Metropolitan Police: Operational Independence

Lord Hogan-Howe Excerpts

Thursday 9th November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

The noble Lord invites me to speculate on what the Home Secretary thinks, which obviously I am not capable of doing. I refer him back to the comments that I have just repeated, made by the Prime Minister, and the fact that I have restated the policing protocol, which governs all these responsibilities very clearly.

[Lord Hogan-Howe (CB)]

My Lords, first, I apologise that I did not hear the Minister’s Statement—I was unaware that it had begun until I came into the Chamber.

To some extent, I will repeat what I said in last night’s speech. It is disappointing that all this debate is taking place in public. These are difficult decisions for politicians, as I have acknowledged in the past, and for police officers, to decide where they draw the line about either preventing protests or allowing a protest that might cause offence. It is not at all easy, particularly with such an emotional issue as the Cenotaph and Remembrance Day. There is an awful lot of passion involved on all sides.

However, as the noble Lord, Lord Harris, said, the process is that the police should decide whether they can police this march and whether they can apply conditions which would make the march less of a problem. Only if that will not work could they then consider having a ban, providing that it meets the high threshold of serious violence. What concerns me is that the making of these fine distinctions and wise judgments is taking place in public. It seems that rocks have been hurled across the press, when I would hope that these conversations could be had privately, for better effect and for the reassurance of the public.

National Crime Agency: Fraud and Economic Crime

Lord Hogan-Howe Excerpts

Monday 11th September 2023 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, has the time not come to simplify the investigation of fraud? As the noble Lord, Lord Browne, suggested, the crimes are massive and the response is weak, even with the investment the Government are about to make. The problem with local forces investigating is that violence always trumps theft, so resources are devoted more to violence. At the moment, the complex nature of the crime—crypto, cross-jurisdictional, online—is complicated further by a 43-force response, regional units, NCA, SFO; I could go on. Surely the time has come to have one force dedicated to prevention, detection and the recovery of assets.

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Lord will be aware that the City of London Police partially fulfils that function. It prioritised investigators to the City of London as part of its recent increase in the numbers of police. Angela McLaren, the commissioner there, has a strong background in economic crime and its investigation, and the City of London Police runs an economic crime academy. The noble Lord makes an interesting point about having just one agency, but that agency is the National Economic Crime Centre, which co-ordinates all the various activities across the various police forces, including regional organised crime units.

Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Lord Hogan-Howe Excerpts

Tuesday 13th June 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the noble Baroness, Lady Stowell of Beeston, raises some important broader questions to consider but I think she has overcomplicated what is a more straightforward problem. These instruments were brought into this House by the Government on Report, which was extraordinary enough in itself; the Government lost, and they have come back again. We are told that they have to come back because something really dramatic has happened: there is a whole new set of circumstances and the police do not have the powers to police this really difficult situation. Then, we find out that the new tactics are basically a load of people walking slowly in the middle of the road. People think, “Why don’t the police just arrest them, then?” They have a huge amount of power under public order legislation.

I was speaking at a meeting the other night and somebody said, “Why are the police not using the Highway Code to stop people walking slowly down the middle of the street?” It makes no sense that the only way the police can deal with this is if a statutory instrument is brought in that, constitutionally, completely warps the way the law should be made.

There is a serious danger that the law, and secondary legislation in particular, is being used because there is somehow a failure of the police to police and a failure of the Government to ensure that the police police. The frustration in all this is that while the police say that they do not have the powers to stop people marching slowly in the middle of the road, blocking everyone off, they suddenly spring into action rather quickly as soon as a member of the public gets frustrated and starts pulling down the barriers, dragging that person off, arresting them and so on. You can see that this is a mess. The Government have made the situation worse, and using the law in this way is discrediting in every possible way.

I saw somebody waving a placard at me on the way in that said, “Kill the Bill”, and I agree. I want this Bill to go away. I would love it to disappear. I hate everything about a lot of the things that were brought in through that policing Bill. Any civil libertarian does not want to lose liberties in the way we did; I agree with all of that. The noble Baroness, Lady Jones of Moulsecoomb, has said—and I take her at her word—that she has not brought in her fatal amendment lightly. She has lost sleep over it. That is fair enough; she is doing what she thinks is right in good conscience.

In the end, if the Government are behaving constitutionally irresponsibly and tearing up conventions, I am not prepared to imitate them. As far as I am concerned, the only way that we can behave, in good conscience, is to condemn the Government for what they have done, call on them to get the police to do their job and stop using the law inappropriately, and ultimately express our regret. We should not imitate them by unconstitutionally asserting in an unelected Chamber that we overthrow the elected House.

I so often disagree with the elected Members up the Corridor that it is boring. Who cares what I think? I am here not through the electorate or the public. We are all here because somebody put us here—goodness knows, that is a controversial enough matter—and we have no more legitimacy other than that somebody somewhere thought we were a crony at some point. They made a mistake there with me, let me tell you.

I am afraid that we should not put a fatal amendment through. However, this should be condemned absolutely through the regret amendment. I support the Labour amendment.

[Lord Hogan-Howe (CB)]

My Lords, I will be very brief, your Lordships will be grateful to know. I support the regret amendment in the name of the noble Lord, Lord Coaker, which I think is the right thing. I think the arguments made by the noble Lords, Lord Reid and Lord Rooker, are profound. The vote last night was clear. The Commons had the chance to get rid of it and did not.

The comments of the noble Baroness, Lady Fox, made me think that it is important to remind us of just one thing. All the criticism of the police has been that, in the past, they have done too little when protestors have been doing too much. They have not done that just because they were being incompetent—although some may argue they were—but because the Supreme Court made a decision a few years ago which left them with some dilemmas. It said that obstruction of the highway was not merely a simple offence anymore. Obstruction of the highway requires no intent or recklessness. It is an absolute offence; you either block the road or you do not. But the Supreme Court said that far more than that has to be considered when making a decision about arresting someone. Is there an alternative route? Is there something else you could do to avoid this obstruction? That is fine if there is a planned protest. It is not fine if, at 5pm today, some poor inspector is confronted with a problem and has to resolve it. That is why this Act has been really important.

Part of this conclusion is about the definition. I agree entirely that this is the wrong way to include this definition. I do not think anyone, even the Government, argued that it is the right way. That is why I support the regret amendment. Providing an increased lack of clarity for the police is likely to lead to more problems rather than less. The problems were not just around the lack of clarity from the Supreme Court decisions but due to some of the protests that were taking place and the disruption they were causing—for example, around Heathrow and many significant things we need to keep our people safe and secure. The law was being abused in a way that was hurting too many people.

For all those reasons, I support the regret amendment put forward by Labour. I cannot support the noble Baroness, Lady Jones, although in my humble view it was the most powerful speech she has made while I have been here—though I am sure she has taken other opportunities that I have not seen.

[Noble Lords]

Front Bench!

Coronation: Policing

Lord Hogan-Howe Excerpts

Thursday 11th May 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

As I understand it, an operation called the Police Powers Unit wrote to five protest groups to inform them of the changes to public order legislation. It is obviously right that people who may fall foul of changes in legislation should be warned. As to who signed it and where that unit sits, I am afraid I do not know but I will find out.

