Public Order Bill

Lord Coaker Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

Moved by

[Lord Coaker]

1: Before Clause 1, insert the following new Clause—
“Meaning of “serious disruption”(1) In this Act, “serious disruption” means disruption causing significant harm to persons, organisations or the life of the community, in particular where—(a) it may result in a significant delay to the delivery of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including access to—(i) the supply of money, food, water, energy, or fuel,(ii) a system of communication,(iii) a place of worship,(iv) a transport facility,(v) an educational institution, or(vi) a service relating to health.(2) In subsection (1)(a), “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”Member’s explanatory statement
This new Clause defines the concept of “serious disruption” for the purposes of this Bill, which is the trigger for several new offences and powers.

[Lord Coaker (Lab)]

My Lords, I start consideration on Report by moving my Amendment 1. I thank the noble Baroness, Lady Jones, the noble Lord, Lord Paddick, and my noble friend Lady Chakrabarti, for their support for this amendment regarding serious disruption and its meaning and relevance to this Bill’s new powers. I start by also thanking the Minister for his courtesy and usual help in discussing the Bill and its relevant parts, which have been very gratefully received. I also thank all his officials and other Ministers.

However, in thanking the Minister, I have to say how disappointed I was by the Minister in the other place, who said in an online article in the Telegraph over the weekend that our job as politicians “of all colours” was

“to stand up for the law-abiding majority whose lives were seriously disrupted by such protests”.

Who does not want to stand up for the law-abiding majority? I have never said, in any of the debates on this Bill, that the Government, or anyone who has opposed what I have said, want to ban protests, or accused any of them of being against the law-abiding majority. This is a genuine debate and discussion between people of different parties, across this House, on very serious issues on which we are seeking to improve and amend the Bill. There will be differences of opinion, but that does not mean that people are against the law-abiding majority, and that does not mean that people are not in favour of protest.

The debate is about clarity and thresholds; it is about where we draw the line—democracy at its best, thrashing out these issues and, yes, voting in the best traditions of a revising Chamber. It is my contention, and that of my party and others from other parties across the House, that the Bill has gone too far. My amendments have a higher threshold than there are in other amendments, such as Amendment 5—but there are others. There is a risk of the police, in my view and that of others, being given lots of new powers that, instead of providing clarity, will end up undermining and clamping down on peaceful and legitimate protests.

My Amendment 1 says that “serious disruption” must cause

“significant harm to persons, organisations or the life of the community, in particular”

in certain situations, but not exclusively in those situations. That would keep the threshold at a relatively high level, not lower it. The EHRC says, in an article published today, that these new amendments have the potential to enable the police to block peaceful protests or to shut down non-disruptive protests.

I shall not go through every amendment in this group tabled by the noble and learned Lord, Lord Hope, and supported by the Government. The language of Amendment 5 is much the same as in many of the other amendments, as it seeks legal clarity on definitions that are offence specific. Amendment 5, for example, relates to locking on, which means attaching yourself to a person, object or land, as set out in Clause 1. There is no definition of “attach”, so it can be linking arms. Clause 1 goes on to say that the offence happens if this

“causes, or is capable of causing, serious disruption”.

I want us all to consider that when we decide how we should vote on these matters. In other words, on some of the specifics around these amendments, we have to remember that an offence does not even have to happen—it just has to be capable of happening, and that should trouble us all.

Amendment 5 has a threshold and uses language such as “prevent” or

“hinder to more than a minor degree the individuals or the organisation from carrying out their daily activities.”

The same threshold is set for all the offences in Clauses 1, 3 and 4. Goodness me. Many of us—noble Lords in this Chamber and others watching these proceedings—would have been arrested or would have fallen foul of the law under these provisions. Let me give one example from my background. I will not go into the miners’ strike—it is more recent than that.

I, along with a community group, stopped a bus, rerouted by the bus company, from going down a road through an estate where there were children’s play areas, parks, et cetera. Many in that community were determined to act together because they decided that the bus company was acting in a way that was irresponsible with regard to the lives of people in that community and put children’s lives at risk. So we blockaded the road, linked arms across it and stopped the bus coming down that road for a few days. As a result, the bus company changed back to the original route.

