Police, Crime, Sentencing and Courts Bill

Lord Kennedy of Southwark Excerpts

Committee stage
Wednesday 24th November 2021 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this is my first contribution on this Bill in your Lordships’ House. It is nice to be back.

I am pleased to join my noble friends replying to the debate by setting out the position of the Opposition on the new clauses before us. First, I want to say that this is no way to do business, as has been said. To introduce clauses of such magnitude, complexity and controversy to a Bill in the House of Lords, with the Bill already having left the elected House, is just wrong. It is no way to treat the House of Commons, where the Government have a huge majority; no way to treat the House of Lords; no way to treat Parliament; and, as we have heard from the noble Lord, Lord Oates, no way to treat the public, whatever their view on the matters before us today.

If the Government felt that they needed these powers, they should have introduced a separate Bill in the Commons and treated Parliament, not least the elected House, with some respect. None of us wants to be here at this late hour but the Government have left us no opportunity to do otherwise.

I make it clear that we do not support these clauses that have been added to the Bill in Committee today, and we expect the Government to withdraw them. I also want to be clear that when we come to the Motion on the order in which we will consider the clauses on Report, we expect that these clauses will not be considered until the new year in the last part of our Report-stage consideration of the Bill. If the government Motion does not put that down clearly, I will move a Motion to achieve just that, and I think we will be successful in getting that Motion through the House. I hope the Minister can confirm that these clauses will be debated in the new year at the end of Report.

The Government are creating problems for themselves, and we have seen by their actions in recent weeks that that is nothing new. As I said, the Government are introducing at the last minute clauses that we are not able to consider properly, even today. They were published just a week ago. That is totally unacceptable.

I want to be clear that I condemn the actions of the Insulate Britain protesters. Their tactics are wrong and counterproductive. We have seen images of protesters gluing themselves to roads and people desperate to get their relatives to hospital, and that is completely wrong. I support the right to protest. I have protested, marched, sung, waved placards, stood in line and locked arms with the best of them, and have been doing so for 43 years. Having strong views, being passionate about what you believe in and making your voice heard are good things in a democracy; that is what living in a democracy is about. The Government must recognise that, even though sometimes the protesters do things they do not like. That can be irritating—as my noble friend Lord Coaker said, we can all be irritated when we cannot get across the bridge to come into Parliament or go down the road—but, equally, the way that this has been done is counterproductive and completely wrong.

My honourable friend the Member for Tottenham, Mr David Lammy, said:

“The police have got to have the powers to deal with these issues … endangering lives, creating a situation in which an ambulance travelling with a patient can’t get to the hospital—someone ended up with paralysis as a result of some of these actions—I’m afraid is totally, totally unacceptable.”


I agree with him entirely on that. It is right that the police have the powers that they need to deal with this unacceptable behaviour—but what powers do they genuinely need? What powers are missing? What powers would be effective? What would be the impact of what the Government are suggesting?

It is crucial to remember that although we are responding only to one particularly crass protest, the law that we are debating tonight would not apply to that one crass protest but to all peaceful protest, and that is the issue here. We must be thoughtful and get it right, and that is why the Government’s handling of this issue is so wrong. For me, the key question is: is none of the powers at the disposal of the police and law enforcement today fit for purpose? Is there nothing that can be done? I have key concerns about stop and search and the proposed disruption orders, and a number of questions for the Minister.

I hope that she can set out for us the organisations—the police forces, the National Police Chiefs’ Council or the police and crime commissioners—that have been demanding these powers and these specific tools in front of us tonight. Can the Minister give us more details about why the protesters cannot be dealt with under Acts such as the Public Order Act 1986? Why is it not sufficient? I thought—maybe I am wrong—that, under that Act, if a senior police officer reasonably believes that actions will give cause for serious disruption, they can give directions about where a protest can be held and for how long, and it is an offence to breach those conditions. Can that not limit this action? Maybe I am wrong, and they have got that.

Regarding lock-ons, are we really suggesting that if I go on a protest with my noble friend Lord Coaker, and we hold arms together—lock on—we are committing an offence? Are we suggesting that?

[Lord Coaker (Lab)]

If we bring the equipment.

[Lord Kennedy of Southwark (Lab Co-op)]

Yes, absolutely. Are we really suggesting that? Lock-ons are not new, but what is the basis being used here for dealing with these protesters? Is it only, for example, about taking attachments such as glue or locks? I think I have a padlock sitting on my desk in the office; this is just nonsense. These clauses would affect just two people together; that would have prevented the suffragettes protesting. When we do tours in Parliament, we often stop in St Stephen’s Hall and show our guests the statue that the suffragettes locked themselves on to; we talk about it. Clearly that would have been an offence then, and it is an offence now. If you locked yourself on to the Downing Street gate, I am sure that would be an offence now, so why do we not have the powers already?

