The proof of serious disruption was not a necessary element of the offence of obstructing the highway considered in Ziegler, but it is important to notice that in our offences it is a vital and essential element.

The Colston case was the subject of the most recent Court of Appeal decision, which is Attorney-General’s reference no. 1 of 2022. The court was asked to rule on what principles judges should apply when determining whether the convention rights are engaged by a potential conviction for acts of damage during a protest, and when the issue of proportionality should be withdrawn from the jury. The court held that the convention did not provide protection to those who cause criminal damage during a protest that is violent, not peaceful. That was the Colston case.

However, it went on to say that a conviction for causing significant damage to property, even if inflicted in a way that could be called peaceful, could not be held to be disproportionate either. The prosecution in the Colston case was correct, both because the toppling of the statue in that case was violent and, as a separate issue, because the damage to the statue was significant. The words “serious disruption”, which appear in these offences, seem to fall into the same category. In other words, a person who engages in criminal conduct that causes serious disruption cannot take advantage of this defence.

It has been pointed out that a case raising this issue is expected to be heard by the Supreme Court before Christmas. I think there are problems with that. The judgment is not likely to be given until well into next year because the court takes a considerable time to consider all the issues. I think one would be fortunate if the judgment were out before the early summer. This is a problem that needs to be solved now, and I will come back to the question of the magistrates’ court and the problems that could arise there.

I stress again that the offences we are dealing with here all require proof of serious disruption. That is why the reasonable grounds defence should be removed altogether or qualified in the way I am suggesting, to confine it to circumstances that affect the position of the individual on the ground at the time he or she is causing the disruption. That qualification would be welcome, and undoubtedly useful, in many cases. Without it, I suggest that the whole defence be removed.

Public Order Bill

Lord Beith Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, this legislation is unnecessary, dangerous, largely unwanted, and futile. It is unnecessary because existing powers are so wide- spread—we have been told that so many times by the Home Secretaries who introduced them. It is dangerous because it contains, for example, search powers without reasonable grounds for suspicion which will be used discriminately and will create tension with innocent members of the community. My noble friend argued earlier how widely unwanted this legislation is among those who actually have to carry it out: serving police officers. It is futile because protesters will always look for new ways to get into the media, to get their head- line and to insist to society that something has to be done about what it is that they care about. Today it will be locking on but it will not be tomorrow; something else will be devised and we will be here again, trying to devise inappropriately specific legislation to try to stop protest, which is a natural part of society.

This legislation will be used by authoritarian regimes to validate their own oppressive legislation. From Belarus to North Korea, I can imagine the statements that will emerge. So why do we have it? It is a political gesture designed for headlines, not for effective policing in a free society.

I will look at some specific concerns about it, and here I agree with the noble Lord, Lord Blair, that there is reason to question the advisability of giving the Home Secretary the power and the responsibility to seek injunctions against specific protests, which risks turning a local protest into a national issue and undermining the ability of those on the spot to deal with the situation effectively.

I question the provision of Clause 7(7) which allows the Secretary of State to add to the list of key national infrastructure by statutory instruments. This could create an enormously wide area of scope for the powers in the Bill. I question the powers given to the British Transport Police, a force that is not locally accountable. Clause 16 would allow the transport police to ban a demonstration or even a one-person protest in the station entrance. Even if it was a protest against the closure of the station, the power would be granted to them to do that.

It gets particularly serious when we look at the stop and search powers, which are truly alarming. If you live or work near a site where a protest might take place—note that it does not have to be taking place or to have taken place—do not, whatever you do, carry anything with you, because you may be the subject of a random search which could cover anything the officer believes might be used in pursuit of the process. If you are with a friend to whom this happens, do not, whatever you do, question the police officer about what he is doing, because then you will fall foul of Clause 14 and be regarded as obstructing the police officer. This clause appears to criminalise even the kind of questioning which was encouraged after the dreadful Sarah Everard case, when people were told in such situations to question whether the police officer had the authority to approach the person at all.

Other speakers have referred to the serious disruption orders or protest banning orders reversing the burden of proof. We should not be contemplating that. The legislation contains limited exemptions for actions taken

“in contemplation or furtherance of a trade dispute”,

and there are good reasons for that. The right to strike and regulated picketing are fundamental rights, but if the law is capable of recognising that, why are the same principles not being applied to other equally legitimate protests? We rightly protect the right not to lose one’s job or be paid inadequately, but what about the right to warn that we are destroying the life chances of our descendants by our neglect of climate change and what is happening to the planet? These are major issues which have a similar justification and validity.