[Lord Hogan-Howe (CB)]

My Lords, in general, would the Minister agree—I think he has already said this—that the operation seemed to go really well? I think over 11,000 officers were deployed. Hundreds of thousands of members of the public were able to attend and people were able to protest. There was a collection of heads of Government from many countries across the world, including our own, which always invites security issues, as well as protest and all the other things that go with it. The fact that so few people were arrested is pretty remarkable. If individual cases need looking into, people should take the opportunity to make a complaint or take civil action. That should not detract from the overall operation, which seems to have gone so well, together with the great ceremony on the day.

[Lord Sharpe of Epsom (Con)]

Well, I absolutely could not agree with the noble Lord more.

Public Order Bill

Lord Hogan-Howe Excerpts

Consideration of Commons amendments
Tuesday 28th March 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the noble Lord, Lord Sandhurst, gave us a passionate reminder of the reason why there is so much public hostility to a lot of the types of tactics that have been used by protesters over the last year, which have undoubtedly fuelled support for the headlines associated with this legislation. As it happens, those arguments have been well rehearsed in this Chamber by all sides. It seems that, despite that, the demand for stop and search without suspicion will do absolutely nothing to tackle the problems that are described. I want to state that again: stop and search without suspicion. It seems extraordinary to me that anyone would imagine that that would have any impact whatever on the protesters that the noble Lord, Lord Sandhurst, described, but it will definitely have a chilling impact on protest in general.

As it happens, the amendment of the noble Lord, Lord Coaker, is incredibly reasonable. It does not fly in the face of anything the Government are trying to do. It asks for some checks and balances, which, having read the report of the noble Baroness, Lady Casey, you would think that the Government would welcome. In all seriousness, anyone reading that would have to think, “Oh my goodness—what happened?” To have a balancing amendment, which is what Motion A1 is, seems very sensible.

Finally, on Sunday, a group of women, some of whom I know, went to Speakers’ Corner as part of the Let Women Speak campaign. They were kettled and mobbed by hostile opponents. Regardless of what you think of that event, I mention it because the police stood by and did nothing. At one point, when things got really hairy, they walked off, leaving those women facing a lot of aggression.

The difficulty is that the police have acted inconsistently, erratically and almost in a politicised fashion when policing different demonstrations. I would like the police to use the powers they have—goodness knows, they have plenty of them—to police this country and protect those under attack. We do not need to give them new powers that they do not need to police this country or to police any aggressive demonstration that disrupts the lives of everyone, as noble Lords have said. We just need the police to do the job that they are paid to do. They do not appear to be doing so, and that is what the Casey report shows.

It is worse than that. We will do damage to the reputation of the police if this House, just for headlines, thinks that the Government will improve things—they will not. I urge your Lordships to support the police by not being disproportionate, and to support the public by asking the police to do their job without bringing in suspicionless stop and search, which is draconian in any country.

[Lord Hogan-Howe (CB)]

My Lords, having been mentioned by both Front Benches, I thought I ought to speak for myself, just to make clear my position.

We are not debating whether there is suspicionless stop and search but the amendment proposed by the noble Lord, Lord Coaker. To make clear my position, I support smart, effective stop and search, done according to the law, but it can cause problems, as the noble and right reverend Lord, Lord Sentamu, mentioned, and sometimes it causes a problem disproportionate to the benefit it produces. For as long as I was involved—certainly in London, but wherever I have worked—I have always supported its being used wisely.

In 2017, after the riots London experienced, one of my conclusions was that one of the causes or aggravating factors was the amount of stop and search being carried out. Over the two preceding years, people had either been stopped and searched or, as the noble and right reverend Lord, Lord Sentamu, mentioned, stopped and accounted around 2.6 million times. Bearing in mind that, at the time, there were only 8.4 million people in London and the vast majority stopped were men, that was an awful lot of times that some people were getting stopped. For that reason, we reduced stop and search by about two-thirds, and Section 60 searches—the suspicionless option—by 90%, and yet we arrested more people and reduced crime. So it is entirely possible to do it better and less. I support stop and search when done properly; that is my broad point.

On the back of what I just described, I introduced 23,000 officers with body-worn video. It can make a difference. It reduces complaints and proves that either the officer was performing badly or there was a lie being told about the officer. Either way, it should improve police behaviour, and on the whole it has. I go on to say that, at the moment, it is being switched on when there is an event to be filmed. I think there is a growing argument for it to be on all the time.

There are consequences to that, not least in cost and intrusion into privacy, particularly, perhaps, when an officer talks to a family or anybody with a child. The first thing they have to say is just that straightforward discussion that they are going to film it. It is not the best introduction anybody could have, but I think that the wider use of body-worn video is probably wise.

On a point that the Minister raised, I am glad to see the acknowledgement that there might be more communication of this suspicionless stop and search at protests. I do not support suspicionless stop and search in the Bill, and I voted against it, but that was not the amendment that was brought back, so I could not do anything about that. My point in that debate was that the communication should happen at the border of an area that people are about to enter where suspicionless stop and search is about to be exercised. Currently, whether it is a Section 60 or a protest, if you walk into that area, you just do not know. I do not think it is good enough to say, “Well, if you’d consulted the website, you’d have found out. Somebody has published a notice”. It is entirely possible, either digitally or by putting up posters—there are any number of ways. If you say to someone, “If you go into this area, there’s a protest or we have got Section 60 as there’s a lot of violence, and you run the risk of a without-cause stop and search”, I think you assist the officer in carrying out their job. So my point is about communication at the boundary at which you cross and where the suspicionless stop and search might be exercised.

That said, I do not entirely agree with the amendment of the noble Lord, Lord Coaker. There is one part of it which I do, but I am really not sure that this is the right way. I take the point of the noble Baroness, Lady Fox, that this might be a way to send a signal, but I am not sure that this is the way for me.

In terms of officers exercising the powers conferred by subsection (6), the noble Baroness, Lady Casey, has made the point that she would prefer these particular amendments. Actually, within the Bill and the code, I think there is a stronger set of rules for the officer. They have to say what they expect to find, give a reason, explain why they are legally allowed to use the searches—Section 1 or Section 60—and that you can have a record of that search at that time or subsequently, within a year. Now, it seems to me that these are strong powers, and if you want to amend the things the Government have said they want to, the way is to amend the code. If you put these conditions in the Bill, you will end up with Section 1 and Section 60 searches going by the code and the protest ones being covered by the Bill. I think that there is at least a risk of confusion, and there needs to be consistency. The code might be amended in the way described but I am not sure that these powers alone form an awful lot of additional powers or, frankly, reassurance compared with what is already in the code.

The amendment says:

“Within one year of the passage of this Act, all police forces must establish a charter on the use of the powers in this section”


and that must

“be drawn up in consultation with local communities”.

My concern is that that runs the risk that it will be inconsistent across the 43 police forces that cover this country. Then you are going to end up with confusion: if you protest in Birmingham or London, you end up with a different set of charters. I do not think that is a very wise thing; if there is to be a charter, it is perhaps wise to have a national charter. But to have different circumstances in different parts of the country about protest, I just do not understand how that is going to work for the protesters or the police officers.

