Crime and Policing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Tuesday 27th January 2026 Lords Chamber

[Lord Goodman of Wycombe (Con)]

My Lords, in moving Amendment 438E, I will speak also to Amendments 438EA—which the noble Baroness, Lady Fox of Buckley, has been kind enough to support—and 438F, 454A and 454B about non-violent extremism.

Right at the start, the term “non-violent extremism” requires a bit of definition. Noble Lords may ask whether the social practices of, say, the Christian Exclusive Brethren are extreme? Could the same be said of a Hasidic Jewish sect, an anarchist commune or a Quietist Salafi group in Islam? My view is that, while these groups and others can be problematic for cohesion and integration, they are not so in relation to the extremism that my amendments seek to address, for none of them is intrinsically connected to harassment, public order offences, acts of terrorism and other such breaches of the rule of law.

There are many extremist movements and ideologies that are; the three most prominent are the far left, the far right and, for want of a better term, the Islamists. All three aim to

“negate or destroy the fundamental rights and freedoms of others … undermine, overturn or replace the UK’s system of liberal parliamentary democracy and democratic rights; or … intentionally create a permissive environment for others to achieve”

these aims. I quote from the last Government’s definition of extremism. I am told that it is also this Government’s and would be grateful if the Minister could confirm whether this is so when he replies to the debate.

Of these three forms of extremism—far-left, far-right and Islamist—the last has preoccupied public policy most since the London Tube bombings of 7 July 2005. Some 71% of terrorist incidents in Britain since that date have been executed by Islamists and 75% of the case load of Contest—the Government’s counterterror strategy—is concerned with Islamist threats. Only last October came the first murder since medieval times of Jews in England simply for being Jews, in the terror attack on Heaton Park synagogue in Manchester.

The question that has haunted public policy since 7/7, including crime and policing policy, is whether it should seek to address acts of lawbreaking alone or also the ideologies that help to drive them. To use the classic figure of speech, should policy seek simply to shoot the crocodiles or also to drain the swamp? The thrust of policy under Governments of all three main parties—as evidenced by Contest, which a Labour Government created; by the Munich speech of my noble friend Lord Cameron of Chipping Norton in 2011, during the coalition years; or by Sir William Shawcross’s Prevent review three years ago—has been to seek to drain the swamp, but progress has been fitful. There has never been an overarching policy that seeks to counter Islamist and other extremism in our institutions and civil society—such as in charities and out-of-school settings, through to the NHS, universities and schools.

There is also the matter of sermons and talks in mosques—this is extremely topical, I am afraid—that incite hatred and violence. The X account habibi regularly draws attention to these, and I will send the Minister a file drawn on it after this debate. But he will already have available to him details of how many preachers in mosques have been prosecuted for such offences since, say, 7 October 2023. I would be grateful if he would share these with the Committee when he replies or, if he does not have the figures available, write to me.

My amendments could not possibly cover all this ground, nor do they fall into the trap of assuming that all extremism is terror related; nor that all extremism, whether terror-related or not, is Islamist; nor that Islam, an ancient and venerable faith, is to be conflated with Islamism, a modern and politicised ideology. Indeed, only one of my five amendments is religion-specific and it is not Islam-specific.

However, my amendments do seek to cover the ground I have been describing, and I am grateful for the emerging work of two all-party groups. The first is the All-Party Group for Defending Democracy, chaired by the noble Lord, Lord Walney. The second is the All-Party Parliamentary Group on Counter Extremism, chaired by Damien Egan, MP for Bristol North East, whose visit to a local school was recently cancelled. He is the vice-chair of Labour Friends of Israel. It later emerged that the diversity and inclusion leader of the academy trust, of which the school is a part, had supported the Hamas terrorists of 7 October as “heroes”.

The all-party group has produced a report, Time to Act, which points out, first, that the last Government, in effect, scrapped their own counterextremism strategy in 2021. Secondly, this Government’s post general election “rapid analytical sprint” review of extremism has never, to the best of my knowledge, been published, although the think tank Policy Exchange obtained a draft. Thirdly, it is unclear whether the Commission for Countering Extremism, set up by the last Government, will continue. The commissioner, Robin Simcox, has not been replaced. The Minister, asked by me recently whether he would be, has now very kindly and promptly replied to say:

“We are reviewing the roles and remits of various bodies to ensure our resources are best placed to meet current challenges”—


which, if I may say so, does not cast a great deal more light on the matter.

I turn to the amendments themselves. My Amendment 454A would require the publication of the rapid analytical sprint. If the Minister will not accept the amendment, will he please tell the House when the sprint will be published?

My Amendment 454B would require the appointment of a Commissioner for Countering Extremism to replace Mr Simcox. Again, if the Minister will not accept the amendment, can he tell the House what his plans are for the commission, or, if he cannot do that yet, when he will?

My Amendment 438E would require each police force to publish its strategy for reducing non-violent extremism. Again, if the Minister will not accept the amendment, will he tell the Committee what plans the Government have for police forces in this regard and on what timetable?

Finally, my Amendment 438EA comes in the wake of the horrifying developments in Birmingham referred to earlier today by my noble friend Lord Jackson of Peterborough, in which the West Midlands Police bowed to an extremist mob over a football game, conjured up evidence that does not exist to justify its decision, and then, in the words of Nick Timothy MP, “lied and lied again” about its actions, including to Parliament. Three of the eight mosques that the West Midlands Police consulted over its decision had hosted preachers who promoted antisemitic conspiracy theories or called for the death of Jews.

I expect police forces to liaise with mosques and with other religious institutions. It is important to point out that groups and organisations other than mosques were involved in lobbying the West Midlands Police over the game in question. But the public surely has a right to know which police forces meet with which mosques and other religious institutions of other faiths, and then to draw their own conclusions. My Amendment 438EA would require them to do so.

These are probing amendments, but we cannot have a void where policy should be when the future of our liberal democracy is at stake. I look forward to the Minister’s response. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, as the noble Lord, Lord Goodman, has explained, this group is largely about a concentration on efforts to combat non-violent extremism, about transparency and about efforts by the Government and police forces to counteract such extremism. He also calls for the appointment of a Commissioner for Countering Extremism.

The noble Lord particularly—and, I would suggest, rightly—recognises and is concerned with the importance of developing and fostering dialogue between police forces and religious communities, as well as a much wider understanding of the real concern and fear of religious communities in the face of extremism, not amounting to terrorism, that has become so much worse in recent years and particularly since 7 October.

This group gives us the opportunity to invite the Government to bring greater clarity and focus to their efforts in this area and to make it clear what it is that they plan. When Yvette Cooper, then the Home Secretary, directed the establishment of the rapid analytical sprint on extremism, she said that it was intended

“to map and monitor extremist trends, to understand the evidence about what works to disrupt and divert people away from extremist views, and to identify any gaps in existing policy which need to be addressed to crack down on those pushing harmful and hateful beliefs and violence”.

It is certainly right that the speech by the noble Lord, Lord Goodman, was directed to those ends—considering hateful and harmful beliefs and violence not necessarily amounting to extremism. The rapid analytical sprint was intended to be directed widely and, since then, publicity has been given to the concentration also on misogyny, racism, antisemitism and general community hostilities. It was commissioned last August, so perhaps the use of the word “rapid”, if we do not know when it is going to be produced, is not completely apposite.

The group is also concerned with the concept of youth diversion orders. We will debate youth diversion orders on a later group, but they are directed by the terms of Clause 167, as it is drafted, to terrorism and terrorism-related offences. It is certainly right that Clause 167(2)(b) talks about

“the purpose of protecting members of the public from a risk of terrorism or other serious harm”,

but serious harm is defined in, and our attention is directed to, Clause 168, which talks about harm from

“conduct that … involves serious violence against a person … endangers a person’s life, other than that of the person engaging in the conduct, or … creates a serious risk to the health or safety of the public or a section of the public, or … the threat of such conduct”.

Serious harm in that context is, effectively, the threat of violence. As I understood the speech and the amendments, as a whole, by the noble Lord, Lord Goodman, they are also directed to the points that Yvette Cooper mentioned when the rapid analytical sprint was established. They go much wider and concern non-violent extremism, which is what this group is about. He talked about confronting ideologies and draining the swamp.

We would be grateful if the Minister, when he responds, clarifies what the Government’s target is in tackling non-violent extremism. How far is the government strategy for both government and police action aimed at producing an overarching strategy to tackle non-violent extremism as well as terrorism? We appreciate that it is perhaps more difficult in conceptual terms to develop such a strategy aimed at non-violence than it is to develop a strategy aimed at terrorism, which, while appalling, is relatively straightforward to define. The concept of non-violent extremism is altogether more difficult, and at the moment we are left in the dark about what the Government propose.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the noble Lord, Lord Goodman of Wycombe, in this interesting group of amendments in his name, draws our attention to non-violent extremism and raises hugely important issues. I am not entirely happy with that broad definition of non-violent extremism, but the noble Lord has given us plenty to mull over in his interesting, thought-provoking and hard-hitting speech.

I am worried about the kind of ideologies that we face at present; I just think that the reluctance to confront those ideologies is more likely to be a failure of moral leadership rather than law, so I am trying to work my way around that. I am also concerned about the policing of a range of views dubbed extremist. We have to be careful, because that can be used to close down legitimate speech and to demonise dissident views as being too extremist and too beyond the pale to engage with.

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[Lord Elliott of Ballinamallard (UUP)]

My Lords, briefly, I know this might sound as though it is a Northern Ireland debate, but it is not. I respect and accept the noble and learned Baroness, Lady Butler-Sloss, saying that this is an issue in England and Wales and more broadly. But we have experience of it—maybe more experience than others, or we may think we have. I stand here having served in the home service security forces in Northern Ireland for 18 years. Colleagues were murdered and friends were murdered. I carried their coffins. What is more, I have seen the devastation of some of those families in the aftermath, when some people lauded those terrorist acts. We see the rewriting of history and the glorification of terrorism—they taunt the families.

To prove that it is a much wider issue than Northern Ireland, back in 2014, two people were jailed for the glorification of the murder of Fusilier Lee Rigby. So I accept that it is a much wider issue than Northern Ireland, but I want all noble Lords to understand the experience that the noble Baroness, Lady Foster, the noble Lord, Lord McCrea, and others have of the Northern Ireland situation and what we have seen.

I had a friend murdered back in 1985. That evening, going past their house, people were stopping and jeering and applauding that murder. Is that not the glorification of terrorism? I do not care whether it is the glorification of a terrorist, terrorists or terrorism—to me, it is all the same. If you are glorifying terrorism, that is wrong and should not be allowed. That is the rewriting of history. Even now, we have the taunting of young people because their grandparents, uncles or other family members were murdered. That is wrong and it cannot be allowed to continue. That is why I support Amendment 450.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will speak briefly in support of Amendments 447 and 448. I also support the spirit of Amendment 450, with one reservation, which I will explain, and which maybe the Minister would have taken in any case.

As far as Amendments 447 and 448 are concerned, I have spoken in several debates about the scope of the Terrorism Act 2000 and the way it works, in particular because of the breadth of the offence under Section 12 of support for a terrorist organisation and the offence under Section 13 of wearing an article or uniform, and the publication of images, as arousing suspicion of support for a proscribed organisation. I spoke, from the point of view of freedom of expression and freedom of assembly, about the unnecessarily broad scope of those sections as they stand, and in support of our amendment seeking a statement about the right of peaceable protest in this Bill.

My immediate concern arises, as it arose then, out of the arrest of some 2,700 people at peaceable protests against the proscription of Palestine Action. I take the point entirely that the noble Baroness, Lady Falkner, made, that we cannot dig into the minds of those protesters and work out what their motivation was and then create some kind of thought crime that covers their position. What we can do is consider what the right of peaceable protest is and what price we pay for it. It is quite clear that this is not about the rights or wrongs of the proscription of Palestine Action. In supporting these amendments, I am solely concerned, as was the noble Viscount, Lord Hailsham, with the right to protest and the consequences of the way that the Terrorist Act 2000 works, branding peaceable protests as an offence against that Act, and branding as terrorists protesters who have done nothing more than carry banners or publicly express the view that the proscription is wrong.

I quite agree with the noble and learned Baroness, Lady Butler-Sloss, that there is a massive distinction between the exercise of that right, however foolish those protesters, or some of them, may be and however much we may disagree with them, and branding them as terrorists and comparing them with those who are actually carrying out terrorism, which is, I suggest, not justified. It is not, of course, confined to protests in connection with Palestine Action, but the point that the noble Viscount, Lord Hailsham, made was also that the consequences for those who have been arrested, be they elderly retired people or students on the threshold of their career, are, in his words, wholly disproportionate. Those are words with which I entirely agree.

Some of those arrested have been charged. The charging process is nowhere near complete, and, as I understand it, the charging will go ahead so long as the proscription lives—the proscription is, of course, the subject of challenge. But if those arrests proceed inexorably to conviction then those people convicted will be branded as terrorists. As for the sickening nature of the slogans they may shout, “Globalise the intifada” to me can mean only one thing, and that is killing Jews for being Jews, and I speak as a Jew, and the phrase, “From the river to the sea”, is wholly unpleasant and has only one meaning. But for students to sit down and listen to and then repeat those slogans at a peaceable protest does not mean that they support acts of terrorism. It means, as the noble Lord said, that they are opposing, and opposing with force, some of the actions of the Israeli Government and of Israeli soldiers in Gaza, which have been, as the British Government and most western Governments have said, absolutely appalling themselves. It does not mean that they are terrorists. The noble Baroness, Lady Falkner, is right, as I said, that we cannot go into their minds to see what their motivation is, but we have to tailor the criminal law to actions, combined with a mental state.