This Bill would have threatened that activity and protest, making it unlikely that I, as a politician and councillor representing that area, as well as mothers, parents, grandmothers, grandfathers and friends with their children, using pushchairs in the road, would have been able to do that because it was more than a minor hindrance. It stopped that bus going down the road. Who is to say that that was wrong? Who can also say, if we pass these amendments, that that action would not be made inappropriate?

Do not take my word for it. I stand here as a Labour politician, but sometimes I read ConservativeHome. I was doing so at the weekend to see what might be said, which is always interesting and worthwhile. An article from Policy Exchange says that,

“the amended offences would make criminal liability turn on proof of serious disruption, which makes the meaning of ‘minor’ hindrance and ‘daily activities’ loom large”.

Of course there is a debate. I am sure that people are going to say, “Well, if you look at Lord Coaker’s amendment, and the others that support it, what does ‘significant’ mean? What does this mean? What does that mean?” Of course, there are debates about what different words mean, but the Government are pretending that, by lowering the threshold and using the words that they have included, you get rid of the legal uncertainty. That is not the case because, instead of having a debate about “serious”, you have a debate about “minor”. What is a “hindrance”? All those debates will loom large as, as the ConservativeHome article suggests.

As I have said, on my Amendment 1 there will be debate on the meaning of “significant”. It sets the threshold higher, which is the point that I am trying to make in my amendment. It does not prevent protest that might be capable of hindering someone carrying out their daily activities. So the lower threshold for serious disruption in Amendment 5 and others means that more than minor hindrance to the carrying out of daily activities, or construction, maintenance works or other activities, could result in police intervention and arrest. Wheelchair activists chaining their wheelchairs together in certain circumstances could cause more than a minor hindrance to daily activities. It could stop someone shopping.

I have looked at various websites through the weekend and have seen lots of different people supporting tree protests, where people have roped or attached themselves to trees to prevent something happening. Who is to say that those protests will not be affected by the new amendments? I have seen fine, upstanding citizens—not just members of the Labour Party, Communist Party, Socialist Workers, Liberal Democrats, Greens or others of similar ilk but even Conservatives—join those protests. Well, they are going to get a shock when they wake up and find that their own Government have said, “What you are doing is illegal, the village green trees that have been outside the pub for 300 years are going and there is nothing that you can do about it because we have introduced measures and amendments that mean that such protests will not be able to happen”.

Are we really saying in this Chamber that the definition of “serious” is “more than minor” and not incompatible with Articles 10 and 11 of the European convention? At the heart of this is the question of what “more than minor” means, particularly if applied to Clause 1. If, as Liberty says, I chain myself to a traffic light, and if that hindered two or more people for 10 minutes from crossing the street to shop, would that be “more than minor”? There is no legal certainty in what is meant by “more than minor”, nor indeed in what is meant by “hinder”—remembering that “serious disruption” does not even have to happen for those offences to be committed.

[Lord Pannick (CB)]

The noble Lord spoke about legal certainty. Could he help the House on how a court is to determine whether disruption is “prolonged”? If there is locking on and I am unable to take my child to school or my mother-in-law to hospital for an hour, two hours, or 10 hours, is that prolonged?

[Lord Coaker (Lab)]

That is the point I am making: there is of course going to be a debate about what various words mean. I have admitted it. I said to the noble Lord and to others that I have asked in the debate what “significant” means in certain situations. All I am saying is that I want to set the threshold higher; I want the threshold to be at a level at which “serious” can be used, rather than the “minor” level which the Government seek to introduce, supported by other noble Lords. Of course there will be a debate, whether about what I have put forward, or about “minor”, or about what “hindrance” means in certain situations. But this Chamber should be saying to the courts that what we mean by “prolonged” is that it has to happen not just once. It has to be more than a daily activity; it has to be something that impacts on the life of the community more than once or twice. That is what we are saying and that is why I am putting forward these amendments. I want the courts to realise that, when this Chamber passes these amendments, we are saying that serious means serious.