I turn to Clause 9, inserted in the Commons. I speak as someone who has always wanted the law to afford a degree of protection to the unborn child—I say that to explain where I am coming from—but I am not a supporter of some of the protest tactics which have taken place around clinics, particularly in the United States, but to some extent in this country. When I look at Clause 9, I see understandable references to intimidation, harassment and threatening behaviour, and I am prepared to consider whether the law needs to be strengthened to prevent those things.

However, I cannot support a clause which criminalises a person who “seeks to influence”, provides information or “expresses opinion.” This is the most profound restriction on free speech I have ever seen in any UK legislation, and I cannot support it if it remains in its present form. Indeed, I think it will be grasped as a precedent by the free-speech deniers, and the words and language will be applied in other areas when other legislation is brought forward. It is clearly incompatible with the European Convention on Human Rights, and the Government cannot certify the Bill in its present form for that reason. A lot else in the Bill appears to be incompatible with the European Convention on Human Rights, and I believe it will give rise to more litigation than improvement in effective policing. Most police officers will tell you that their problem in dealing with these situations is not the state of the law, it is whether there are enough of them on the spot able to deal with it, properly commanded, advised and controlled. It is that which the Government should address, not this futile legislation.

Queen’s Speech

Lord Beith Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Beith (LD)]

Powerful words, my Lords. I shall return to a subject much discussed already. Let us imagine that at the end of this Government’s term of office, we are reviewing their record and whether they have in fact defended the constitution. On the union, the mishandling of the Northern Ireland protocol and the refusal to understand opinion in Scotland on many issues will tell against them.

I shall give just a few examples that will tell equally strongly against them. The first is the deliberate weakening of the Electoral Commission’s authority and independence through one of the last Acts in the previous Session of Parliament; the second is the so-called Bill of Rights Act, which is intended to prevent the convention rights to which we are signatories being enforced effectively in UK courts. The Government claim that by this legislation they are restoring the balance of power between the legislature and the courts but, as the noble and learned Lord, Lord Judge, so wittily pointed out, it is the Executive who are seeking to gain from any rebalancing that takes place.

A third example is the Brexit freedoms Bill which, as the Government admit, is designed to enable secondary legislation to be used instead of primary legislation to change retained EU law in order to create or vary criminal offences, or to create new public bodies or new licensing regimes, for example. The Government claim that they are doing this in order to prevent these important measures

“taking decades of parliamentary time to achieve”.

Decades? If statutory instruments are debated at all in the Commons, they usually get one and a half hours. In this House, the presumption, challenged by the noble and learned Lord, Lord Judge, has been that fatal Motions are not appropriate and that we should not decline to accept wholly or seriously defective legislation which would normally be enacted through primary legislation, or use our limited powers in order to do so. We should bear in mind that these are unamendable Motions—we cannot improve them, tidy them up or sort them out—on matters that are normally reserved for primary legislation. This is a profound and retrograde constitutional change so far as it affects retained EU law.

Fourthly, I must mention the planned reintroduction of severe restrictions on public protest which this House threw out in the last Session. Our streets will not be made safer by a new offence of locking on, that is, gluing yourself to public buildings. So far as I know, the only case of locking on going on at the moment involves the Prime Minister, who has glued himself to No. 10 Downing Street—and it would take more than glue solvent to extract him from there.

Powerful in their impact on the constitution as legislative changes are, just as great will be the impact of practices which have gone on under Boris Johnson’s leadership. They set dangerous precedents for the tolerance of unacceptable conduct in public office, such as trying to change the rules governing MPs’ conduct so that a close colleague would have escaped punishment; using the power to appoint to the House of Lords fundamentally to change its composition and to reward donors of millions of pounds to the governing party, without regard to any concept of fairness in appointments or to the House’s declared wish to reduce its size and to follow a procedure for doing so, which the present Prime Minister, unlike his predecessor, is not prepared to do; and, finally, appearing to rule out entirely the resignation which used to be the constitutional consequence of criminal offences or of misleading Parliament.

It used to be assumed by many that our constitution derives strength from not being written or codified in a single document because it is built firmly on a foundation of a shared understanding of what constitutes sound and honourable government. I fear that we cannot say that any more.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, this group of amendments and the related clauses address the phenomenon that those unfortunate enough to have experienced it call digital strip-searching—the practice of demanding a complainant’s device, usually a mobile phone, in the police station in return for agreeing to pursue a criminal investigation, usually into an alleged sex offence such as rape.

