Public Order Bill

Lord Paddick Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, this has been a long and passionate debate. We support Amendment 45 and only Amendment 45 in the name of the noble Baroness, Lady Sugg, signed by all sides of the House—the noble Lords, Lord Ponsonby of Shulbrede and Lord Hogan-Howe, and my noble friend Lady Barker.

As many noble Lords have said, this is not about the rights and wrongs of abortion. This is about someone who has made the very difficult decision to seek the help of an abortion service provider. As they approach the abortion clinic, they should not be met with groups of individuals whose sole purpose is to stop the woman securing the abortion services she is seeking. Of course, that does not necessarily mean physically standing in the way, but the mere presence of individuals can be intimidating to vulnerable people who are seeking such help.

It has been said that these individuals want to offer advice, but, if they are being honest, that advice is, “Don’t have an abortion”. Abortion service providers have to assess the needs of the individual seeking an abortion and offer advice and counselling on the options available, including: adoption; government and NHS support for if they decide to go through with the pregnancy; and the implications of having an abortion. Those who propose alternative amendments must surely accept that the presence of anti-abortion protesters in buffer zones amounts to a last-ditch attempt to prevent abortions, not to provide the objective, even-handed, science-based advice that is provided by abortion service providers.

Amendment 45 ensures the measure passed by 297 votes to 110 in the other place is European Convention on Human Rights-compliant. My understanding is that the Minister will confirm that the Government now consider this to be the case. We do not support the amendments in the name of the noble Baroness, Lady Morrissey. Amendment 41 seeks to remove the chance of a person being criminalised for expressing an opinion on abortion from their front garden or balcony. If there is a discussion going on between individuals in such places, they are unlikely to be heard by passers-by. If they are shouting at each other, either with the intent of influencing those attending abortion services or being reckless as to whether they might influence that decision, they must be covered by this clause. It is quite clear what Amendment 45 seeks to achieve, and the noble Baroness’s amendment is unnecessary.

Amendment 42, the noble Baroness claims, provides a pragmatic, reasonable approach to amend Clause 9 in a manner that respects the will of the Commons and seeks to make the clause more likely to be compatible with the ECHR. Yet Amendment 45 provides a pragmatic, reasonable approach that respects the will of the Commons and, the Government believe, is compliant with the ECHR. With respect, a safe access zone law from the state of Victoria, Australia, has not been tested for its compliance with the European Convention on Human Rights.

Amendment 43 may replace punitive prison sentences with fines compatible with similar offences, but so does Amendment 45. We do not support the amendment in the name of the noble Lord, Lord Farmer, supported by the nobles Baronesses, Lady Fox of Buckley and Lady Hoey. The purpose of the amendment, among other things, is to review the necessity of further legislation in this area, and whether legislating further would be proportionate.

Why has the noble Lord not put down such amendments to every other clause in this Bill, as there is overwhelming evidence, including from the police, from Just Stop Oil protesters, who are going to change tactics because too many of them are in jail under existing legislation, and many others, that legislating further on all these other issues is disproportionate?

I am grateful to Racheal Clarke at BPAS for her advice and briefings on this issue, where the case is strongly made for this clause, as amended by Amendment 45. Half of those treated by abortion clinics last year attended abortion clinics targeted by anti-abortion groups—more than 100,000 people. Protesters target the most-used clinics. People are delaying seeking abortion services because of encounters with anti-abortion protesters in the vicinity of abortion clinics, adversely affecting their clinical outcomes as well as suffering psychological impact. Police at a local level report being unable to address existing problems because of a lack of legislation.

Of the 50 abortion clinics targeted in the last five years, only five are now protected by public space protection orders, which are expensive for local authorities to prepare cases for and fight in the courts, were they to be challenged, and have to be renewed every three years. The threat of such challenges deters some local authorities from taking action when it is needed, and the refusal of a local authority to apply for a PSPO cannot be challenged. Unlike the rest of this Bill, there is clear evidence of the need for this clause as amended by Amendment 45.

Amendment 45 significantly amends the existing Clause 9. It takes into account many of the concerns expressed by noble Lords in Committee, and the Government now believe that it is compliant with the European Convention on Human Rights. We have had the judgment of the Supreme Court on similar legislation in Northern Ireland, as I referred to in a previous group. This clause, as amended by Amendment 45, is necessary and proportionate and we will support it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a wide-ranging and fascinating debate, and some would say that this may be the House of Lords at its best.

I shall first address the amendments moved by the noble Baroness, Lady Morrissey. She has come late to the party, and I have to say that I think that her amendments have suffered for that reason. Her amendments have not been tested against the Human Rights Act in any way; we do not know what the House of Commons would think about them, and we do not know what the Supreme Court would think about them. Of course, that is in contrast to Amendment 45, where we have a good view of the House of Commons’ likely view, as well as that of the Supreme Court, and as far as we know it is HRA compliant. So I think the noble Baroness has difficulties with her amendments.

The noble Lord, Lord Farmer, spoke to his Amendment 44 and spoke about the lack of use of public space protection orders. I thought that we heard very effectively from the noble Lord, Lord Hogan-Howe, about how public space protection orders had not in practice been put to any great use. In fact, the noble and learned Lord, Lord Etherton, in his speech also explained why they were not suitable for protecting individuals, as opposed to the rights of groups. But I have to say that I think that the noble Lord, Lord Farmer, betrayed himself at the end of his speech when he spoke about the lack of evidence of public disorder, which he prayed in aid for having a review. I have to say that I am not thinking about public order —I am thinking about the individual women who are going to get these services and are being intimidated through cruel protest, in many ways.

I turn to the amendment from the noble Baroness, Lady Sugg, to which I also have my name. I pay tribute to her for all the work that she has done on this matter; I know that she has been in constant discussion with Members of the other place and the Government, and this really is as good a chance as we have to get something on the statute books in good time. As I say, I pay tribute to her. I am also pleased that the noble Lord, Lord Beith, has welcomed these efforts.