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[Baroness Foster of Aghadrumsee (Non-Afl)]

Would it help the noble Lord if I were to indicate that if and when I bring this amendment back on Report I intend to make it clearer that it is in respect of current proscribed organisations—in other words, terrorist organisations now? I accept the noble Lords’s point about historical context—it is an important point on which I have reflected during the debate—but if the amendment is brought back on Report, we could narrow the ground in terms of glorifying the acts of current proscribed organisations.

[Lord Marks of Henley-on-Thames (LD)]

I am extremely grateful to the noble Baroness for her intervention. That would, or could, remove my concern about the amendment about the glorification of past terrorist acts that may subsequently be seen as justified. I will certainly look at any modified amendment that the noble Baroness brings forward. Because I so strongly support everything that she and others have said in support of the spirit of Amendment 450, I would wish to support an amendment that dealt with those possibilities.

[Lord Cameron of Lochiel (Con)]

My Lords, this has been a vigorous and wide-ranging debate, dealing with very difficult questions. I thank my noble friend Lord Hailsham for his amendments. Regretfully and unfortunately, I have to disappoint him by stating that I cannot support them because I believe they would significantly weaken the effectiveness of our counterterrorism legislative framework at a time when the threat we face is persistent and evolving. In the words of my noble friend Lord Goodman, there is a darkening context.

The amendments would insert an intent requirement, where Parliament has deliberately chosen not to do so. Sections 12 and 13 of the Terrorism Act 2000 created offences that were crafted to disrupt terrorism at an early stage to prevent radicalisation and normalisation, and to give practical assistance long before violence is carried out. That preventive purpose would be undermined if the prosecution were required, in every case, to prove a specific intent to encourage or to enable a terrorist act.

It is also important to be clear that the current law already contains safeguards, especially in the court process. Prosecutorial discretion, a public interest test and judicial oversight all ensure that these offences are not applied casually or indiscriminately. I entirely accept the point from the noble Lord, Lord Dodds, that these must be applied consistently. The suggestion that individuals are routinely prosecuted and tried without regard to context or fairness is not borne out.

On a different note, I support Amendment 450 from the noble Baroness, Lady Foster. The glorification of terrorism, in all cases, is abhorrent. We have seen such glorification, from certain quarters, of the IRA and Hamas, which serves only to normalise such atrocities. I simply cannot add to the power of the contribution made by the noble Lord, Lord McCrea, and indeed by other noble Lords who spoke in favour of her amendment, which I simply cannot add more to, except to say that I support it and I look forward to hearing the Government’s response.

Crime and Policing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Tuesday 27th January 2026 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the noble Lord, Lord Verdirame, used the phrase “getting proscription right”. He is absolutely right. I support both amendments. The noble Baroness, Lady Jones, was correct in saying that we have to have in respect of Amendment 449 more independent parliamentary scrutiny, and that goes for Amendment 454 as well. The noble Baroness, Lady Lawlor, was right to say that we are looking for checks and balances. These amendments are concerned with democracy, with Parliament having a say and the opportunity to consider government proposals.

Amendment 449, which was economically and persuasively moved by the noble Viscount, Lord Hailsham, is plainly sensible. Involving the ISC and for the Government to give reasons to the ISC before proscribing an organisation would increase the confidence of Parliament—all sides of both Houses—in the Government’s decision. As everyone has said, proscribing is a serious and important decision on a matter of great significance for the rights of the individual, the rights of groups and the public at large. I suggest that it would not just increase the confidence of Parliament to have ISC involvement; it would also increase the confidence of the public in these decisions.

The ISC is, of course, independent, parliamentary—it involves Members of both Houses—and cross-party. That seems to me, and I suggest is, an important reason in favour of ISC being involved. It is entirely consonant with the Minister’s assurance on the last group that the Government act on the advice of the security services in making decisions on proscription. That is as it should be—we would expect them to act on advice—but to involve the confidential parliamentary committee in that process can only improve the procedure.

I refer to another point made by the noble Baroness, Lady Chakrabarti. We should always be aware of the dangers of an overmighty Executive not being as reasonable with their opponents and with others as we are used to expect. Things may change. Looking across the water at the United States, as the noble Baroness, Lady Lawlor, did, shows us that respect for democratic independence and procedures is fairly shallow and has to be protected. We should not be complacent about the possible dangers, and I suggest that this is a way of showing that lack of complacency. For the reasons of an added layer of democracy and added independence, the involvement of the ISC would add to our national security and not detract from it.

I agree with the noble Baroness, Lady Chakrabarti, when she said that there could be no reasonable opposition to Amendment 454. The idea that orders should be able to relate not to a single organisation but to multiple organisations is simply absurd. Palestine Action was proscribed alongside two other organisations. One was the Maniacs Murder Cult, a “white supremacist, neo-Nazi organisation”—I am using the Government’s description. It had claimed a number of violent attacks globally; it supplied, and supplies, instructional materials explaining to followers, mostly online, how to conduct terrorist attacks.

The other organisation was Russian Imperial Movement, another white supremacist organisation, described by the Government as “ethno-nationalist”, with the aim of creating a new Russian imperial state. That may sound eccentric, but it runs a paramilitary organisation called Partizan, which increases its adherents’ capacity for terrorist attacks. Indeed, two Swedish nationals attended Partizan in 2016 before committing a series of bombings in Gothenburg, Sweden, with devastating results.

The idea that Parliament—this House and, more importantly, the other place—should be given no choice but to approve or to deny proscription of all is, frankly, an insult to Parliament. MPs and Peers were given no choice but to approve or deny proscription of all. I know that MPs on the Liberal Democrat Benches were deeply offended by that denial of choice. It is illogical, undemocratic and unfair. It demeans Parliament not to allow individual MPs to exercise a fair choice over whether to proscribe a particular organisation. These decisions need to be taken individually and on their own merits, having regard to the arguments for and against proscription of each organisation concerned as it arises. The procedure for that would be simple, as the noble Baroness, Lady Chakrabarti, explained. It should not be a job lot put before Parliament as an executive decision, with no choice given to Parliament except the choice to endorse the job lot or not.

[Lord Cameron of Lochiel (Con)]

My Lords, this has been a short but very interesting debate. Amendments 449 and 454 concern the important and sensitive process by which organisations are proscribed under the 2000 Act.

Amendment 449 in the name of my noble friend Lord Hailsham raises a legitimate question about parliamentary involvement and scrutiny in the proscription process. As we have heard, the ISC has deep expertise, access to classified material and a well-established role in scrutinising national security matters. There is therefore an understandable attraction in ensuring that it has sight of and can report on the reasons for a proposed proscription before an order is made, except in cases of genuine urgency.

It may be, though, that the ISC would be receiving the same advice on issues of proscription from the same organisations, be they the police or the security services, as the Government, so there might be an issue of duplication. It is also important to recognise that proscription decisions often need to be taken swiftly in response to fast-moving threats. The Executive have to retain the operational flexibility to act decisively to protect public safety. I accept that the amendment recognises this through its “urgency” exception, but we need to consider very carefully where the balance should lie between enhanced parliamentary scrutiny and the need for speed and discretion in matters of national security. I genuinely look forward to hearing the Minister’s view on whether the existing framework already strikes the right balance. If there is scope for a greater formal role for the ISC, that cannot impede operational effectiveness.

Amendment 454, tabled by the noble Baroness, Lady Chakrabarti, addresses another important aspect of the proscription regime. As we have heard, it would require each proscription order to relate to a single organisation only. It seeks to strengthen parliamentary scrutiny and accountability. I can understand the argument presented, as usual, so eloquently by the noble Baroness, but I also recognise that these are ultimately matters for the Executive and not the legislature. I await with anticipation the views of the Minister on both amendments.

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[Lord Hanson of Flint (Lab)]

I am grateful to my noble friend. I just say to her that the fact that there were three organisations bundled together in July last year did not stop a significant number of Members of Parliament, nor a significant number of Peers, voting against the order. They may have voted against it because they did not like Palestine Action, but I put to my noble friend again that Palestine Action had crossed exactly the same threshold as the two other organisations in that order. The judgment is not a judgment about Palestine Action. It is a judgment about the intents of Palestine Action, in line with the intents of the other two organisations in that order, which the noble Lord, Lord Marks, referred to, and which gave an explanation of their actions.

I was accountable at this Dispatch Box to say that those three organisations had crossed the threshold. Here was an order that we put together for speed and efficiency—accept my logic or do not. Both Houses accepted the logic. Some people voted against, maybe because of Palestine Action, but in voting against Palestine Action the logic was that they were voting against exactly the same tests that had been put against the other two organisations. That is the point. I give way.

[Lord Marks of Henley-on-Thames (LD)]

I ask the Minister to consider two points. First, the procedure that he has described involves an executive decision that the organisations had crossed the threshold and an executive decision that they ought to be proscribed. That is not a parliamentary decision; far from it. If you are going to give Members of Parliament a meaningful vote, they have to have an opportunity to express a view on each of those proscriptions. That is the first question.

The second question is rather simpler. We have a parliamentary service of unparalleled quality. It would not be beyond the wit of that service, or generally, to devise a system of degrouping whereby, if either one or a number of MPs or Peers wanted the orders to be drawn up separately, they could be drawn up separately. If everybody was content that a bundle of 24, 15 or three orders could be dealt with together, they could be dealt with together. That would involve minimal consultation and a slight procedural adjustment, but it would involve the importation of fairness and good sense into a procedure.

Certainly, those people I know who voted against the proscription of the three had nothing against the proscription of the other two but were concerned that they were being told they had to vote against all three if they wished to argue against the proscription of the Palestine Action group. I ask the Minister to accept that that is unfair and a denial of parliamentary democracy.

[Lord Hanson of Flint (Lab)]

I give way also to the noble Lord, Lord Verdirame.

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Moved by

[Lord Marks of Henley-on-Thames]

453: After Clause 190, insert the following new Clause—
“Threshold for offences to be considered as terrorism-related: review(1) Within six months of the day on which this Act is passed, the Secretary of State must establish a review into what the effect would be of raising the threshold of offences which can be considered as terrorism-related offences under the Counter-Terrorism and Sentencing Act 2021.(2) The review specified in subsection (1) must report within nine months of its establishment.(3) Within one month of the day on which the report is published, it must be laid before Parliament, and the relevant Minister must table a motion for debate in each House on the report’s conclusions.”Member’s explanatory statement
This amendment requires the government to review how raising the threshold for classifying offences as terrorism-related (under the 2021 Act) has impacted sentencing. The review must be completed within a set timeframe, reported to Parliament, and debated in both Houses.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have considered this amendment while preparing for today’s debate. It calls for a review, within a timeframe, of how raising the threshold for classifying offences of terrorism related under the 2021 Act has impacted sentencing. Considering that a review is under way by the noble Lord, Lord Macdonald of River Glaven, it seems to be a waste of time to call for a review that is plainly within his terms of reference and will be within a timeframe after this Act has passed into law, so I do not propose to proceed with this amendment. I have spoken to the noble Baronesses, Lady Jones and Lady Doocey, about this, who share the amendment with me, and they are content to go along with me. I do not know whether the procedure is now that I simply do not move the amendment or that I withdraw it.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

I think the amendment has been proposed with the wording on the Marshalled List and the noble Lord has spoken to it, but he may now wish to withdraw it.

[Lord Marks of Henley-on-Thames (LD)]

That would be correct.

Amendment 453 withdrawn.

Crime and Policing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Thursday 15th January 2026 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I support these amendments for the reasons that have been mentioned. Lists are always difficult, because wherever you draw the line, there may be another group to be added, but this is a sensible pair of additions to the definition as applied in the Bill. It is difficult, not least because this week we have seen complaints about what is happening in Notting Hill, where an Israeli restaurant seems to have had a protest directly outside it for no other reason than that it happens to be Israeli. This does not seem to have anything to do with the people attending or running the place, other than the connection to Israel. No matter where we draw the line on the list, there may always be others to add. But if we cannot protect children, and we cannot protect where minority and faith groups gather to share their faith, then our society will probably be worse for it. Providing this definition will make the police’s job easier. While others may argue for more to be added to the list, these are two reasonable, well-founded additions.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I share the concern expressed by the noble Lord, Lord Leigh of Hurley, that senior police officers do not always act as they should. On Tuesday in particular, I expressed that concern in these proceedings and was rather rebuffed by the Minister. I assure the noble Lord, Lord Hogan-Howe, that I do not believe that senior police officers in particular cannot generally be relied upon to act in the best interests of their community, but I urge the Government to beware of legislating in the confident expectation that they always will. The reservations of the noble Lord, Lord Leigh, are justified. As he explained, Clause 124, if unamended, will permit a senior police officer to impose restrictions where processions or protests are

“in the vicinity of a place of worship and may intimidate persons of reasonable firmness”,

and deter them from attending

“a place of worship for the purpose of carrying out religious activities”,

or from actually carrying out such activities. As the noble Lord has explained, the amendments would add faith schools and faith community centres to list of institutions where conditions might be imposed.