The amendment also says:

“Each police force must produce an annual report on the use of the powers”.


I think that could be put into the police’s annual report, which is produced each year anyway, but it could be more bureaucracy if we have another report to publish every year. What I do think is a good idea is:

“Within one month of the powers in this section being used, the authorising officer must publish a statement giving reasons”.


That seems entirely reasonable and something that I do not think anybody could object to. In fact, I think it should be published at the time that the power is declared. If you are going to tell the public that this power is going to be used, you can explain why you are going to use it. I think that is a perfectly reasonable thing, but I do not necessarily think that this amendment enhances what is already in place. I accept that it could send a signal, but I am not sure that it is a wise signal to send at the moment.

[Lord Morgan (Lab)]

My Lords, I had not intended to intervene in this fascinating discussion, but I will make one point and one point only. We are talking about the possible dangers of stop and search.

We have every opportunity of examining what is happening right now, not in this country—although we would if we proceeded with this Bill—but in France. In France, the use of extreme stop and search by an undisciplined police force, somewhat similar to our own, has accelerated and accentuated the problems that they have had, with the result that what were in themselves perhaps not objectionable practices turned into something very much worse—gender conflict, class conflict and, of course, very sadly, racial and religious conflict. So we do have on this continent examples of the dangers that could occur. We are choosing, in effect, the most extreme option of how to deal with civil disturbances and, indeed, with the exercise of human rights. I urge the House to act wisely and temperately and show the restraint and scrutiny for which it is justly honoured.

--- Later in debate ---

[Lord Paddick (LD)]

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

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


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

“Stop and search—”

[Lord Hogan-Howe (CB)]

I think I am entitled to my opinion and to make the point which I made. I explained that I could live with a national charter, but I dispute the need for a local one, which ends up with the possibility, even if it is nitpicking, of inconsistency across the country, where we expect consistency. That was merely my point.

[Lord Paddick (LD)]

The noble Lord is of course entitled to his opinion, and so am I. I said it was unfortunate that the noble Lord disagreed with the noble Baroness, Lady Casey. That is my opinion.

Elsewhere in the report, the noble Baroness says:

“Stop and search and vehicle stops are justified


—she meant by the police—

“through their compliance with the law, ignoring how such incidents are perceived, the impact on individuals, and the wider corrosive impact of trust in the police.”

The Minister mentioned body-worn video and so does the noble Baroness, Lady Casey. She says that the police want to use body-worn video to justify continuing to do what they have done in the past rather than what she says is needed, which is a fundamental reset. Body-worn video is not the answer. That should not be used by the police to justify continued disproportionality in their use of the power.

The noble Baroness further states:

“Black Londoners are under-protected—disproportionately the victims of homicides and domestic abuse; and over-policed—facing disproportionate use of stop and search and use of force by the Met. A huge and radical step is required to regain police legitimacy and trust among London’s Black communities.”


“Overpoliced and underprotected” is what a black policeman said to the Macpherson inquiry 25 years ago. It was not the noble and right reverend Lord, Lord Sentamu, but another black churchman giving evidence to that inquiry; here we are with another inquiry saying exactly the same thing 25 years later.

The noble Baroness, Lady Casey, cites a Home Affairs Select Committee report from 2021, which reported that, in the previous year, the equivalent of one in four black males aged 15 to 24 in London were stopped and searched in a three-month period. The noble Baroness says:

“The facts relating to stop and search are … around 70 to 80% lead to no further action … the more stop and searches are done, the greater the proportion of no further actions.”


The noble Baroness cites a 2019 research study that questioned the efficacy of stop and search as a tactic of policing. She quotes from that report, as do I. It says:

“Overall, our analysis of ten years’ worth of London-wide data suggests that, although stop and search had a weak association with some forms of crime, this effect was at the outer margins of statistical and social significance.”


The Minister repeatedly says that the power that we are debating today—the power to stop and search without suspicion—is based on the existing power under Section 60 of the Criminal Justice and Public Order Act 1994. The 2019 research goes on to say:

“When we looked separately at S. 60 searches, it did not appear that a sudden surge in use had any effect on the underlying trend in … violent crime.”


The noble Baroness, Lady Casey, concludes:

“Stop and search is currently deployed by the Met at the cost of legitimacy, trust and, therefore consent. … It has damaged trust. If the Met is unable to explain and justify its disproportionate use and the impacts of these, then it needs a fundamental reset.”


The majority of stop and search nationally—between 50% and 60%—is carried out in London. The majority—over 60%—of protests happen in London. The majority of times these powers are used will be in London. Stop and search in London needs a fundamental reset, and yet this Government have ignored this House and are giving the police even more opportunity to undermine their legitimacy, trust and, therefore, consent, by giving the police more powers to stop and search.

Without consent, the whole system of policing in this country is undermined, and that is what this Government risk with this legislation. We support the Motion in the name of the noble Lord, Lord Coaker, and will vote for it, but we believe these new stop and search powers should not be part of the Bill. That is what we have always said and what we maintain.

The noble Lord, Lord Sandhurst, cited various examples of what I think he called “disproportionate protests”. All the examples he gave are of criminal offences for which people can be arrested. The police do not need stop and search powers in addition to those powers of arrest.

The noble Lord, Lord Hogan-Howe, cited the 2017 riots and his view, his opinion, was that they were aggravated by the police use of stop and search. Lord Scarman said exactly the same thing about the 1981 Brixton riots. Will we never learn? I urge this House to vote for Motion A1.

Public Order Bill

Lord Hogan-Howe Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

Honestly, it is a completely and utterly disproportionate clause. Really, it should be wiped out of the Bill, but we have failed; the Government will not listen. Perhaps they will listen to Motion B2 and at least we will have some more proportionality in it, but we will see. With that, I beg to move.

[Lord Hogan-Howe (CB)]

My Lords, the noble Lord, Lord Coaker, has not disappointed me. I am sorry for the Lib Dems and Labour that they have not tested the opinion of the House on Clause 11, although I understand entirely why: constitutionally, it is fairly straightforward. What the noble Lord, Lord Coaker, said is exactly correct: stop and search without cause can be useful when there are dangerous conditions. We have had Section 44 of the Terrorism Act to protect certain places, so that rather than going through a great process of “Can I look in your jacket?” and all the rest of it, at Parliament, a nuclear defence establishment or wherever you happen to be, you could search without cause. Now, under Section 60 of the Public Order Act, you can stop and search without cause where there has been serious violence; when a senior officer declares it for a certain period of time, you can stop and search without cause.

There are two reasons for doing it. The principal reason is to deter—to stop the carrying of knives in a certain place—and the other is to detect, if somebody is silly enough to carry on doing it. On the point that the noble Lord, Lord Coaker, picked up, for which I am grateful, my view is that communicating to the public, at the point at which they enter an area, that they are liable to be stopped and searched without cause can help the conversation. This is never easy when you are a police officer because you have to say to someone, “I am going to stop and search without cause”, which causes you two problems: “Why did you stop me?” and “Why do you want to search me?”. Your short answer is, “I don’t know. I am trying to deter other people if you have done nothing wrong.” It can be useful at the most dangerous times if it is limited by time and properly monitored.