One of the most influential speeches was from the noble Lord, Lord Hogan-Howe, who talked about the practicalities of policing a 150-metre zone and local authorities being reluctant to put in place public space protection orders. He also talked about the ingenuity of protesters potentially being able to get around the amendment of the noble Baroness, Lady Morrisey. That was perhaps one of the most influential contributions this evening. I hope that the noble Baroness tests the opinion of the House and I look forward to the Minister’s response.

Public Order Bill

Lord Paddick Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I support Amendment 1, and no less strongly I oppose Amendment 5 proposed by the Government, my noble and learned friend Lord Hope and others. I never feel comfortable at the opposite end of the spectrum from my noble and learned friend Lord Hope, but I trust that he feels at least as uncomfortable on the other end of the spectrum from me.

Before commenting briefly on the actual language of these rival amendments, let me make what seems to me to be a critical preliminary point, and it is this: the meaning of “serious disruption”—assuming it is to be defined by one of these proposed amendments—is closely related to the concept and discussion and issue of “reasonable excuse” and the rival proposed amendments to that. I recognise that “reasonable excuse” comes under the next group but it is important that it should not be ignored at this stage. As your Lordships will readily understand, the lower the threshold is set for what constitutes “serious disruption”, the less justification there is for narrowing down, let alone excluding, the defence of “reasonable excuse” or for putting the burden of that defence on the accused. It becomes highly relevant as to what is decided in group 1 when we get to group 2. I acknowledge that the converse is true too: the higher the threshold for what constitutes “serious disruption” then the readier the House may be to look at shifting the burden, as the Bill already does, on matters of that sort.

Let me now turn briefly to the proposed definitions. Is “serious disruption” really to mean no more than substantial—in other words, something that is merely more than to a minor degree—interference with someone’s daily activities, as proposed by the Government, such as somebody driving to the shops? “Hindrance”, which is the concept used in the proposed government amendment, is effectively just that: it is really no more than interference and inconvenience. What weight, one asks, is given in the Government’s proposed definition to the word “serious”? Is it to be suggested that this is sufficiently catered to merely by the “hindrance” in the definition having to be

“more than a minor degree”?

I would submit it is surely not.

I do not wish to damage the points made by the noble Lord, Lord Coaker, and I would risk doing so if I were to go on at any great length. Surely the preferable definition is that which is proposed in Amendment 1, “significant harm”, as illustrated in the amendment. It is that significant harm, not merely interference or inconvenience, against which this legislation is directed, and it is certainly only that which could possibly justify most of the regressive, repressive features of this Bill. I therefore support Amendment 1.

[Lord Paddick (LD)]

My Lords, I will first address the opening remarks of the noble Lord, Lord Coaker. As I have told the House before, I have considerable experience of public order policing and my view is that the police have sufficient powers without any of the measures contained in this Bill. In fact, that is the view of many serving police officers who were interviewed by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, some of whom referred to the powers that currently exist as an “armoury” of powers to use in public order policing. Now even the Just Stop Oil protesters say they are no longer going to protest in the way that they have before because too many of them are in prison. If too many of them are in prison, and they are not going to protest in the way that they have before, why do we need yet more powers for the police and more laws?

I have Amendments 3, 4, 12, 13, 22 and 23 in this group, which are nothing to do with the definition of “serious disruption”, so let me deal with these first. These amendments relate to the new offences of locking on, tunnelling and being present in a tunnel. The new offences include activity that is capable of causing serious disruption, even if no disruption whatsoever is caused—another example of giving the police the power to intervene in anticipation that serious disruption may be caused before a protest has even started.

Amendments 3, 12 and 22 restrict the offences to activities that actually cause serious disruption. The new offences are not only committed by those who intend to cause serious disruption, but also extend to those who are reckless as to whether serious disruption may be caused, even if they have no intention of causing serious disruption. Amendments 4, 13 and 23 remove the “reckless” element.

Amendments 5, 14 and 24—and part of Amendments 50 and 51, as we have heard—relate to the definition of “serious disruption”. The Minister will no doubt cite the Commissioner of Police of the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” was clearer. Amendment 1, to which I have added my name—[Interruption.]

--- Later in debate ---

[Lord Paddick (LD)]

That was a natural break in proceedings as I am now going on to talk about the definition of serious disruption.

As we have heard, Amendments 5, 14, 24 and part of Amendments 50 and 51 relate to the definition of serious disruption. The Minister will no doubt cite the Commissioner of Police for the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” were clearer.

Amendment 1, to which I have added my name, provides greater clarity in relation to, what—with the best will in the world—will ultimately be a judgment call by the police. I respectfully suggest that

“Significant harm to persons, organisations or the life of the community”


provides the clarity the police are seeking in ways that the alternative, from the noble and learned Lord, Lord Hope of Craighead, does not. It even provides examples of what might constitute “significant harm”.

I turn to the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The noble and learned Lord probably realised that he had gone too far in his definition when the Minister signed them. I am not a lawyer. At university, I studied philosophy, not law, but I am not sure that defining “serious” as being “more than minor” is that helpful or reasonable. Surely it begs the question, “Well, what is minor?” Does the noble and learned Lord define minor as “less than serious”?

Having taken a common-sense rather than legal approach, I thought that serious was the opposite of minor. They are at opposite ends of a spectrum, in the sense that black is the opposite of white, not just the next level up. There are 50 shades of grey, apparently, between black and white; anything lighter in tone than black is not white. To use another analogy, the definition of a serious injury is not “anything more than a minor injury”.

I am reminded of the story of a student at Oxford University where the rule was that cats could be kept as pets, but not dogs, so he called his dog “Cat”. Saying that “serious disruption” is “anything more than minor” does not make it serious, even if the noble and learned Lord wants to call it that.