On Tuesday, we went through considerable argument about the purposes of Clause 124. There was a great deal of discussion about protecting synagogues on successive Saturdays, and the noble Lord, Lord Hogan-Howe, has raised the important point that communities gather together, worship or carry out religious activities and celebrations in areas quite apart from synagogues. Bondi Beach, after all, is not a synagogue: it is a public beach where Hanukkah celebrations had been organised and were being attended by Jewish communities.

I add my voice to those of the noble Lords, Lord Hogan-Howe, and Lord Leigh of Hurley: our faith communities need protecting wherever they are gathering for the purposes of their faith. That said, I certainly agree, as does the noble Lord, Lord Hogan-Howe, with the extension of this power to cover religious activities at faith schools and faith community centres. That would be a proportionate protection, and well defined. Faith schools are a particular sensitivity, because they are principally for young people of given faiths, who may be damaged psychologically for life by being attacked in or in the vicinity of those schools. The same goes for faith community centres, where Sunday school activities or religious education may be taking place. Of course, this is of particular importance to the Jewish community in the present climate, in the light of the horrific attacks that have taken place, about which we have heard a great deal. But it is also very important that Muslim faith schools and community centres should be protected too in the presence of considerable xenophobia and Islamophobia.

We need these protections; we need to combat the fear that is now beginning to permeate the whole of our national life, and which has a really unpleasant and damaging effect. It destroys community cohesion, national spirit and the tolerance for which this country has long been famous.

[Lord Massey of Hampstead (Con)]

My Lords, I rise to support the amendment of the noble Lord, Lord Leigh, and to add to the dialogue by saying that we are becoming desensitised to violent, harassing and intimidatory protests. The ideal of having local senior police officers in charge of restricting these protests is becoming much riskier, so the need to legislate has become much more urgent. I endorse the comments of the noble Lord, Lord Leigh, in supporting this amendment.

Crime and Policing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Tuesday 13th January 2026 Lords Chamber

When the police were asked why they wanted this law, they said that when they ask people to remove their masks, they go to another part of the demonstration and put them back on. Is not the solution to grab the mask off them? I am not very good on policing themes, but I do not think we need to ban masks—to ban anonymity, in effect—on demonstrations as a way of dealing with the fact that the police think there are practical problems with the law at the moment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I too support the position of the noble Baroness, Lady Jones, that Clauses 118 to 120 should be removed altogether from the Bill.

My reasons are twofold. First, I regard it as wrong and unjustified to prohibit people from concealing their identities at demonstrations, as the noble Baroness, Lady Fox of Buckley, has said, let alone prohibiting anyone in a designated locality concealing their identity if they so wish. That is what the Bill does, as my noble friend Lord Strasburger pointed out. My second point is that the purpose of the clause can only be to enable the use of live facial recognition technology to monitor demonstrations, to enable the authorities to determine who is attending them and, frankly, to take action against them subsequently. I regard that as an offensive justification, certainly given the present state of the technology and the present lack of regulation of live facial recognition.

On the first reason, overall, the prohibition of individuals concealing their identity involves introducing a Big Brother role for the state that is unwelcome and foreign to our notions of democratic freedom. The power may not be Orwellian in scale, but it has nasty totalitarian echoes of Nineteen Eighty-Four. We should remember that the catchphrase of the dictatorship in that novel is, “Big Brother is watching you”, the justified implication being that state observation of individuals is a principal instrument in the toolkit of dictatorship.

No doubt that is the reason why the power to prohibit such concealment is hedged around in the Bill by the complicated regime of designated localities, exempted purposes and limited durations. Those limits on the prohibition of concealing identity are intended to act as a brake on the power, but, in fact, all the weaknesses—mentioned by my noble friend Lord Strasburger, the noble Baroness, Lady Fox of Buckley, and others—emphasise how far the power is a fetter on individual freedom.

I fully appreciate that the power to designate a locality under Clause 119 would arise only if a senior police officer reasonably believed that a protest was likely to involve, or has involved, the commission of offences, and that it would be expedient to exercise the power to prevent or limit the commission of offences. However, that must be measured against not only the seriousness of the offences to be avoided, as my noble friend Lord Strasburger pointed out, but the right of individuals to wear a disguise, which may be, as others have pointed out, a perfectly reasonable thing to do.

The noble Lord, Lord Pannick, spoke of protesters against the Iranian regime. What about journalists, of whatever political persuasion, who wish to report on a protest but do not want to be recognised by the protesters or the public? What about employees, who would rather not be recognised attending a protest by their employers? The employers may have a political objection to the cause that the protesters are pursuing. Any figure who may be publicly recognisable who wishes to take part in, or even just attend, a protest, and wishes not to be recognised, may legitimately have that right to conceal their identity. What about parents who do not want to be recognised at a protest by their children, or adult children who do not want to be recognised at a protest by their parents?

The noble Lord, Lord Blencathra, relied on the public protests of Emmeline Pankhurst and the noble Lord, Lord Pannick, rightly objected to that comparison. There were countless other suffragettes who did not want friends or family to know of their support for, or activity as, suffragettes in protests because they might disagree with their family, parents, husbands, wives or friends, or simply out of concern for their own safety. The noble Lord, Lord Pannick, and the noble Baroness, Lady Chakrabarti, expressed the position of ordinary citizens who wish to keep their identities private. I go further: in peacetime, it is the right of people to keep their identities private. The state would have to justify any limit on that power, and it has not done that.

We all agree that everyone has a right to protest but we must all acknowledge that protests can, and often do, involve the commission of offences by some. But the fact that protest may involve, or be likely to involve, the commission of offences by some people does not justify the police or the state in denying everybody in the designated locality the right to conceal their identities. This prohibition says to people that if you take part in or attend the protest, or are in the locality covered by the designation, you must be recognisable. I say to the Minister that that is an unjustifiable arrogation of power by the state. It must be justified by the Government if they wish to legislate for it, and they have not gone anywhere near justifying that arrogation of power.

My second reason for opposing this clause is that the prohibition on concealment of a citizen’s identity can have only the one purpose of enabling them to be monitored on camera, with a view to being identified later. Let us examine that. At its most benign, the power may be directed only against those who commit offences. Where it is for that limited purpose, it can be argued that preventing offences by the persons identified on camera may be a legitimate exercise of the power of the state, but I will repeat the points made by my noble friend Lord Strasburger on that. Just as police officers justify surveillance, so this power, if it were sufficiently defined and limited, might be justifiable, but the purposes of surveillance in the Bill go much further and unacceptably so. A dictatorial state may regard it as permissible to identify supporters of a particular view, political party or cause for the purpose of keeping them under further surveillance; worse still, branding them as trouble-makers for the future; or, at the extreme, taking action against them, ranging from pulling them in for questioning to arrest and unlawful imprisonment.

We have seen abuse of powers such as that in countries all over the world; the country that is currently under consideration is Iran, but it has happened in many others. We prevent abuse of power only by being astute to limit police powers and state infringement of individual liberties in the first place. This is not just an argument about live facial recognition technology, which my noble friend considered—we will discuss that more later—but an important argument about the legitimate limits on state power. Clauses 118 to 120 come nowhere near falling within those limits, even had they been tightly drawn—which they are not, as my noble friend and others have pointed out. For that reason, these clauses really ought to go.

[Lord Davies of Gower (Con)]

My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, for tabling these stand part notices. However, we on these Benches are unable to support her as we have general support for Clauses 118 to 120.

The clauses address a very real and increasingly familiar problem in modern protest policing: the deliberate concealment of identity to frustrate lawful policing and avoid accountability for criminal acts. I am sure that all noble Lords have seen videos circulating on the news and online of protests where large groups of people arrive masked or disguising their identity. Often, the only reason for that is to embolden themselves and each other to commit offences, knowing that their identification and subsequent prosecution will be next to impossible. This undermines both public confidence and the rule of law.

Clause 118 creates a relatively tightly drawn offence that would apply only where a locality has been designated by the police because there is a reasonable belief that a protest is likely to involve, or has involved, criminality. It is not a blanket ban on face coverings. Rather, the clause provides clear statutory defences for those wearing items for health reasons, religious observance or work-related purposes. I do not have concerns that these defences may be abused, and I hope the Minister will be able to provide some assurances as to how he intends that this will not be the practical reality.

Clauses 119 and 120 provide for necessary safeguards and structures relating to the powers of Clause 118. They stipulate that designation must be time limited, based on a reasonable belief and authorised at an appropriate level. There are explicit requirements to notify the public of the designation, the nature of the offence and the period for which it applies. These safeguards are consistent with other provisions of the Public Order Act that relate to police powers to impose conditions on assemblies and processions.

Removing these clauses would make policing protests even more difficult, as the noble Lord, Lord Hogan-Howe, outlined. Offenders who attend protests with the primary intent to commit crimes, whether related to the protest topic or not, will be able to evade justice more easily. The vast majority of peaceful protesters are unfairly associated with disorder that they did not cause. Effective policing protects the right to protest by isolating and deterring criminal behaviour within it. For those reasons, we cannot support the stand part notices in the name of the noble Baroness, Lady Jones.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

There were a number of points there. If my noble friend will allow me, I intend to answer the points made during the course of the debate. I say to her straightaway that we have published our analysis of the ECHR obligations; I can refer her to it. I will ensure that if she does not have it to hand, I will send it to her. It is published and is available for that.

As I will come on to in a moment, the rights that we are seeking in this piece of legislation for protesters, the community, the Government and police forces are measured in a way that I believe is acceptable. In recent years, policing large-scale protests has posed significant challenges; the noble Lord, Lord Hogan-Howe, referred to that. While most participants exercise their rights peacefully and lawfully, a small minority have engaged in criminal acts while concealing their identity. It is because the police have highlighted this issue with existing powers to identify those committing offences during protests that we have brought these issues forward. It is essential that the police can identify those committing offences during protests, not only to ensure accountability and justice but to protect peaceful demonstrators and the wider public from harm.

As a whole, Clauses 118 to 120 strike a careful balance. This will not apply to all protests. It applies only to protests that have been designated by a senior police officer of inspector rank or above. In addition, as was mentioned by a number of contributors to the debate, although the police currently have powers to remove face coverings in designated areas, they themselves have said to us—this goes back to the point made by the noble Lord, Lord Hogan-Howe—that those measures are not always effective in the context of managing protests. People often comply but then replace a face covering later, which is difficult to monitor in large gatherings. The new offence addresses this by making it unlawful to wear a face covering once a locality has been designated by a police officer—not by a Minister or by the Government—in the light of upholding rights as a whole.

That senior police officer, who will be at least of the rank of inspector, must reasonably believe that a protest is likely to occur, that it is likely to lead to criminal behaviour—that is the critical point, which comes to the contributions from the noble Baroness, Lady Fox of Buckley, the noble Lord, Lord Hogan-Howe, and others—and that it is necessary to act to prevent or reduce such offences. That is an important caveat, not the Nineteen Eighty-Four dystopia that the noble Lord, Lord Marks, seems to—

[Lord Marks of Henley-on-Thames (LD)]

My Lords—

[Lord Hanson of Flint (Lab)]

In a moment. It is not a Nineteen Eighty-Four dystopia, me becoming Orwellian or the Government becoming Big Brother and being all-seeing. It is about potential criminal activity where a police officer—not the Government, this House or the House of Commons—determines that this action should be taken. If a police officer determines that that designation needs to occur at that space and time, that is a reasonable thing, allowing protests but also stopping criminal behaviour.

[Lord Marks of Henley-on-Thames (LD)]

I am grateful to the Minister for giving way. I simply want to ask him this question: how far have the Government stress-tested these clauses against the test posed by the noble Baroness, Lady Chakrabarti? Under the auspices of a future Government less benign than this Labour Government—whom I respect, and he knows that—to what extent has that stress-testing tested, for instance, how far the promotion of police officers to the rank of inspector may produce benign results, or how far the results could be Orwellian? I do not suggest that this Government are Orwellian. My suggestion is that there is potential, in these clauses as drawn, for bad consequences.

[Lord Hanson of Flint (Lab)]

I will say two things to the noble Lord in our defence. His presumption assumes that a police force in five years’ time will be dominated by right-wing Conservatives, Reform members or Socialist Workers Party members, who instruct the police force to instigate that designated area. I happen to believe— I am sure the noble Lord, Lord Hogan-Howe, would agree with me—that the police are independent of government, they have integrity, and they determine policies based on legislation.

This does not give a police officer the power to be a political commissar, whether of right or left, but gives the police the power to say, “There is potentially criminal action in this designated space; therefore, in this space we need to ensure that we can remove face coverings”. If there is another Government who he fears in the future—all of us may fear different Governments of different authoritarian natures—I guess that they will have won an election and will have 400 or so Members of Parliament, and they can pass what the heck they like anyway.

Therefore, there is an argument to say to the noble Lord that his fears are undermining the integrity and the independence of the police force, and all I am doing in this legislation is giving the police the power to take action should they, as the police, determine that they want to do it.

The noble Lord, Lord Strasburger, mentioned that it does not require someone to know they are committing the offence. Clause 119(2) requires the police to notify in writing that the designation has been made, the nature of the offence, the locality to which the designation applies and the period for which it applies. So it could even be a designation in writing for a limited time and in a limited place, but it is important that we do so.