When people are protesting in a democracy, it is quite often when they are at their most emotional and they can get angry. They do not want the police to interfere in that at all. Usually, they are people who have never had any contact with the police in any way, so it really leaves the police officer in a pretty vulnerable place. These are generally the people you want to keep onside, not the criminals you have to challenge because that is what the law says.

It is a contentious power and we should be really careful before we give them that power, but not because I think the police are waiting to go out and have a go at people. As the noble Lord, Lord Paddick, said, there have been times—I acknowledge this—when the power has been disproportionately used against minorities, particularly in this city. That history alone is a reason why I would be very careful, particularly in London; this is the place where this power is most likely to be used, because people will be protesting outside Parliament. Of course, they will be protesting in other places as well, but this place is probably more likely than most to see it used as a power and to be challenged to be able to use it.

I accept that it will not go any further. The changes proposed by the noble Lord, Lord Coaker, are reasonable attempts to restrict it. I worry a little about the practicality of 12 hours, as opposed to 24. Quite often people start travelling, particularly to London, at very early hours, usually by coaches or however they travel. That could be at 4 am if you are going to have the stop and search power. They do not usually leave the street until probably 6 pm to 8 pm, so it is getting a bit tight. You may say that we do not want it to be allowed to be used at all, but if you are going to have it, it has to be practical, and 24 hours is probably more sensible.

I say this again about some senior officer colleagues: you cannot always get hold of chief superintendents 24 hours a day. You are supposed to be able to, but they are not quite as available as inspectors, who are always there. I have seen at least one or two people who have had that experience in the past. They are the ones who are always there, 24 hours a day. They are the senior people, particularly around the rest of the country—probably less so in London—whom you would probably be able to get hold of to exercise the power. For that reason, I dispute using the chief superintendent, but I understand why that proposal was made.

Public Order Bill

Lord Hogan-Howe Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I broadly support the position of having stop and search with cause, although I know that some would not agree with that, but the Government have to think carefully about without-cause stop and search.

First, the point that the noble Lord, Lord Deben, made is intuitively a good one. Why would somebody stop? There is already a Section 60 power to stop and search without cause. It is a power to be used, for example, in a public park where a large amount of violence has already occurred, and an officer declares that there should be without-cause stop and search. The idea is to deter people from congregating in that place so that therefore they do not carry weapons or attend that place. It was put there for a limited time and for a limited geography. I will come back to why I think it still has problems, but there can be a justification for it. We used to have Section 44 of the Terrorism Act to protect places—particularly places such as this place —against people who might go there to attack them. That was why we had it—and Parliament has agreed to both those powers, and one is still extant.

The next point that I wanted to pick up was, on the definition, which the noble Lord, Lord Paddick, mentioned, about whether something may be intended or adapted, that power also exists already in the definition of an offensive weapon. He made a good challenge, that therefore any ordinary object could be declared by an officer as helping with a protest—but I do not support that. We have had offensive weapon legislation since the 1950s, when people used to fight in the street with weapons, and the police have managed to make that definition work. If you carry a lock knife, it is clearly an offensive weapon; it is something that has been adapted to hurt people and that is the intention, that is something used to injure. But you can also have something with you that is intended for that purpose, even if it has an innocent explanation. So it is possible to make that work.

It is logical that you have a power with cause. If you decide that it is illegal to lock on or to tunnel, surely it has to be sensible to give the police a power to search for items that might do that. You could argue that, if it is going to be a big thing such as a spade to tunnel, you probably would not need to search too much—but you might need to search a vehicle or a place. The power to search is probably a logical consequence of deciding that some acts are going to be illegal.

However, I think that stop and search without cause has caused real problems. We still have it to some extent—and I speak as someone who has supported stop and search. When I was commissioner of the Met, when I took over in 2011—and people have acknowledged this—we drastically reduced stop and search, yet we reduced crime and arrested more people. The Section 60 stop and search, which I have already mentioned, we reduced by 90%, because it was causing more problems than it solved, in my view. Yet we still managed to arrest more people. The problem was that the Met had implemented throughout London, almost, so there were almost contiguous areas of Section 60, which is exactly what has been done around Section 44. The Section 44 counterterrorism legislation was intended to protect certain places, such as Parliament, but the Met put it in place throughout London.

The final thing that I wanted to come back to is that, particularly in London, stop and search without cause has such a bad reputation that it is probably not wise to extend it. One reason for that is that you now have many grandfathers and grandmothers who were affected by it in the 1960s, when it was called “sus”. In the 1980s and 1990s it was called Section 44, and now it is called Section 60. So I worry that the history of it in London may cause problems.

I go back to my first point: with with-cause stop and search, a logical consequence of causing certain things to be illegal is that it leads to a search for the items that might prove that that person either has that intent or intends to carry out certain acts. I speak as someone who has drastically reduced, not increased, stop and search. Particularly in the context of London, I caution the Government about extending without-cause stop and search.

[Lord Hope of Craighead (CB)]

My Lords, the Constitution Committee looked at the Bill with some care and was concerned about two provisions in Clause 11, not just one. The first was Clause 11(7), reference to which has already been made, but it was also concerned about the width of Clause 11(1)(b), which refers to persons who happen to be carrying prohibited objects in an area where the police suspect that these offences may be concerned. The point is that somebody may be carrying something within the area for a completely unrelated reason: they might just happen to be carrying a tool which could be thought to be adapted for tunnelling but was not intended for that purpose at all. The problem with this part of the clause is that it makes no reference at all to the reason why the person was carrying the object. The Constitution Committee thought that that was really stretching the matter too far. I have no problems with Clause 10, but there are these two problems with Clause 11.

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[Lord Garnier (Con)]

My Lords, I could not put a cigarette paper between the arguments of the two previous speakers and those I would like to make. If we are not careful, we will move to preventing the media from creating fair and accurate reports of our courts and even of this place. I do not believe I am exaggerating in linking the two sets of arguments and I very much support this amendment.

[Lord Hogan-Howe (CB)]

My Lords, I do not support the amendment, and I do this at some danger, because one of my roommates in the Lords is proposing it. I do not support it for a reason of principle and a reason of practice. First, on the reason of principle, I quite agree that a journalist should not be arrested for doing their job: it is very obvious that this should not happen. However, if I understand it correctly, the only reason a journalist might be challenged about their behaviour is if they are doing an act contrary to the Bill—in other words, they are locking on or they are protesting in a way that is illegal. That is the behaviour that is being challenged.

Secondly, whether or not you accept that argument for journalists, I do not understand how you define these other people in a way that the police will understand, particularly in a protest. An observer, somebody who is monitoring: how are the police to know who these people are? I guess that as soon as a protester is challenged, they might decide that they are a monitor, an observer or any of the groups that might be protected.

I understand the principle behind it. None of us wants to stop people holding the police to account, but that is not really the problem. Even if you accept that journalists should be protected in this way, I do not understand how you define the group in a way that allows the police properly to do their job without asking people how they fall into this category—they are not registered anywhere. Journalists complain that many people now claim to be journalists but are merely reporting online. Is that group included in this definition as well?