Of course, if the Government want to ban all protest that prevents or would hinder individuals carrying out their daily activities to more than a minor degree, they should say that in the Bill. They should not try to disguise the fact by saying that anything more than minor is serious—that dark grey is white. More than a minor degree cannot reasonably be defined as serious. We will vote in support of Amendment 1 and, if necessary, against Amendments 5, 14 and 24.

Government Amendments 48 and 49 deserve additional mention, over and above their adoption of the noble and learned Lord’s definition of serious as anything more than minor.

The police are asking for clarity. Let me quote from Amendment 48. Among other things, proposed new subsection (3A)(c) states that

“(c) the senior police officer reasonably believes that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession mentioned in paragraph (a), and (d) the senior police officer reasonably believes—(i) in relation to a procession mentioned in paragraph (b)(i), that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession, or (ii) in relation to an assembly mentioned in paragraph (b)(ii), that one of the conditions in section 14(1)(a) to (b) is met in relation to the assembly ... (3B) The senior police officer may—(a) give directions under subsection (1) in relation to—(i) the procession mentioned in subsection (3A)(a), and (ii) any procession mentioned in subsection (3A)(b)(i) in relation to which the condition in subsection (3A)(d)(i) is met, and (b) give directions under section 14(1A) in relation to any assembly mentioned in subsection (3A)(b)(ii) in relation to which the condition in subsection (3A)(d)(ii) is met.”

I am not sure that is the clarity the police are seeking.

These amendments go far beyond a too-weak definition of “serious disruption”. In considering whether a protest may result in serious disruption, the senior officer must have regard not just to the protest they are considering but to any other protest being held in the same area, even if they are organised by different people, involve different people, or

“are held or are intended to be held”

on the same day. The next thing the police will be telling protesters is that they cannot protest in central London because “There have been a couple of protests this month already”.

What is more, the police can define what “in the same area” means. When the police were given powers to designate a delimited area for a limited time for stop and search without suspicion under Section 44 of the Terrorism Act 2000, they designated the whole of London every day for years. There is nothing in these amendments to stop the Metropolitan Police, for example, designating the whole of London as the area in which the cumulative impact of protests needs to be taken into account.

The police are asking for clarity, so can the Minister please explain proposed new subsection (2ZH)(a), to be introduced by Amendment 48? What does

“all disruption to the life of the community … that may occur regardless of whether the procession is held”

mean? How can the life of a community be disrupted if a procession is not held?

These amendments would give the police extraordinary new powers to limit where, when and for how long marches and assemblies can take place, even if the protest is going to be peaceful and is not itself going to cause serious disruption, but, taken together with others in the area, even on a different day, may cause serious disruption. They would also allow the police to define what “area” means. These are yet more totally unjustified, unreasonable and excessive powers being given to a police service that no longer enjoys the confidence of large parts of society. We will vote against the amendments.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, we genuinely saw a demonstration there during an argument about what might constitute a “serious” or “minor” disruption. We could argue for ages whether it was “serious” or “minor”, but one thing I want to stress is why I support raising the threshold to the maximum and why I will support the amendments.

However, I want to ask the Minister, and the Government in general: who are the Bill and these amendments aimed at? Too much of the justification for the Bill that we heard in Committee, in newspaper articles since and in statements by Ministers, focused on the tactics of Just Stop Oil and Extinction Rebellion. Those organisations boasting that they wanted to maximise serious disruption to people’s lives to force and shock society into acting undoubtedly did not help those of us trying to be liberal about the right to protest. They did not exactly help my side of the argument, and I am certainly no fan of those tactics—but how on earth will the Bill confine itself to only those protesters? That is my point.

When we were talking earlier about serious disruption, the noble Baroness, Lady Jones of Moulsecoomb, made the point that those of us who get stuck in traffic jams know what serious disruption is. She used the point to illustrate that she feels there are too many cars on the roads, but in London—and not only London—there are lots of disputes concerning low-traffic neighbourhoods. Local people will tell you that, because the councils have put up obstacles and bollards on local roads, journeys that once took 15 minutes often take an hour and a half, and that that often goes against public consultations.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

I would like to speak next because my amendments have been mentioned and it is probably best that I explain what they are. I stress that the amendments under discussion are not my amendments: they are Amendments 5, 14 and 24 in this group, which substantially repeat amendments I tabled in Committee. There is a certain amount of revision of the words but essentially, I am making the same point as I did in Committee. They seek to give effect to a recommendation by the Constitution Committee, of which I am a member. I am grateful to the noble Lord, Lord Faulks, who, as I speak, is still a member of that committee, for adding his name to the amendments.

The committee noted that the three clauses concerning locking on, tunnelling and being present in a tunnel—the offences that are the target of my amendments—use the term “serious disruption” to describe the nature of the conduct that the Bill seeks to criminalise. The committee noted that this could result in severe penalties, such as providing the basis for a serious disruption prevention order, and took the view that a definition should be provided. On that issue, I think there is a wide measure of agreement across the House—perhaps with the exception of the noble Lord, Lord Paddick—that a definition is needed because of the nature of these offences and the consequences that follow from them.

[Lord Paddick (LD)]

I would like to clarify that I wholeheartedly support Amendment 1, which is a definition of “serious disruption”.

--- Later in debate ---

We are dealing with words, about which we can argue, and I notice that the noble Baroness, Lady Chakrabarti, is shaking her head—

[Lord Paddick (LD)]

My Lords, the noble and learned Lord says that “more than minor” is “significant”. Would he say that “more than minor” is not “serious”; it is “significant”?

--- Later in debate ---

It is true that an example was given at Second Reading where there may be countervailing interests. There is a strong public interest, for example, with regard to not carrying bladed articles. They should not be carried in public without good reason. In that case, the courts rightly held that that justified the burden of proof being on the defence to prove a reasonable excuse for carrying a bladed weapon. However, I respectfully submit that the criminality necessarily involved in an offence under this legislation, despite the sensible vote—if I may say so—on the first group, does not justify putting the burden on the defence. That should be for the Crown to disprove.