I begin by thanking the Minister for taking the problem seriously and understanding the need to address it via statute. I am afraid that I remember Ministers standing at that Dispatch Box even a couple of years ago, denying that the practice was problematic, widespread or disproportionate and even arguing against the need for primary legislation—so-called consent, in exchange for a vindication of one’s fundamental right to an investigation into such a serious crime, being sufficient. Mansplaining to rape survivors is bad enough; “Baronsplaining”, if I may call it that, was a new level of insensitivity.

I will not insult the empathy of your Lordships’ House by reiterating why an extraction of data from a personal smartphone or computer is one of the most intimate searches in the modern era and can leave the complainant feeling more like a suspect, even if the extraction is swift and on the spot and takes no more data than is strictly necessary to the particular investigation. That successive Governments, DPPs and police leaders have failed to address this problem must have played at least some part in our appalling attrition rates for the prosecution of sex offences.

While this part of the Bill is a much-needed attempted correction, we would not need to amend it if survivor and human rights groups had been properly consulted. I declare an interest as a council member of the all-party group, Justice. Amendments 43 to 46, 48 and 51 in my name are advanced by a broad coalition of civil society organisations, led by Big Brother Watch, Amnesty International, the Centre for Women’s Justice and Rape Crisis. They are currently unconvinced that the Bill, either as it stands or with proposed government amendments, does enough to protect complainants and rebuild trust in the investigation and prosecution of sex offences.

Amendments 43 and 44 allow the complainant to be present during the extraction of data, unless that is impracticable or inappropriate, and create a time limit for any police retention of the device. Amendment 45 would make the threshold for extraction the tighter and objective ECHR test of strict necessity, and Amendment 46 would further tighten the criteria. Amendment 48 would allow a DCI review of the strict necessity of any extraction agreement, and Amendment 51 requires a fuller explanation of the person’s rights before they agree. I thank the noble Lord, Lord Paddick. Crucially, his Amendment 50 ensures that the explanation is given orally, as well as in writing. My noble friend Lord Rosser’s Amendment 52A makes provision for data in the hands of a third party.

Government Amendment 52 in the Minister’s name creates a proportionality but not a strict necessity test for extraction where the authorised person is of the subjective view that there is a risk of obtaining confidential information—of course there is. Amendments 53 to 56 replace the need for regulations with the laying of statutory guidance.

The government provision still contains fewer statutory safeguards than sought by the victims’ rights coalition, so I urge the Minister to move further in its direction by accepting its amendments, refining or tweaking them at Third Reading or, at the very least—and before the preparation of any statutory guidance under the new legislation—agreeing to meet with a small group of those representing voices that have been ignored for too long. I beg to move.

[Lord Beith (LD)]

My Lords, I am ready to support the commitment of the noble Baroness, Lady Chakrabarti, in bringing forward this amendment, and appreciative of the Minister’s moves as represented in the government amendments. I simply want to clarify some points, because there are still concerns in this area. Some of the concerns arise from the context.

Police abuse of procedures of various kinds has been apparent, even to the extent of affecting murder victims. It cannot be denied that within police forces there are a few people who will do these things. That makes it that much more difficult to have complete confidence in the voluntary arrangements that these amendments deal with. I ask the questions: how voluntary, how confidential, and how about disclosure?

How voluntary? When someone is asked to hand over their phone, the police officer usually says, “It’s up to you but unless you hand over your phone to me, I can’t see the Crown Prosecution Service having enough material to take this case forward, and I think that would probably be the end of your attempt to get justice”. I am paraphrasing, but that might effectively be what he says. That means the safeguards are important, and I welcome them, but will they be sufficient?

How confidential? Government Amendment 49 says “confidential” has the meaning it has in Amendment 47, but Amendment 47 does not actually define “confidential”. Clearly, on somebody’s phone there is a great range of confidentiality: from what might be a conversation about an intimate relationship through to a bank account, a family row or something else that someone regards as in need of safeguarding and treating as confidential. We need to be a little clearer about that.

What about disclosure? Can the Minister say a little about to what extent, if any, the requirement of disclosing material to the defence is affected by these provisions? That puts a further pressure, of course, on the victim of the crime, but it is an essential part of our justice system that when evidence is found that would assist the defence, it is the duty of the prosecution to hand it over. These are the points that concern me.