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

Lord Hope of Craighead Excerpts

Tuesday 13th June 2023 Lords Chamber

[Lord Coaker (Lab)]

My noble friend predicts what I was going to say next, in a calm, reasonable, rational way. I was going to ask whether the Minister could confirm whether the other place considered these changes to the Explanatory Memorandum before it had the opportunity to consider the regulations. As a football fan, I say that if this was a football crowd, it would be chanting to the Government, “They don’t know what they’re doing”. It would be quite right.

At heart, what do we believe? I will tell noble Lords what I think, and what I think the SLSC and many noble Lords said. What has taken place is an absolute, fundamental constitutional outrage. This House defeated these, or similar, proposals, brought forward in a panic, as I said, by the noble Lord, Lord Sharpe, without knowing really that he was going to have to do it, earlier this year. Primary legislation was defeated. So what do the Government do? They do not bring forward new primary legislation. They try to sneak through secondary legislation in an underhand way without proper public consultation.

As the Secondary Legislation Scrutiny Committee said:

“We are not aware of any examples of this approach being taken in the past”.


Is this what it has come to? Our Government have, in a shocking betrayal of our unwritten constitution, undermined the conventions on which our way of doing things is based, and on which our Parliament is based. How many times have I stood here and spoken of the need to protect conventions, to recognise the right way of doing things? These conventions protect our democracy, our rights and our freedoms. They are not just something for the Government of the day to dismiss because they are inconvenient. That undermines the workings of our parliamentary democracy. As such, it is shocking.

Of course, the elected Government should have their way, but this was not passed by the other House before being defeated. The Minister says, in a piece of political theatre, “Oh, don’t worry, we passed it yesterday in the House of Commons”. Embarrassed and in a panic in the face of today’s criticism, this was so the Government could say: “Don’t worry about that. We’ll be able to tell Coaker and everybody else who has mentioned it that we passed it yesterday through secondary legislation. That completely torpedoes their argument that the House of Commons hasn’t discussed it”. Such was the rush that they could not even ensure that an amended Explanatory Memorandum was put before the other place before it decided on the legislation.

Like many noble Lords, I have been in this Parliament for a number of years, and I have never seen anything like this. Nothing changes. The fundamental principle is that this Government are using secondary legislation to overcome primary legislation; hence my regret amendment deploring it and calling on the Government to think again. We will abstain, as I say, on the fatal amendment. We will not block this legislation.

Let me be clear to those who keep asking me whether His Majesty’s Opposition’s position is to block the SI: we will not do that. I understand why some people would wish that to be otherwise but, as His Majesty’s Opposition, we will respect convention. We will respect tradition and the right way of doing politics in our country. I do not believe that it necessarily shows any respect for the way that democracy works by voting down the opinion of the elected Government of the day.

The way to change that is, in my view, to get rid of this Government at the next election and put another Government in their place. That is the way forward. We have opposed these measures and will continue to argue that they are unnecessary. But we should not, in my view, be debating this among ourselves. The true adversary in all of this is a bankrupt Government turning in on themselves. We will respect the right way of doing things even if the Government do not. If we are to be the next Government, we will expect those who may oppose us then to act in the proper way, respecting the will of the elected House. That is what I am saying to this Government: that they are not respecting the traditions of our country.

This is a sign of His Majesty’s Opposition doing all they can to prepare for government and to look like a Government in waiting. This shoddy piece of constitution-disrespecting legislation, put forward with no consultation, shows just how far this Government have fallen. It is a moral and constitutional outrage, of which the Government should be ashamed. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I feel some sense of responsibility for the situation in which your Lordships find yourselves this evening because I devised the formula quoted in the regulations before us.

I drafted that particular formula with very specific reference to the locking-on and tunnelling offences described in the Public Order Act, which we were considering as a Bill at that time. I confess that I was not looking forward at that time to any other use of that formula. I understand why the Government have found it attractive and the point they are making that it is better to have a uniform test across the board. However, as the noble Lord, Lord Coaker, has said, this is a debate about the right way of doing things.

I have been making strenuous efforts on the REUL Bill to make it clear that parliamentary accountability requires debate in the Chamber on things that we can discuss and amend if necessary, and not be driven by statutory instruments. While I stand by the formula which I devised—I believe it is the right formula, pitched at exactly the right point for the police to decide when they should intervene—I deeply regret that the Government have felt it necessary to approach a situation in this way. I endorse exactly what the noble Lord, Lord Coaker, has been saying and therefore wish to make it clear that while I stand by my formula, I greatly regret the procedure that is being adopted.

[Baroness Jones of Moulsecoomb (GP)]

I actually told the noble and learned Lord, Lord Hope of Craighead, that he should not have helped the Government. I am prepared to forgive him, from a sense of generosity, because I know he was trying to help, but it did not actually help at all. The opening speech by the Minister was quite interesting because it lasted nearly nine minutes and focused almost entirely on what the police and the protesters were going to do. It avoided the talk of the constitutional novelty that the Government have introduced.

For me, this is a make-or-break moment for democracy. It is a crossroads that we really have to face up to because, in spite of what the noble Lord, Lord Coaker, said about respecting conventions, the fact is that the Government have not respected our conventions. There are two issues at stake here. The first is suppression of freedom, with a measure that your Lordships’ House rejected as unreasonable only very recently. In some ways more seriously, and secondly, this government move sets a precedent that the Government can use secondary legislation to overrule Parliament’s will as expressed in votes on primary legislation. This means that any future Minister, at any time, could decide to change any law in any way. This to me is deeply disturbing and we will hear from other people, I hope, who find it disturbing as well.

The shadow Attorney-General has said that we have to stick to the conventions and allow this statutory instrument to pass, but that argument seems to be based on a fundamental misunderstanding of the conventions. By convention, your Lordships’ House does not block primary legislation, but this is not primary legislation. Your Lordships’ House can, does and has blocked statutory instruments. I recognise that there is no convention that the Government cannot use a statutory instrument to overturn parliamentary votes on primary legislation, but that convention does not exist because no Government have ever tried to do this before.

What we face here is a novel issue—a turning point for our parliamentary democracy—and the decision in your Lordships’ House on the following question will establish a new constitutional understanding. The key question is: should the Government be allowed to overturn parliamentary votes on primary legislation by using secondary legislation? That is the question we have to think about here today. We have talked before in your Lordships’ House about our discontent about overreach by secondary legislation. I ask your Lordships: is this not the day to act on this? If we refuse to act today, when are we going to act?

The Labour Party has tabled an amendment to regret, and regret is what I believe we will all experience in the future if we fail to support this fatal amendment today. The whole country will have cause to regret the further erosion of the right to protest, which is part of our basic British way of life, and the enfeebling of this House, which many in this House might regret as well. We will regret it when Ministers start regularly to use their power under secondary legislation to overturn existing laws that Parliament has debated and voted for. We will regret it when we read headlines about the police arresting a group of parents and their children who are protesting about pollution outside their school.

What about the community up in Stone in Staffordshire who, just last week, protested about having HS2’s HGVs rushing past their houses 42 times a day? They protested quite hard; I think they would have fallen foul of this piece of law. Or what about arresting people holding a vigil for a victim of police violence, which has of course happened? We will definitely regret it when we hear about a big march against a government policy, as when a million of us protested about the Iraq war, and the police will then have to say, “Sorry, that protest is banned because it may cause more than minor disruption”. That is a very low bar.

Illegal Migration Bill

Lord Hope of Craighead Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is an enormous pleasure to follow the noble and learned Lord, Lord Etherton. I declare an interest as a former and retired Home Office lawyer and therefore there is a small pension that is being administered by some private company. The important point about that declaration is that when I was a Home Office lawyer in the 1990s, working on matters that included asylum, there was a moment when a particular failed asylum seeker who was removed was shot on arrival in their home country.

I make that point because the noble and learned Lord, Lord Etherton, has made the detailed, forensic point so clearly, but as we move into this part of the Bill and start considering non-suspensive appeals, interim relief and what should happen to someone while there is a dispute about the safety of the place to which they are being sent, that is the story that hangs in my mind, and that is really the best contribution that I can make to the Committee’s thinking when we think about non-suspensive and suspensive appeals, and when we think in due course about my own group of amendments, which is about interim relief from domestic courts and international courts.

To facilitate the swift progress of the Committee I will do something that seems counterintuitive. The Government Chief Whip, who is returning to her place, gave us some very good advice about the Committee not liking reading. Which day was that on exactly? Was it Wednesday or Thursday? Was it this year or last year? I understand that point but this is not a filibuster; this is a very short, pithy quote from the JCHR report, which makes the point better than I could about what is wrong with the particular provisions dealt with in this group.

Noble Lords will find the quote on page 105 of the blockbuster JCHR report, which we will not all be able to read in its totality. Paragraph 333 says:

“Making human rights claims ‘non-suspensive’”—


non-suspensive means that you can appeal from the place you say are not safe in; it is perhaps not the place you say you will be shot but the place you might be sent to where you will be shot or otherwise persecuted—

“can only be consistent with our human rights obligations if pursuing those claims from the destination state is viable”.

This is from the JCHR, which is an all-party committee of both Houses. It continues:

“We are concerned that this has not been established for the states deemed safe for removals”.


That was one of the many excellent points made by the noble and learned Lord. It goes on:

“The threshold required to establish a suspensive claim based on serious harm under the Bill, and the requirement for ‘compelling evidence’ to support it”—


for those desperate refugees—

“puts at risk of removal those who have genuine human rights reasons why they should not be removed. Furthermore, allowing the Secretary of State to redefine ‘serious and irreversible harm’ by regulations opens up the possibility of increasing disparity between the protections against refoulement in domestic law and those to which the UK is committed in international law, including”—

the Minister’s favourite—

“the ECHR. We urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims. The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations. Clause 39 should be removed from the Bill”.

[Lord Hope of Craighead (CB)]

My Lords, I have three amendments in this group: Amendments 101, 110 and 113. Two of these amendments, to which the noble Lord, Lord Anderson, has added his name, are about the meaning of words. They are words to which the noble Baroness, Lady Ludford, drew attention in her opening remarks on this group.

Amendment 101 directs attention to the definition in Clause 38(3) of the serious harm condition. The Bill says that this requirement will be satisfied if the person faces a

“real, imminent and foreseeable risk of serious and irreversible harm if removed from the United Kingdom … to the country … specified in the third country removal notice”.

Amendment 113 directs attention to the requirement in Clause 41(5) that a serious harm suspensive claim must

“contain compelling evidence that the serious harm condition is met in relation to the person”

making the claim. I am grateful to the noble Baroness, Lady Chakrabarti, for drawing our attention to the reference in the JCHR report to the word “compelling” and its consequences.