Of course there will be a debate about what that actually means. It is the same as with any other law we pass—it does not matter which one. The noble Lord, Lord Pannick, has much more experience in this than I do, but, in the end, the courts will have to determine what it means. We will come on to “reasonable excuse” in a minute, but I think the courts would want to know that this House has debated it. I am saying that “serious” means more than minor, and that “prolonged” means more than daily. In the end, the courts will have to determine that. But I say to the noble Lord, Lord Pannick, that that would be true whatever wording we use in the Bill: there will be a debate in the courts as to what it actually means. I want the courts to debate what “serious” means and what “prolonged” means. I do not want them to debate what “minor” means because the threshold starts too low.

[Lord Faulks (Non-Afl)]

I think the noble Lord said, just before the intervention from the noble Lord, Lord Pannick, that it would not be necessary to prove serious disruption. That cannot be right, with respect; I hope it was a mistake on his part. I understand that the proposed new clause inserted by the amendment is to go before the definition of the offence, which includes the words “serious disruption”, which will have to be established. Is that correct?

[Lord Coaker (Lab)]

Yes, of course. If I gave that impression, it was a mistake on my part. This is the whole point: there has to be “serious disruption”, as in my amendment. The debate—not the argument but the debate, as the noble Lord, Lord Pannick, just raised—is about what we actually mean by serious disruption. I thank the noble Lord, for pointing that out. If I said that, it was a mistake.

[Baroness Jones of Moulsecoomb (GP)]

I am curious about this “serious disruption”. Quite honestly, if anyone has driven on the M4, the M25 or through the streets of London, they will know what serious disruption is, because we get it every single day from people using their cars. If we have any confusion about what serious disruption is, that is what it is: traffic jams. Perhaps we ought to lobby the Government to stop traffic jams, because they cause more delays to children getting to school, to ambulances getting to hospital, and so on. Please, can we just understand that serious disruption is something we all experience, every single day of our lives? What we are talking about here is not really serious disruption: this is people who care about the future of humankind, here in London and worldwide. Could we take it a bit more seriously?

[Lord Coaker (Lab)]

I agree with my friend the noble Baroness about the importance of the issues. I think everyone in the Chamber is taking this seriously. There is a legitimate debate going on as to what “serious disruption” means. My friend is right to point out that we are discussing very serious issues, and we will talk about that when we come to “reasonable excuse” in particular. Before I am accused of being a hypocrite, I should say that I did drive here today—I thought I had better own up to that.

I turn to Amendments 48 and 49 and the Government’s response, we think, to slow walking, introduced at a very late stage—not in the Commons, and not even in Committee in this Chamber, but here on Report. It has been our contention that existing legislation, enforced robustly, would deal with many of the problems we have seen. As the chief constable of Greater Manchester said—and no doubt we will quote chief officers at each other, so let me start—in an article in the Telegraph on 12 December 2022, entitled “Just Stop Oil protesters should be arrested ‘within seconds’”:

“I think fundamentally, if people obstruct the highway they should be moved … very quickly”.


In other words, he argued for greater use of obstruction rather than a whole range of new powers, as contained in Amendments 48 and 49. We should remember that existing law, whatever the rights and wrongs of this, have led to Extinction Rebellion calling off its action.

In new subsection (3) as inserted by Amendment 48 and new subsection (4) as inserted by Amendment 49, there is the same argument about hindering that is more than minor, which I have just been through with respect to the meaning of “serious disruption”. In other words, the threshold for what constitutes “serious disruption” is being lowered.

I think all of us believe in the right to protest. Yes, sometimes we may get irritated when protests disrupt our lives, and clearly there have to be limits, but many of these amendments simply go too far; they will have a chilling effect on protests and protesters. It will undermine one of the fundamental freedoms we all enjoy: standing up to injustice as we see it. It is a price we pay for our democracy. Any interference with these freedoms poses an unacceptable threat to the right to protest, which is a fundamental cornerstone of our rights and our democracy. I beg to move.