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I disagree very strongly with the noble Lord, because I think he is wrong. Once you give the police the idea that it is okay to arrest a journalist, why would we expect them to understand—you cannot deny that the police quite often misuse the law because they do not understand it—that they can do so only if they are gluing their hands or something like that? In any case, what journalist would do that? I cannot think that they would want to.

[Lord Hogan-Howe (CB)]

Mistakes are made; people are arrested wrongly. The police find acute problem-solving solutions when everyone else talks about “in six months’ time”. Someone has to make a decision; sometimes they make the wrong one—they happen to be human beings—and that is a problem. There is no general defence of being a journalist to any criminal offence. There is protection of legally privileged material, including journalistic material, and the Police and Criminal Evidence Act provides quite proper protection for that. However, that is not the same as providing a general defence for criminal behaviour to a journalist. In my view, that is what this proposes.

[Baroness Jones of Moulsecoomb (GP)]

I speak as the mother of a journalist, so I have a vested interest here, but journalists do not go along to protests to join them but to watch and report on them. The Hertfordshire police and crime commissioner, David Lloyd, with whom I had the displeasure of sharing a panel the day after this all happened, said that protesters should not have the oxygen of publicity. That was his attitude: “Freedom of the press is fine, but not for protesters.” That is utterly unreasonable, as are the noble Lord’s comments. I support this very strongly. I do not see why anyone here would have a problem with it, except the Government. What are they frightened of? What do they think journalists will report that would look so bad for them? Obviously, almost anything.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, if anything illustrates why this amendment is needed, it is the last few exchanges. A number of noble Lords are already suspicious that people reporting on a demonstration are really malevolently pretending to be doing so. The noble Lord, Lord Hogan-Howe, said that the police have said to him that people will pretend to be reporting and asked how they would know. That is the difficulty. If the police start off suspicious that journalists are really just people pretending to be journalists to get away with locking on and being disruptive, we have a problem.

What this amendment will do, and it is important to do so, is to state that it is a legitimate pursuit to be reporting on a demonstration, whatever your opinion of the demonstration. I have heard people say that all the people reporting on a demonstration who are not officially working for the BBC or LBC are actually demonstrators, but there are people who are opposed to, for example, Just Stop Oil who are reporting on it because they are trying to get support against the demonstrators. That is what is ironic. The point is that they are reporting. In a democracy, we need to know about such things. One of the great things about technology is that you can sometimes see it and know about it because somebody is there reporting on it or filming it.

We should stick by the principle of journalistic freedom. Those people who say people pretend to be journalists to get off scot free show how the Bill is already poisoning the well and making anybody associated with a demonstration in any capacity seem dodgy. What is dodgy is making that conclusion.

[Lord Hogan-Howe (CB)]

May I respond to the noble Baroness, because I think she misrepresented what I said? I think I said that the officer would be intervening because of criminal behaviour, not because someone was a journalist or was suspected of being one. That would be the reason. There may be cases where an officer has intervened because they thought someone was a journalist and they did not want it to be recorded. I am not saying that has never happened; that would be wrong. There is no doubt about that. My point was only that the only reason for an officer to intervene should be—in principle, from the law—because the person is committing a criminal offence. That is what the Bill is all about: defining what is criminal and what is not. Therefore, I do not think it is fair to represent what I said as picking on someone because they are a journalist.

[Baroness Chakrabarti (Lab)]

I wonder if I could help the noble Lord, Lord Hogan-Howe, because he has not, with respect, read the amendment—or at least not very carefully. To be clear, there would be nothing to prevent the arrest of a journalist, filmmaker, legal observer or anybody else if the officer suspected the commission of a criminal offence, including offences in the Bill that I disagree with. The protection is only against the use of police powers for the primary purpose of preventing the reporting. That is a judgment that is left to the officer, but what he cannot do is to say, “You’re a reporter. You’re giving protesters the oxygen of publicity, and I’m gonna arrest you.” That is the protection given here to people such as Charlotte Lynch, who could not possibly have been reasonably suspected of locking on or committing any other criminal offence. Such people could be suspected only of what they were actually doing: their job as reporters in a free society.

[Lord Hogan-Howe (CB)]

And how is an officer to know?

[Lord Davies of Gower (Con)]

My Lords, I remind noble Lords that this is Report stage and they have one opportunity to speak.

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[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who have spoken in this short but vital debate. Once more to respond to the noble Lord, Lord Hogan-Howe, who I am not sure has read the amendment—

[Lord Hogan-Howe (CB)]

I have.

[Baroness Chakrabarti (Lab)]

This amendment is not about preventing the arrest of anybody, journalist or otherwise, who is reasonably suspected of committing a criminal offence, including offences in this Bill. There is no definitional problem, because what is defined is the purpose of the arrest, not the identity of the person. This is important because even after Charlotte Lynch’s arrest, a Conservative police and crime commissioner took to the airwaves to say, “You are giving the oxygen of publicity to protesters.” In other words, “You are complicit in this kind of disruptive action by reporting it.”

If a senior Conservative police and crime commissioner took that view, it is perhaps understandable that some hard-working, hard-pressed police officers in difficult times might take the same view. The offence for which Miss Lynch was arrested was the very open-textured “conspiracy to cause a public nuisance”. Therefore, if a journalist has been tipped off that there is to be a demonstration that may or may not turn out to be disruptive and they go to do their job of reporting, some police officers, it would seem, and others may believe that in some sense to be complicity in causing or conspiracy to cause a public nuisance.

I also want to thank the Minister and his Bill team for meeting me just yesterday—although of course the Home Office press office had already told various media outlets that the Home Office was doubling down on this amendment. At that meeting, I asked the Minister and his colleagues to explain the basis for Ms Lynch’s arrest being unlawful. By the way, many other journalists have recently been arrested; what was the basis for these being unlawful arrests? I got the answer that noble Lords just got from the Minister.

What is said to be unlawful about Ms Lynch’s arrest is not that she is a journalist, but that individual officers were taking direction from their superiors and not exercising their own judgment. That is a technical and very important matter, but it is not the issue at stake here. I asked the Bill team and the Minister: where is the authority, the legal provision, in primary or even secondary legislation, that says that journalists should not be arrested, for example for conspiracy to cause a public nuisance, just for reporting on something that itself may be a public nuisance? There was no authority and no provision offered. So vague assertions about PACE codes that do not even deal with my specific point are really not going to cut it—not on something as important as free reporting in a free society.

I have moved this amendment and I seek to test the opinion of your Lordships’ House.

Metropolitan Police: Criminality

Lord Hogan-Howe Excerpts

Wednesday 1st February 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, my noble friend refers to the review of police officer dismissals that was announced by the Home Secretary on 17 January, when she published the terms of reference. That will include a consideration of the merits of a presumption for disciplinary action against officers found to have committed a criminal offence while serving in the police. Of course, the review was set up partly in response to the comments that Sir Mark has previously made, and partly in response to the interim review of the Casey report. It would be irresponsible not to collect the appropriate evidence before making these very important decisions.