[Lord Paddick (LD)]

My Lords, I hesitate to participate in a legal argument when I am not legally qualified, particularly when I wrote this contribution in isolation at the weekend. However, there are two separate and distinct groups of amendments within this group. My amendments are about whether someone who has a reasonable excuse for their actions commits an offence or whether they should have a defence of reasonable excuse only once charged with the offence; in other words, does the reasonable excuse mean that they do not commit an offence, or should they be arrested and charged and only then have a defence of a reasonable excuse? The other amendments are about the definition of what amounts to a reasonable excuse.

On when reasonable excuse can be deployed, I have Amendments 7, 16, 26, 32 and 36 in this group, which are intended to have a similar effect to Amendments 2, 6, 11, 15, 18, 20, 25 and 34 in the name of the noble Baroness, Lady Chakrabarti. I am just as supportive of the noble Baroness’s amendments as of my own; in fact, bearing in mind that they have the support of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, I am sure that hers are to be preferred. My amendments are designed to ensure that a person does not commit the offence to which the amendments refer if the person committing the act in question has a reasonable excuse for their actions, instead of, as currently drafted, if a person has a reasonable excuse, they can use it as a defence only once charged.

The offences to which my amendments apply are: locking on, in Clause 1; tunnelling, in Clause 3; being present in a tunnel, in Clause 4; obstruction of major transport works, in Clause 6; and interference with key national infrastructure, in Clause 7. For example, Amendment 16 provides that a person does not commit an offence if they have a reasonable excuse for tunnelling. In Clause 3, the Government give an example of a reasonable excuse as being

“authorised by a person with an interest in land which entitled them to authorise its creation.”

Surely someone properly authorised to construct a tunnel should not be arrested and charged with tunnelling and only then be able to deploy that defence, when they are clearly not guilty of that offence from the outset.

The Minister may argue that the police will use their discretion, but we saw the case of the accredited and documented broadcast journalist Charlotte Lynch, who, while reporting on a Just Stop Oil protest, was arrested, handcuffed and held in police custody for five hours for conspiracy to commit a public nuisance. Using their discretion to avoid the detention of innocent people is not the police’s strongest suit—at least, not in public order situations. Perhaps I should remind the House that I am a former police officer.

The Minister may say that the police have to be able to act quickly and decisively in public order situations, and that determining whether or not someone has a reasonable excuse is difficult in such situations. If he were to say that, is the Government’s position that innocent, peaceful protesters should expect to be arrested and detained by the police, even if they have a reasonable excuse for their actions? The chilling effect on people’s right to protest would make such a stance reprehensible.

The other amendments in this group relate to the limitation of what amounts to a reasonable excuse, and I broadly agree with what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just said. Yet again the noble and learned Lord, Lord Hope of Craighead, has secured government support for his Amendments 8, 17, 18, 27, 28, 33 and 37. The Government seek to extend the proposed limitation to the offences of highway obstruction and public nuisance by means of Amendments 50 and 51 respectively, while the noble Lord, Lord Sandhurst, has come up with his own alternative, Amendment 55.

I was taken with the debate we had in Committee on this issue, as I said to the noble and learned Lord, Lord Hope, at the time. In summary, the noble and learned Lord suggested that, taken to its limits, provided that the reason for the protest was sufficiently serious, any criminal action, however serious, could be seen as reasonable. So, for example, if the purpose of the protest was to save the planet, surely nothing could be more serious and so protesters could argue that that gave them carte blanche to do whatever they wanted. Hence these amendments, signed by the Government, seek to remove any issue of current debate from constituting a reasonable excuse. The argument is that it is the legislature that should set out clearly the limits of reasonable excuse, rather than the courts, as recommended by the Constitution Committee.

In his letter of 23 January, the Minister cites two Supreme Courts cases, that of DPP v Ziegler and others, and, referenced by the Attorney-General for Northern Ireland, the Abortion Services (Safe Access Zones) Bill. As I keep saying, I am not a lawyer and I hesitate to offer a lay opinion, but in Ziegler the Minister rightly cites Articles 10 and 11 of the European Convention on Human Rights as offering some reasonable excuse for obstructing others. He then cites the judgment in the Northern Ireland case that, during a criminal trial, it is not always necessary to assess whether a conviction for an offence would be a proportionate interference with a defendant’s rights under Articles 9, 10 and 11. But my understanding is that this is the case only when the restriction of the exercise of convention rights is prescribed by the law in question, the law pursues a legitimate aim and the law is proportionate.

My understanding is that the protection of the European Convention on Human Rights does not need to be considered in a criminal trial if, and only if, the offence explicitly restricts those convention rights: for example, being present in an abortion clinic buffer zone; that the offence pursues a legitimate aim, the protection of women seeking an abortion in that case; and that it is proportionate—in that case, being limited to 150 metres around the clinic. For me, the question is whether the amendments in the name of the noble and learned Lord, Lord Hope of Craighead, meet the three tests cited by the Supreme Court in the Northern Ireland case. If the noble and learned Lord’s amendment were accepted, taking Clause 8 as an example, the restriction of a person’s convention rights by excluding issues of current debate from being a reasonable excuse would clearly be prescribed in law. That would be the first condition. It might even be considered to be pursuing a legitimate aim, in preventing someone from causing serious disruption by locking on, but I believe it fails in being disproportionate, in that it would apply to every attempt to exercise a person’s convention rights, no matter what the circumstances.