So far as

“real, imminent and foreseeable risk”

is concerned, we suggest that that phraseology is unnecessarily complex. If a risk is imminent and foreseeable then one would say it must be a real risk and not a hypothetical one. Conversely, if the risk is real then it would follow that that is because it is imminent and foreseeable. These words are unnecessarily complex. It would be better, we suggest, to delete the words “imminent and foreseeable” or, alternatively, delete the word “real”. The real question is whether the word “real” adds anything if the other two words are satisfied.

As for the word “compelling”, there is an important question in addition to the fundamental point raised in the JCHR report as to what exactly “compelling”, in Clause 41(5), is dealing with. Clause 41(5) is telling the asylum seeker what his or her claim must contain. There are various requirements set out, and the first is that it

“must … contain compelling evidence that the serious harm condition is met”.

The first question is who is to judge that the evidence in that claim is compelling? The clause begins by telling us that the Secretary of State must consider the claim, before the end of the decision period, and make one of the following decisions:

“that the serious harm condition is met … or … that the serious harm condition is not met”.

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[Lord Murray of Blidworth (Con)]

The noble Baroness makes an entirely fair point. In those cases, of course, it would be an imminent feature. As she points out, in those circumstances that is something the courts would be able to have regard to.

The inclusion of “imminent and foreseeable” is intended to prevent the courts from considering risks that are dependent on a series of hypothetical events before the harm might occur. That is the reason, as I understand it, that “imminent” features in the European Court of Human Rights practice direction on interim measures. We cannot allow illegal entrants to be able to thwart their removal based on an unknown risk that cannot be foreseen and may not even arise for many months or years, if at all.

Amendments 102, 103, 104, 109, 111 and 112 would remove the requirement for the risk of harm to be irreversible. These amendments would significantly lower the threshold for a serious harm suspensive claim to succeed and undermine the purpose of the Bill to deter illegal entry to the UK. Again, I point out with the greatest of respect to the noble and learned Lord, Lord Etherton, that

“a real risk of serious and irreversible harm”

is the test applied by the Strasbourg court when considering applications for Rule 39 interim measures, as he alluded to during his speech.

Amendments 105, 106 and 107 would remove specific examples of harm, relevant to the availability of healthcare and medical treatment in a third country—a passage that the noble Lord, Lord Carlile, drew the attention of the Committee to—in circumstances that do not or are unlikely to constitute serious and irreversible harm. There is existing case law that indicates that claims based on harm resulting from differing standards of healthcare fall short of the Article 3 threshold. It is simply unjustifiable for those who enter this country illegally to be able to remain here indefinitely and have unlimited access to our healthcare systems solely on the basis that they may not receive the same level of medical treatment in the country or territory they are rightly removed to.

For these reasons, Clause 38 makes it clear that a serious harm suspensive claim based on a risk of harm relating to differing standards of healthcare cannot succeed and, as a result, will not prevent that person’s removal to the safe third country. Clause 38 also makes it clear that a claim based on pain or distress resulting from a lack of medical treatment is unlikely to succeed. By including specific examples of harm that do not or are unlikely to constitute serious and irreversible harm in Clause 38, it is ensured that the courts take a consistent approach in their consideration of the risk of serious and irreversible harm and go no further than intended.

The Bill provides a fast-track process for the consideration of a claim which may temporarily suspend a person’s removal from the UK. Clauses 41 and 42, as the Committee has noted, set out the procedure and timescale for making a suspensive claim and the timescale for a decision to be made on a suspensive claim.

Amendment 113 would remove the requirement for a serious harm suspensive claim to include compelling evidence of the risk of serious harm that a person would face if removed to a third country, as noted by the noble and learned Lord, Lord Hope. Reducing the evidential burden in this way risks the process being abused through spurious and unmeritorious claims, similar to those that we have seen in other immigration applications. Evidence that is compelling is defined as that which is reliable, substantial and material to a person’s claim. I suggest that this is a reasonable requirement and necessary to ensure that the suspensive claims process is not open to abuse.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord for setting out an explanation of the word “compelling”. He used three adjectives and my impression is that that explanation is intelligible; it is not quite as alarming as “compelling”. Would it not be better to substitute the three words that he quoted for “compelling”? “Compelling” could be read as setting a very high standard indeed, which I do not think the three adjectives that he mentioned do.

[Lord Murray of Blidworth (Con)]

I am grateful for that suggestion from the noble and learned Lord. If I may, I will take a moment to reflect on that and will revert to him in relation to it.

Amendments 114 and 115 would significantly increase the timescales for making and deciding a serious harm suspensive claim, undermining the fast-track process that we have created in the Bill and our ability swiftly to remove illegal entrants. Where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period. Legal aid will be available to assist a person in receipt of a removal notice in making a suspensive claim. With these safeguards, I suggest to the Committee that it is reasonable to expect a person to bring a suspensive claim within the time periods set out in the Bill. I hope that that addresses the point made by the noble Baroness, Lady Ludford.

The purpose of the Bill is to ensure that illegal entrants are removed as quickly as possible. Extending the decision and claim periods to a total of 60 days for all cases increases the risk that immigration bail would be granted by the First-tier Tribunal and, where bail is granted, that a person would disappear into the community in order to frustrate their removal. The use of detention is therefore necessary to make sure that they are successfully removed from the UK, and our ability to detain a person is dependent on any suspensive claim being both considered and decided quickly. The timeframes outlined in the Bill send a clear message that if you arrive in the UK illegally you will be swiftly removed.

The noble and learned Lord, Lord Hope, referred to the Constitution Committee’s recommendation that the regulation-making power in Clause 39 should be removed from the Bill. We are considering that committee’s recommendations and will respond before Report stage. I would, however, comment that the Delegated Powers Committee did not comment on this power.

The amendments put forward would undermine the suspensive claims procedure and the timeframes outlined in the Bill, where what this Government need to do is send a clear message that if you arrive in the UK illegally you will be swiftly removed. For the reasons that I have outlined, I ask that noble Lords do not press their amendments.

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[Lord Wolfson of Tredegar (Con)]

I think that goes back to the point I was making a moment ago. With the greatest respect—I do not know whether the noble and learned Lord, Lord Hope, is going to intervene; I will give way if he wants to do so, of course.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord. It strikes me, in reading this clause, that it proceeds on the basis that the UK is bound by the decision. I greatly respect the analysis that the noble Lord, Lord Wolfson, has given us—I am very much in sympathy with it—but, like it or not, the Government’s position has been that it is binding. That is why the clause is so carefully drafted.

[Lord Wolfson of Tredegar (Con)]

On that, I entirely agree: the clause is very carefully drafted. The Government’s position—as I understand it and I will stop in a moment so we can actually hear from the person we want to hear from, the Minister—is first that they wish to, and will always, abide by international law. Secondly, it gives the Minister a discretion in some circumstances not to abide by Rule 39 orders. It seems to me that if one puts those together the Government’s position has to be that there are at least some circumstances in which you do not abide by a Rule 39 order without breaching international law; otherwise, the two propositions which I set out cannot be put together.

I hope that is an answer to the noble and learned Lord’s question. I am not sure whether the smile indicates it is or is not—

[Lord Hope of Craighead (CB)]

I think we really have to hear from the Minister, frankly. The clause does set out the various objections and by our jurisprudence the procedures are very defective and I can well understand why one is very uneasy about the whole structure of the rule. The Minister really has to explain the Government’s position and I very much agree with the noble Baroness, Lady Ludford, that that question needs to be answered.

[Lord Wolfson of Tredegar (Con)]

In which case, I will give one final statement before I finish. On this we all agree—the answer to this issue, I suggest, lies ultimately in Reykjavik. The answer lies in the engagement between this Government and other Governments with the Strasbourg court to improve the jurisprudence, to set the jurisdiction on a proper footing and to improve the procedures. In that way, for those of us—and I include myself—who want this country to remain part of the convention and play a part in its jurisprudence, that is surely the way forward.

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[Lord Hope of Craighead (CB)]

My Lords, I will speak to Amendments 123 and 140, following on the points made by the right reverend Prelate and the noble Baroness, Lady Lister of Burtersett. Amendment 123 in the name of my noble friend Lord Anderson, and to which I have added my name, is directed to the provision about judicial review in Clause 55(5), to which the right reverend Prelate drew our attention. His amendments ask for subsections (2) and (4) to be taken out, while this amendment asks for subsection (5) to be taken out, so I am building on the very impressive speech he made earlier.

The provision we seek to have removed states that a court “may quash the decision” relating to a person’s age only on the basis that it was wrong in law, not because

“the court considers the decision … wrong as a matter of fact”.

That is a very considerable restriction. As the Constitution Committee pointed out in its report on the Bill, errors are normally made in this context,

“not because of an error as to the definition of ‘a child’”,

which should be an issue of law, but

“because of problems with evidence to prove that an individual is under 18”.

Indeed, it is very hard to think of any error of law, in the proper sense of that phrase, that might arise in the context of age assessment. The effect of this restriction is to exclude judicial review, even in a case where there is an error of fact which no reasonable decision-taker, taking reasonable care, would have made. That is quite an extraordinary situation to be created by a provision in a Bill of this kind.

The report of the JCHR, which has been referred to often in these debates, says:

“Given errors of fact are highly likely when conducting age assessments based on subjective judgment, this is extremely concerning and gives carte blanche to Home Office errors”.


Without elaborating on that point—instead, I endorse all the points made by the right reverend Prelate—we suggest, in this amendment, that the restriction in Clause 55(5) is unreasonable, given the nature of the assessments that have been made; therefore, it should simply be deleted from the Bill.

While Amendment 123 is about something to be taken out from the Bill, Amendment 140 raises a point referred to by the noble Baroness, Lady Lister. It is about the power in Clause 56(1) to make regulations about the effect of a decision by a person

“not to consent to the use of a specified scientific method for the purposes of”

that person’s

“age assessment … where there are no reasonable grounds for”

that decision. The scope of the power, as explained in Clause 56(2), extends to setting out the circumstances in which civil legal services—in other words, civil legal aid—is not to be available to that person, and the person

“is to be treated as if the decision-maker had decided that”

the person

“was over the age of 18”.

It is significant that the clause does not go so far as to say, without qualification, that, if there are no reasonable grounds for the person’s decision not to consent, the person is to be treated simply as over the age of 18. The approach, which I suppose is to be commended, is to say that it all depends on the circumstances—that is, the purpose of the regulation which will be designed to set out what those circumstances are. Nevertheless, the exercise of this power has serious consequences for the person in respect of whom the power is to be exercised, as the Constitution Committee pointed out in its report.

