Crime and Policing Bill

Debate between Lord Katz and Lord Faulks

Report stage
Monday 9th March 2026 Lords Chamber

[Lord in Waiting/Government Whip (Lord Katz) (Lab)]

My Lords, I am grateful to all noble Lords who took part in this short but important debate, and I am grateful to the noble Lords, Lord Faulks and Lord Davies of Gower, for tabling these amendments which seek to narrow the existing lawful or reasonable excuse defences that may be used for public order offences.

It may be helpful to set out how a lawful excuse works in practice. A person is automatically treated as having a lawful excuse only under two specific circumstances. The first is if the defendant honestly believes that the person who is entitled to consent to the damage has given consent or would have consented if they knew of the circumstances—for example, an honest belief that the owner of a car in which a child was locked on a hot day consented, or would have consented, to the defendant smashing the window to get the child out. The second is if the defendant acts to protect their own or someone else’s property and they honestly believe both that the property needs immediate protection and that their actions are reasonable—for example, a person damages one person’s property while accessing the property of another to prevent a fire. It does not matter whether a person’s belief in those circumstances is reasonable or justified; it just needs to be honest.

Whatever the failings of, or, indeed, one’s views on, the Ziegler judgment, as the noble Lord, Lord Pannick, said in his sagacious contribution, case law has moved on and the Supreme Court has made subsequent rulings which chart a clearer path. It is the case that the right to private property will always need to be balanced with other convention rights, such as the right to protest and freedom of expression. This will have to be judged on a case-by-case basis, but leading case law has set out the parameters, and the Court of Appeal did not say that the exercise of a person’s convention rights could never form the basis of lawful excuse for criminal damage.

While I acknowledge the concerns of noble Lords, I have a great deal of sympathy for the arguments advanced by the noble Lord, Lord Marks. It is for the Crown Prosecution Service and the courts to decide what may constitute lawful or reasonable excuse in individual cases. Further, the current scope of the defence allows the CPS the necessary flexibility to consider the full circumstances of each case on its merits. The types of behaviour that noble Lords have suggested, such as intimidating or harming members of the public or the risk of damaging property, are unlikely to be considered a reasonable excuse. Therefore, I ask the noble Lord to withdraw his amendment.

[Lord Faulks (Non-Afl)]

I am grateful to all those who took part in this debate. I think the issues have rather narrowed between those who have taken part in it. For the first time during the course of these debates on this issue, we had some drafting points from the noble Lord, Lord Marks. They have come late, but none the less I will deal with them.

The first point is that the noble Lord did not like my proposed provision that says that it is not an excuse if you intend

“to intimidate, provoke, inconvenience or otherwise harm members of the public by interrupting or disrupting their freedom to carry on a lawful activity”.

That does not seem to be a very reasonable excuse to me, so it seems a very sensible thing to put in the amendment.

Secondly, the noble Lord did not like subsection (3), where it says that it is immaterial that there may be other purposes. If the defendant does not have a good excuse, it is no good saying, “My overall excuse, because I happen to support Just Stop Oil, is a good one”. You cannot rely on that.

In his final point, the noble Lord stuck to his argument that this was an attempt to oust the jurisdiction of the Human Rights Act 1998. I repeat the point that it is not that. Whatever the future may hold, we are still part of the European Convention on Human Rights. But the convention requires the balancing of rights, including that they have to be treated as necessary in a democratic society for the protection of the rights and freedoms of others. This provision reflects all those factors in a perfectly appropriate balance. Therefore, it complies with the European Convention on Human Rights.

I come finally to this point. The noble Lord, Lord Pannick, quite rightly said, pointing to a recent judgment of the President of the Supreme Court, that the courts are backing away from Ziegler. I am not surprised. It sits very uneasily with the jurisprudence in this area generally. The decision is almost moribund. But it is time to give it a decent burial. It is time to conclude that the law should be clear, that we can understand what it means and that the police can understand what it means, so that the whole business of putting forward spurious excuses will cease and we can have a proper and sensible law in relation to protest. I wish to test the opinion of the House.

Border Security, Asylum and Immigration Bill

Debate between Lord Katz and Lord Faulks

Committee stage
Monday 13th October 2025 Lords Chamber

[Lord Katz (Lab)]

I remind noble Lords that, in April 2022, the National Archives and the Ministry of Justice launched Find Case Law, which is an online service allowing everybody to access freely accessible court judgments and tribunal decisions.

It remains the case—I suppose it ill behoves me to point this out, but this is something that the Opposition Front Bench is a sudden convert to—that, in various passages of immigration law that the previous Government put through your Lordships’ House, Members opposite could have made this proposal. It is convenient that they have now decided that this is a worthy thing to do.

I do not think it is unfair to suggest that people with an interest in accessing judgments can make the application. Those persons are most likely to be interested journalists or other legal practitioners. I am sure that it is the case that, despite some of the other tribunals that the noble Lord, Lord Murray, enumerated for us, such as the land tribunal, just because it is openly accessible that does not mean that everybody is regularly searching through it.

We see no reason to change the status quo; it is for the judiciary for decide whether to publish decisions. This suited the previous Government, and this suits us as well. That is why I ask the noble Lord, Lord Murray, to withdraw his amendment.

[Lord Faulks (Non-Afl)]

The noble Lord said that it “suits us”. What does that mean? Is he happy with a situation where the general public do not know, because the previous Government apparently did not make much of a fuss about this? Is that what he is saying?

[Lord Katz (Lab)]

No, I am simply saying that cases in the Upper Tribunal are regularly published, which are the cases that present the most case law which is actually of use to legal practitioners and of interest to the media and the public. We should protect the independence of the judiciary in being able to make its own decisions about it.

[Lord Faulks (Non-Afl)]

I have one further question, if I may. We understand from the Minister’s colleague that there is likely to be legislation coming telling tribunals how they should make these decisions and how, in particular, they should perhaps be changing their approach to Article 8 and Article 3. In order to inform themselves as to how this is going, in terms of the First-tier Tribunal, would it not be rather useful if the Government at least knew what they were deciding on a regular basis?

[Lord Katz (Lab)]

It would probably ill behove me to predicate my answer on legislation that I have yet to see. As and when we get to the passage of that legislation, we can perhaps revisit this conversation, and he might want to bring back my words to haunt me, but as it currently stands, I cannot talk about legislation that, frankly, I have not seen.