Take, for example, the march against the war in Iraq in February 2003, where the official estimate was 750,000 participants—the BBC reported that over 1 million people took part. The march brought central London to a standstill and, by any definition, serious disruption was caused. Are we really saying that the purpose of the march, in that case the war in Iraq, then an issue of current debate, should not have been taken into account by the courts when considering whether the protesters had a reasonable excuse for causing serious disruption? I accept that this is a serious issue, but I do not accept that this is a serious solution, in that it fails the Supreme Court judgment’s third test of proportionality.

As with the case of serious disruption in the previous group, I believe the noble and learned Lord, Lord Hope of Craighead, goes too far, as evidenced by the Government’s support for his amendments. In terms of “reasonable excuse”, that there should be no difference between a dozen extremists blocking the roads around Trafalgar Square—because, for example, they believe Covid is a myth—and 1 million people blocking the roads around Trafalgar Square in protest against the war in Iraq, because the issue of current debate about which they are protesting cannot be taken into account when considering reasonable excuse, cannot be right.

The other concern I have with the noble and learned Lord’s amendments is

“as part of or in furtherance of … an issue of current debate”.

Would a protest by the Flat Earth Society that caused serious disruption be permitted, because they could argue that they have a reasonable excuse for their actions and it was not an issue of current debate, but protesters in favour of additional support for families facing the cost of living crisis would not be able to access a reasonable excuse defence?

The amendment in the name of the noble Lord, Lord Sandhurst, seeks to overthrow the judgment of the Supreme Court in DPP v Ziegler and others. If my understanding of the noble Lord’s amendment is correct, no protest that inconveniences members of the public would be lawful, nor could there be any reasonable excuse for such conduct. Needless to say, we do not support the noble Lord’s amendment.

I accept the Constitution Committee’s recommendation:

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


However, it surely cannot be the case that Parliament wants the courts to ignore what the protest is about when determining what might be a reasonable excuse. As my commander said when I presented my solution for rotating police officers between uniform and CID, “I don’t know what the answer is, but this isn’t it”. We oppose these amendments.

--- Later in debate ---

[Lord Paddick (LD)]

The Minister said that the Northern Ireland Supreme Court case shows that the amendments are consistent with the European Convention on Human Rights. I made the point that the proportionality test that the Supreme Court made in that case was on the basis that the convention rights were restricted only within 150 metres of an abortion clinic and not outside that, whereas these amendments would apply universally and therefore, in my judgment, are disproportionate. The Minister did not address that issue.

[Lord Murray of Blidworth (Con)]

I entirely understand that that is the noble Lord’s view. The test of proportionality will, of course, be decided on the facts of each case as it arises, which will be matters that will feed into the decisions taken by the police and CPS in the charging process.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I have Amendments 19 and 31 in this group. As I explained in Committee, the offence of causing serious disruption by being present in a tunnel, as drafted in the Bill, could criminalise those in London Underground tunnels, for example. Amendment 19 is designed to restrict the offence to tunnels constructed in contravention of Clause 3: that is, a tunnel created to cause, or that is capable of causing, serious disruption. I am pleased to say that the Government agree, albeit that their alternative, Amendment 29, restricts the tunnels an offence can be committed in to

“a tunnel that was created for the purposes of, or in connection with, a protest”,

whether the tunnel was created in contravention of Clause 3 or not. They are not adopting my amendment, which covers any tunnel built in contravention of Clause 3.

I know one should not look a gift horse in the mouth, but can the Minister explain how being present in a tunnel that does not cause, and is not capable of causing, serious disruption—that is, a tunnel that was not created in contravention of Clause 3—can result in serious disruption being caused by a person being present in it? Why is it necessary to extend the definition of a relevant tunnel beyond tunnels created in contravention of Clause 3? Why should the House agree to government Amendments 21, 29 and 30 rather than my Amendment 19? I am sure the Minister will have been prepared to respond to that question. Maybe not, looking at him at the moment.

My Amendment 31 concerns the offence of being equipped for tunnelling in Clause 5. We believe that the offence of having an object

“with the intention that it may be used in the course of or in connection with the commission”

of an offence of tunnelling is unnecessarily complicated. Can the Minister explain why the proposed alternative wording—having an object

“for use in the course or in connection with”

the offence—is not sufficient? For example, Section 25 of the Theft Act 1968 states:

“A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat.”


What does

“with the intention that it may be used”

mean? Either the person intends to use the object or they do not, even if they may end up not using it—for example, because it might prove to be unnecessary. “I’ve got this pickaxe in case the protest tunnel we’re building encounters rocks, but if there are no rocks I may not have to use it,” is still having the pickaxe for use in the course of or in connection with tunnelling.

The other amendments in the name of the noble Baroness, Lady Chakrabarti, supported by the noble Baroness, Lady Jones of Moulsecoomb, and the right reverend Prelate the Bishop of Bristol, seek to leave out Clauses 1 and 2. Locking on has been used for centuries as a form of protest, most notably by the suffragettes. This new offence is widely and vaguely drawn—for example, to include people attaching themselves to other people without defining what “attach” means. Not only is there a right to protest, there is also a long-standing acceptance that people should be able to protest in the way they see fit. The creation of a locking-on offence is not even supported by the majority of rank and file police officers, according to His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services:

“Most interviewees did not wish to criminalise protest actions through the creation of a specific offence concerning locking on.”


As with the whole of the Bill, there is sufficient existing legislation to cover locking-on activity, whether it is highway obstruction, for which the penalty now includes a term of imprisonment, or public nuisance, where the maximum penalty is a prison sentence of 10 years. Can the Minister explain the circumstances in which locking-on activity would not be covered by any existing legislation?

As for Clause 2 and the offence of being equipped for locking on, as currently drafted, the offence of having something

“with the intention that it may be used in the course of or in connection with the commission”

of a locking-on offence by any person, not just the person in possession of the object, could cover a whole range of everyday objects that someone is innocently in possession of. While the offence presumably requires the prosecution to prove

“the intention that it may be used in the course of or in connection with”

an offence of locking on, the power of the police to arrest is merely based on a reasonable cause to suspect that an offence may have been committed—a very low bar. As I said in the debate on a similar clause in what was then the Police, Crime, Sentencing and Courts Bill, you could buy a tube of superglue to repair a broken chair at home, get caught up in a protest and be accused of going equipped for locking on.