At present, this power to make regulations is subject to the negative procedure, which we suggest is not appropriate, given the nature of the power being referred to. So our amendment seeks to add regulations made under this power to the list of regulations in Clause 63(4) that

“may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.

Given the wide scope of this power and the lack of definition of how it will be exercised, we suggest that it is entirely appropriate for it to be added to that list and not subject to the negative procedure. Those are the reasons that the Constitution Committee wishes to put forward, and I give them in support of the point made by the noble Baroness, Lady Lister.

[Baroness Neuberger (CB)]

My Lords, I thank the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Lister of Burtersett, for what they said—they said most of what I wanted to say. I declare an interest as chair of University College Hospital’s foundation trust and the Whittington Hospital NHS trust, because it is relevant to what I will say.

When we debated, rather later than this, the Nationality and Borders Bill in February 2022, as the right reverend Prelate observed, we debated something that allowed the Government to introduce regulations that specified scientific methods that could be used to assess age, including examining or measuring parts of a person’s body and analysing saliva, cell or other samples and the DNA within them. As we heard, the use of scientific methods to assess age has long been the subject of debate, and professional medical bodies have been unequivocal in rejecting the use of dental X-rays, bone age and genital examination as extremely imprecise as methods for assessing age, quite apart from being singularly unpleasant. I have not yet met a health professional who thinks that we should use these methods to assess the age of children or young people.

Yet the legislation went ahead and is now being strengthened, and young people who do not consent will be assumed to be adults, which is really worrying for all sorts of reasons already stated in this House. But, of course, it also undermines the fundamental premise that people have to be able to give free consent to any medical procedure or examination and should not be pressured into undergoing them. In the way that these clauses, and this particular clause, are drafted, there is no way in which these young people are not being pressured into undergoing these examinations and procedures. We should take this very seriously because almost every medical and healthcare body would say that this is unethical.

We debated much of this only 15 months ago. Back then, I said that there was wide concern about age assessments among the various voluntary and statutory agencies concerned with young asylum seekers and among many medical, dental and scientific bodies. But, as I said last week, I chair a small family charity in memory of my parents that provides opportunities for education for young asylum seekers, most of whom are slightly older than the group we are discussing here—but a few have not been. Without exception, they all say that the worst of all this is not only the procedures they are being asked to undergo but the fact that they are not believed. It is almost as if there is an assumption that they are not telling the truth.

It is clear that the use of some of these procedures is unethical—certainly if it is not for the young person’s benefit. Since that is the case, can the Minister tell the Committee why a young person or child who does not give consent to these procedures should always be disbelieved, and why they should be regarded as an adult if they do not consent? As a parliamentary body, we have to look at this really seriously. If we do not trust young people at all to tell us the truth, we are making a terrible assumption about those who come to this country, often traumatised and very vulnerable, looking for a better future.

Illegal Migration Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord German. In arguing for Amendment 4, I have already suggested why I think Clause 1 should be replaced by a clear commitment to key international obligations and a requirement that the Bill be read accordingly by officials, Ministers and the courts. However, whether or not noble Lords eventually agree with Amendment 4 down the road, Clause 1 in its current form must not stand part.

The noble Viscount, Lord Hailsham, who is no longer in his place, rather smelled the rat earlier. Clause 1 is not some innocuous attempt to repeat the Long Title and extrapolate it into the body of the Bill. Instead, it is a direction to the courts to ignore international obligations in favour of the Executive’s purposes—they are executive purposes because we are part of Parliament and we have not finished with the Bill yet. Ignoring international obligations was the subject of so much of the earlier proceedings of the Committee and I do not think anybody put the problem with that better than the noble Lord, Lord Patten, with his peanut analogy, to which I am sure many people will return for a very long time.

The noble and learned Lord, Lord Hope of Craighead, rather nailed it, if I may say so, by pointing to the particularly perverse nature of subsection (3). Language once crafted by the great Sir Edward Caldwell, the former First Parliamentary Counsel, for the purpose of ensuring human rights compatible interpretation via Section 3 of the Human Rights Act is now being appropriated—or, to use the eloquent language of the noble Baroness, Lady Lawlor, subverted—for the purposes of ensuring that human rights are violated. For those reasons alone, Clause 1 should not stand part.

[Lord Hope of Craighead (CB)]

My Lords, I would like to come back to the points I raised in the first group, because they are the basis for my support for the argument presented by the noble Lord, Lord German. I agree with very much of what he said.

I have two points. The first is why we have to have Clause 1(1) in the Bill at all. As the Minister explained, nothing hangs on “unlawful” or “illegal”. They are tendentious words and I find it uneasy to know what they mean unless they are properly defined. The Minister was not prepared to give me a definition which tied them down to what is in the Bill. I do not see why he is not prepared to do that. His answer was one which I think any parliamentary draftsman would give him, which is that nothing hangs on them because the words do not reappear elsewhere—but that does not remove the need for a definition.

The other point comes back to what the noble Baroness, Lady Chakrabarti, has been saying about the combination of subsections (3) and (5). I find them really quite sinister. During the passage of the REUL Bill, we debated the need for parliamentary scrutiny in the face of an aggression by the Executive to reform the whole body of retained EU law without parliamentary scrutiny. Here we are again: the Executive assuming to themselves control over the convention without recourse to the courts. Indeed, there are other provisions in the Bill which exclude any kind of judicial scrutiny at all. That is taking matters a very long way and setting an uneasy precedent.

I would much rather this whole clause was taken out for these reasons. They give rise to real concerns about where this country is going, and indeed where legislation of this kind is going, in the future.

[Lord Hannay of Chiswick (CB)]

My Lords, I wonder whether I could come back to some of the questions the noble Lord failed to answer after the first debate, perhaps understandably in the desire to have a dinner break. Perhaps now he could apply himself to some of those questions.

First, could he please tell me which part of the refugee convention explicitly authorises a country to refuse to even hear the asylum request of a person who arrives on its shore? I would like to hear which bit of the convention says that that is a legitimate thing to do. The answer is not, I am afraid, to go into this rigamarole about returning to the first country they were in.

Secondly, the noble Lord said that nothing in the Bill requires the Government to take action contrary to our international legal obligations, but does he not agree that large parts of the Bill empower the Government, without further recourse to Parliament, to act contrary to our legal obligations? I would be grateful for an answer on that point too.

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[Lord Murray of Blidworth (Con)]

That is consistent with the normal practice in statute.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I might come back to the question asked by the noble and learned Baroness, Lady Butler-Sloss. I think the Minister said that he would write to her with examples of strained interpretation. I sat for many years on the Appellate Committee in the Supreme Court dealing with cases under the Human Rights Act, and I am not aware of any particular case where I was straining the language. I do not think I went very far beyond the ordinary meaning of the words.

I remember we were faced with a very difficult case involving two men who wanted to marry. In those days, the Marriage Act was very specific that marriage was between a man and a woman. We could have strained the language, but we did not do that; we said the provision was incompatible, which I think the Minister would recognise as a perfectly orthodox way to proceed. I think we were quite careful not to stray beyond the bounds of reasonable interpretation. I would be very interested to know whether he has examples of where we really did go beyond the bounds of reasonable interpretation.

[Lord Murray of Blidworth (Con)]

As I said, I will be writing to the noble and learned Baroness, but the House will recall that the noble Lord, Lord Wolfson, set out various examples, including Ullah and Al-Skeini, and there are others. This has been a matter of jurisprudential development since the commencement of the Human Rights Act. It is a well-known evolution in interpretive principle, and it is that which is addressed by the provisions in this Bill.

--- Later in debate ---

[Lord Etherton (CB)]

My Lords, I have co-signed the amendment in the name of the noble Lord, Lord Carlile or Berriew, and that in the name of the noble Lord, Lord Cashman. I will make some very brief comments on both.

The principle against retrospection in statutory provisions is very long-standing and well-established because it upsets settled status and settled rights. It follows that it can, save in exceptional circumstances, operate both unfairly and so as to create legal uncertainty in the way that people conduct their affairs.

The best example of where retrospection would be appropriate is in relation to a finance Bill and Act giving effect to a Budget, with the time lapse between the two enabling people to enter into tax avoidance arrangements. But here it would be utterly impossible—certainly without any credibility—to suggest that those who are either crossing the channel or promoting that crossing unlawfully or illegally have organised their affairs, or were ever likely to organise them, on the basis of the complex provisions of this statute. I have never heard anybody suggest to the contrary. For my part, I can see absolutely no sound reason why the normal rule—which is one of fairness and certainty, as I said—should be upset in this case.

I support the amendment in the name of the noble Lord, Lord Cashman, because extending the definition of the third condition to include gender identity and sexual orientation brings to the forefront something which has plainly been ignored in the drafting of the Bill. There is absolutely nothing in Schedule 1 which excludes from the places to which people can be removed those LGBT people who would undoubtedly face extreme persecution, varying from sentence of imprisonment to death and assault. Raising this issue here will, I hope, direct the Government and the Bill team to a serious lacuna in the legislation.

[Lord Hope of Craighead (CB)]

My Lords, I can be very brief. I have one amendment in this group, Amendment 39, which raises the same point as Amendment 6 in the name of the noble Lord, Lord Carlile of Berriew, on retrospectivity. I support all the amendments in his name to that effect. The only point I would have added would have been to read out my explanatory statement, which my noble friend Lord Kerr of Kinlochard has already done, placing particular stress on “for good reason”. If the Minister is not going to accept these amendments, I hope he can give the good reason in each case.

[Baroness Lawlor (Con)]

My Lords, I am puzzled by Amendment 6 and the reasons given by some of your Lordships for opposing the start date of 7 March 2023—a criticism made on grounds of retrospection. There is nothing unclear about the start date, and nothing hidden: 7 March is published as the start date for the Bill itself. It is the date of the Bill’s First Reading. I am also slightly puzzled by the desire to omit from subsections (4) and (5) of Clause 2 people who enter this country in breach of our Immigration Rules and do not come from a country in which their life and liberty are threatened.

Illegal Migration Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

Moved by

[Lord Hope of Craighead]

1: Clause 1, page 1, line 7, at end insert—
“(za) defines “illegal” and “unlawful” migration for the purpose of this Act;”Member’s explanatory statement
This amendment, and another to Clause 2 in the name of Lord Hope of Craighead, seek, in the interests of legal certainty, to provide a definition of what amounts to illegal migration at the outset of this Bill.

