Crime and Policing Bill

Debate between Lord Marks of Henley-on-Thames and Baroness Cash

Committee stage
Tuesday 13th January 2026 Lords Chamber

[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.

Crime and Policing Bill

Debate between Lord Marks of Henley-on-Thames and Baroness Cash

Committee stage
Tuesday 13th January 2026 Lords Chamber

[Baroness Cash (Con)]

I am grateful for that reminder. It is another point in support of the amendment from the noble Lord, Lord Walney. The overall position of the group is much more easily managed by the police when there are deliberate attempts to evade any type of prosecution.

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

My Lords, we have had a difficult and long debate on a major group on public order. Because it is so late and because there have been some central points, I shall confine what I say to a few of those.

I turn first, if I may, to Amendment 370A, moved by the noble Lord, Lord Walney, on extreme criminal protest groups. I accept, and indeed agree, that, at first consideration, it appears beneficial to have an alternative to proscription that does not involve the Terrorism Act and does not involve branding peaceful protest as an offence of terrorism. That would, of course, be the effect of Amendment 370A. I note that, in answer to an intervention from the noble Baroness, Lady Falkner, the noble Lord, Lord Walney, confirmed that it was his clear view that that would be the position. Indeed, I have spoken on a number of occasions against the use of the Terrorism Act to make any support for a proscribed organisation, however peaceable, an offence under the Terrorism Act.

The designation provision in the proposed new clause from the noble Lord, Lord Walney—designation as an extreme criminal protest group—is not the problem, because there is a condition in proposed new paragraph (a) that

“the group has as its purpose, object or practice the deliberate commission of imprisonable offences, including but not limited to sabotage, criminal damage, obstruction of critical national infrastructure, or serious public order offences”.

At proposed new paragraphs (b) and (c), it refers to

“the intention of influencing public policy”,

and “democratic functions” and

“a risk of serious harm to public safety”.

The effect is the concern, not the designation as an extreme criminal protest group. The effect would be to criminalise extreme criminal protest groups’ activities to include in the formulation of offences under the proposed new clause, particularly at paragraph (b), public advocacy or the dissemination of groups’ materials, and those are offences that would be similar to the offence of support for a proscribed organisation under Section 13 of the Terrorism Act 2000, or offences of being a supporter, which can be proved by suspicion.

Amendment 370A would, I suggest, constitute a curb on free speech and on the legitimate freedom of expression, and would therefore run the same risks as the Terrorism Act of prosecutions of peaceful protesters. I am afraid I question the view expressed by the noble Lord, Lord Young of Acton, that criminal behaviour of the kinds that he described is not covered by other criminal legislation. I note the views of the noble Baroness, Lady Cash, that other legislation may cover such behaviours but may not be implemented by the police. That may highlight a need for an alternative approach to policing, rather than for new legislation of the kind advocated by the noble Lord, Lord Walney.

Although I understand and applaud the aim of the noble Lord, Lord Walney, for a less serious alternative to the Terrorism Act, also advocated by the noble Lord, Lord Young of Acton, in practice, I doubt that it would be an attractive alternative to proscription under the Terrorism Act. Indeed, I do not believe that the noble Lord, Lord Young of Acton, had an answer to the intervention by the noble Baroness, Lady Chakrabarti, on the chilling effect of limiting freedom of expression with the criminal law. I doubt that the amendment would have the effect that the noble Lord, Lord Walney, seeks, so I do not support it.

The second area of concern that I would like to cover today is Clause 124 and the amendments to that clause—Amendments 371A to 371F—persuasively spoken to by the noble Baroness, Lady Blower, and the noble Lord, Lord Hain. I support the analysis of the noble Baroness, Lady Blower, of the word “vicinity”, also supported by the noble Baronesses, Lady Chakrabarti and Lady O’Grady. It is quite simply too vague. For my part, I am not convinced, for a number of reasons, that a 50-metre limit would produce the intended result either, so I agree with the point made by the noble Baroness, Lady Blower, on that.

As I understood it—I will be corrected if I am wrong, and I invite the Minister to comment on this—the noble Baroness, Lady Blower, contended that the words “may intimidate” should be changed to,

“has the purpose of intimidating individuals accessing that place of worship … and would intimidate”.

I suggest that that may not be right. This part of the clause may be saved by the words in subsection (2)(c). Again, this is a point I would like the Minister to consider, because the clause requires that for an offence to be committed it must be

“in the vicinity of a place of worship and may intimidate persons of reasonable firmness with the result that those persons are deterred from … accessing that place of worship for the purpose of carrying out religious activities”.

The result has to be achieved before the offence is committed.

However, it is quite clear, as my noble friend Lord Strasburger said, that it is completely right to protect the rights of worshippers to worship at their synagogues, mosques or other places of worship—although as my noble friend pointed out, Clause 124 may be unnecessary in view of other legislation. But subject to clarification and limitation, the purposes of Clause 124 seem to me to be right.

The third argument that I wish to consider concerns government Amendment 372 and the whole question of cumulative disruption. For my part, I agree with the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, that the principal object appears to be a legitimate one to avoid repeated disruption on successive occasions of particular areas where there are places of worship, as in the streets around synagogues. The noble Lord, Lord Pannick, mentioned protests and assemblies on repeated Sabbath days in the vicinity of synagogues.

Weighing the right to protest in balance against the interference with the rights and freedoms of others, as we all agree that we must, it is plainly right that the freedom of Jewish people to go to synagogue on successive Saturdays without repeated protests amounting to harassment of them should be protected. If that is what cumulative disruption is to mean then it is plainly right to take account of it. However, the use of the word “area” is, I suggest, subject to the same flaw of imprecision as the word “vicinity” that we considered earlier. I invite the Minister to consider between now and Report whether the use of the word “area” is appropriate.