From my own extensive knowledge of policing, I say that if you have a tube of superglue in your pocket while innocently trying to negotiate your way around a protest and are stopped and searched by the police, as this Bill will allow, and if you then believe you can convince a police officer that they do not have sufficient cause to suspect you are going equipped to lock on and, as a result, that you should not be arrested, that would represent a triumph of hope over experience. We support Amendments 9 and 10.

[The Lord Bishop of Manchester]

My Lords, I shall speak very briefly in support of the amendment to remove Clauses 1 and 2 that my right reverend friend the Bishop of Bristol signed. She regrets that she cannot be in her place today. As the noble Baroness, Lady Chakrabarti, said, establishing new offences of locking on and being equipped for locking on have very significant consequences for the right to protest. A few days ago I got an email from a retired vicar in my diocese. He wrote to tell me he is awaiting sentencing: he has just been convicted of obstruction by gluing himself to a road during a protest by an environmental group. The judge has warned him and his co-defendants that they may go to prison. I cite his case not to approve of his actions—which I fear may serve to reduce public support for his cause rather than increase it—but because it clearly indicates to me that the police already have sufficient powers to intervene against those who are taking an active part in such protests. Anything extra, as the noble Lord, Lord Paddick, has just so eloquently illustrated, is superfluous.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, now we turn to the offence of interference with the use or operation of key national infrastructure, which is clearly a matter of considerable concern to the life of the community and to the balance that we have been discussing between peaceful dissent and the rights and freedoms of people in a democratic society.

The definition of key national infrastructure becomes very important in relation to a new criminal offence which attaches to it a maximum of 12 months in prison. My Amendment 38 is perhaps fairly predictable for an amendment in your Lordships’ House: it seeks to remove the Secretary of State’s ability by regulations or statutory instrument to amend the definition of key infrastructure. As your Lordships will understand, it would be just too easy for any Government, now or in the future, to amend the definition in a way that was not proportionate, and to add matters and items to key infrastructure that the public did not consider to be key. On principle, I do not think that criminal offences should be created or amended in that way by Henry VIII powers. That is the reason for my Amendment 38. It is the sort of amendment that I would have tabled to any number of criminal justice Bills. It is not specifically about protest; it is an objection of principle to amending important definitions within criminal law in that way.

Amendments 39 and 40 in the group, tabled by the noble Lord, Lord Paddick, similarly try to tighten important definitions, but I will leave him to speak to those. I beg to move.

[Lord Paddick (LD)]

My Lords, as the noble Baroness, Lady Chakrabarti, just said, I have Amendments 39 and 40 in this group. As we discussed in Committee, while there may be some sympathy for measures designed to stop protesters blocking motorways, airport runways and railway lines, the legislation as drafted—covering anyone who interferes with the use or operation of any key national infrastructure, including being reckless as to whether it could be interfered with—could criminalise those legitimately protesting on railway station forecourts or concourses or those protesting outside or inside airport terminal buildings who do not intend directly to impact train journeys or flights. Clause 7(4) is extraordinarily broad in its scope, in that anything that prevents the infrastructure being used or operated to any extent for any of its intended purposes is covered.

For example, those awaiting the arrival of a controversial figure whose presence is arguably against the public interest, and who wish to demonstrate their objection to the person’s presence in the United Kingdom, should be excluded from the overbroad remit of this offence. I accept that they may be committing other offences, but to be prosecuted for interference with the use of key national infrastructure when this is clearly not the purpose or intention of the protest does not appear to be right. Amendments 39 and 40 seek to restrict the offence to infrastructure that is essential for transporting goods and passengers by railway and air respectively. We support Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, on the regulation-making powers of the Secretary of State to add, alter or delete the kinds of infrastructure covered by this offence.

--- Later in debate ---

[Lord Davies of Gower (Con)]

My Lords, Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, seeks to remove the delegated power for the Secretary of State to amend, add or remove infrastructure in the list under the legal definition of “key national infrastructure”. We have heard throughout the passage of the Bill about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power which will allow us to respond effectively to emerging threats. This was the position taken in Committee when this amendment was first tabled, and it is still the Government’ position. I assure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.

I turn to Amendments 39 and 40 tabled by the noble Lord, Lord Paddick. Amendment 39 seeks to narrow the scope of “rail infrastructure” to exclude protests that do not directly impact on the operation of trains, while Amendment 40 seeks to narrow the scope of “air transport infrastructure” to exclude infrastructure that is not essential for the purpose of transporting passengers and goods by air. As was noted when these amendments were considered previously, the scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8.

I would be keen to hear from the noble Lord, Lord Paddick, what he deems to be the essential and inessential elements of rail and air transport infrastructure. Rail and air infrastructure are each complex, interconnected systems, and it is not an easy exercise to find rail and air infrastructure that you can describe as non-essential to the running of services.

[Lord Paddick (LD)]

The Minister asks me to explain: I explained in my opening remarks, which I accept are not reflected in his notes. If there was a protest at the arrivals part of an airport against somebody who people felt should not be in the United Kingdom, they could be criminalised by this offence as drafted, because they would be interfering in some way with air transport—perhaps arrivals, but not disrupting flights, as the legislation intends. The Minister asked for an explanation; I have just given him one.

[Lord Davies of Gower (Con)]

I am very grateful to the noble Lord for his explanation. As I said previously, rail and air infrastructure are each complex, interconnected systems, and it is not an easy exercise to find rail and air infrastructure that you can describe as non-essential to the running of services.