[Lord Hope of Craighead (CB)]

My Lords, I will speak to Amendments 1, 3 and 5. It is a privilege to open the Committee stage of this important Bill. Before I come to the amendments themselves, there is one thing I wish to point out. Nothing that I may say in support of my important but relatively minor amendments is intended to undermine, or detract in any way from, the much more important and fundamental points raised by the other amendments in this group, in particular Amendments 2 and 4. I seek to reassure those in whose names those amendments stand. I am seeking to draw the Government’s attention to points raised by the Constitution Committee, of which I am a member, in its examination of the Bill.

Nobody can predict what shape the Bill will be in once it reaches its Third Reading, so it is as well for your Lordships to put all the cards on the table in Committee. Some will be more important than others, but one has to grasp the opportunity to put them on the table now. That is all that lies behind these amendments, and I hope that will be understood.

Amendments 1 and 5 deal with the use of words and the need for a definition. In its Short Title, the Bill refers to what it calls illegal migration, and so do the Explanatory Notes in their overview of the Bill on page 3:

“The purpose of the Bill is to create a scheme whereby anyone arriving illegally in the United Kingdom … will be promptly removed to their home country or to a safe third country to have any asylum claim processed. The Bill will build on the Nationality and Borders Act 2022 … as part of a wider strategy to tackle illegal migration”.


It says that the purpose of the Bill, among other things, is to

“deter illegal entry into the UK”.

But when it comes to the Bill itself, the language changes. The purpose of the Bill, it says, is

“to prevent and deter unlawful migration”.

The question is: does this mean the same thing as illegal migration?

The committee noted on page 1 of its report that the Bill does not define “illegal” anywhere. On the other hand, the Secretary of State’s duty to remove a person is triggered when the four conditions in Clause 2 are met. This suggests that the right way to define the expression “unlawful” for the purposes of this Bill, and what “illegal” migration for this purpose means as well, is to refer to these four conditions, which is what my Amendment 5 does. The fact is that Bills come and go, and expressions of this kind can be and are defined in different ways. Indeed, the words are interchangeable, as the language of the Explanatory Notes and the Bill itself has demonstrated.

The purpose of Amendment 5 is to make it clear that, whatever might be said in any other Bill or in any other circumstances, all one needs to know as to what makes a migration unlawful or illegal in the case of this Bill is what is in Clause 2. This is all about legal certainty and the accuracy and use of the words, which is an important constitutional principle. That is why the committee has made this important point.

Before I move Amendment 1, I will also speak to Amendment 3 in my name. It would require the Secretary of State to provide guidance as to how the provisions of the Bill are to be read and given effect. This follows another recommendation by the Constitution Committee in its report on the Bill, which was prompted by what we see in Clause 1(3) and (5). Clause 1(3) says that,

“so far as it is possible to do so … this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1)”.

There is an echo here, which all lawyers will recognise, of the wording of the direction about interpretation given to the courts by Section 3 of the Human Rights Act 1998, but Clause 1(5) says that Section 3 of that Act

“does not apply in relation to provision made”

by the Bill. As the committee said, these are novel provisions and it is difficult to predict how they will be interpreted by the courts.

The Bill has been accompanied by a statement that the Minister is unable to say that the provisions of the Bill

“are compatible with the Convention rights”.

However, the Government’s ECHR memorandum on the Bill appears to be more confident that the clauses it identifies as engaging with convention rights, taken one by one,

“are capable of being applied compatibly”

with the relevant ECHR articles. As for Clause 1(5), all that the memorandum says about it is that the disapplication of Section 3 of the Human Rights Act

“does not affect the Government’s assessment of compatibility of the Bill with the Convention rights as set out”

in the memorandum. The Constitution Committee says that the Government’s position on this “requires further explanation”. I am sure that will be explored much further in the other amendments in this group.

--- Later in debate ---

[Baroness Meacher (CB)]

My Lords, with some trepidation, I want to comment on Amendments 1 and 5, tabled by my noble and learned friend Lord Hope. Under the refugee convention, anyone approved as a refugee has never been an illegal or unlawful immigrant, however they came to the UK. To define anyone as an illegal immigrant who may subsequently be deemed a refugee surely flies in the face of the refugee convention—or that is how I read it. I am sure that my noble and learned friend has a very good riposte to what I am saying, but if by any chance he does not feel he has, he may want not to press those two amendments.

[Lord Hope of Craighead (CB)]

My Lords, in fact, the noble Baroness makes my point. What I am really saying is that those who are affected by the Bill want to know what it means by “unlawful”. We may not agree with it, but the Bill has a formula which is to be used and we need to know what it is. That is the purpose of a definition. I absolutely understand what the noble Baroness says about the convention, but it is about the need to understand the Bill’s use of the word “unlawful”.

[Baroness Meacher (CB)]

Is it not our job to ensure that the Bill does not come up against the convention?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, like my noble friend Lord Patten, I have sat through all of this debate. I rise because my name—or, at least, a name close to mine—was mentioned by the noble Lord, Lord Hacking, at one point. The reason I rise with a little diffidence is that I have to catch a flight later this evening. I anticipate that I will be able to stay to the end of this debate and still make the plane, but if that turns out not to be right, I hope noble Lords will forgive me and not think that I mean any discourtesy to this Committee or those sitting in it today. I hope everybody will appreciate that is the last thing I would want.

Unlike other speakers, I cannot disavow being a lawyer. For better or worse, I am a lawyer. Therefore, let me make two short points at the outset. First, international law obligations are important. We ought to abide by them, as the noble and learned Lord, Lord Etherton, said. I would expect Parliament not to legislate contrary to a treaty obligation unless there were absolutely compelling reasons to do so and, in those circumstances, to make that very clear. Otherwise, we should always be legislating consistently with our international law obligations.

Secondly, as I made clear from the Front Bench on a number of occasions, I support our membership of the European Convention on Human Rights. I do not always agree with the decisions of the court—I do not always agree with the decisions of our domestic courts either—but that is a separate matter. I support us being in the convention.

I will not refer to all these amendments. I start with Amendments 3 and 148, which go together. Essentially, they refer to the statement that the Secretary of State must set out as to whether the Bill is compatible with the convention rights. Section 19(1)(a) and Section 19(1)(b) were put into the Human Rights Act as a political point. The noble and learned Lord, Lord Irvine of Lairg, made this absolutely clear when the Bill was going through this House. It was to keep people’s minds focused on whether the Government could say at that time that the Bill was compliant. It was never intended to be a legal bar. There is precedent in this House. The Communications Bill is a precedent for the Government being unable to state that the Bill was compatible with convention rights. When they were challenged, the challenges failed.

One cannot draw a line between being unable to make a Section 19(1)(a) statement and the Bill being in breach of convention rights. Section 19(1)(b) is very carefully drafted, and I listened carefully to the noble Lord, Lord Carlile of Berriew, who asked what it means. That statement is in the form that it is in the Bill because those are the words in Section 19(1)(b). That is what Parliament told the Minister to say. The structure is that if the Minister cannot make a Section 19(1)(a) statement, he or she makes a Section 19(1)(b) statement. Rather oddly, all that Section 19(1)(b) says is, “I can’t make Section 19(1)(a)”. Is that sensible? With respect, I do not think it is. If it were up to me, I would take out Section 19(1)(a) and Section 19(1)(b), which add more distraction than assistance. They were put in for political rather than legal reasons, and that is why the Section 19(1)(b) statement is in the form that it is in.

[Lord Hope of Craighead (CB)]

I recall saying once in the Appellate Committee that the courts were not bound by the statement—it has no legal effect.

[Lord Wolfson of Tredegar (Con)]

The noble and learned Lord is absolutely right; it has no legal effect. Can I put this another way? The Minister can make a Section 19(1)(b) statement and the court can find that the Act is compatible. The Minister can make Section 19(1)(a) statement and the court can find that it is not.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

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

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who have taken part in this very interesting and far-ranging debate. I am conscious of the time, and I am sure the Committee would not wish me to go over the ground in any detail, and I am not going to do that.

The Minister, with great respect, has not really answered many of the questions that have been raised. We will come back to this, I am sure, possibly in the next group, but certainly these questions will come back on Report and will need to be answered in much more detail. So far as my own amendments are concerned—the definition point—the Minister has pointed out that nothing hangs on these words because they do not reappear elsewhere in the Bill. I was well aware of that when I tabled the amendment, but that raises the question: why brand the actions of these people coming here as unlawful or illegal, unless, of course, they are in breach of specific legislation, which is not always the case? That illustrates the unfortunate wording of Clause 1, which we will come back to.

As far as Amendment 3 is concerned, which deals with the question of guidance, I do not think, with great respect, that the ECHR memoranda amount to the kind of guidance that is needed in a situation where access to the courts is being denied. Something more specific is needed, and that is what the amendment is driving at. Perhaps we will come back to that at some later stage. For the time being, I think the simplest thing I should do, so that we can move on, is beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.

Public Order Bill

Lord Hope of Craighead Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, the Minister said that the noble and learned Lord, Lord Hope, proposed his amendment for “more than minor” and that was why the Government reintroduced it in the Commons and were supporting it again. Of course, that was lost when it was debated in your Lordships’ House and the Government have inserted “more than minor”—admittedly, with some flowers and curtains around it. I keep saying to noble Lords that it goes to the heart of the debate as to the threshold we wish to set where we start to undermine the right to protest. I still contend that the Government’s “more than minor” threshold is too low. Hence my Motion A1 would insert in subsection (1)(a) “significant” instead of “more than a minor”; in subsection (1)(b), it would leave out

“delay that is more than minor”

and insert “significant delay”, and in subsection (1)(d), it would leave out

“disruption that is more than minor”

and insert “significant disruption”. The point of that is, of course, to raise the threshold.

First, because I think it is important for noble Lords to understand, I want an assurance from the Minister that whatever we decide will be respected by the Government. To refer back to the Police, Crime, Sentencing and Courts Act 2022, Sections 73 and 74 define public nuisance and impose conditions on public processions, public assemblies and various sorts of activities, including defining what activity may result in serious disruption. Tucked away in those sections is the power for the Government to change any of that by regulation. I want a categorical assurance from the Minister that, were the Government to lose the amendments before us today, and they may win, and the Bill went back to the other place, or if the amendments that could not be reinserted in the Commons because they had been introduced in the Public Order Bill only in the Lords—namely, what we called the “slow walking” clause and the “reasonable excuse” amendments—were lost, the Government will not seek to overturn the expressed will of this Chamber and, I hope, eventually the will of the other place by using Sections 73 and 74 of that Act, which they could do. I would appreciate that.