Of course, we have powers, so I want to understand why we need to do this. Many people have mentioned the pledge by the Prime Minister in the 2015 election. He was going to

“lie down … in front of those bulldozers”

to stop the third runway. He has pledged other things as well. He would be potentially criminalising himself if he went and did that.

On suspicion-less stop and search, and the serious disruption prevention orders, the Government are mirroring laws that currently exist for serious violence and knife crime. Unless I am wrong, and I am sure the Minister will correct me if I am, these measures apply to peaceful protesters, not people carrying knives or causing violence, and that is a huge issue for us. The noble Lord, Lord Beith, referred to the report of the Delegated Powers and Regulatory Reform Committee, chaired by the noble Lord, Lord Blencathra, a Member on the Conservative Benches. I looked at some of the points made by the committee. It said:

“We consider that new section 342V contains an extreme example of a power to issue guidance on the exercise of statutory functions. It allows the Secretary of State to influence the exercise by the police of functions that could prove to be highly controversial—including identifying persons in respect of whom the courts may make serious disruption prevention orders under which people who have not been convicted of any offence—and are not considered to be at risk of offending—may nonetheless be made subject to restrictions on liberty backed by criminal penalties.”


That is pretty extreme, and that is being suggested by the party opposite. I hope that the Government will read very carefully what is being suggested here by the committee.

In conclusion, it is very important that we do not consider these issues until the new year. These are very controversial proposals, whether you agree with them or not, and the fact that we are debating them at 1 o’clock in the morning is not a good place for any of us to be. We need to ensure that they are discussed in the new year and that we keep scrutinising them. I hope the Government will listen to the debate tonight and to the report from the Delegated Powers Committee, and will come back on Report to ensure they temper these measures, because at the moment they are totally unacceptable and would not be passed by the House.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken to these amendments. Amendment 319AA would limit the offence of locking on—on the point made by the noble Lord, Lord Paddick, the deputy commissioner has in fact welcomed this offence—to cases where serious disruption had been caused, thereby excluding from the ambit of the offence cases where the use of a lock-on has not caused serious disruption but where the conduct is capable of doing so. Removing this element of the offence would make it possible for those who engage in such behaviour to evade prosecution. This could happen if they were quickly removed by the police or if they removed themselves from the lock-on after having caused some disruption which did not meet the threshold of “serious”.

In a similar vein, it is necessary that the offence can be committed if a person locks on and was reckless as to whether it would cause serious disruption. Amendment 319AB would remove this and have the offence be committed only if there was intent to cause serious disruption. If this amendment were made, a person who is aware of the risk of causing serious disruption but unreasonably took that risk anyway would not be captured by the offence.

What matters here is the protester’s intention and/or the impact of their actions. It may simply be fortuitous that the action of locking on did not cause serious disruption, but, if that was the intent, we believe the offence should apply. Equally, if there was not an intention to cause serious disruption but it was a risk of which they were aware and they unreasonably took that risk, again we believe that such conduct should be covered by the new offence.

A few noble Lords talked about bikes, specifically people innocently going about their business with a bike lock. It is a defence for a person to prove that they had a reasonable excuse for carrying the equipment in question. For example, carrying a bike lock for the purposes of locking one’s bike to a designated space for bikes could be considered a reasonable excuse. The prosecution must also demonstrate that the person intended to use the item in the course of or in connection with the lock-on offence.

A couple of noble Lords asked whether this was a ban on protests. HMICFRS concluded that protest banning orders would not be compatible with human rights, but the report considered only orders that would outright ban an individual from protesting. The two are quite different. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related offences, breaches of injunctions and serious disruption. Depending on the individual circumstances, this might mean that the court will not consider it necessary to stop individuals attending protests. Also, a court as a public authority must not act incompatibly with protesters’ Article 10 and Article 11 rights. This means that the court must decide whether making an SDPO is proportionate in an individual case.

Amendments 319AC, 319BC, 319DC and 319P seek to probe the maximum fine for the new offences created by the government amendments. What were level 5 fines, or a maximum of £5,000, were replaced in 2015 as a result of reforms introduced by the coalition Government through the Legal Aid, Sentencing and Punishment of Offenders Act 2012. We think that an unlimited fine is appropriate in the case of these new offences; a level 1 or level 2 fine, as proposed by the noble Lord, would not, in our view, reflect the seriousness of the conduct in question. An unlimited maximum fine allows courts to determine the level of any fine on a case-by-case basis, having regard to the gravity of the offence and the ability of the offender to pay.