Adopting this carve-out could pose a risk of ambiguity as to whether certain facilities—sidings, depots, maintenance facilities, freight facilities, air infrastructure used for pilot training, air shows and, potentially, trials of flights, aircraft and so on—would be covered. It would therefore create ambiguity for the transport industry, the police and protesters, and would give protesters another opportunity to delay prosecutions where the prosecution has to prove that the infrastructure targeted was “essential”. I also note that these are not safe places to conduct a protest, although this has not necessarily stopped people in the past. It is therefore the Government’s view that all parts of our rail and air transport infrastructure must be protected. For these reasons, I respectfully ask that noble Lords do not press their amendments.

Rape: Operation Soteria

Lord Paddick Excerpts

Monday 23rd January 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that. As I explained from the Dispatch Box last week, the Home Office believes it is necessary to obtain evidence and make sure this is an evidence-based review in order to deliver the correct outcome for those police forces. As regards the Met, I attended a speech given by the Met Commissioner last week. He indicated the change in the Met’s thinking towards serious sexual offences, saying:

“we are targeting men who prey on women and children. The figures are far from where we would like them to be but the number of rapists we bring to justice is increasing.”

He went on to expand on some innovative use of data and technology which is helping him. I think the Met is making serious progress.

[Lord Paddick (LD)]

My Lords, does the Minister not agree with me and Professor Betsy Stanko, who carried out a review of rape investigation in the Metropolitan Police, that victim satisfaction is the most important measure for judging police performance against rape? Is it being measured?

[Lord Sharpe of Epsom (Con)]

My Lords, I can only go back to quoting the statistics that I just gave to the noble Lord. I have not heard of the professor who the noble Lord refers to. As I said earlier, the pioneering police forces in Operation Soteria are reporting an improvement in these cases, though I think it is probably a little too early to tell. I of course agree that the victims should be paramount in this.

Windrush Lessons Learned Review: Implementation of Recommendations

Lord Paddick Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I thank the right reverend Prelate for that question. As to the last point, I am afraid I cannot comment on the leaks in the Guardian, but on the first point, I can reassure the House that we are certainly very alive to the issues that the right reverend Prelate raises. The Windrush generation was rightly identified as British and had a right to be in this country. That remains separate and distinct from the enforcement policies on individuals who have no right to reside in the United Kingdom. It is only right that the Government do what they can to protect our borders and enforce the Immigration Rules. Successive Governments have done this, in line with public expectations. Wendy Williams’s Windrush Lessons Learned Review is not about being soft in our objective to protect the country or our borders. The Windrush scandal was about the appalling treatment of those who had a perfect right to be in this country. They were not here illegally. It is only right that the Government do what they can to protect our borders and enforce the Immigration Rules.

[Lord Paddick (LD)]

My Lords, as my noble friend Lady Benjamin said—her tremendous work in this area should be acknowledged in this House—the way in which the Windrush generation has been treated is disgraceful, with some dying before the wrongs they were subjected to could be corrected or compensated. Without commenting on leaks, does the Minister agree that a failure to implement all the recommendations of the independent Williams review would add insult to injury for the African-Caribbean community?

[Lord Murray of Blidworth (Con)]

Tempting though it is to travel down that line of answer proffered by the noble Lord, Lord Paddick, I am afraid that would amount to commenting on the leaks, and I do not propose to do so.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code A) Order 2022

Lord Paddick Excerpts

Tuesday 10th January 2023 Lords Chamber

Moved by

[Lord Paddick]

At end insert “but that this House regrets that the draft Order does not restrict the powers of police constables to stop and search people without suspicion to those limited geographic areas piloting Serious Violence Reduction Orders, but instead permits all police constables in England and Wales to make use of this power during the time of the pilot.

[Lord Paddick (LD)]

My Lords, I have tabled my amendment because the concession we reasonably believed we had secured from the Government, to limit new without-suspicion police stop and search powers to specific geographic areas, is not being delivered. As the Minister explained, the Government now want the new police powers to be used throughout England and Wales during the pilot.

As the Minister explained, the Police, Crime, Sentencing and Courts Act 2022 gives the police a new power to stop and search anyone who is subject to a serious violence reduction order, or SVRO, without any reason to suspect that they might be carrying something they should not carry. A court can place a serious violence reduction order on anyone convicted of any criminal offence if they, or anyone they were with at the time of the offence, had a knife on them, whether it was used in the commission of the offence or not. This goes far wider than making it easier for the police to stop and search those convicted of knife crime.

The key to violence reduction is not stop and search, but police and communities working together and turning offenders’ lives around. The former Commissioner of the Metropolitan Police said that the police could not arrest their way out of knife crime. The success of such schemes as Operation Trident in London were the result of the police and the black community working together, for example. Having visited projects there, I know that the success of knife crime reduction in Scotland has been based on turning offenders’ lives around, particularly at teachable moments when offenders have themselves been seriously injured.

You are 14 times more likely to be stopped and searched by the police if you are black than if you are white, using existing without-suspicion stop and search powers, with about one in every 100 searches resulting in a knife being found. Having such a large number of people being stopped and searched who are not committing any offence, and who the police have no cause to suspect are committing any offence, can lead to a breakdown in relations between the police and communities—one of the keys to successful violent crime reduction. Allowing the police to stop and search an unlimited number of times, without suspicion, someone who has already served their sentence and could well be trying to turn their life around, as these new powers allow, is likely to damage any attempts at rehabilitation. Those in danger of reoffending may see no point in trying to be good citizens when they are being treated by the police as criminals even when they are doing nothing wrong.