A number of noble colleagues have raised religious and medical exemptions and further loopholes. The purpose of the new offence is, as I have said, to prevent protesters concealing their identity in order to avoid conviction for criminal activity in the designated place.

The measure does provide a reverse legal burden on the defendant to prove, on the balance of probabilities, that they wore a face covering for work purposes, or religious or health reasons. But, as with any charge, that is a defence in the Bill, in the future Act, in law, that allows people to say, “I am a paint sprayer”, or that they were seeking to prevent illness that might cause further illness if they did not wear a mask, or that, potentially, they had a religious reason to wear a mask. That is a defence in the event of any charge being made. But, again, it is a defence at the time when the police officer might well say to an individual that that mask needs to be removed.

--- Later in debate ---

[Baroness Cash (Con)]

My Lords, I am very grateful to the noble Lord for raising the issue of Miznon and Erev in Notting Hill. There have been a number of protests outside that restaurant, which is actually on my street. The owners of the restaurant and the residents who use it, including me, have been subjected to the vilest form of antisemitism, and the police have done nothing.

So I support this and will ask the Minister a number of questions about it. It is not enough to say that the senior officer should be responsible for this; much clearer principles and rules are needed around what is and is not acceptable, if the police are evidently—based on recent events—not capable of exercising that judgment themselves. So I support this and hope that the Minister will take it seriously.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will confine what I say to a few points in response to some of the speakers we have heard from.

I found myself in considerable agreement with the general concerns about balance expressed by the right reverend Prelate the Bishop of Manchester. It seems to me that, in some of the consideration of these clauses, we have lost sight of what we agreed in Committee last week. Everybody agreed that questions for the courts and others about considering breaches of public order law—as well as the introduction of new public order provisions—do raise the question of balance between, on the one hand, the right to protest and, on the other, the rights and freedoms of others.

I will resist the temptation to respond in detail to the amendments from the noble Lord, Lord Blencathra, in spite of his claim that he relished the Minister’s demolition of my arguments about stress-testing this legislation for the future and not relying on the benign intentions of this Government. I have concerns about the noble Lord’s amendments; I am sure that the Minister will deal with them. They include questions about what “serious disruption” is and what should amount to “essential services” within the meaning of the Act, as well as he whole question of cumulative disruption, to which we will turn later.

Those concerns—and the Minister’s comments in the previous group on the publication of the review of the noble Lord, Lord Macdonald of River Glaven—raise an important issue about the timing of this legislation, compared with the timing of the noble Lord’s expected report. I share the confidence that he will consider all these issues with great care, but might it not have been better had the review come first and the introduction of this legislation and its consideration in this House come second? From what the Minister said in his speech on the previous group, I take it that it is the Government’s present intention to give further consideration to public order law in the light of the noble Lord’s expected report. If that is the case—and if that attention will be given objectively and carefully, and then lead to such legislation as is necessary—that may be the best we can do with the timing that we have now. But my comments stand about the order in which this has been done stand.

I turn to the speech of the noble Lord, Lord Hogan-Howe. I do not propose to give him many hours of pleasure in listening again to arguments about balance as a matter of law; however, I do repeat the question asked by the noble Lord, Lord Leigh of Hurley, about how confident he is that police officers, including senior police officers, always get the balance right. That is a difficult assertion to make or defend. I am not suggesting that he went as far as that, but it is very important, not only for the Government but for us as parliamentarians, to consider the possibility that police officers sometimes fail to get the balance right.

I take the point that the noble Lord, Lord Hogan-Howe, made that it is often a very difficult balance to strike. We need to be very careful in commenting on how the police should strike it and not place too much confidence in the police in the future and, in particular, in the event of changes in government that, as the noble Lord recognised, might be unwelcome to many of us. Nevertheless, they could be changes of an elected Government.

That brings me to Amendment 382H, which was welcomed by the noble Lord, Lord Murray of Blidworth, and elegantly presented by the noble Lord, Lord Faulks. I will draw the Committee’s attention to one problem. Proposed new subsection (5) is not simply definitional; it is designed to act—and would act, in some sense—as an ouster for the purposes of domestic courts of the effect of the convention rights. It uses the language of Article 11 when it states:

“For the purposes of the Human Rights Act 1998, this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.


Article 11 requires that the rights that are respected

“are necessary in a democratic society … for the protection of the rights and freedoms of others”.

If Parliament legislates that a section must be treated as necessary, it precludes within this jurisdiction any testing of the proposition that such provisions, as interpreted, are necessary in a democratic society for the protection of the rights and freedoms of others. That is the province of the European Court of Human Rights to consider. It is a requirement of the Human Rights Act that domestic courts here give effect to the European convention and interpret legislation, where they can, as compatible with the convention.

[Lord Faulks (Non-Afl)]

Of course, this is an amendment, so the Government will not have given the certification of compliance with the European convention. Were the Minister to accept the amendment and it to become part of the Bill, the Government could then certify that it did comply with the European convention and it would be unnecessary to put that particular provision in. But, as an amendment, it is making clear that that particular provision takes into account that there are convention rights and, notwithstanding those convention rights, the amendment is to have the effect that it does.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, that is a complicated justification of the inclusion of that subsection in the amendment. I just about understand what the noble Lord, Lord Faulks, is saying there. But were his amendment to be accepted, it would raise difficulties about the compliance or cohesion of that amendment with the European Convention on Human Rights. I leave the point there. It is for the Minister to deal with it. If he says he can accept the amendment, subject to later adjustment to take out that subsection, so be it.

Crime and Policing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 7th January 2026 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

369: Before Clause 118, insert the following new Clause—
“The right to protestBefore section 11 of the Public Order Act 1986 (advance notice of public processions), insert—“10A The right to protest(1) Everyone has the right to engage in peaceful protest, both alone and with others.(2) Public authorities have a duty to—(a) respect the right to protest,(b) protect the right to protest, and(c) facilitate the right to protest.(3) A public authority may only interfere with the right to protest, including by placing restrictions upon its exercise, when it is necessary and proportionate to do so to—(a) protect national security or public safety,(b) prevent disorder or crime, or(c) protect public health, or the rights and freedoms of others.(4) For the purposes of this section “public authority” has the same meaning as in section 6 of the Human Rights Act 1998 (acts of public authorities).”.”Member’s explanatory statement
This amendment would introduce an express statutory right to protest, imposing both negative and positive obligations on public authorities while recognising that the right to protest may need to be limited to protect other legitimate public interests.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in this group I have Amendments 369 and 371. Amendment 369 is co-signed by my noble friend Lady Doocey and the noble Baronesses, Lady Fox of Buckley and Lady Jones of Moulsecoomb, and is itself subject to two amendments by the noble Lord, Lord Blencathra—Amendments 369ZA and 369ZB. Our other Amendment 371 is co-signed by my noble friends Lady Doocey and Lord Strasburger, and by the noble Baroness, Lady Fox of Buckley. I am grateful to them all for their support.

Amendment 369 seeks to enshrine in statute the right to protest as it has long been enjoyed in this country. The right to protest is, of course, enshrined in the ECHR. Article 10 concerns the right to freedom of expression and Article 11 concerns the right to freedom of assembly and association. The right to protest is, and always has been, circumscribed in English law, just as Articles 10 and 11 rights are circumscribed in the convention.

It is worth reminding ourselves reasonably briefly of the limits placed on the two freedoms by the convention. The right to freedom of expression under Article 10 expressly includes the

“freedom to hold opinions and to receive and impart information and ideas without interference by public authority”,

but it is limited, as it may be

“subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”,

and, most relevantly,

“in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals”,

or for the protection of the rights and freedoms of others. The Article 11 right to freedom of association and assembly accords to everyone

“the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests”.

It limits the restrictions that may be placed on those rights to those that are

“prescribed by law and are necessary in a democratic society in the interests of national security or public safety”,

and the list goes on in the same way as Article 10.

I repeat the words of the two convention articles not because they are in any sense new but because they demonstrate the balancing exercise that the state must carry out when considering how far it may or may not be legitimate to restrict the exercise of the convention freedoms in this country, not as a matter simply of compliance with the convention but as a matter of sound public policy.

The right to protest has never been explicitly enshrined in English or UK legislation, although the restrictions on it have been. Considerable changes were made by the Conservative Government in the Police, Crime, Sentencing and Courts Act 2022, with new statutory offences of public nuisance, more police powers to impose conditions on demonstrations that were deemed likely to be noisy or disruptive, and harsher penalties for obstructing highways.

The Bill now proposes further restrictions. For example, Clauses 118 to 121, to be considered in the next group, would create a new offence of concealing identity at protests in localities designated by the police. In the light of the development of live facial recognition technology, that looks and sounds ominous. Clause 121 will ban the use of pyrotechnic articles at protests, which I take to include any type of firework, unless exempted by the regulations. Collectively, the new restrictions on liberty and the further police powers, particularly taken with the new powers and conditions legislated for in the 2022 Act, mean that the right to protest is being progressively restricted. That highlights, we say, the need for a very public statement in domestic law of the right to protest and of the criteria to be applied when limiting it.

Our amendments seek to provide that in a way that is proportionate and balanced, but firm. We start Amendment 369 with the statement:

“Everyone has the right to engage in peaceful protest, both alone and with others”.


Our amendment then imposes on public authorities three-pronged duties to respect, protect and facilitate the right to protest. We appreciate that there are or can be significant resource implications for police and public authorities in policing protests. It can be an expensive exercise. We also appreciate that there is a difficult balance for the police to draw between overpolicing protests and underpolicing them, and that it is very often difficult to predict what is the right level of policing to maintain the balance between protecting the right to protest and risking disturbance if things go wrong. But the right to protest is a very valuable right, and it is extremely important to freedom and democracy that public authorities appreciate that they have the legal duty to respect, protect and facilitate it that our amendment describes. That legal duty must be backed by resources for the police and local authorities to ensure that this duty can be effectively performed.

The Government have appointed the noble Lord, Lord Macdonald of River Glaven, to carry out a review of public order and hate crime legislation. Its terms of reference were published last month, and the final report is expected next month, February 2026. In spite of the tight timescale, the noble Lord will, no doubt, carry out a thorough review of the law in this area, guided by the three principles that are set out in his terms of reference. The review will consider, first,

“whether the legislation is fit for purpose”,

secondly,

“whether it adequately protects communities from intimidation and hate”,

and thirdly,

“whether it strikes a fair balance between freedom of expression and the right to protest with the need to prevent disorder and keep communities safe”.

We maintain that proposed new subsections (2) and (3) in our amendment set out succinctly and clearly that balance. In order to be permissible, interference with or restriction of the right to protest must be necessary and proportionate and for the purpose of protecting national security or public safety, preventing disorder or crime, or protecting public health or the rights and freedoms of others. Those, we say, are the public interests that justify restriction of the right to protest.

In many ways, it is a pity that the Macdonald review was not commissioned before the Bill was introduced, given that deferring this legislation until after the report might have given the Government and Parliament a better opportunity to look afresh at some of the provisions in the 2022 Act and consider the proposals in the Bill. But we are where we are, and it is for Parliament to set out the policy objectives. So I suggest that it is more important than ever that we set out in statute the balance that is to be struck, even if this Bill will not be passed in its final form before the Macdonald review is published.

Our Amendment 371 seeks a review of the existing legal framework of protest and its interaction with Article 9, which covers freedom of thought, conscience and religion, as well as Articles 10 and 11, which I have considered above. If our Amendment 371 is accepted, that review will no doubt build on the work of the Macdonald review in the light of the passage of the Bill.

I turn to the two amendments proposed by the noble Lord, Lord Blencathra, with the balance between the right to protest and justifiable restrictions thereon as the touchstone. Amendment 369ZA would put public authorities under a duty to

“ensure that all other members of the public … are not hindered in any way from going about their daily business”,

and 369ZB would say that public authorities could interfere with the right to protest by restriction to

“prevent inconvenience to any member of the public”

or to

“permit any persons from going about their daily business”—

I suspect that the noble Lord must mean to “permit any persons to go about their daily business”.

The implication of both amendments is that it could be legitimately seen as necessary and proportionate to interfere with or restrict the right to protest for such a reason. Yet there is no requirement in either amendment that a significant number of people have to be inconvenienced or troubled in their daily business for a restriction to be justified. Far from it: Amendment 369ZA talks about any member of the public and Amendment 369ZB talks about permitting “any persons”. Those amendments are far too draconian.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

I agree with the noble Lord, Lord Walney, on that point. The right to free speech is extremely important, and there is no stopping the right to free speech about the issue of Palestine in any way, shape or form. If a determination is made under the Terrorism Act 2000 that an organisation has crossed that threshold, the Government have a duty to act on that, which is what we have done in this case. With due respect to the noble Lord, Lord Strasburger, I just did not want to allow the comments he made to colour the position on a protest around Palestine. He can protest around that, but he cannot support an organisation that still has some outstanding court cases and has undertaken some severe action to date.

[Lord Marks of Henley-on-Thames (LD)]

May I press the Minister on that? I quite understand his analysis of the law: that the Palestine Action group became a proscribed organisation when Parliament said it should and, as a result of that, it follows from the terms of the Terrorism Act that there were and are continuing to be prosecutions of people who express support by perhaps sitting wearing a placard, or by wearing an item of clothing that expresses such support.