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

My Lords, I remind the House that if this amendment is agreed to I cannot call Amendments 5, 14 or 24 due to pre-emption. As we are on Report, I remind noble Lords that they are allowed to speak only once.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I thank all noble Lords who have participated in this really interesting and thoughtful debate. I thank the Minister for his response. I do not want to go through every single contribution; I do not wish to be rude to anybody who I do not respond to, but I want to make and reinforce a couple of particular points. I totally agree with the noble Lord, Lord Faulks. I repeat that the attempt by this Chamber to define “serious disruption” on the face of the Bill, as the Constitution Committee asked it to do, is a really important step forward and to try and do. The debate between us is where we set the threshold and how we define “serious disruption”. Perhaps this debate should have taken place on the Bill a few months ago, but it is taking place now and is particularly important.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, as the House has just heard from my noble friend Lord Sandhurst, the area of law we are dealing with is the proportionate interference with convention rights. I respectfully agree with him that the decision of the Supreme Court in Ziegler raises the question of the correct balance and makes it important for the House to legislate in this area. However, it is my misfortune to disagree with him that we should take this opportunity to overturn the decision in Ziegler. Rather, I respectfully commend the approach of the noble and learned Lord, Lord Hope of Craighead, which has been set out for us this evening by the noble Lord, Lord Faulks.

Critically, the presumption of innocence is at the heart of our judicial process, and I do not think that any of these amendments cut across that. There are three reasons why I suggest that the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which is supported by the Government, ought to be accepted. The first is the point made by the Constitution Committee that we need precision in this area. Secondly, there is the fundamental point that we should not be leaving this to the police or the courts to decide on a case-by-case basis; as Parliament, we should take the opportunity, and indeed the responsibility, to draw the bounds of the offences in this area. Thirdly, we need to remember that, at the moment, Section 3 of the Human Rights Act requires the court to read any legislation, if possible, consistently with the convention. Absent, I suggest, the amendment of the noble and learned Lord, Lord Hope of Craighead, there is a real risk that the court will read down clauses to make them consistent with how it considers convention rights should be applied.

On the basis of the approach of the noble and learned Lord, Lord Hope, there is scope for reasonable excuse, but it is limited. That means we do not run the risk of the courts deciding cases on an unanticipated, or perhaps even incorrect, basis. We also do not need—despite my noble friend Lord Sandhurst’s amendment—to overturn the Ziegler case; what we will have, however, is a consistent, clear and precise approach to criminal law, which is precisely what we ought to have. I accept that some of my colleagues at the Bar may not be particularly happy with that, but, in this area and perhaps in others, their loss may indeed be the law’s gain.

[Lord Coaker (Lab)]

My Lords, in supporting Amendment 2 tabled by my noble friend Lady Chakrabarti and the noble and learned Lord, Lord Brown, and the points they have made, I will focus my remarks on Amendment 8 and the amendments consequent to it which seek to define a “reasonable excuse defence”.

I start by saying that I cannot really believe the mess the Government have got themselves into on both the definition of “serious disruption”, which we discussed previously, and the definition of a “reasonable excuse defence” we are discussing now. Nobody disagrees with the noble Lord, Lord Faulks—again, I agree with the Constitution Committee, as, I think, do most of us—but it would be extremely helpful if there were a definition of “reasonable excuse defence” in the Bill. I do not think that is a point of disagreement between us; the Constitution Committee itself recommends that. However, let us look at Amendment 8 as an example of the wording that is also used in Amendments 17, 27, 33, 50 and 51, as well as in other related offences. What protest ever takes place that is not part of a current dispute? Who protests because they are happy about something? I have not seen any demonstrations saying how brilliant this or that is; there might be an example, but, usually, a dispute happens and then people protest it—that is logical. But in each of these amendments, you cannot use “an issue of current debate” as a reasonable excuse in any circumstance. That is what we are being asked to agree to in Clauses 1, 3, 4 and 7 and some of the later clauses. Those clauses currently contain the reasonable excuse defence; the Constitution Committee says, quite rightly, that it would help if that were defined; and the definition the Government have supported says that you cannot use a current dispute as an excuse. I could go on at great length, but it makes the point by itself—it is ludicrous. That is the amendment the Government are supporting and that they are asking people to vote for.