[Lord Hogan-Howe (CB)]

My Lords, the noble Lord, Lord Lexden, is quite right to raise the urgency of these terrible cases. Will the Minister reassure us that the review being carried out will consider the most radical measures? One thing that I have become convinced of over the past 15 years is that the office of constable is more a bar to excluding the bad than it is about protecting the good. A constable’s employment rights are protected by secondary legislation, which includes the ability of lawyers in the employment tribunal process within the police. Home Office guidance establishes that when dismissing an officer the standard of proof should not be just the balance of probabilities but should travel towards beyond reasonable doubt. Both those measures do not help to get rid of the difficult officers that the noble Lord and Sir Mark have mentioned. Both those things should change. By all means, give officers access to employment tribunals, which, frankly, they can get through other means anyway.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that and defer to his extensive experience. One of the things that the review is doing is looking at whether the current three-stage performance system is effective, which will obviously have to take into account some of the things that the noble Lord has just raised. I should have said in my earlier answer that the review has a time limit of four months on it. Obviously, that time is ticking, and the terms of reference were announced a couple of weeks ago.

Public Order Bill

Lord Hogan-Howe Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Weir of Ballyholme (DUP)]

My Lords, I rise to support Amendments 41, 42, 43 and 44. Like others, I have strong views on the subject of abortion; I suspect I am in a minority position within both this House and this country, but, as a number of noble Lords have said, today’s debate is not about abortion and what position any of us hold on that subject. That is a debate for another day.

I think there are two key points in relation to this piece of legislation which this group of amendments goes to: first, what is appropriate and proportionate in terms of the law, and, secondly, how do we protect everyone’s rights? I agree particularly with Amendment 44 from the noble Lord, Lord Farmer, as it deals with some of the very concerning wording in Clause 9. Also, it is surely a time for a level of pause for thought because, as the noble Lord, Lord Farmer, indicated, thankfully it is the case that we are not in the United States.

The current law regarding abortion has been in place for most of this country for longer than I have been on this earth—just about, if any of you want to guess my age in that regard. It is a question as to why this is suddenly an emergency-type situation. Are we seeing a scale of problems on the ground for which there is not an existing law? I would say that is not the case. We do need to have thoughtful law as to appropriate levels of protection for everyone, and therefore I am very much minded towards the proposal which says “Let us examine what actually the facts are, rather than rushing through a piece of legislation and indeed a clause which applies a particular draconian solution to that”.

On the issue of how we protect everyone’s rights, there are elements within Clause 9 that I think no one in this House could ultimately disagree with. If we are saying, for example, that we want to protect anybody, in any set of circumstances, from intimidation or threats, in every situation, I think all of us would say “Yes, protections need to be there”. Similarly, we would want to protect people from harassment, or from being impeded or blocked from something. Whether it is at a clinic or in any set of circumstances, I think everyone in this House would agree that those protections need to be there. I would question the necessity of this clause on those grounds, because a range of laws already provide that level of protection against threats and intimidation.

Leaving that aside, if that was all that was in Clause 9, there would not be so much of a problem. I appreciate that Amendment 45 softened the language in some regards in relation to this, but according to some of the aspects that are within Clause 9 at present, we are going to criminalise anyone who

“advises or persuades”

or

“attempts to advise or persuade”,

or—perhaps most worryingly of all—

“otherwise expresses opinion”.

If Clause 9 goes through unchanged, we are making an expression of opinion a criminal offence.

The alternative wording in Amendment 45 talks about making it a criminal offence to influence, but surely at the heart of the concept of freedom of speech, and the value of democracy, is the peaceful way in which people try to persuade others of their point of view? It should be a battle of ideas. I indicated clearly that, where that goes beyond the art of persuasion towards any level of threat or intimidation, it is unacceptable and should be criminal, but if we are criminalising expressions of opinion or influence, that is fundamentally wrong.

As I indicated, I have a different view from many within this Chamber on the issue of abortion. But, if we are to defend freedom of speech and the freedom to protest, it is very easy for any of us to stand up and say that we believe in freedom of speech on an issue that we agree with, and it is very easy for any of us to stand up in this Chamber or elsewhere and say that we support the right to protest whenever we agree with that protest. But surely the test within any free society is about defending the rights of people who hold opinions that we disagree with—views which we would find unacceptable.

[Lord Hogan-Howe (CB)]

I thank the noble Lord for giving way. I understand the point he makes about the possibility of making the argument, but is his argument that the best place to have that debate—I think he used the word “battle”—is directly outside an abortion clinic as people approach, at the point at which they might be receiving treatment?

[Lord Weir of Ballyholme (DUP)]

Let me make it clear that it is not a place I would see myself being. But the point is that, if they are doing it in a peaceful, persuasive way, people may take actions and views which we—

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[Lord Cormack (Con)]

My Lords, I have often said in this House that the first question we should ask when confronted with a new Bill is: “Is this necessary?” This point was touched on by the noble Baroness, Lady Hoey, a few minutes ago. I do not believe that this Bill is necessary much at all, and I certainly do not think that Clause 9 is necessary.

I would like to make an appeal to your Lordships tonight. Why can we not convene a meeting before Third Reading, because in our House it is possible to bring forward an amendment on Third Reading. It is very important that my noble friend Lady Sugg should be prominently involved in that. She has genuinely tried—and I respect and honour that—but I do not think she has got it quite right, and I say the same to my noble friends Lady Morrissey and Lord Farmer.

I think we need to have a round table to discuss whether it really is necessary to keep Clause 9 in the Bill and what we should replace it with, if anything. I do not believe we have the solution tonight. Each of the amendments before us has certain merits but not a single one of them covers all the problems as perceived in the past. I still think that it is possible to deal with those things, such as the problems just referred to by the noble Lord, Lord Winston, with laws that are already on the statute books—books that are far too cluttered already.

Can we not just pause, reflect and discuss, and see if Clause 9 is necessary, which I do not believe it is? Can we decide what we would replace it with and which elements of the three sets of amendments before us tonight can best be combined to give protection, if it is needed, to those who are harassed—there is not a great deal of evidence but I accept that it happens—and to protect the freedom not just of speech, which is so important to all of us, but of private prayer, without which you will wrench the soul from a community? Nobody can stop my praying privately, because you do not know when I am doing it. It is important that we recognise that freedom of speech without freedom of religion is hollow and false. We have to preserve them both.

[Lord Hogan-Howe (CB)]

My Lords, I support the amendment from the noble Baroness, Lady Sugg, to which I have added my name. I do not support the review in the amendment from the noble Lord, Lord Farmer. Everybody has been careful not to say that there is no evidence but that there is insufficient evidence. I think there is clear evidence that there is a problem. In fact, the international response of other jurisdictions shows that it is not just a UK problem; I am afraid it is a more widespread problem than that. I think there is a need for a new law, and I support this particular amendment because it is a reasonable response to an unreasonable challenge at the moment.

I did some research with officers who are trying to deal with these problems at the moment to see whether this response looked reasonable. First, those who oppose Amendment 45 say that it prohibits protests. Of course, that is true, but we had that this afternoon here: you cannot protest here. It is not the only place in the United Kingdom where people cannot protest. We are talking about 150 metres around a relatively small group of places, that are the only places women can approach for this sort of treatment—it is a legal treatment though I accept that people have strong views about it. One hundred and fifty metres is really quite a small area.