The proscription is of course the subject of challenge in the courts here and may well be the subject of challenge in the European Court of Human Rights, so I will say nothing further about that. But subject to that, have the Government not had any concern about the fact that because of the way the Terrorism Act works, the proscription of any organisation means that any expression of support, as the noble Lord said —however peaceable or however others might regard it as simply peaceable protest—renders it illegal and renders the person expressing such support liable to being prosecuted? Do the Government not feel that this is a reason for having a review of the validity and sense of the law in this area, where the Terrorism Act carries, as it stands, that unfortunate consequence?

[Lord Hanson of Flint (Lab)]

We have strayed, with due respect to all noble Lords, slightly wider than the amendment. I just wanted to make the point about Palestine Action because the noble Lord, Lord Strasburger, mentioned it.

The noble Lord, Lord Macdonald of River Glaven, is looking at all aspects of prosecution and all aspects relating to legislation. We keep all matters under review at all times.

The 2000 Act sets down certain criteria. That threshold was passed and crossed in this case. I defended that in this House, and the House supported it on a cross-party basis. That is political life. The noble Lord can move an amendment at any time to strike that legislation down, if he wishes to.

I hope that the noble Lords will not press the amendments before us today. The right to peaceful protest is vital. The Government support it. The Government are making changes still to allow that right but also to try to get a fair balance so that communities and others can also enjoy life when a protest occurs. We have the wider review from the noble Lord, Lord Macdonald of River Glaven, which will report in due course and which will colour, no doubt, further discussions. I hope that the noble Lord will withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will be as brief as I can. On the amendment from the noble Lord, Lord Blencathra, I welcome his support for the principle of Amendment 369, but our amendment does fully respect the rights and freedoms of others and does so expressly in proposed new subsection (3)(c). That does not mean that any inconvenience to citizens should be accepted as a reason for restricting the right to protest. I make the point that the noble Baroness, Lady Jones, and others have made: that nearly all protests cause some inconvenience and noise without unduly infringing the rights of others. I suggest to the noble Lord, Lord Blencathra, that, certainly as they are framed, his amendments smack of intolerance in their failure to countenance any inconvenience.

All noble Lords have accepted that the rights of neither side of the argument are absolute—the noble Lords, Lord Walney and Lord Goodman, made the same point. I believe, along with others, that the toleration of some inconvenience is the price of the democratic right to protest.

The noble Lord, Lord Pannick, is absolutely right that we have the ECHR rights, and he knows that I regard them as of critical importance. He makes the point—supported by the others, and it would be echoed by me—that Amendment 369, in part, duplicates the ECHR rights; I am bound to say that I do not regard it as likely that there will be satellite litigation about the difference between the two sets of rights. One point that bears on his argument is that the statement in domestic legislation that directly bears on the right to protest—whereas the Article 10 and Article 11 rights do bear on it but not as directly as our amendment —is of great importance. But that is only part of the picture.

I am also absolutely clear that I am not criticising and have at no stage criticised the police for enforcing the law. Indeed, as it happens, I take the contrary view. I do not believe that the police should have discretion not to enforce the law except on quite serious grounds of convenience.

I criticise the fact—I say it is relevant, when the Minister said it was not relevant—that the need for reconsideration of the Terrorism Act in the light of what has happened, and it has left us in the position that peaceful protest can lead to prosecutions that are unintended, means that a full review is necessary. I, of course, welcome the review of noble Lord, Lord Macdonald of River Glaven, and I welcome the fact that the Government have put that in train, but a further full review over a longer period is necessary.

However, the absolutely crucial point about the need for Amendment 369 is the one the noble Baroness, Lady Fox, made: it would impose an express statutory duty on public authorities to respect, protect and facilitate the right to protest, which is not anywhere in the ECHR. There may be resource implications to that, but it only reflects the importance we place on preserving democracy and the right to protest along with it.

For the time being, I will of course seek leave to withdraw the amendment, but I will reconsider the position between now and Report, having regard to the support I have received from some quarters around the House, but not universally.

--- Later in debate ---

[The Deputy Chairman of Committees (Viscount Stansgate) (Lab)]

It is now appropriate for the noble Lord, Lord Marks, to tell the Committee whether he wishes to withdraw Amendment 369.

[Lord Marks of Henley-on-Thames (LD)]

I apologise for intervening too early, and I seek leave to withdraw my amendment.

Amendment 369 withdrawn.

Crime and Policing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 17th December 2025 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

347: After Clause 109 Insert the following new Clause—
“Controlling or coercive behaviour by persons providing psychotherapy or counselling services(1) A person (“A”) commits an offence if—(a) A is a person providing or purporting to provide psychotherapy or counselling services to another person (“B”),(b) A repeatedly or continuously engages in behaviour towards B that is controlling or coercive,(c) the behaviour has a serious effect on B, and(d) A knows or ought to know that the behaviour will or may have a serious effect on B.(2) A’s behaviour has a “serious effect” on B if—(a) it causes B to fear, on at least two occasions, that violence will be used against B, or(b) it causes B psychological harm which has a substantial adverse effect on B’s usual day-to-day activities.(3) For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.(4) In proceedings for an offence under this section it is a defence for A to show that—(a) in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and(b) the behaviour was in all the circumstances reasonable.(5) A is to be taken to have shown the facts mentioned in subsection (4) if—(a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and(b) the contrary is not proved beyond reasonable doubt.(6) The defence in subsection (4) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.(7) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”Member’s explanatory statement
This amendment creates an offence of controlling or coercive behaviour by providing psychotherapy or counselling services.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this amendment is in exactly the same form as that which I, with the noble and learned Lord, Lord Garnier, and my friend Lady Jolly, who is now retired, moved to the Domestic Abuse Bill in 2021. The aim of the amendment, which would introduce a new clause after Clause 109, is to criminalise controlling or coercive behaviour by so-called psychotherapists or counsellors who are in fact no better than charlatans or quacks who prey on their clients, generally young people, taking appalling advantage of their vulnerabilities, abusing their misplaced trust, and often charging them substantial fees in the process.

I should make it clear that this amendment does not imply any criticism of the many honest, altruistic and understanding psychotherapists and counsellors who daily help patients and clients up and down the country with advice and therapy. Such honest psycho- therapists offer counselling and help to their clients or patients and generally assist them through very difficult times in their lives.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

I hear what the noble and learned Lord says. I have tried to tell the Committee that the Department of Health and Social Care is taking forward a programme of reform to professional regulation and legislative frameworks for healthcare professionals. Responsibility for that lies with the Department of Health. On this Bill, I speak in response to the amendments on behalf of the Home Office. I am arguing, and I have done so previously, that legislation would not be the appropriate route forward. There may be a common thread with previous Ministers there, but that is the argument that I am putting to the Committee.

I am happy to reflect with colleague as to whether I can ask my colleague Ministers to examine the issues that the noble and learned Lord has put to the Committee, but it is ultimately for them to consider the evidence provided. The noble and learned Lord, Lord Garnier, thinks that that is a brush-off. I hope it is not, but he can judge that in reflecting on what I have said today. If he wishes to then there is the opportunity to raise this issue on Report; the noble Lord, Lord Marks, has already shown his tenacity in doing so on several occasions.

I am happy to try to facilitate for a Minister of Health to examine the issues put before the Committee, and I think it is reasonable that I draw this debate to the attention of the appropriate Minister for Health, including the remarks of the noble Lord, Lord Pannick, which test the assumptions of the proposed new clause as well. Ultimately, however, I am standing here on behalf of the Government and the Home Office, and speaking for all these matters now. The legislative route is not one that we consider appropriate. I have said what I have said, and I would be very happy, if the noble Lord wishes to withdraw his amendment, to draw the attention of the appropriate Health Minister to this debate, including the noble Lord’s comments and those of other Members. I have heard the request for a meeting from the noble and learned Lord, Lord Garnier, and I will draw that request to the attention of the appropriate Health Minister. If Members remain unhappy after that process then there are a number of options open to them; they are experienced parliamentarians and no doubt they will exercise them.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am very grateful to all those noble Lords who have spoken movingly and persuasively in favour of our amendment. I am also grateful to the noble Baroness, Lady Gohir, for giving the added suggestion in relation to spiritual abuse. I am grateful to the noble Lord, Lord Davies of Gower, for the support for our amendment from the Opposition Benches. I am bound to say that I am disappointed by the position taken by the noble Lord, Lord Hanson, on behalf of the Government, for a number of reasons.

First, I have the greatest respect for the way that the noble Lord has handled matters in this House since becoming a Minister, but I have never heard him make a brush-off or an excuse quite as specious as the one that he just made, when he said that the fact that the same excuse made by him had been made by the Conservative Government gave it validity. It does not. There is no validity to such an excuse and, as the noble Lord, Lord Deben, said, the excuses really do have to stop now, because we raise a very real issue.

Secondly, I will consider the points made by the noble Lord, Lord Pannick, whom I count as a friend as well as a very wise lawyer. If he has doubts about the drafting then those are something we will discuss, and no doubt can discuss with the Government. I also agree with the points made by those noble Lords who said that regulation is desperately needed for psycho- therapists and therapists. Of course it is, but the fact that we need regulation does not mean that we do not also need the help of the criminal law for those who are unscrupulous enough to use quack psychotherapy and false counselling to dupe people into parting with money and ruining their lives in the process. It is all very well for the Minister to say that he will get the Department of Health involved. We heard that from the Conservative Government, and it is not enough. This is a Crime and Policing Bill that introduces new offences: the protection of victims and vulnerable people, and the visiting of penalties upon unscrupulous and criminal behaviour, is what the criminal law is and ought to be about. The time has come to deal with it.

We have heard about the approach of the noble Lord, Lord Alderdice, to regulation. He has worked on that for many years. He wanted to be here this evening, but I am afraid that he was stuck in traffic in south Oxfordshire—something that happens to many of us, even in south Oxfordshire. The noble Lord has also supported the proposition that this behaviour ought to be criminal, and he supports it now. I suggest that the Government need to take that very seriously indeed.

I do not accept that the wording of the offence is so broad that it does not penalise the correct behaviour. The way that it is phrased in subsection 1(a) is that A commits an offence if

“A is a person providing or purporting to provide psychotherapy or counselling services to another person”.


The point taken by the noble Lord, Lord Hanson—that there may be other people who need regulating—does not count. The number of counsellors that he described would all be caught by this.

This should not now be the subject for an excuse. It is a time for action. We need to legislate now. I would like to meet the Minister, the noble Lord, Lord Pannick, and anybody else who is interested. The noble and learned Lord, Lord Garnier, who has also co-signed this amendment, for which I am very grateful, has worked on this for years and so has the noble Lord, Lord Hunt of Kings Heath. If we can have a meeting, work out between now and Report how to get the drafting right, and produce a criminal offence that will work and will outlaw this behaviour then that is something that I would very much like to do, and I will have achieved the end that I seek. I invite the Minister—indeed, as the noble Lord, Lord Deben, put it, I beg him—to take this seriously and end this scourge once and for all with this Crime and Policing Bill. With that said, and at this stage, I beg leave to withdraw the amendment, but we will come back to it on Report.

Amendment 347 withdrawn.

Crime and Policing Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading
Thursday 16th October 2025 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, although this Bill is extremely wide-ranging, as has been pointed out, and plainly lacks focus, we have had an interesting and diffuse debate and we can discern something now of the Government’s central aims: first, to help halve violence against women and girls; secondly, to protect children from criminal exploitation and abuse, on which my noble friends Lady Benjamin, Lady Hamwee and Lady Featherstone, and the noble Baronesses, Lady Finlay and Lady Cash, and others spoke so compellingly; and then to cut street violence, particularly knife crime, to reduce anti-social behaviour and to increase neighbourhood policing and public confidence in the police. On these Benches, we support all these aims. However, as it stands, the Bill risks many unforeseen and undesirable consequences.

Broadly, we will seek to ensure that the Bill does not unjustifiably reduce citizens’ rights and liberties; that it should not unnecessarily create new or duplicatory offences; that it will keep the law up to date with new technology, as my noble friend Lord Clement-Jones explained; that it will enhance police effectiveness and community confidence, and will not increase pressure on the police or local authorities; and, generally, that it will not make managing the criminal justice system more difficult, either by increasing court backlogs or making it harder for courts to handle their workload effectively and justly, or by increasing the prison population when our aim is to reduce reoffending, reverse sentence inflation and rehabilitate more offenders in the community.

I can make only a few points. The detail we will leave to 11 days in Committee, and we may need even more for proper consideration of the many expected amendments, as the noble Lord, Lord Sandhurst, predicted.

I turn first to the protection of citizens’ rights, particularly the right to peaceful protest. Whatever our differing views on the horrors in the Middle East, many have been frankly shocked that the Terrorism Act was deployed in the proscription of Palestine Action, whether or not that was sanctioned by the legislation. Many hundreds of protesters face prosecution for offences labelled as “terrorist” for taking part in protests in an entirely non-violent way. Such prosecutions may prevent them finding employment or travelling to the States, as my noble friend Lady Miller pointed out, or indeed the EU when the European travel authorisation scheme is launched next year. These are not groundless scare stories; they are points made by the Government and senior officers to deter attendance at these protests. We will be seeking stronger statutory protection for the right to peaceful protest and a review of the threshold for so-called “terrorist offences”.

