Public Order Bill

Debate between Lord Hope of Craighead and Lord Beith

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

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

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

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

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

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

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

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

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

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

[Lord Beith (LD)]

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

[Lord Hope of Craighead (CB)]

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

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

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

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

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

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

Judicial Review and Courts Bill

Debate between Lord Hope of Craighead and Lord Beith

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, this is an area of complexity and difficulty and I think the difficulties are added to by the content of the Bill as the Government have brought it before us. It was not broken and it was not necessary to fix it in this respect. The noble Lord, Lord Anderson, has just explained how the previous use of common-law powers has dealt with this matter perfectly satisfactorily.

I share with the noble Lord, Lord Pannick, the dislike of anything that lessens the clear impact of the threat of judicial review on the public service. I say threat not because I am hostile to members of the public service but because it is a necessary discipline that things must be done within the law and they know that, if they are not, what they are bringing forward could well be nullified in the courts. The severity of judicial review is important to its role as the discipline for the rule of law.

There are, however, cases which do not fit easily into this pattern and which make an element of retrospection attractive. I think of licensing measures of various kinds—measures that render lawful things that would otherwise be unlawful. There are quite a lot of them in the area of game shooting, for example, and one caused quite a stir over the last couple of years: the power to shoot a predator bird if it is likely to enter an area where it would disturb the wildlife in a site of scientific interest which is subject to protection. In a recent example, there was indeed the threat of an action which did not take place in the end but which led Natural England to accept that its regulations were defective.

In those circumstances, you have people who have behaved in good faith and—they thought—lawfully, who, when the court in a judicial review determines that the action is not within the law, are left in a rather difficult position. You may say that nobody is going to prosecute them once it becomes clear that the law had been nullified. The case may already have started. However, in the real world, having been found to have acted unlawfully, even unwittingly, is not a good position to be in and not one that an employee wants to find themselves in. It presents some difficulties which I think Amendment 6, from the noble Lord, Lord Ponsonby of Shulbrede, attempts to address in so far as it affects regulations and delegated legislation. I will be interested to hear him set it out more fully and the Minister’s response to it.

That qualification—that we should remember the interests and concerns of people whose actions could unwittingly be rendered unlawful—is only a limited qualification to what, in my view, is the fundamental reason to object to what the Government are proposing, which is that the full rigour of the effects of judicial review should be something that the public service is always aware of.

[Lord Hope of Craighead (CB)]

My Lords, I find myself in the same position as my noble friend Lord Anderson and I would like to add just a few words to what he said.

One of the points made in the Explanatory Notes—and I am looking at paragraph 21—is that:

“The diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.”


My noble friend Lord Pannick invites us to address subsection (1), read together with subsection (4). If one asks oneself what these provisions are driving at, one has to bear in mind that there is a whole range of diverse circumstances, some of which may affect private individuals very much indeed; in which case, one would be very concerned that their remedies were not being cut out. Other cases deal with administration and circumstances where individuals probably are not affected at all, but the good administration or even the security of the country is very much at stake when a quashing order is made.

I hope I can be forgiven for coming back to the case of HM Treasury v Ahmed in 2010, which I was involved in. I mentioned it at Second Reading and when I was addressing this subject at an earlier stage. It is worth dwelling on that case because it is an illustration of a circumstance where the clauses that are under attack by these amendments could be valuable. It was a case where the Treasury had pronounced an order to give effect to our international obligations under the United Nations Act 1946, designed to freeze the assets of suspected terrorists. That was our international obligation and, understandably, the Treasury made the order. But when the case came before the Supreme Court, it was pointed out that there was no parliamentary authority for such an extreme measure. The Supreme Court unanimously decided that the order should be set aside.

I suggested in the course of the hearing and, indeed, at the end of my speech—the leading speech in the main case—that we should suspend the effect of the order to give time for the Government to remedy the situation in order to avoid the terrorists dissipating their assets. The risk was that the banks that were holding the assets under the order that was under attack would release them under demand from the terrorists. Clearly, that would not be desirable.

I was overruled by six to one for a reason which, I think, demonstrates why these provisions are needed. My noble and learned friend Lord Brown of Eaton-under-Heywood was in the majority of the six against me so perhaps he can explain more fully what their reasoning was. As I understand it, they were saying that if you quash the order you are declaring what the law always was; in other words, the Treasury order was of no effect at all—that was the effect of the order—and, as I think the noble and learned Lord, Lord Phillips, said, it would indeed undermine the effect of the quashing order to suspend it because it would be suspecting that there was something wrong with the decision to quash the order.

I could not understand that and I still cannot understand the sense of it. Indeed, one of the broadsheet papers, having spotted what was going on, asked: has the Supreme Court gone mad? I remember that certain people were rather discomfited by that but it was a very strange thing to do because there was no question of the banks releasing the money. But it was just as well to suspend the order so that they would be comforted by the fact that we were not actually making the order until Parliament had come in and produced a proper remedy to sort it out.

There you are. If you look at subsection (4), the “impugned act” was this order and what I wanted to do was to, in effect, allow the impugned act to be maintained—or, as subsection (4) puts it, “upheld”—so that the matter could be corrected. I cannot see anything objectionable to exercising the power in subsection (1)(b) in a circumstance of that kind. I wish we had had that power available to us at the time. It would have made my life a good deal easier in our discussions. It was not there and any idea that the common law could do that had really been exploded by the decision of the majority.

There is a problem and it would arise time and again if people were looking at the majority decision. There are, or could be, cases where for the protection of the public and in the interests of good administration the possibility of suspending the effect of the order so that the impugned act is regarded as valid until the defect can be corrected will be valuable. I suggest, with great respect to my noble friend, that it would be unwise to remove these provisions from the Bill.