Secondly, people say that public space protection orders should be used as an alternative. I am afraid that the problem is that they are not working in the way that was intended because they were not intended for this problem; they were intended to help local authorities deal with various unspecified problems. In some areas, drivers were parking up because they were trying to get to a certain place and people who lived in that area were having problems with engines running all the time, so it was used for that sort of thing. It is a very vague power which has been useful with many problems, but it has not proved particularly helpful with this one.

One of the challenges is that local authorities have many priorities, and this is not always one of them. They have challenges around budgets, so they cannot always go to court—so often, even if there is a problem, these protection orders are not being applied for.

The second problem is that, with each local authority approaching this in its own local way, the wording is inconsistent. The police are asked to apply them consistently, but each wording is different—whether there is intent there or whether there is not—and that really has caused a challenge.

The police have been criticised a couple of times today for their lack of action sometimes, but they are taking action in some of these cases: in fact, there have been complaints about the fact that they have arrested people who were praying. Although that has been used as an example of something draconian, in the cases where people have been praying the CPS has declined to prosecute. All that the police have done is make an arrest. They do not decide to prosecute: that is the decision of the prosecutor. In these cases—for example, in the West Midlands case—the decision has been based partly on the fact that no one can be sure whether a person who is praying is going to protest against or support abortion, so how could they possibly make a decision about prosecution?

Secondly, there was a case where an individual had displayed within a zone a protest sticker or protest banner within their vehicle that talked about murder and abortion. In that case it was not about a lack of evidence; the CPS decided it was not in the public interest to continue. So I am afraid we are not seeing prosecutions and we are seeing dilemmas, and people are saying that there are complaints about people’s behaviour.

Another challenge is that the women who are most affected by this do not want to make complaints. Why would you? You are at your most vulnerable. You do not want to be identified. You certainly do not want to go to court and be a witness. In some people’s cases, they have come to mainland UK to receive abortion services, not having been able to obtain them in another part of the UK—so why would they want to advertise the fact that they have got involved in an abortion service? So this has relied a lot on the staff.

The staff’s view is also important. Every patient who is affected—badly, in my view—is affected only on the occasion when they seek assistance, but the staff are there all the time, day in, day out. Imagine the pressure on them as they go to their job, which they take to be helping somebody to improve their life, or at least to travel forward in a different way.

The aggravated feature for me of the behaviour being complained about is that these women are en route to a treatment that they cannot obtain anywhere else. As I mentioned earlier in my question, I do not really think these are protests. Where there is not an order in place, the people protesting are directly outside the entrance or exit of these buildings, directly approaching the women who are going to seek a service. This is not about trying to convince the Government. It must be the least effective form of protest if it is trying to influence the Government. People in here are saying they did not even know there was a problem—so how can it possibly be that that has been an effective form of protest? I am afraid that is not really a sound argument.

If that is the best place where somebody can seek to influence someone, there is already a law saying that when someone is seeking abortion services, they should seek advice about other options. If they need financial support, adoption or any of the other things that might help somebody in these terrible circumstances—the dilemmas that I sure they must face—the law says they are entitled to that support from the medical advisers and from other people who will help them. The least effective way, surely, has to be shouting across the street or handing out a leaflet at the point where somebody is trying to get treatment and already has a dilemma. I cannot see that that is a sensible way to address the particular problem that we are talking about.

It seems that this gets worse at certain times of the year. More protesters turn up at abortion clinics during Lent. Why should women who have to go during the Lent period have to face more pressure than the women who go at a different period? That is someone else’s view.

I want to address the point about prayer. I think we all understand why prayer is particularly sensitive. Of course nobody wants to ban it, but not everybody finds prayer a supportive thing. I say this with respect to the bishop and as a Christian, but not everybody reacts in the same way. You cannot assume that a prayer expressed on the street is something that everybody wants to receive, and in my view they have every right to resist, or not to be faced with that dilemma. We have to keep that in mind too.

The only final thing I would like to say is that we have talked about behaviour in very general terms, but some of it has been abhorrent: handing out dolls in various stages of development, handing out protest leaflets that are very explicit on what people are complaining about, and judging people at a point when they have a very difficult decision to make. I say finally that this chanting carries on can be heard in the clinics—it is very obvious when you think about it, but I had not until the weekend. At the point at which women are receiving treatment, they can hear this chanting and hymn singing outside. Would you like it, in any medical treatment? It is just not acceptable and something needs to be done.

I like the tone and broad direction of the amendment from the noble Baroness, Lady Morrissey, but I worry, that with people’s human creativity and that 150 metres around the clinics, they would be very creative and the only people who would suffer from that would be the women. So I cannot support that amendment, but I understand why it was made. Finally, I will say that I support Amendment 45 for the women’s sake, for the sake of people who are employed there, and for anybody else who might be visiting at the very time that these protests are being made.

[Lord Shinkwin (Con)]

My Lords, I rise to speak in support of the pragmatic way forward, provided by cross-party Amendment 44 in the name of the noble Lord, Lord Farmer, and the noble Baronesses, Lady Fox and Lady Hoey. I thank them for tabling it, and I do so for a particular reason. Some would have us believe, as we have heard in this debate, that this is simply about abortion. Noble Lords should be clear: it is not. There is so much more at stake that should concern us all. This amendment gives your Lordships’ House the opportunity to chart a more measured way forward that avoids the perils of passing a law that undermines a hard-fought fundamental freedom: the freedom of conscience—a freedom that, surely, it is our responsibility and our privilege to champion and, most certainly, not to undermine.

I will not rehearse the points I made when we last considered this clause. Suffice it to say, it frightens me, because it threatens freedom of conscience and creates a precedent with potentially huge ramifications, which should surely alarm and unite all of us who value democracy. Some noble Lords have mentioned urgency—even emergency legislation. This is why we cannot afford to rush headlong without a review—just a review, not a final decision—being conducted first so that, in line with subsection (4) of the new clause proposed by Amendment 44, the proportionality of the measures proposed in Clause 9 can be carefully considered in the round, taking the views of all the stakeholders, including, of course, abortion providers, into account. We talk in this Chamber about the danger of passing legislation with unintended consequences. This clause proves our point perfectly. It has danger written all over it.

I say to any noble Lord who does not care about the risks of undermining freedom of conscience, about setting dangerous precedents or about passing laws brimming with unintended consequences: please, go ahead—vote for this clause and for other amendments. But if any noble Lord has so much as a shred of doubt, I urge them to vote for the review which, I repeat, is not a final decision. It is simply a review, proposed by Amendment 44.

Public Order Bill

Lord Hogan-Howe Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, the right to protest in a democracy is of central importance, but I cannot see that there is much of a right to glue yourself to another person or object in order to disrupt the daily lives of other people. That is what we are talking about here. There are many ways of protesting in our democracy without locking yourself on—without disrupting the lives of others. The conduct with which these clauses are concerned is very often, as the noble Baroness, Lady Jones, accepted, for the very purpose of disrupting the lives of others. I think that such conduct should not be unlawful, as Amendment 1 proposes, only if it causes prolonged disruption.