I am concerned that the generally very clear and helpful opening by the noble Baroness, Lady Levitt—for which I thank her—revealed on these issues a lack of balance in government. The speeches by the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Cashman, and my noble friends Lord Strasburger and Lady Miller, and numbers of others, provided a welcome counterweight.

We also worry about the indiscriminate use of live facial recognition, as my noble friend Lord Strasburger explained. While it may have uses—for example, in connection with retail theft, car break-ins, bag snatches and other street crime—I suggest to the noble Lord, Lord Mackenzie, and others that its use needs careful review and control. Unsafeguarded access to DVLA information, or electronic information on which the noble Lord, Lord Anderson of Ipswich, spoke, presents similar risks. So, while agreeing with much of what the noble Lord, Lord Hogan-Howe, said, we do not always go along with his approach to police access to personal information. However, I suggest that the concept of stewarded public interest data trusts—introduced, for example, in Canada, Australia and Belgium—offers balance on these privacy issues and deserves serious consideration. We must not slide inadvertently, carelessly or by stealth towards being a surveillance state.

The respect order proposals are not risk-free. Although making these orders will be for the courts, applications for them will be largely for our underresourced police and local authorities. How confident can the Government be of their usefulness? Will not the financial and administrative burden of securing these orders, organising their supervision and then policing and punishing their breach, outweigh their effectiveness in reducing crime and anti-social behaviour? Are the procedures robust in respecting citizens’ liberties? Before respect orders are made, there must be wide consultation on the guidance and an independent review of existing powers.

The Bill will create many new offences. I started in preparation to count them but ran out of steam. A number of them duplicate existing offences and will make the criminal law more complicated. As the noble Lord, Lord Davies of Gower, pointed out, and as the noble and learned Lord, Lord Garnier, so graphically described, supported by the noble Lords, Lord Vaizey, Lord Russell of Liverpool and others, other provisions increase existing penalties.

This mixture is generally not helpful. More prosecutions for complex new offences will tend to clog up the courts and exacerbate the appalling backlogs we so desperately need to clear. More and longer prison sentences will do nothing to reduce reoffending or its massive cost to society. We already imprison more people and for longer than other countries in western Europe. Our prisons are still overcrowded, understaffed and in many cases dilapidated, often serving more as academies of crime than as centres of reform. We should be reversing sentence inflation, relying on more and better community sentencing and focusing on rehabilitation and training. The Sentencing Bill will cover these issues, but this Bill betrays a lack of co-ordination across criminal justice issues

While opposing unnecessary new offences, I will relay the amendment I proposed to the Domestic Abuse Bill, to criminalise psychotherapists who exercise controlling or coercive behaviour over their patients, often vulnerable young adults. When I moved this amendment in 2021 with all-party support, the noble Lord, Lord Kennedy of Southwark, who is now in a stronger position to influence these matters, argued that we had made a powerful case for change and said that he hoped the Government would, as he put it,

“set out a pathway to remedy this undeniably serious problem”.—[Official Report, 10/3/21; col. 1776.]

I hope to hold this Government to his word.

Finally, on police effectiveness and public confidence, and on pressure on the police and local authorities, my noble friend Lady Doocey rightly said that pressure on the police largely comes down to resources—for example, on drug testing and law enforcement. This Government, like the last, persistently understate both the shortage of resources for policing and the pressures on the police, which diminish both police effectiveness and public confidence. Public confidence means community confidence, which requires a genuine commitment to neighbourhood policing, which was addressed by my noble friend, and to ending racism and hate crime, on which the noble Baroness, Lady Lawrence, the noble Lord, Lord Cashman, and others spoke. We will seek progress on these issues.

I add one final point on policing and police resources. The prevalent minimum, or zero, response to so-called minor crime undermines public confidence. It is said that minimal response is acceptable for crimes that are low-level and low-value. But, just as the noble Lord, Lord Birt, and the noble Viscount, Lord Goschen, described, crimes such as bike theft, car break-ins, shop theft and mobile phone, watch and bag snatches are committed on an industrial scale. Such offences may often be low-value in isolation, but these are not isolated incidents; they are largely the work of multiple repeat offenders and professional gangs. Concerted efforts to ensure they are policed more effectively would do much to restore public confidence in our policing.

King’s Speech

Lord Marks of Henley-on-Thames Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I had the pleasure of welcoming the noble Lord, Lord Timpson, during the discussion on the prison Statement much earlier today, and I now add my congratulations to him on his powerful maiden speech. His extremely warm and enthusiastic welcome from the whole House is a tribute to his long history of achievement in rehabilitation and reform, and his appointment gives fresh heart and hope to those of us—and in this House there are many—who have argued this case for a very long time. My hope is that we can now look to government to direct our criminal justice system towards reducing reoffending and turning lives around. That is not achieved simply by banging up offenders for as long as possible to keep them away from the public, as the noble and learned Lord, Lord Burnett of Maldon, just succinctly made clear. Taking dangerous offenders out of society for an appropriate period is, of course, a proper function of punishment, but I only wish more of the popular press would climb off that bandwagon.

I also congratulate the noble Lord, Lord Goodman of Wycombe, on an interesting and thoughtful maiden speech, in which he drew inspiration from his grandfather’s history to express his commitment to intercommunity cohesion. We also look forward to the maiden speech of the noble Lord, Lord Hanson of Flint, at the end of a very long debate.

I will concentrate on justice; my noble friends Lady Doocey, Lord Taylor and Lady Ludford, and others from these Benches, have spoken on home affairs. But before I turn to the substance, I wish to make a point about the Arbitration Bill and the Litigation Funding Agreements (Enforceability) Bill, as the noble and learned Lord, Lord Stewart of Dirleton, thought I might, because I have a serious criticism of our processes, which we must, I suggest, change.

The Arbitration Bill follows detailed recommendations made by the Law Commission for improving and updating our highly regarded Arbitration Act 1996. Legal services, and arbitration in particular, make an important contribution to the UK economy. London has long been the pre-eminent seat for international arbitrations—tied for the first time this year with Singapore. It is vital that we maintain our position.

The Bill was introduced into this House in the last Parliament following the special Law Commission procedure. A special committee was established under the chairmanship of the noble and learned Lord, Lord Thomas of Cwmgiedd, and we took lengthy evidence in writing and orally from a long and distinguished list of witnesses. Two Government Ministers and the noble Lord, Lord Ponsonby, were also members of the committee. We agreed important amendments, all of which are now incorporated into the new draft. Huge amounts of time and money were expended. The Bill was non-controversial, and everyone was happy to agree it. Yet, when the July election was announced, the Whips in both Houses could not make the time to agree that it should be put before them in the wash-up. Why not? It was because of an absurd and outdated convention that, if a Bill has not gone through all stages in one House, it cannot be introduced in the other so as to go through the speeded-up wash-up procedure, however much the Bill is needed and however uncontroversial it is. We could have completed the passage of the Bill in a couple of hours of parliamentary time before the Dissolution, but no: we lost it, and months of time, and we have sustained significant damage to our economy and loss of prestige for our legal services as a result.

We lost the Litigation Funding Agreements (Enforceability) Bill in the same way, as the noble and learned Lord, Lord Stewart, and the noble Lord, Lord Sandhurst, have said. The litigation funding companies are, on any view, really important for access to justice, supporting litigation such as that brought by the sub-postmasters arising out of the Horizon scandal, which otherwise would not have got off the ground. They may need regulation in future, about which we may argue, but no one doubts that they should be permitted to function. Yet they are now an industry in limbo. That is because of the Supreme Court’s decision, in a case called PACCAR, that their agreements are unenforceable. The Bill, supported by all parties, would uncontroversially have reversed that decision. We have to change this absurd and outdated approach to the wash-up at the end of a Parliament to avoid a waste of time and money.

Turning to the substance, we welcome the proposed crime and policing Bill. Liberal Democrats have long been committed to community policing. Fostering close relationships between police officers and their communities is a proven and important way to build and maintain trust in the police, and so to increase the flow of information to and public confidence in the police. That is crucial after the number of horrific incidents over the last few years.

The victims, courts and public protection Bill will build on the Victims and Prisoners Act, which was a good example of cross-party co-operation in this House, but there is unfinished business. Strengthening the power of the Victims’ Commissioner by statute will give victims a more powerful voice. I pay tribute to the noble Baroness, Lady Newlove, and welcome her speech today and her unflinching commitment to improving support for victims.

I have some reservations about forcing offenders to attend sentencing hearings. It is probably right in principle that they should, but I am not sure what courts would do when they refuse. Are we to drag such offenders to court by force? It might be better simply to make it clear that a refusal to attend could properly be treated as a sign of a lack of remorse.

Commitment to reducing delays in the court system is an important priority—the noble Lord, Lord Meston, stressed that—but it will not be achieved only by allowing associate prosecutors to work on appropriate cases, as is suggested in the briefing. It will need more resources, yes, but also new efficiencies and new thinking, as the noble and learned Lord, Lord Burnett, suggested.

The emphasis on tackling violence against women and girls is particularly welcome. We need a far more understanding, sympathetic and determined approach to protecting women and girls from harm. Over the years we have failed in this, and the results have been underreporting of offences because of an unsympathetic approach to victims and, furthermore, very low conviction rates when offences are prosecuted. I hope that the Government listen carefully to the point from the noble Baroness, Lady Newlove, that far too often women and girl victims find their privacy and digital records invaded and violated, which acts as a deterrent to victims becoming involved in the criminal process.

We should not forget that underreporting inculcates an arrogant overconfidence among sexual predators that they will get away with abuse and violence in both public and domestic contexts. The noble Baroness, Lady Gohir, made the important point that tackling violence against women and girls depends on measures to change the attitudes of male perpetrators throughout diverse racial communities.

I add a word on psychotherapists, about whom I have spoken to the House before. I hope there will be an opportunity to secure in one of these Bills a requirement for the regulation of unqualified people holding themselves out as psychotherapists, and for the criminalisation of abusive coercive control by psychotherapists using their power and influence over vulnerable and usually young clients and patients to cut them off from their families.

Turning—or returning—to prisons and the penal system, many noble Lords have made a strong case for a complete change of approach to prison and punishment, starting, of course, with the Minister, the noble Lord, Lord Timpson. The right reverend Prelate the Bishop of Gloucester eloquently made the point that reliance on imprisonment as a complete answer to criminality is not supported by the evidence, as the noble and learned Lord, Lord Burnett of Maldon, repeated.

The noble Baroness, Lady Royall, mentioned the role of a number of voluntary organisations in Oxfordshire, some of which I know, but her speech raises a wider point, which is that local organisations have an important role in supporting the rehabilitation of prisoners and in fostering linkage between prisons, prisoners and the communities in which they work. The noble Lords, Lord Waldegrave and Lord Meston, made similar points. The noble Lord, Lord Browne of Ladyton, spoke of purposeful activity, training for employment and life within prisons. We have heard mention of farms, gardens and libraries, but there is also scope for sports, music and drama.

My noble friend Lord Beith made a number of points about sentencing and the importance of a sentencing review. We must reverse the trend to ever-longer sentences. My noble friends Lady Burt and Lord McNally, and other noble Lords, made the clear point that not enough has been done to end the stain on our justice system of the continued incarceration of IPP prisoners.

My noble friend Lord Dholakia stressed the role of probation services in delivering community sentences and emphasised the degree to which the Probation Service is stretched. We also need through-the-gate support from probation officers, with contact with clients both before and after release. Three things help prisoners most to avoid reoffending: a job, a home, and family and community ties. Release into prisoners’ communities is very important, but that needs the prison capacity crisis to be addressed so that we can get over the shuffling issue.

On a general point that I call “spend to save”, the noble Lord, Lord Macdonald of River Glaven, mentioned the unwelcome effect of the capital cost of new and better prisons—unwelcome for Governments, that is. Yet that and the annual cost of imprisonment, currently £47,000 for a prisoner, are only part of the picture. Reoffending has been estimated to cost the country £18 billion, and that is not including the knock-on cost to the public of social care, family housing and lost tax revenues. I hope the Treasury will learn to adopt a more holistic approach to spending on rehabilitation that is less bunkered and more cross-department. I also agree with the noble Lord, Lord Bach, on legal aid, on which more liberality would avoid significant unnecessary costs, not to mention widespread unhappiness.

I close, finally, by saying that on these Benches we are greatly encouraged by this Government’s clear commitment to the rule of law, including international law, as stressed by the right reverend Prelate the Bishop of Manchester, and in particular to the European Convention on Human Rights and the Human Rights Act, which I for one regard as one of the finest triumphs of the Labour Party. We hope that in Government we will have some more.

National Security Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

168: Leave out Clause 84

[Lord Marks of Henley-on-Thames (LD)]

My Lords, at the risk of being accused of buttering up the noble and learned Lord, Lord Bellamy, I should say at the outset that we are very grateful to him, his officials and the noble Lord, Lord Sharpe, for their positive engagement with us on the Ministry of Justice aspects of the Bill. There has been significant movement by the Government on the MoJ provisions, and on this group in particular.

While that is the reality, there remain significant differences between us on these provisions. Our position on the damages reduction clauses in the Bill is that the power to reduce or extinguish damages in a case against the Crown on the basis that the claimant has been involved in some terrorist wrongdoing in the past should never have been in the Bill. After all, the clause does not require the conviction of a terrorist offence. Ground 1 in Clause 85(3)(a)(i) is the commission of such an offence, but the alternative ground in sub-paragraph (ii) is nebulously described as

“other involvement in terrorism-related activity”.