The debate today centres on thresholds. At what level should we restrict the right to protest, above the laws that we already have? We already have a number of laws that restrict the right to protest and allow us to deal with protests as they occur. Indeed, many chief constables, including the chief constable of Manchester, have asked why we do not use the existing legislation. Notwithstanding that, the Government have panicked and come forward with the Bill to try to deal with what they perceive as a problem.

To make this real, I spent Sunday afternoon looking at various protests that have taken place around the country that, I contend, with a “more than minor” threshold would under the Bill be something that the police could arrest people for and stop. I ask everybody in this Chamber whether that is what people want, because I contend that it is what the “more than minor” threshold will mean, rather than the “significant” threshold that I am seeking to replace it with.

Let me quickly go through some of these protests that made the headlines, which would be illegal under the Bill. The first is “Protest in Oxford blocks major road in both directions”. I suggest that, before a court, that may not be significant but is more than minor. Next we have a “No HS2” protest. Some people may have more sympathy with that, but lots of protests have taken place with respect to that. “No nuclear power station” protests have taken place in Suffolk. Are they covered by the Bill? They come under “more than minor”, and I contest that offences would be committed under the Bill. East Sussex residents protested outside the housing department at the treatment of a road and blocked access. That is an offence under the Bill, and certainly above the “more than minor” threshold. Next is “Furious parents block road to protest poor enforcement of school street in north London”. I contend that that is an offence under the Bill. In the case of “Wellingborough: Protesters halt tree-felling plans”, they blocked the diggers and the cutters, which is not allowed under the Bill and is certainly more than minor. Two more are angry mothers blocking drivers over school drop-offs and unhappy Trowbridge residents turning out to block tree cutting. Under the Bill, some of these protests would be illegal and the police could potentially have the capacity to arrest.

We also saw the massive protests that took place last July when summer holidays were affected. Thousands of lorry drivers across the country blocked the M4, the M5, the M32 and the A38 in protest at the cost of fuel. My contention is that under the Bill that is more than minor and those protesting against the cost of fuel would be liable to arrest more than they are now. If you are blocking five or six motorways, that is certainly more than minor. What else did I find? Farmers blocked roads in protests; tractors were used in response to falling milk prices. That would not be allowed under the Bill. Blocking a major road is certainly more than minor. There is example after example showing that the Bill puts at risk the rights of people to protest. It puts at risk one of the democratic traditions of our country.

I do not hold with the idea that the Minister seeks to ban protests. That is ridiculous: I have never said that. What I have said is that the Bill unnecessarily restricts the right to protest and unnecessarily causes uncertainty about what is allowed or not. Lowering the threshold would mean that activity that is currently allowable in some of the examples I have given would not be. That is because of the phrase “more than minor”.

I am sure that many noble Lords will wish to comment on that, but all I ask is for noble Lords to reflect that if a tractor turns up, a mother turns up or a group links arms, before anything has happened it could be illegal under the Bill—this is the point made by the noble and learned Baroness, Lady Butler-Sloss. It does not even have to have caused disruption; it simply has to be capable of causing disruption. You can turn up with five tractors and park in a car park, and if the police think you are going to do something, even if you have not done anything, they could stop it because it is capable of causing disruption.

The Government will say, “Of course, this is ridiculous —an overreaction. Stupid nonsense. Why on earth is that going to happen? Our police will not act in that way. Ridiculous. People will be shaking their heads in disbelief that anybody could posit that anything like this would happen in our country.” All I say is: why would you pass legislation that creates the potential and the risk for it to happen?

It is not the way to legislate. Existing laws are appropriate and satisfactory and could be used. They are not being used as effectively as they could be. The Government’s answer to Just Stop Oil, Extinction Rebellion and all that is to seek to pass a totally disproportionate piece of legislation. Through my Motion I am trying to mitigate the impact and effects of that. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, since the noble Lord was kind enough to mention my name, I should perhaps briefly explain the thinking behind the form of words the Government have introduced to this debate.

Before I do, I remind your Lordships of what the noble Lord, Lord Coaker, said at Third Reading—words that are worth listening to again. He said that

“the debates here and the changes made reflect a genuine attempt to address where the line should be drawn between the right to protest and the right of others to go about their daily lives.”—[Official Report, 21/2/23; cols. 1560-61.]

Those are valuable words and were worth saying again because they encapsulate exactly the dispute between us, which has been conducted with a great level of courtesy, certainly on the other side of the House and, I hope, on my side too, in trying to find a solution to the problem.

The words I chose were designed specifically to deal with the two groups of offences in the Bill, locking on and tunnelling. Those offences differ from the other kinds of protest activities. The noble Lord, Lord Coaker, has reminded us of a lot of examples of these. The whole purpose of those conducting these activities is to disrupt. That is their method of making their views known. That is quite different from people who assemble with flags, shouting, singing and so on, or who walk in a procession as their method of making their views known. If you make your views known by disrupting, the position is that you cross a line.

That line was identified by the Court of Appeal in the Colston case. It used the words “minor or trivial”. If that kind of activity goes beyond what is minor or trivial, you lose the protection of proportionality available under the European Convention on Human Rights—you have moved to something different—because the activity you are conducting is deliberate and the consequences of what you have done in the exercise of that deliberate decision are properly described as more than minor.

I was looking for a definition of the threshold because I took the view, rightly or wrongly, that when you are dealing with those categories of offences, there is a point—at a fairly early stage, as the Court of Appeal is indicating—where it should be available to the police to stop the activity. Tunnelling, for example, is designed to inflict economic harm on the body that is conducting the railway. We are talking about HS2, which has parliamentary backing. To inflict economic harm should not be allowed to continue for any longer than a minor interference.

Locking on is the same thing. Once it reaches a stage of going beyond minor, the sooner the police are free to take the necessary action, the better. It is their judgment, but the point of my amendment was to identify a threshold. The problem with “significant”, which is a perfectly respectable word for describing a state of affairs, is that it does not define a threshold. It defines a state of affairs. The police need a threshold to be clearly identified, which my words were designed to do.

The problem, and it is part of our debate with each other, is that in legislation we cannot use algorithms or numbers. We are driven to use adjectives, which are quite malleable creatures. They have a shade of meaning, and some people have different views as to what words such as “significant” mean. I would say that once you move beyond “minor” you have reached something that is significant.

That is the point: it is a state of affairs that you have reached, whereas my wording is to identify exactly the stage at which the threshold is crossed. As I said last time, “more” is absolutely crucial. I can well understand that “minor” excites fear and alarms but, with great respect, I do not think that is really justified. “Minor” has to be given full weight. In my submission, it achieves the object that I was trying to achieve and which I think that the Government have now accepted. It is the difference between a state of affairs and a threshold. In the end, that is the crucial point.

Public Order Bill

Lord Hope of Craighead 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.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I support Amendments 46 and 47. I say a very loud, “Hear, hear” to the impassioned intervention of the noble Baroness, Lady Meacher, which was spot on. I want to answer the question of the noble Lord, Lord Deben—on behalf of the Government, noble Lords will all be surprised to know. I thought I would quote what the Home Office Minister said the last time we dealt with this. The noble Baroness, Lady Williams, explained why these new powers were necessary:

“it is not always possible for the police to form suspicions that certain individuals have particular items with them.”—[Official Report, 24/11/22; col. 978.]

That is true, but if that is the basis on which we are legislating—that it is not always possible to know if someone has suspicious items on them—then even though you do not know what the suspicions are, it will be all right to stop and search them. This seems to me to bring arbitrariness into the law in a way that can only be dangerous and will not make any logical sense to anybody outside this House.

Think of the consequences of some of this. The Government keep telling us that this is not about stopping the right to protest, and I will take them at face value on that. But let us consider someone who is not doing anything suspicious or carrying anything suspicious, but who is going on a demonstration. The police have the right to stop them, which means that what is suspicious is that they are going on a demonstration: it implies that. Going on a demonstration is pre-emptively seen as something dodgy, and I therefore become sceptical when the Government assure me that this will not have a chilling effect on people going on demonstrations.

I draw attention to a clause that has not been mentioned in these amendments but is related: Clause 14, which we will not need if we vote down Clauses 10 and 11. It contains a new offence of obstructing a police officer in a police-related suspicionless stop and search—for which, by the way, you can go to prison for 51 weeks or get a substantial fine. This clause indicates why Clause 10 and even Clause 11 are so dangerous: they will destroy any feasible community relations with the police.

The noble Baroness, Lady Chakrabarti, referred to the fact that many women might well be nervous if they are approached for a suspicionless stop and search. In all the briefings we have received, people have drawn attention to what happened, tragically, to Sarah Everard. If the police say they have no suspicions but they are stopping and searching you, you might say, as a woman, “Excuse me, I am not having that; I don’t want that to happen.” In fact, a lot of advice was given to young women that they should not just take it on face value if a police officer approaches them and says he wants to interfere with them in some way. But I want to use a more everyday example.

During lockdown, two care workers I know were walking home from work and sat down on a bench in a park to have a coffee. They worked together in a bubble, giving intimate care to people in the care home they worked in throughout the pandemic. They were approached by a number of police officers, who asked them if they lived in the same home. When they said no, the police officers said they were breaking their bubble—if noble Lords can remember those mad days, that is what it was like. They said, rather jokingly, “We’re taking people to the toilet and working intimately with them day in, day out.” The police officers became quite aggressive, threatening to arrest them and all sorts of things. We know those stories from lockdown. The reason I share this story is that the woman who told it to me had never been in trouble with the police before. She had never been approached by the police in that way; she is a law-abiding citizen who would, generally speaking, support the kind of law and order measures being brought in by this Government. However, because this police officer treated her as though she was behaving suspiciously for having her coffee on a bench, having done a long 12-hour shift in a care home, she said that she will never trust the police again. She argued back and they threatened to arrest her.

I fear that, if we give arbitrary powers to the police to use suspicionless stop and search, this Government might unintentionally and inadvertently build a new movement of people who do not trust the police and are not suspicionless but suspicious, with good reason in this instance, that the police are stopping them arbitrarily and that we are no longer a free society. We should all vote against Clauses 10 and 11 and, through that, destroy Clause 14 as well.

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[Baroness Boycott (CB)]

I shall be brief, because I know that time is of the essence. I begin by reading a very short extract from a news report for 28 November 2022—a couple of months ago:

“The BBC said Chinese police had assaulted one of its journalists covering a protest in the commercial hub of Shanghai and detained him for several hours, drawing criticism from Britain’s government, which described his detention as ‘shocking’ … ‘The BBC is extremely concerned about the treatment of our journalist Ed Lawrence, who was arrested and handcuffed while covering the protests in Shanghai,’ the British public service broadcaster said in a statement late on Sunday.”