Preventing people going to work or taking their children to school or relatives to hospital should be unlawful. That is, as far as I can see, more at the minor end and sufficiently strong to outweigh the interests of the protesters, as the cases cited by the noble and learned Lord, Lord Hope, demonstrate.

I suggest that the House bears in mind one further point. There is a danger, when we consider all these amendments, that we do so by reference to protest with which we may sympathise—maybe environmental causes. But the protest may also be by those whose causes are far less attractive and far more damaging to a democratic society. Such protesters may also decide to lock on, and the law needs to deter and penalise them.

[Lord Hogan-Howe (CB)]

My Lords, I would like to think about how we got here. First, there has been a series of events over the past few years during which people criticised the police, the CPS and the Government for not intervening when people were seriously disrupted. That is why we are having this debate. We could go through various cases, whether it is Heathrow, the M25 or the taxis around Parliament Square, when the drivers were kind enough to leave a lane around the outside; that was their decision, a point I shall come back to. Therefore, people have complained that the police have not been intervening.

One reason why the police have not been intervening concerns the offence that they usually rely on: obstruction of the highway, which is a very simple and absolute offence. There is no intent to be proved; all that needs to happen is obstruction of the highway. The Supreme Court has had to consider that simple offence, and it concluded that there was more to consider than whether the highway was blocked. It asked whether there was an alternative route and other action could have been taken by the police. There was lots of talk about intent in respect of what is really a very simple offence. Usually the penalty is a fine; very rarely is imprisonment imposed.

The second reason why this issue is having to be considered is that the public have got angry and sometimes started to take action themselves when the police have not, which is always dangerous. We can all recall seeing film of someone sat on the top of a tube carriage and the crowd dragging him off. That is very dangerous for everybody involved—a terrible situation, and it should not happen. We have seen cases where the motorways have been blocked, and the people at the front have started to intervene because they are fed up with waiting. It appears that nobody is going to do anything and, in any case—

[Baroness Fox of Buckley (Non-Afl)]

Certainly in Committee, the point was made—and I wonder what the noble Lord felt about it—that this was a crisis of policing, with the police not enacting laws we already have. It is entirely fair that the public have got frustrated, demanding that something should be done. If the police are uncertain what to do with a huge armoury of public order offences that could be used and sometimes are used, but in a fairly arbitrary fashion, why will giving them more powers and laws solve the problem of not using the ones they already have? That will disillusion the public even more with the whole process of criminal justice.

--- Later in debate ---

[Lord Hogan-Howe (CB)]

The noble Baroness makes a good point. I was going to come on to a point that she made, but the point the police are making is that, if there is a lack of precision around something as simple as obstructing the highway, can we help them? People have alluded to the fact that the police have asked for help, and that is one of the things Parliament can do: explain more clearly how obstruction can be a protest that is beyond the criminal boundary, particularly when political motives are involved. Generally, the police will try not to get involved in that, which why they are seeking help in asking for more legislation, rather than less, although in general I think they would say that they do not need any more legislation.

The noble Lord, Lord Coaker, explained very well why he would like to approach this issue in a different way. The problem I have with his amendment is that it refers to a “prolonged disruption”, as the noble Lord, Lord Pannick, said. I particularly do not like its reference to health. What if someone is having a heart attack or another very serious medical issue that involves minutes rather than hours—or days, in some cases?

[Baroness Chakrabarti (Lab)]

Just to be clear one more time, prolonged disruption is just an example. One does not need prolonged disruption for significant harm to be caused to a person, an organisation or the life of the community. I cannot think of a more significant harm than a person with a heart attack not being able to be transported in an ambulance.

[Lord Hogan-Howe (CB)]

That is what the amendment says: “prolonged”.

Who is going to decide? The noble Lord, Lord Paddick, made this point: people may have lost confidence in the police, for reasons that we understand. However, the alternative appears to be that we leave it in the hands of the protesters to decide how long they will stay. That is unacceptable. If the state is going to have a view on these matters, it is for the state to decide, not the protesters. Of course they will have a view, which may be different, but they have to take the consequences if they get that line wrong. That is not happening at the moment.

The noble Baroness, Lady Jones, said that we could all be disrupted. She has often made that point and I have often disagreed with her. She says that we are always disrupted every day, certainly in London—not the rest of country, frankly—by congestion and, therefore, why should we criminalise protest that only does the same thing? I hope that I am fairly representing her argument.

[Baroness Jones of Moulsecoomb (GP)]

Nearly.

[Lord Hogan-Howe (CB)]

Nearly. Pollution kills people but we are not trying to legalise unlawful killing. One could pursue that argument to its logical extent, but I do not accept that someone intentionally blocking someone else’s path is the same thing as someone suffering the consequences of congestion. I expect that the noble Baroness is going to say something.

[Baroness Jones of Moulsecoomb (GP)]

In a disruption, people can turn off their engines. In traffic, they keep them running.

[Lord Hogan-Howe (CB)]

I am sorry—I was looking at my notes and missed that. Would it be terrible if the noble Baroness repeated it, so that I can properly respond?

[Baroness Jones of Moulsecoomb (GP)]

The noble Lord is so profound. I said that when there is disruption, people know that it is going to last some time, so they can turn off their engines. What happens in traffic is that people leave their engines running, which is, of course, highly polluting, as he said.

[Lord Hogan-Howe (CB)]

But the protesters could leave. It is in their gift—I think.

[Baroness Jones of Moulsecoomb (GP)]

The Met Police, after the disruption on motorways into London, put out a tweet asking people to report instances of being unable to get their children to school, medical emergencies or whatever. The stream of replies after the tweet was nothing to do with people objecting to the disruption; they were supporting the action. So the Met Police might have got that slightly wrong.

[Lord Hogan-Howe (CB)]

My final point is that although I cannot support the amendment of the noble Lord, Lord Coaker, for the reasons I have explained, I support the amendment of the noble and learned Lord, Lord Hope. However, the challenge made by the noble Lord, Lord Paddick, is that “minor” sounds intuitively contentious when referring to something serious, and it is an unusual bar by which to define something. The noble and learned Lord I think acknowledged that there may be more work to do on that.

[Lord Hope of Craighead (CB)]

I did stress that the word “more” is important. I agree that the word “minor” raises issues, but the “more” point is crucial to an understanding of my formula.

[Lord Hogan-Howe (CB)]

I accept that point and I would of course never tangle with a lawyer. However, I am just saying that at an intuitive level, even describing something as “more than minor” may be a concern and there may be a different form of words. In fact, I thought that noble Lords might have been able to group around the form of words the noble and learned Lord used in his speech, be it “significant” or “major”, as was suggested. It may be that we broadly agree that “serious disruption” is not okay. That is why we are struggling to find the exact definition in the amendments.

Finally, we should not leave the police with too many problems in terms of intent, recklessness or reasonable excuse. If we have a simple definition of an offence but then have to worry about intent or recklessness, the situation will, I suspect, become almost impossible and we will be back to where we started. That would be a concern.