That could be serious or it could be limited. After all, even wearing clothing that might suggest support for a proscribed organisation is a terrorist offence. I therefore invite the Government to give the House an assurance that the provisions on reducing damages will not be invoked on unproven allegations emanating from a foreign state that a claimant has been involved in some terrorism-related activity under the alternative ground in Clause 85(3)(a)(ii).

We have serious concerns about Clauses 84 to 88 being part of the Bill. Those concerns are that they are restrictive of civil rights, effectively denying or restricting legitimate claimants’ access to the courts and their right to a remedy; that they could enable the Government to avoid liability for damages in the face of justified claims; and that they would reduce accountability and limit the publicity for genuine claims of government wrongdoing.

These clauses risk undermining two important democratic principles: first, that everyone is entitled to enforce their rights in court and, secondly, that, where a legal right is breached, there is a remedy. Our central question is, why should the Government be excused from paying damages in a case where their liability to a claimant is proved? I invite the noble and learned Lord to explain how the Government answer that central question. Why, also, have the Government not confined this power to cases within Clause 88, where there is a risk of damages being themselves used for the purposes of terrorism?

In Committee, I drew attention to the cases of Jagtar Singh Johal, Abdul Hakim Belhaj and Fatima Boudchar, arising from the British Government’s complicity in torture and, in the latter case, detention in Thailand and rendition to Libya. Their cases and other cases of government wrongdoing might risk being threatened by this new power. However, since Committee, and in response to one of the main criticisms I and others levelled at this clause, the Government have laid Amendment 169. My reading of that amendment, which agrees with the Ministers explanatory statement, is that the court may consider reducing damages

“only if there was a connection between the terrorist wrongdoing and the conduct of the Crown complained of in the proceedings.”

Because it is complex, I invited the noble and learned Lord to write. Today, the noble Lord, Lord Pannick, and I have received a letter from the Minister containing that assurance. I hope he will forgive me if I read from it the relevant paragraph. He says, “On damages I am pleased to confirm your understanding of the intention and effect of the Government’s amendments to the scope of the Bill. The Government consider that they will mean that applications by the UK security services to reduce damages in national security cases will be possible only where there is a connection between the Crown’s conduct and the terrorist conduct of the claimant.”

That assurance, embodied in Amendment 169 and its consequential amendments, is a significant concession and answers an important criticism. Although the central criticisms of principle that I have outlined remain, we will not be pressing the stand part objections we have laid. Important among our concerns, as pointed out in Committee, is that the clause fails to set out criteria as to when and on what basis the court should exercise powers to reduce or extinguish damages. This was a matter extensively canvassed in Committee, but the Minister could really only say that the provisions were intended “to convey a message” that Britain should not be seen as a “soft touch” for terrorism. There was no guidance as to how and on what basis judges should exercise this new power. With the benefit of several weeks to consider the way in which the power is to be exercised, can the Minister please give us such guidance now?

I turn to Amendments 174 and 175 in my name and that of my noble friend Lady Ludford. At present, Clause 85(4) requires the court to take into account whether

“there was a limitation on the ability of the Crown to prevent”

the wrongful conduct complained of, including on the basis that it occurred overseas or was carried out in conjunction with a third party. That formulation suggests that His Majesty’s Government are just too weak to control their own conduct, if wrongful, overseas, or in collaboration with a third party. That permitted excuse is inadequate. Our amendments would restrict permitting any such limitation on the Crown’s ability to prevent its own wrongful conduct to places where it was both carried out overseas and—not or—instigated by a third party.

In the noble Lord’s letter, to which I referred, he has indicated that the Government are not prepared to concede these amendments. I would nevertheless appreciate the Government’s further consideration of the present provisions as they stand, and of the effect of the amendments we propose. I look forward to his further consideration and his response, in the hope that we might get a little further if he comes back with something at Third Reading. I beg to move.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I am extremely grateful to the noble Lord, Lord Marks, for his amendments, and to the noble Lord, Lord Pannick, for his comments. I hope the House will agree that the Government have been in listening mode throughout this Bill, and that we have in this particular instance moved quite considerably to deal with what the Government consider to be justified observations by your Lordships.

On the general point, the reforms are designed to protect the public, to deter those who seek to exploit our security services for compensation and to reduce the risk that court awards or damages may be used to fund terrorism—perhaps the most serious harm that can be perpetrated against society, going to its very fabric. The noble Lord, Lord Marks, asked me to restate the purpose of the clause and I think I have endeavoured to do so in those words.

On whether the Government can give any assurance that these provisions will not be invoked on the basis of

“unproven allegations … from a foreign state”,

I draw your Lordships’ attention to the fact that this is a power in the court; it is entirely in its discretion. No court is going to act on anything other than proper evidence, so in the Government’s view there is no risk of the danger to which the noble Lord, Lord Marks, referred, because this is a court process with rules of evidence and proper and fair procedures.

With those two preliminary observations, I come to the central point that was at issue when we discussed this clause in Committee. We have listened to the concerns expressed by noble Lords that the legislation needed to ensure that no national security case fell into scope where there was no connection between the Crown’s conduct and the terrorist conduct of the claimant. I can repeat before this House the assurance in the letter I sent noble Lords today, to which we have already been referred, saying that there needs to be a causal connection between the conduct of the terrorist and the reduction in damages.

As to what criteria the courts should apply when considering these issues, I know that noble Members felt the courts would require further guidance. In the Government’s view, the courts do not require further guidance; they are well able to interpret and apply this legislation, especially in light of the amendments we have proposed. The Government have every confidence in the court being able to discharge its functions under these provisions.

Our courts are well versed in taking a wide range of relevant factors into account in determining liability and assessing the level of damages. There are a number of common-law considerations to which noble Lords referred in Committee which may indeed provide some guidance. We do not seek to exonerate the Crown in respect of its own culpability; we aim simply to ensure that the terrorist conduct is properly taken into account when calculating quantum.

I turn to what I think are the only live amendments on this part, Amendments 174 and 175. Those amendments would apply to the Bill’s provisions whereby a court would consider the context in which the Crown had acted to reduce a risk of terrorism, but their underlying intention seems to the Government to be to markedly restrict those provisions. As I understand it, the amendments seek to limit the consideration of the court to where the Crown’s actions had been commenced —the provisions use the word “instigated”—and the conduct was required to have taken place overseas at the instigation of a foreign state.

While the Government accept that there are difficulties in preventing terrorism when the action concerned needs to be taken overseas, there are so many different facts and circumstances flowing from the claimant’s own actions that the proposed amendments would significantly limit the effect of these clauses. In the Government’s view, the courts ought to have complete discretion to apply the clauses as they stand; a very tight restriction both as to instigation and to the requirement that the instigated conduct took place overseas would limit them inappropriately and improperly restrict the discretion courts should have under the provisions.

The Government further feel that there is scope in these amendments for some confusion. The two aspects, an overseas element and instigation, seem to be couched in language reminiscent of an exclusive list, quite apart from the difficulty of deciding exactly what one means by “instigation”. In practice, the Government feel that the courts should be left to exercise their discretion, as they surely will, without the limitation proposed by these amendments. That is the Government’s position on the amendments proposed by the noble Lord, Lord Marks, and I hope that in the light of what I have said, he will consider not pressing them.

There is one amendment by the Government—Amendment 181—which is proposed to ensure family proceedings in Scotland and Northern Ireland are excluded from the freezing and forfeiture provisions that are also part of this part, as with those in England and Wales. That simply corrects an oversight in the original drafting.

Having set out the Government’s amendments and why we are unable to accept the amendments proposed by the noble Lord, I commend Government’s amendments and ask the noble Lord to withdraw his.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have heard the Minister’s explanation. It is right that the amendments that were between us were Amendments 174 and 175. Having considered his point on the court’s discretion, I am not sure that the difference between us is so wide as to justify my testing the opinion of the House on this occasion. I shall not move those two amendments and beg leave to withdraw the stand part amendment.

Amendment 168 withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

180: Leave out Clause 88

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we now move on to group four on legal aid. Again, I express our gratitude to the Minister, and to the noble Lord, Lord Sharpe, for his engagement with us on these provisions. Nevertheless, in spite of one welcome concession, to which I will turn, we oppose in principle the Bill’s proposals to exclude access to legal aid for those previously convicted of terrorist offences, however minor, subject only to the time and age conditions set out in the Bill. Legal aid, restricted as it might already be, is a right that we enjoy as citizens, and it is wrong simply to exclude that right for anyone convicted of a terrorist offence, however minor, whether or not the legal aid sought has any connection with the previous conviction. At least in relation to damages in the last group, the Government made the concession in Amendment 169, as we have heard, that, for the power to reduce damages to be exercised, there would have to be some connection between the past terrorist activity and the Crown’s wrongful conduct complained of in the proceedings. Here, no such connection is necessary before the exclusion of legal aid kicks in.

All we have from the Government in this group is an exception in Amendment 186 and its associated amendments for cases where an applicant for legal aid is the victim of domestic abuse. That is, of course, important, and it is welcome, but it is based on no discernible principle at all. If the victims of domestic violence should be entitled to legal aid, why not the victims of human trafficking, which, we observe, may well have led them into terrorist activity in the first place? Why not the victims of sexual offences? These two examples are the genesis of Amendments 186A and 186B in my name and the name of my noble friend Lady Ludford.

There are many examples of other cases where legal aid ought to be available, regardless of past convictions: family cases involving children, housing cases, Equality Act cases, and eligible cases of applications for judicial review. It is simply no answer for the Government to say that exceptional case funding remains available. The criteria for exceptional case funding are very restrictive. Broadly, they apply where convention rights are said to be infringed—principally in family, housing or benefits cases. There are very difficult hurdles to surmount before exceptional case funding is given, and there is no promise by the Ministry of Justice to make that funding more widely available.

In any case, the Government are trying to make legal aid more difficult to obtain for past terrorist offenders. It is a nonsense for them now to claim, and then rely on that claim, that it is not all that bad because exceptional case funding will make it easier for the very people they are trying to exclude from the availability of legal aid. So we put down Amendments 185 and 187 based on principle, and it is exactly the principle the Government conceded in the last group in relation to damages reduction: that legal aid would not be excluded in cases where there was no link—which we have called “no relevant factual connection”—between the past terrorist offence of which the applicant had been convicted and the current application for legal aid. I have invited the Minister and the Government to accept that principle. Were it accepted, we would not press these amendments to a vote because, although these clauses would still be unacceptable, much of the sting would be removed from them. In the letter from the noble Lord to which I alluded earlier, those amendments have not yet been accepted. I invite the noble Lord to reconsider that.

We also support Amendment 188 in the names of the noble Lords, Lord Pannick and Lord Carlile of Berriew, and my noble friend Lady Ludford, restricting the exclusion of legal aid to cases where an offender has been sentenced to more than seven years for the relevant terrorist offence. At least those are serious terrorist offences—that is not a limitation in the Bill as currently drafted.

I regret that we cannot see the benefit of Amendment 188A, put down yesterday by the noble Lord, Lord Ponsonby, on behalf of the Labour Party, after what must have been weeks of thought. It seeks a review of the impact of Clause 89 on offenders sentenced to a non-custodial sentence. The review sought is very limited and does not address the flawed principle of the proposal or its application. We will stick to our principled amendments, and I beg to move.

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[Lord Bellamy (Con)]

I am again extremely grateful to noble Lords for their interventions and, in particular, for the support for the principle behind Clause 89 expressed by the Official Opposition, subject to the point about minor offences, which I will come to in a moment.

As a quick reminder, Clause 89 narrows the range of circumstances in which individuals convicted of specific terrorism offences can automatically receive civil legal aid services. This includes individuals convicted of terrorism offences punishable with imprisonment for two years or more as well as other offences where a judge has found a terrorism connection. It is important to note that this clause modifies but does not exclude legal aid, because there is still the route of exceptional case funding, particularly if convention rights are in issue. One of the fundamental convention rights— I think this at least partially answers the point raised by the noble and learned Baroness, Lady Butler-Sloss—is the necessity for a fair trial, in Article 6. The exceptional case funding route is still available in that regard. Phrases such as “excludes”, “denies”, “debars” and “no legal aid support” are not an accurate summary of what this clause achieves.

[Lord Marks of Henley-on-Thames (LD)]

I am grateful to the noble and learned Lord for giving way, but is it not the case that no one gets exceptional case funding simply because they otherwise would not get legal aid? The point made by the noble and learned Baroness was that it is unfair, so you will not get a fair trial. However, that does not ground exceptional case funding —unless the noble and learned Lord has a different view of exceptional case funding from the rest of us.

[Lord Bellamy (Con)]

My Lords, there might well be found applications for exceptional case funding; approximately 75% of such applications are successful each year. In any event, exceptional case funding is still available.

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[Lord Bellamy (Con)]

It is not entirely irrelevant that exceptional case funding is always available for access to justice. That fact changes some of the comments that have been made about the restrictive nature of the Bill.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, there is a sharp division of opinion on the general principles here. I share the disappointment of the noble Lord, Lord Pannick, at the position taken by the noble Lord, Lord Ponsonby, on behalf of the Labour Front Bench, particularly in view of the way the Labour Front Bench spoke in favour of the principles we enunciated in Committee. I do not propose to press Amendment 180, but when the time comes, I will seek to test the opinion of the House on Amendment 185.