I shall substitute a few words here to make the point. I substitute “Charlotte Lynch” for “Ed Lawrence”, “the M25 in Hertfordshire” for “Shanghai”, and LBC for the BBC—and another world. Charlotte, like Ed Lawrence was handcuffed for doing her job. She was held in a cell with a bucket for a toilet for five hours; she was fingerprinted and her DNA was taken, and she was not allowed to speak to anyone. Her arrest took place just two weeks before Ed Lawrence’s. Is this the kind of world we want to live in?

As many noble Lords know, I have been a journalist and a newspaper editor. I have sent people to cover wars and protests, and I believe fundamentally in the right of anyone in the world, especially in our country, to protest about things they believe in. You protest only when you cannot get anywhere with anything else, when letters to MPs, to the local council and the newspaper have been explored and you take to the streets. But just as this is a fundamental right, so is it more than just a fundamental right—it is a duty— of journalists to report on demonstrations, because demonstrations are where we see where society is fracturing and where people really care. I cannot believe, as a former newspaper editor, that I would now have to think that it might be more dangerous to send a journalist to Trafalgar Square than to Tahrir Square. I urge noble Lords to vote for this amendment.

[Lord Hope of Craighead (CB)]

My Lords, it is hard to overemphasise the importance of this amendment. It is firmly rooted in Article 10 of the European Convention on Human Rights, which provides that:

“Everyone has the right to freedom of expression. This right shall include freedom to … receive … information and ideas without interference by public authority”.


The word “everyone” which begins that article is extremely important because it applies the rights to everybody, whoever they may be. It may be suggested that the point being made by the amendment is so obvious that it is unnecessary, but I simply do not believe that. In the highly charged atmosphere of the kind of public protest we are contemplating in these proceedings, it is too big a risk to leave this without having it stated in the Bill and made part of our law. It should not be necessary, but I believe it is necessary, and it is firmly rooted, as I say, in Article 10 and those very important words. I support this amendment.

[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.

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[Viscount Hailsham (Con)]

Yes, but I do not think the noble Baroness has focused on the point that a lot of demonstrators would represent themselves as journalists to avoid the prescriptive provisions of the Bill. That is what the noble Lord, Lord Hogan-Howe, was talking about, and he is wholly right.

[Lord Hope of Craighead (CB)]

I thank the noble Viscount for giving way. The word “journalist” is not in the amendment—just “a person”, who is defined as “observing or otherwise reporting”. That is what it says, and it is very clear.

[Viscount Hailsham (Con)]

I appreciate that. I did not realise that the noble and learned Lord was intervening—I apologise for not sitting down at once. The point is surely that we are dealing with the need to protect journalists. The risk is that any demonstrator involved will say that they are a journalist or otherwise fall within the protection of this proposed new clause. That is what worries me.

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[Lord Hope of Craighead (CB)]

My Lords, as the noble Lord, Lord Anderson, said, I support all but one of his amendments. The one I do not support is very minor and, out of an abundance of caution, I decided not to put my name to it. A particular point I wish to draw attention to arises from his Amendments 56 and 60, which deal with the trigger events for the pronouncement of these orders. The noble Lord seeks to take out the third, fourth and fifth trigger events. He is absolutely right to want to do so because of the breadth of the expression, and of a particular point that I will come to.

The third trigger event concerns carrying out

“activities related to a protest that resulted in, or were likely to result in, serious disruption”.

That phrase describes a protest, but the word “activities” is so wide that it raises real questions about the certainty of this provision. The same point arises in respect to the fifth trigger event.

The fourth trigger event contains quite an extraordinary proposition, which is that the person

“caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction”.

An offence is defined in statute. Everyone is presumed to know the law, so it is fair enough to mention the “offence” in that particular trigger event, but injunctions are directed to individuals; they are not publicised in the same way as offences. A person might have absolutely no idea that the other person in question was in breach of an injunction, of which he had no notice whatever. That is absolutely objectionable. On any view, the fourth trigger event should be deleted from both these clauses, but for broader reasons and those given by the noble Lord, Lord Anderson, which I need not elaborate on, I support his amendments.

[Viscount Hailsham (Con)]

My Lords, I will make three brief comments about these amendments. First, regarding the trigger points, I entirely agree with Amendments 56 and 60 from the noble Lord, Lord Anderson, which the noble and learned Lord spoke to. The reference to an injunction is particularly worrying because, for the reason the noble and learned Lord mentioned, members of the public would not be aware of it. In any event, what are or could be contemplated in the third, fourth and fifth trigger events are acts that are very remote from the mischief the Bill contemplates. Therefore, I very much hope that the amendments are put to the House, and I shall support them if they are.

Secondly, your Lordships need to keep in mind that the test of necessity, which is dealt with in Clause 20(1)(d), is quite a high bar. I deal with it in interim orders made by the regulatory panels, which are fully aware that “necessity” is different from “desirability” and requires quite a high threshold.

My last point is a query to the Minister, if he would be so kind. It is a very long time since I dealt with complaints before magistrates’ courts, so I apologise for not really being familiar with the procedure. In any view, these SDPOs are very serious. Does the complaint, which presumably has to be made both by the court and to the person named, specify the concerns felt by the senior police officer? Does it specify the relief being sought in the order itself? I assume that these are inter partes hearings, not ex parte. Does the person against whom the order is sought have the opportunity to make representations, give evidence, be represented and object to the relief being sought? This is ignorance on my part, but I fancy that quite a lot of your Lordships would like to know the procedure being invoked.

Public Order Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

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

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

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

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

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

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

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

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

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

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

[Lord Hope of Craighead (CB)]

I would like to speak next because my amendments have been mentioned and it is probably best that I explain what they are. I stress that the amendments under discussion are not my amendments: they are Amendments 5, 14 and 24 in this group, which substantially repeat amendments I tabled in Committee. There is a certain amount of revision of the words but essentially, I am making the same point as I did in Committee. They seek to give effect to a recommendation by the Constitution Committee, of which I am a member. I am grateful to the noble Lord, Lord Faulks, who, as I speak, is still a member of that committee, for adding his name to the amendments.

The committee noted that the three clauses concerning locking on, tunnelling and being present in a tunnel—the offences that are the target of my amendments—use the term “serious disruption” to describe the nature of the conduct that the Bill seeks to criminalise. The committee noted that this could result in severe penalties, such as providing the basis for a serious disruption prevention order, and took the view that a definition should be provided. On that issue, I think there is a wide measure of agreement across the House—perhaps with the exception of the noble Lord, Lord Paddick—that a definition is needed because of the nature of these offences and the consequences that follow from them.

[Lord Paddick (LD)]

I would like to clarify that I wholeheartedly support Amendment 1, which is a definition of “serious disruption”.

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[Lord Hope of Craighead (CB)]

So there is agreement that a definition is needed because of the nature of the crime and the consequences that follow from it. The committee noted that a definition was given in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Baroness, Lady Chakrabarti, has referred. Those sections deal with the imposition of conditions on public processions and public assemblies. The amendment in the name of the noble Lord, Lord Coaker, seeks to adopt the same definition for the purposes of the Bill.

[Baroness Chakrabarti (Lab)]

I am sorry to be a hindrance to the noble and learned Lord, although I hope no more than a minor hindrance. The concept of “prolonged disruption” is a tiny part of the definition, but my noble friend Lord Coaker’s Amendment 1 does not replicate the definition in Section 73 of the 1986 Act. The new overarching principle that we would introduce with Amendment 1 is

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

and that is not in the 1986 Act. It is not the provision that is limited in that Act to processions or indeed assemblies.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Baroness and accept her correction. Of course the catalogue that follows is very much the catalogue that we see in the 2022 Act, and it was that which took our attention in the committee. Our view was that the definition is not suitable for use in the Bill because of locking on and, especially, tunnelling. The committee said that the definition should be tailored to the very different defences with which we are concerned in the Bill, and recommended that the meaning of the phrase should be clarified in a proportionate way—for a reason that I will come back to, because the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that point—in relation to each offence. That is what my amendments seek to do. I suggest that they are more in keeping with what the Constitution Committee was contemplating than the amendment by the noble Lord, Lord Coaker.

I have tried to provide definitions that are tailored to each of those three offences and are short, simple, proportionate and easy to understand. After all, this is a situation where guidance is needed for use by all those to whom the offences are addressed. That audience includes members of the public who wish to exercise their freedom to protest; the police, who have to deal with these activities; and the magistrates, before whom most of any prosecutions under these clauses will be tried.

At the end of my speech in Committee, my aim was to invite the Minister and his Bill team to recognise the importance of the issue and, if my amendments were not acceptable, to come up with a more suitable but just as effective form of words. As noble Lords can imagine, as we so often issue invitations of that kind and those words were uttered more in hope than expectation, it was rather to my surprise that on this occasion my hope was realised when the Bill team began to take an interest in what I was seeking to do. I am grateful to them and to the Ministers in the other place and in this House for the discussions that then followed, which helped me to improve and finalise my wording. I cannot claim that I have found an absolutely perfect solution, but I think what I have done is achieve the best that can be done. Certainly, it is very much better than the alternative that is before your Lordships.

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[Lord Hope of Craighead (CB)]

These are the words we are dealing with. “Significant” is the word in the Amendment 1 and it is defining “serious disruption”, but we are trying to find words that define what we mean by “serious disruption” in the case of these three offences, which is my point. I come back to the point that the important word is “more”, because I am trying to establish the threshold at which it is right that the police should intervene. The problem with “significant”, of course, is that can mean different things to different people in different contexts.

[Baroness Chakrabarti (Lab)]

I think the difference between us is that the noble and learned Lord is suggesting that there is a binary: there is “minor” and there is “significant”, and therefore anything “more than minor” must be “significant” or—forget “significant”—“serious”. To understand the intention behind our amendment, one needs to think about “significant harm”—“harm” as in damage. Harm and damage, and significant harm and damage, are well understood in the law, as he knows. As for his concerns about the long list, it is a replication of provisions previously in the 1986 Act for assemblies and processions. To reiterate, it is a non-exhaustive list of examples. The crucial part of our definition is “significant harm”. I think an ordinary person on the street would understand “significant harm” as more serious a minor hindrance or one iota more than a minor hindrance.