Amendment 319BA probes what objects it will be a criminal offence to possess under the “in connection with” limb of the going equipped to lock-on offence. This could include items that supported the deployment of a lock-on but did not form a part of it—for example, tools to set up structures to be used in the course of a lock-on.

Amendment 319BB would limit the offence such that a person would only be guilty of going equipped to lock on if they are carrying the equipment to commit the lock-on offence themselves. This would mean that a group of protesters could each legally carry items to lock on for use by others in the group.

Amendment 319DA would limit the scope of the offence to where a person obstructs the setting out of lines for major transport works or actual construction or maintenance. We think that it is necessary to include acts that obstruct steps necessary for facilitating construction. This would include steps such as environmental surveys and the translocation of species. If protesters delay ecological surveys into nesting or hibernation season, construction works may be delayed by a period of a year, potentially adding millions to the cost of HS2.

Amendment 319DB seeks further to narrow the scope of the offence to omit activity where a person interferes with, moves or removes any apparatus necessary for the works. This amendment would enable protesters to interfere with works without committing the offence simply by interfering with equipment rather than the relevant works. It is necessary that this limb of the offence remains.

Finally, turning to the amendments on serious disruption prevention orders, one of the circumstances in which an order can be imposed is when at least two protest-related offences have been committed. Amendments 319L and 319M seek to raise the burden of proof for demonstrating that two offences were protest related from “on the balance of probabilities” to “beyond reasonable doubt”. We have had this debate before, including in the context of serious violence reduction orders, and it is our view that these are civil orders and that it is therefore entirely appropriate for the civil standard of proof to apply in the making of an order. It is already the case that the court must consider the SDPO necessary to prevent a person committing harmful protest-related acts. In the event of a prosecution for breach of an order, of course the prosecution would need to prove the case beyond reasonable doubt.

Amendment 319N removes the ability of the courts to impose an SDPO on application. We think it is essential that the courts should have the power to impose an order in such circumstances. It will allow SDPOs to be placed on those who are intent on causing unjustifiable disruption at a protest but who have not met the criteria for an SDPO on conviction. It is entirely right that, where there is sufficient evidence of a pattern of behaviour that an SDPO be imposed. The public should not have to risk unjustifiable disruption caused by an individual who the police knew was likely to cause such disruption simply because they did not have two prior protest-related convictions. This would mean that even if someone had two convictions, if the application was not made at the time of the second conviction, an application could not be made until they were convicted of a third protest-related offence. This approach is consistent with other risk-based civil orders that may be made in the absence of a conviction—for example, domestic abuse protection orders.

Amendments 319Q to 319U remove the ability for a court to renew an SDPO. Where there is strong evidence that that an individual would go on to cause serious disruption, it is appropriate that the facility exists for SDPOs to be renewed.

Very finally, on the point raised by the noble Lord, Lord Beith, on the DPRRC report, we consider that the negative procedure for the SDPO’s statutory guidance to be appropriate, but we are studying the report and will respond soon.

The question of causing or contributing to felt like a bit of an exam question at the end of quite a long day. I have three Acts in which causing or contributing feature: the Water Act 2014, the Climate Change Act 2008 and the Football Spectators Act 1989. On the question of the noble Lord, Lord Kennedy, about whether these measures will be taken in the new year, the answer is yes.

I am obviously disappointed that the noble Lords, Lord Paddick and Lord Kennedy, have signified their objections to the amendments tabled today but, given that, I will not move them. However, the Committee should be in no doubt that we will retable them for Report and, if necessary, seek the opinion of the House. With that, I beg leave to withdraw Amendment 319A.

[Lord Kennedy of Southwark (Lab Co-op)]

Before the noble Baroness sits down, I want to be absolutely clear about something. I am sure that the answer must be yes, but it would be good to hear it from her, as this is my first time speaking from the Dispatch Box on this Bill. On these SDPOs, I always thought that we operated on the basis that you were innocent until proven guilty in this country; we would all defend that right. These orders can be imposed and have an effect on people who are totally innocent of any crime whatever. Can she confirm that, as it is good to get it absolutely clear on the record? If that is the case, as I am sure it is, that is totally outrageous.

That and other reasons are exactly why we need to ensure that there is the maximum amount of time to enable this House and people outside it to discuss and debate these issues. For that reason, I think it is absolutely right that these amendments be withdrawn. Can these orders be imposed on totally innocent people who have committed no crime?

[Baroness Williams of Trafford (Con)]

Does the noble Lord want a response on the nature of the orders?

[Lord Kennedy of Southwark (Lab Co-op)]

I want confirmation that the Government intend to bring orders in which would be imposed on totally innocent people who have committed no crime.

[Baroness Williams of Trafford (Con)]

They are civil orders; they are preventive measures.