Amendment 180 withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

185: Clause 89, page 60, line 17, leave out “F” and insert “G1”
Member's explanatory statement
This amendment is consequential on Lord Marks’ other amendment to this clause inserting a new Condition G1. Condition G1 will become Condition H if the amendment to be moved by Lord Sharpe of Epsom inserting a new Condition G is accepted.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I wish to test the opinion of the House on Amendment 185.

National Security Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, before I speak to the amendments in this group, I would like to talk about some of the reasons why we are introducing them. Some of our amendments have been brought forward to reassure noble Lords and others that the offence will not capture the genuine work of journalists. We have listened to the concerns raised by the media sector and noble Lords in the House, and some of these amendments are a direct response to them.

The Government have heard from media stakeholders who believe that they could no longer hold the Government to account and that these clauses could inhibit the publication of articles critical of the UK’s defence or security response. I want to address those concerns directly. The Government are committed to defending our freedoms—values which define us and make us who we are. Few are more fundamental to that than freedom of the press. There is no intention to stifle or censor the media’s ability to expose or shine a light on issues. That is the proper role and function of the media and why the UK is such a strong advocate of media freedom globally.

Before we get into the details of individual provisions, I remind the House that these provisions replace the existing law in the Official Secrets Act 1911. We have been provided with a number of examples of journalistic reporting that have been cited as part of the case that more must be done to protect journalists in this Bill. Even were the Government to accept that any of these examples could hypothetically be caught by any of the offences, the same would be true of the existing laws. Accordingly, great comfort should be taken from the fact that no prosecutions of journalists have taken place under the espionage laws to date. I want to confirm again, on the record, that the focus of the Bill is on protecting the UK from threats from foreign states and those acting against UK interests, not interfering with the free press.

I begin with the amendments focusing on “ought reasonably to know”. The phrase was said to be unclear, with concerns raised that it could be interpreted as imputed knowledge, thereby catching those who engaged in specified conduct unwittingly—who did not know but are told that they should have known. I would like to strongly emphasise that this is not the Government’s intention and we do not consider that the current formulation would be interpreted by the courts in this way. However, we have considered the concerns raised on this issue, particularly the useful contributions in Committee from the noble and learned Lord, Lord Hope, and the noble Lord, Lord Marks. We agree that it would be helpful to clarify the meaning. These amendments therefore clarify that the prosecution must look at what matters were known to the individual at the time in determining whether that individual ought reasonably to have known something.

I now turn to amendments which all relate to the offence of materially assisting a foreign intelligence service. The amendments that the Government have put forward update the offence provided for in Clause 3(2). These amendments are similar to the ones put forward in Committee by the noble Lord, Lord Marks. The effect of these amendments is that the wording

“it is reasonably possible may”

in both Clauses 3(2)(a) and (b) would be replaced with “is likely to”, which in this context we see as meaning a real possibility. In order to ensure consistency across the clause, Amendment 13 also updates the relevant wording in Clause 3(3).

The Government have tabled amendments in response to a point raised in Committee by the noble Lord, Lord Pannick. These would add protections for lawyers, ensuring that any genuine legal activity will not be captured under the Clause 3 offence in the Bill. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I thank the Minister for the helpful explanation of the many government amendments in this group. I thank him and the Government also for the considerable movement they have made in response to criticisms made by me and many others at Second Reading and in Committee of the breadth of the offences under Part 1. We are very grateful to the Government for the comprehensive way in which they have listened to our criticisms and moved towards positions that we have taken.

In particular, the troublesome phrase “ought reasonably to know” has been clarified by the qualification that what a defendant ought reasonably to have known falls to be judged having regard to other facts known to that defendant. Furthermore, in Clause 3, as the Minister explained,

“conduct that it is reasonably possible may materially assist a foreign intelligence service”

becomes conduct that “is likely to” materially assist a foreign intelligence service.

I welcome the new strengthened review provisions introduced by the new clause proposed in Amendment 85, in place of the old Clause 56. These and other concessions in the amendments moved by the Government allay many of our concerns.

However, there is one area left untouched that we say is still completely wrong: the failure to tighten up the definition of the

“interests of the United Kingdom”.

That is the subject of our Amendments 2 and 3, and the corresponding amendments wherever the phrase

“safety or interests of the United Kingdom”

appears. I note the word “or”: the interests of the United Kingdom alone are enough to qualify. It is principally in support of those amendments that I speak now.

We are concerned about the interests of journalists, and that is the title of this group. I do not accept what the Minister said when he suggested that it was permissible to rely on the fact that journalists have not in the past been prosecuted under security legislation. That may as a matter of fact be true, but it is neither safe nor good legislative practice to rely on it without tightening up the legislation so as to prevent such prosecutions succeeding.

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Moved by

[Lord Marks of Henley-on-Thames]

4: Clause 1, page 1, line 13, at end insert—
“(1A) Section (Public interest defence) applies to any offence under this section.”Member’s explanatory statement
This amendment, and others in Lord Marks’ name, are connected to Lord Marks’ amendment after Clause 38 (Public interest defence) to apply a public interest defence to the offences under Clauses 1 to 5 of the Bill and to offences under Section 5(6) of the Official Secrets Act 1989.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this group concerns the public interest defence which is contained in Amendment 79 in my name, and the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Garnier, to whom I am very grateful for their help, counsel and support. I am not sure that the noble Lord, Lord Pannick, has made it here so far because he is in court, but I expect him shortly, although he may not speak.

Our amendment would introduce a public interest defence to offences under Clauses 1 to 5 of the Bill, together with the amended Official Secrets Act defence, amended by Schedule 17 at paragraph 5. The group also contains associated amendments, together with Amendments 18A and 79A, tabled by the noble Lords, Lord Coaker and Lord Ponsonby.

Although, as discussed in the last group, the Government have made a number of welcome concessions since Committee in tightening up the offences set out in the Bill, there has been no concession on a public interest defence. That is despite the repeated strong calls in the press and elsewhere, from many quarters, for such a defence; and despite the fact that such a defence is available in our Five Eyes partners and that the Law Commission recommended one here in 2000, and so did the Joint Committee on Human Rights. Each expressed the view that the lack of such a defence risked our being in breach of Article 10 of the European Convention on Human Rights.

While the Government may not have moved, we have. Amendment 79 is significantly changed from the amendment I tabled in Committee, in large part to meet the reservations expressed on my amendment in that debate. First, the burden of proof has been changed. The amendment in Committee would have imposed the burden of proof on the prosecution to disprove the offence once it was raised, and to do so to the criminal standard of beyond reasonable doubt. Some noble Lords thought that this imposed on the Crown a burden that would be too difficult to discharge in a security-sensitive context. While I am doubtful that that is the case, I accept the point, and I also accept the difficulties of proving a negative. So our amendment now imposes the burden on the defence to prove its case on the balance of probabilities—the civil standard that is usually applied in these cases.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am very grateful to the Minister for his response to these amendments, but it has disclosed a very sharp distinction between those of us who believe that a public interest defence can do no harm and a great deal of good, and those who do not. We regard as a complete mischaracterisation of the public interest offence the suggestion that it is likely to encourage or enable espionage or other disclosures that would be damaging to the national interest. By way of contrast, we see the presence in this Bill of a proposed series of absolute offences—as discussed by the noble and learned Lord, Lord Garnier—where there is no defence for journalists, no defence for campaigners acting innocently, no let-out for whistleblowers and no protection for members of the public. We are concerned by a system that relies on perverse acquittals rather than acquittals according to law. Therefore, I beg to test the opinion of the House.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, I completely support what has been said by my noble friend Lord Wallace of Saltaire in moving our Amendment 75, in respect of the exclusion of NATO members from the definition of foreign power, for all the reasons he gave and that I gave in Committee.

Put shortly, we cannot see any valid reason for treating NATO members as foreign powers on the same basis as Russia, China, Iran and North Korea. We are tied to our NATO allies by a treaty which imposes binding mutual obligations of defence and support. I have considerable understanding for the concern and disappointment expressed in public and in the press by representatives of some friendly nations of that unflattering equivalence of treatment. Those feelings mentioned by my noble friend Lord Wallace are not helpful to British foreign policy or diplomacy.

I also cannot see why the Government would not regard it as positively helpful to have the power to add friendly nations to a list of countries that will not be regarded as foreign powers for the purposes of this legislation. It may be that the Government will conclude in due course, even if not now, that the inclusion of all friendly countries as foreign powers may be profoundly unhelpful to our national position. To have the power, if that transpires, to exclude countries from the definition by regulation, may be regarded then as thoroughly convenient. Why will the Government not accept the flexibility that this part of the amendment offers?

As to the exclusion of governing political parties from the definition of foreign powers, this was an amendment we moved in Committee and which we supported then, and support now, for many of the reasons mentioned by the noble Baroness, Lady Hayter, in support of Amendment 74. We see no basis for categorising all political parties that form any part of a foreign Government as foreign powers, as proposed in Clause 32(1)(e). It is unrealistic, it makes no sense and it is wrong in principle.

As the noble Baroness pointed out, this is the definition of foreign powers that governs the application of FIRS, as well as Part 1 and other parts of the Bill. It could cause all kinds of difficulties where there are coalition Governments, often without UK-style collective responsibility. It is also the case that political parties are themselves diffuse in their views and often divided. To equate all governing parties with the foreign powers in whose Government they take a part—often a small part—is, we say, profoundly misguided. Perhaps the Minister could explain how the Government justify treating even small coalition parties as the Governments of which they form a part?

[Lord Balfe (Con)]

My Lords, I think that this part of the Bill was drawn up by someone who had not travelled very widely. It really just does not make sense.

I speak particularly to Clause 32. I do not exactly spend all my time, but I do spend a good bit of it, talking to embassies in London, largely from European Union countries that I have known for some time. I also go to Brussels very regularly because I still have interests there. I meet many people from other parties and groups—for a time I was a member of the Belgian Christian Democrat party—and I wonder where this lands. Of course, in some countries—Belgium is one—you will always have a coalition; it moves around, but it is always there.

There are also many other groups—for instance, the Kangaroo Group in Strasbourg covers all of the European Union and exists to pull down barriers to trade. I am a member of that group still because it has a foreign membership category. What are we supposed to do? Incidentally, the Kangaroo Group was set up by Basil de Ferranti, a British Conservative—though it is now a long time since he has been with us. This is a bit of a mess.

I want to deal in particular with Germany, which has a long tradition of political foundations. It has the Konrad-Adenauer-Stiftung, which I do lectures for from time to time; I will be doing one later this month. It has the Friedrich-Ebert-Stiftung, which is the socialist, or social democrat, one. It has the Friedrich-Naumann-Stiftung, which is, if I remember rightly, the one from the liberal party, and it has the Heinrich-Böll-Stiftung from the Greens. They all engage in trying to hold international conferences and gatherings to put across their policies, and they also invite people like me, who are reasonably well known in Germany, to go and give lectures and talks to members of their Stiftung. Part of the reason for that is to educate their own citizens in overseas political practice; it is not all one-way. I think we have missed something out here.

The Minister will say that it will not mean this and it will not mean that, but other people have looked at this Bill and at the explanations. In particular, the German foundations have concluded, reading this draft law on entities acting on behalf of a foreign power—under the law, Germany is a foreign power; that is the definition —that, if they are to get money from their Stiftung to do any work in Britain, the Stiftung will have to satisfy the German Government that it is legitimate to accept and apply for that money.

According to the German lawyers, Clause 31(2)(c), which says that any work carried out

“with financial or other assistance provided by a foreign power for that purpose, or … in collaboration with, or with the agreement of, a foreign power”,

means that the Stiftungen will fall under the scope of the registration scheme. In other words, if the Stiftungen are to be able to operate and satisfy their funders, they will have to satisfy them about this clause in our legislation. This means that a German Stiftung—a political foundation—that receives German taxpayers’ money, or for that matter a cultural institute, Chamber of Commerce or any London-based NGO or think tank that receives money from Germany, is an agent of a foreign power and has to register, according to the definition, every single interaction with UK politicians or high-ranking officials within 28 days. They have described this as making their lives “impossible”. I say to the Minister that it is not what we say the law means; it is what it means to a lawyer, and in this case what it means to a German lawyer.

I cannot agree that the concept of “foreign principle” has been removed. It has been removed and replaced with “foreign power”, but this does not cover what is needed. The fact of the matter is that, in the Minister’s letter, he very carefully said:

“Foreign opposition parties are not classed as foreign powers (for example the French Socialist party).”


That is not the German interpretation of our law. The Minister can shrug his shoulders, but the sensible way forward would be to accept an amendment such as the one put down by the noble Lord, Lord Wallace, which makes it quite clear that these countries are not foreign powers for the purpose of this legislation. I invite the Minister to think carefully and come back at Third Reading with a much better definition. This general, catch-all “foreign powers” covers all of NATO but also, as has been mentioned, Australia, New Zealand and Canada. Where are we going? Please could the Minister think it out a bit better and clarify it, possibly along the lines of the amendment, but certainly so that the people we deal with every day, who are cheerfully telling me about the attitude of the British Government to the reconstruction of Ukraine—which is not quite what the British Government are saying but is what the diplomats are picking up—can continue to brief us and keep us on top of things?