[Lord Hope of Craighead (CB)]

I was looking to identify the threshold at which one reaches the point where, on my approach, one moves beyond a minor disturbance to something that becomes significant. That is why I use “more” for the point at which, I suggest, given these particular offences, it is right that the police should then intervene. I asked the question: once one reaches that point, in the case of the tunnelling, why should that go on and on? People are arguing about whether we have reached the stage where the harm is caused is significant without the further guidance of being directed to the point at which it becomes significant.

The problem with the words that the noble Baroness is addressing to me is that they can mean a range of things within the compass of the word “significant”. I am trying to direct attention to the particular offences and consequences that follow from the activities being carried on. That is why I suggest that “more” is the most important and significant part of my formula.

As for locking on, the other of the three offences, I do not have a long catalogue of things that may be affected. There is always a risk that something might be missed out, so I have tried to capture what is put at risk by the omnibus words “their daily activities”. But here again, the threshold that I am seeking to identify is to be found in the words

“more than a minor degree”,

for the reasons that I have explained. Again, the question is: why should the police wait any longer once that threshold is reached?

I come back to the point about proportionality that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned, and the reasonable excuse point. Proportionality is very important and the threshold has to be put into the right place, because we need to consider at what point the interference with the convention rights of freedom of expression and freedom of assembly and association becomes disproportionate.

In its judgment in the recent Northern Ireland abortion services case, delivered last December, the Supreme Court said in paragraph 34:

“It is possible for a general legislative measure in itself to ensure that its application in individual circumstances will meet the requirements of proportionality … without any need for the evaluation of the circumstances in the individual case”.


In other words, there is then no issue for a jury to consider or a magistrate to address his or her mind to; it will have been sufficiently addressed if the issue identified in the legislation is in the right place.

As to whether that is so, some guidance can be found in a decision of the Grand Chamber of the Strasbourg court in a Lithuanian case called Kudrevičius in 2015. That case was about a demonstration by farmers, of which a number have happened in recent years. They had gathered in a number of groups to block the traffic on a number of public highways. The court said that in that case the disruption of traffic that resulted could not

“be described as a side-effect of a meeting … in a public place, but rather as the result of intentional action by the farmers”—

in other words, they were intending to disrupt the highway—and that

“physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities”

of others, the court said,

“is not at the core of”

the right to freedom of assembly. That in itself, however, was not enough to remove their participation entirely from the scope of the protection.

That is the background for what the court then decided. It said that “Contracting States”, which included ourselves,

“enjoy a wide margin of appreciation in their … taking measures to restrict such conduct”

and that the farmers’ intention—a serious disruption of the highways to a more significant extent

“than that caused by the normal exercise of the right of peaceful assembly in a public place”—

was enough to enable the Court to conclude that the criminal sanction which was imposed there was not disproportionate. That is an example of a case which went across the border from being a side-effect of what was happening to something that was a deliberate obstruction of traffic, which is what locking on is all about, and a deliberate interruption of, let us say, the HS2 development, which is what the tunnelling is all about.

My approach also has the support of a decision by the Divisional Court in March last year in a case called Cuciurean. That case was about tunnelling. It affected only a small part of the HS2 project, it lasted for only two and a half days and the cost of removal was less than £200,000. However, the prosecution for aggravated trespass was upheld as not amounting to a disproportionate interference with the protester’s rights. I am sorry to weary your Lordships with those references, but, having looked at those and other case law, I believe that the position I have adopted in these amendments strikes the correct balance for the proportionate treatment of the rights we are talking about.

Of course, I hope that the noble Lord, Lord Coaker, will not press his amendment—although I have no doubt he will feel he should—because I believe it is not fit for purpose. It is not right to introduce a general definition of that kind, which is perhaps all right for one of three offences but is completely out of place for the other two. It is not good legislation. We try in this House to improve legislation. With the greatest respect to the noble Lord, I do not think his amendment improves it. On the contrary, I suggest that my amendments do improve it and, when the time comes, if I have the opportunity to do so, I will seek to test the opinion of the House.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I admire the noble and learned Lord, Lord Hope, for trying to convince us. I support and have signed Amendment 1. I cannot argue the law—I cannot argue how many angels dance on the head of a pin—but I can question the politics. My concern about the politics of the whole Bill is that the Government are seeking to be “regressive” and “repressive”—these words have been used. This is nasty legislation.

You have to ask: is it appropriate for a few dozen protesters? Is this heavy-handed legislation appropriate for that number of people who occasionally disrupt our lives? I would argue that it is not. It is almost as if this legislation is perhaps designed instead to prevent millions of people protesting, because the Government know they have lost the confidence of the public in Britain. In a recent poll, two-thirds of people thought that the Government were corrupt. That suggests that any legislation this Government try to bring in is possibly not very well designed for the majority of people in Britain. They are giving very heavy powers to the police when we have already seen that the public do not trust the police, and they are giving more powers to Ministers—and we do not trust Ministers.

It is very heavy legislation. I am worried that the Government are actually bringing legislation for when there are general strikes and hundreds of thousands of people on the streets protesting about the collapsing and soon-to-be privatised health system or the fact that everybody’s pay is getting squeezed apart from the pay of the bankers and the wealthy. I worry that they are bringing in these laws for far more people that just the protesters. Quite honestly, who would not agree with Insulate Britain? It is the smartest thing we can possibly do if we are worried about our energy crisis. So it seems that the Government are not really focused on the protests we have had so far; they are focusing on protests we might have in the future.

We are going to vote very soon on whether to declare a protest illegal if it disrupts somebody. The whole point of protest is that it disrupts life to some point, so that you notice and start debating it and it gets reported in the newspapers. It is incredibly important, in a sense, that protest is disruptive. I heard the noble and learned Lord, Lord Hope, say that Amendment 1 was not suitable, but I have taken advice from lawyers and I think it is entirely suitable, so I will be voting for it. My big concern in this House is that we have a Government who are simply out of control. They talk about protesters being out of control, but it is the Government who are out of control.

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[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.

National Security Bill

Lord Hope of Craighead Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

So this amendment is modest. If we cannot establish the same basic standards for the legal sector as we have for every other sector, we are not being serious about tackling malign foreign states and the use of our valued legal system. At the end of the day, of course, what I would much prefer to see, as so many noble Lords have asked for today, is the withdrawal of this scheme, and its reconsideration.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I could just add a footnote to what the noble Lord, Lord Clement-Jones, said—not along the lines that this paragraph of the schedule should be withdrawn but to draw attention to what I think is a defect in it, which illustrates the point that some of the details of this scheme have not been thoroughly thought through.

The point I want to make arises under paragraph (5)(4)(d), which exempts, as part of an example of “legal activity”,

“acting as an arbitrator or mediator.”

The exemption applies only if the person acting as an arbitrator or a mediator is a lawyer within the definition provided in paragraph (5)(3). Many people who act as arbitrators in technical cases are engineers or architects—people who are not qualified as lawyers but provide a valuable service in the whole scheme of arbitration on technical issues. It is quite common to find a panel of three arbitrators where one is them, perhaps, is a lawyer and the others are people with particular skills. I do not understand why, if there is going to be an exemption in relation to acting as an arbitrator or mediator, it should not cover anybody acting as an arbitrator or mediator, whatever his or her qualification might be.

Perhaps the Minister could explain at some point why it is only in the case of lawyers that arbitrators or mediators are to be exempted from the requirement to register. It would be interesting to know the reason because, otherwise, we will inhibit commercial activities and that would seem to be undesirable. I throw this out just as an example of what was referred to by some commentators as a rather slapdash approach to drafting. This issue needs to be looked at so that we can understand exactly what the purpose of this exemption is.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as we are in Committee, I think one can intervene a second time. I just want to ask the Minister about one of the questions I put about political parties; I think it also arises now, from what the noble Lord, Lord Carlile, said. It concerns the confidentiality of all these masses of reports. What privacy protections will be there if this measure goes ahead?

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[Lord Sharpe of Epsom (Con)]

In that case, I am very sorry to disappoint the noble Lord. I apologise for having spoken at such length.

[Lord Hope of Craighead (CB)]

I am not sure whether the Minister has picked up my point about arbitration. I am very sorry that I did not put down an amendment to direct attention to this, but it is quite an important point because London is a preferred seat for arbitration and many cases involving foreign powers and foreign-controlled activities. I have done a handful of arbitrations, but each one of them is within that category.

One of the features of an arbitration is the confidentiality of the process and the fact that the process exists at all. There are some cases where parties do not want it to be publicised that they are engaging in this process, because it would raise all sorts of questions, particularly at the home state of the foreign activity, the foreign-controlled entity or the foreign power itself. It is rather important to be sure that the ground is properly covered.

As an arbitrator myself, and a lawyer-arbitrator, I favour the exemption provided by paragraph 5, but I do not think it goes wide enough. That is my point: it would seem very strange if I, as a lawyer for a team of three arbitrators, did not have to register, but if the noble Lord, Lord Patel, was with me as an expert in his field, he would have to do so, and an engineer or an architect would have to do so as well. That really destroys the exemption. It is a serious point to look at, though I quite agree that it is a point of detail. I apologise for not having drawn attention to it specifically before.

[Lord Sharpe of Epsom (Con)]

I was about to attempt to address the question from the noble and learned Lord, Lord Hope, but unfortunately he is not going to like the answer, which is that I do not know. I will have to look into this and come back to him.

I appreciate the concerns that have been expressed by all noble Lords, and I thank all those who participated in what was clearly a very healthy and important debate. We will reflect carefully on the comments raised prior to Report. For the moment, and to that end, I ask noble Lords not to press their amendments.

National Security Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Judge (CB)]

My Lords, I apologise for not being present at Second Reading; I was doing other business in the House. I feel particularly humbled, because if my noble friend Lord Carlile thinks that he was the junior to my noble friend Lord Anderson and therefore was short, I have reverted to something I have not been since 1964: a pupil. Pupils are allowed to take notes, but they are not allowed to say anything, and, if they do say anything, that marks the end of their pupillage—they are not wanted any longer. I hope noble Lords will forgive this pupil if I say just a few words in support of my noble friends.

Just look at Clause 28 and what it means. It means that we are creating an immunity from prosecution before any facts are known, before any inquiry has been made and before a crime has been committed. We are, in effect, rubber-stamping the possibility that a crime may be committed with no further investigation in public. We all understand that there must be cases of immunity: sometimes because the facts require it and sometimes because, to get at the facts, people are offered immunity if they tell the truth so that the worst features of a case can be grasped. We also recognise authorisations; that is an ordinary, elementary part of the system.

However, what if we say to a special individual or a special group of individuals, “Ah, you will not be prosecuted, whatever you do in any circumstances, because you are immune”? I hate to keep using this phrase in this Chamber, as I do from time to time, because your Lordships all understand it, but what is left of the rule of law if some of our citizens are entitled to break it with immunity and commit crimes with immunity? There is a perfectly good defence in the current Act, as the law stands, and there may be better defences. Indeed, I agree with and support the amendment proposed by the noble Lords, Lord Anderson and Lord Carlile. But what does Section 50 provide? It provides that an individual may, in circumstances that would otherwise be an offence, put forward that it was reasonable. That is a very good start. He may want the reasonableness of his behaviour—he will always want the reasonableness of his behaviour, if he really wants to prove that it is reasonable—to require an examination of all the facts. What happened? What was the situation? But that would be a defence, not an immunity, and there is a huge difference.

We all recognise, for example, that if someone is charged with an offence of violence, murder or serious bodily harm, of course he or she may say that they were acting in reasonable self-defence. They may ask for the circumstances to be looked at as they were. “Do not demand perfection”—as we do not—“in the face of an upturned knife or a gun, or a mob coming at me. Make sure that it is reasonable.” If the prosecution fails to demonstrate that it was not reasonable self-defence, there has never been a crime at all. It is decriminalised, but that is not immunity.

When I looked at this, I asked myself whether the House of Commons Library statement on it was correct. It says:

“The provision therefore appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”


I agree with that analysis, and I would like the Minister to refute it if he can. But that is rather shocking, is it not? You can argue that maybe the burden of proof in Section 50 should be amended so that the burden is not on the defendant to prove that he acted reasonably, and it is for the prosecution to prove that he acted unreasonably. You might do that—and you might, as I said earlier, create different defences. You might create specific defences for different parts of those covered by Clause 28, such as the Armed Forces and, if I can call it so compendiously, the Secret Service.

Can the Minister then ask himself what the difference is between acting reasonably in Section 50 as it stands and acting in the proper exercise of the particular function, as is proposed here? Are we really going to legislate that an unreasonable exercise of function must always be treated by previous decision as a proper one, for which there can be no consequences? If so, there is no difference. What are we doing? Is it consistent with the rule of law to grant anyone, or any group of people, immunity from prosecution for serious crime before any facts have been examined? While we are about the rule of law, where does that leave the unfortunate victim of the crime? It leaves them with nothing.

If it is felt that we need to amend any part of the law, as is proposed here, we need to amend Section 50 as I have suggested and we need to use the amendment that the noble Lord, Lord Anderson, proposed. We must create a specific defence that recognises that there are particular circumstances where criminal liability will not follow. We must create a reasonable self-defence issue for those who carry out these duties for us.

[Lord Hope of Craighead (CB)]

My Lords, I think we need to remind ourselves that the United Kingdom is a party to the torture convention. The amendment in the name of the noble Lord, Lord Purvis of Tweed, raised a red flag in my mind because, when I saw the word “torture” and the implication in his amendment that Clause 28 as it stands could extend to granting immunity for acts of torture, that seemed to me plainly contrary to our obligations under the torture convention.

It is worth remembering two things about that convention. The first is that all states parties to it are prohibited from authorising torture in any circumstance. It is also an unusual convention because it creates a universal jurisdiction; in other words, any state party which finds somebody who has committed torture within its jurisdiction, wherever he comes from, can prosecute that individual for the act of torture. The idea of granting immunity from acts of torture, which is what this clause seems to do, is a false idea because you certainly cannot do that with regard to other states parties to the torture convention.

It seems to me that Clause 28 is fraught with danger for that reason. Therefore, I very much support the amendment in the name of the noble Lord, Lord Anderson.

[Lord Pannick (CB)]

My Lords, may I add one footnote to the powerful speeches by my noble friends on these Benches? To confer blanket immunity may well have a counterproductive consequence, which is that the alleged victim may well be able to provoke the procedures of the International Criminal Court to be applied against persons in this jurisdiction. That would be extremely unfortunate.

National Security Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, it is a privilege to follow the noble Lord. I share his views and those laid out so well by the noble Lord, Lord Carlile. I thank the noble Lord, Lord Bethell, for allowing us to pose some fundamental questions, but I share the concerns of others who have spoken about whether this amendment answers them. Who are the enemy, and what is an attack? These are not easy questions to answer. I respect those who have worked in our intelligence services and have grappled with these questions over many years. Framing legislation to neatly define who our enemy is at any given time is not easy, nor is it easy to define what an attack is.

From reading the notices provided by MI5 earlier this year and the speeches made by intelligence services leaders, in many respects, it seems that we are under perpetual attack. It is hard to define in the modern sense those grey areas that the noble Lord, Lord Evans, and I discussed on Monday. What is an attack and what is preparatory to an attack? Perpetual cyberactivity can be either an end in itself or preparatory to a bigger effect. In many respects, we are in a state of war with Russia, with hybrid and economic warfare. Our sanctions are not penalties for actions; they are meant deliberately to overtly change the behaviour of a foreign power. I understand the rationale behind the amendment, but it perhaps does not address that clearly. When the noble Lord, Lord Bethell, responds to the debate, I would be grateful if he could clarify the meaning of “an attack”.

I welcome proposed new subsection (2)(e), which references acts that

“prejudice the security and defence of the United Kingdom”.

This is along the lines of what we were arguing for on Monday—trying to sharpen these areas. So we have persuaded someone on this—if not the Minister.

I think this raises another question, which was also raised on Monday. If a foreign intelligence service carries out activity which is not authorised or approved by our intelligence services, the Minister said that that was prejudicial to the safety and interests of the United Kingdom, but he did not say it was unlawful. This now raises an issue that we have to debate further in Committee. Some of the activity which could be defined as attacks or activity against the security and defence of the United Kingdom is not currently unlawful. We need to tackle that.

I close by agreeing very strongly with the noble Lord, Lord Anderson, that either in further consideration of this Bill or separately, we must look at how we interact with the issue of mercenary groups and groups that we would categorise as terrorist groups but that other countries would categorise as civil society groups or NGOs, which are fully funded and equipped by foreign states and operate in other countries, but are threats to UK nationals and UK interests. I travelled to north Iraq many times during the time when Daesh had overtaken Mosul. I saw many groups that were fully funded by Iran operating, sometimes with our compliance, sometimes with our approval and sometimes with our co-operation. At other times, they were operating absolutely against those interests, as with the interaction between some of the terrorist forces and some of the rapid deployment forces. I have seen first-hand in Sudan and elsewhere the Wagner Group, which is fully funded and equipped by Russia. How we cover mercenary and other groups that are not neatly defined within the proscriptions of terrorist legislation is something we also need to tackle. While I do not think this amendment would enable us to tackle this, it has allowed us to raise some of these fundamental questions, so I am grateful.

[Lord Hope of Craighead (CB)]

My Lords, I hesitate to intervene in a debate after speakers who know a great deal more about this subject than I do, but I wonder why “treason” has to go into the heading of this proposed new clause. It does not add anything to the meaning of the words that are there already:

“aiding a hostile foreign power”.

The problem is, if you use the word treason you raise the temperature of the debate, for the reasons mentioned already.

If there is a gap to be filled, as the noble Lord, Lord Anderson, has suggested, I invite the Minister and the noble Lord, Lord Bethell, to drop the word treason. It is unnecessary, as there is enough description in the headnote as it is. For all sorts of reasons, when you use the word treason people think of all sorts of other things. It is unnecessary to get into that debate if you can describe the offence in the remaining words as simply aiding a hostile foreign power. People may say it is treason but you should not label it as such for the purposes of the administration of justice.

--- Later in debate ---

[Lord Bethell (Con)]

My Lords, I am enormously grateful for the thoughtful and detailed debate we have had on this amendment. I will address a few of the points—I cannot address all of them—and I will seek to be brief.

This amendment is not about the past—it is not about Clive Ponting or Lord Haw-Haw and what happened a long time ago—but about the future. The future has states that use as a strategy the suborning of our citizens as an important part of hybrid warfare, at a scale and with a sophistication that we just have not seen for more than a generation—for two generations—and which, given the way in which they do it, we have probably never seen before. That is why this amendment is important: it is to combat a strategic threat from our enemies.

It fills a gap. The suborning of our citizens is not wholly covered by everything in the Bill at the moment, but I take on board the points made by the noble Lords, Lord Carlile and Lord Anderson, and the noble and learned Lord, Lord Hope, and others on this. Duplication is not a sin in drafting laws. I have seen it happen before and I think that there is a gap that could be occupied by an amendment such as this.

A number of noble Lords asked what kind of attack this might cover. It would absolutely cover the contribution to a cyberattack. That is exactly the kind of modern warfare that our enemies are seeking to suborn our citizens to join in on, and therefore we should be thinking very much indeed about all the contributions our citizens could make to hybrid war when we are thinking about this.

As regards the impact on ISIS or a terrorist group, I completely agree with the noble Lord, Lord Carlile, that ISIS is not going to be intimidated. I am more worried about Kimberley—the person who does not know that they are doing something wrong by helping one of our enemies.

Lastly—I will try to keep my comments brief; I appreciate that I have not tackled all of the points—I confess for a moment here to a massive cognitive dissonance. Noble Lords and noble and learned Lords have spoken about their anxieties about the word “treason” as if it was a super-hot piece of vocabulary that was too hot to handle. I simply do not have that sentiment at all; it does not touch me in the same way that it clearly touches others. I thought the noble and learned Lord, Lord Hope, spoke very well about that. Words such as theft, rape and terrorism are important parts of our legal vocabulary. I regard treason as simply akin to any one of those, and the arguments made—

[Lord Hope of Craighead (CB)]

The problem is—I speak as a former prosecutor—that if you are facing a jury with a charge that has “treason” on it, that elevates the temperature of the debate. It is much easier if you concentrate on the actual words of the offence that you are trying to get the jury to focus on. That is the point. The prosecutor has to decide whether he or she wants to use the word treason at all in the charge. It is better to avoid it if you can get the substance of the defence into ordinary language and get the jury to consider the facts in the light of ordinary language without being diverted by the more exciting “treason”. That is my point.

[Lord Bethell (Con)]

My Lords, pragmatism is completely right; I understand the noble and learned Lord’s point and I do not doubt his insight in the slightest. I have a slightly different perspective. That seems to be an argument to rehabilitate the thought rather than to avoid the crime. If something is happening that threatens our national security and is a crime, we need to think of ways of communicating that to juries and to prosecutors. In the same way, juries sometimes struggle with “rape” and are sometimes reluctant to convict—but obviously that is not a reason to not take rape to trial. Given the mood of the House, I beg leave to withdraw the amendment.