When these measures were debated, we believed the new powers could be counterproductive and we told the Government that we were prepared to vote against them, with the support of the noble Baroness, Lady Meacher, who led on amendments to this part of the Bill. As a result, the Government agreed to a pilot scheme, geographically limited to a few specific police areas—not court areas, police areas. The pilot scheme would be independently evaluated to establish whether the new powers reduced violent crime in those specific police areas. On that basis, we agreed not to vote against the measures. Following discussion with the police, the Home Office has now agreed to allow the new police without-suspicion stop and search powers to be used throughout England and Wales during the pilot, with the only geographic restriction being to limit the courts that are able to issue SVROs, limited to the specific police areas that were originally agreed.

We made it clear to the Government that it was the new police powers that we objected to, and it was on the basis that they would be limited to certain geographic police areas that we accepted the government concession. It was never discussed, let alone agreed, that the powers of the courts to issues SVROs would be treated separately from the powers of the police to enforce them. As a result, not only have our concerns about the use of these new police powers damaging police/community relations and offender rehabilitation been ignored, but it is difficult to see how the pilot can be effectively evaluated if part of it is limited geographically and the other part is limitless.

There are also practical problems with serious violence reduction orders, such as how police officers are supposed to know that someone is subject to an SVRO, particularly if the power can be exercised over such a wide geographic area, where those subject to them are not likely to be personally known by the officers. Someone innocently walking down the street who is not subject to an SVRO is under no obligation to provide their name and date of birth to the police—the minimum requirement for a check to be made on the police national computer to establish whether they are subject to an SVRO. In that case, can the Minister explain how these orders will work in practice?

The Police Federation, which represents the overwhelming majority of officers likely to use these new powers, was asked to comment on the debate in the other place on this statutory instrument. Among other things, its representative said:

“I imagine we would be deeply concerned about moving away from a form of stop and search that isn’t rooted in ‘Reasonable Grounds’. We could easily make a case that this leaves officers vulnerable to complaint, ‘post stop’, in an area which is already supercharged as an issue in many communities. Reasonable Grounds has a firm legal basis, is tried and tested, and therefore affords reassurance to our colleagues engaged in these stops. The SVRO removes that need … and inadvertently that reassurance. It also strikes me that they are predicated wholly on the stopping officers having prior knowledge of the person being searched, so what happens when this power is used to stop somebody and their identify cannot be confirmed—you then have no reasonable grounds to fall back on, and are potentially left wide open to the ‘you only stopped me because I am black’ allegation. On the face of it, the officers’ only rational [response] if such an allegation came their way would be ‘I believed you were subject to a SVRO’, confirming the allegation [‘that you only stopped me because I am black’] and not ending well when identity has been mistaken.”


That is the view of the representative of rank-and-file police officers: that these powers are likely to place them in jeopardy, particularly if they use them outside the pilot areas where those subject to SVROs are unlikely to be known to the officers carrying out the stop and search. What consultation was there with the Police Federation on these powers?

The Government need to rethink their plans for a pilot scheme. For these reasons, I beg to move the amendment in my name on the Order Paper.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I spend my life being furious at the Government, as I am sure some noble Lords will recognise. However, I want to spare a moment of sympathy for the Minister, who has had to bring this to your Lordships’ House. Clearly, this is going back on a promise; the Government are cheating. They are choosing not to honour a promise. That is really rather disgusting, as it shows a complete lack of respect for your Lordships’ House. I really hope that the noble Lord, Lord Paddick, who has made a brilliant opening speech, will take this to a vote, because clearly we would have voted on these issues before if we had had the chance. We trusted the Government, but this shows that we cannot. That is very depressing because, if you cannot trust your Government, the whole of democracy falls apart.

I am also worried about the fact that the Government are putting the police at a disadvantage. Trust in the police is at an all-time low, and I think these measures will make it much worse. We worry all the time about the police being distrusted. They cannot do their job if they do not have the support of communities. Of course, with this sort of measure, there will be social and racial barriers to implementing it, and there will be disparities about who the police target. The Government are actually making life much harder for the police. There should not be a power to search without reasonable suspicion.

While I am talking about not trusting the Government, I should say that they are also treating peaceful protest like gang and knife crime. I just do not understand why the Government cannot see the difference between those things. Dissent is healthy; it is part of our democracy. In measure after measure and legislation after legislation, it seems to me that this Government are saying, “We don’t like society the way it is. We are going to radically change it”—and make it much worse for the majority of people.

On the issue of knife crime, my Green Party colleague Caroline Russell, who is a member of the London Assembly, has repeatedly asked the police to stop posting pictures of knives on social media, because it makes things worse. The evidence says that young people feel more at risk and that it encourages them to carry knives. There are other measures that the police can use to reduce knife crime. We have to show young people that it is safer for them not to carry a knife.

All in all, I have two questions for the Minister. First, do this Government have absolutely no respect for this House and for democracy? My second and much smaller point is: why on earth are the Government doing this before the pilots are finished? Surely the pilots should show us the way forward. The Government seem very confused about what pilots are for. Why promise a pilot and then go ahead and introduce these measures anyway? I am disgusted with Lambeth.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

We have not actually started the pilot and we are not rolling it out. It is stuck to four pilot areas. We are talking about the territorial extent of the stop and search powers.

[Lord Paddick (LD)]

I am very grateful to all noble Lords for their contributions to the debate, particularly those who supported my amendment.

The Minister has completely glossed over the whole point of the regret amendment, which is that a concession was made by a government Minister at the Dispatch Box to limit SVROs to specific police areas. There was no mention of restricting only the issuing of SVROs, rather than their enforcement, at that time. It was never even considered, let alone agreed to. What has happened is this. The Home Office has consulted the police—what the Government called “key stakeholders”; I think the Minister means the police, as that is who they consulted—and the police said, “Hang on a minute, we need the power across all of England and Wales because these criminals travel”. That may or may not be a valid argument, but it was not what the Minister promised from the Dispatch Box. That is the point and that is why there is a regret amendment, but I do not intend to delay the House further because there is a big debate to come. I therefore wish to withdraw the amendment.

Amendment to the Motion withdrawn.

Migration and Economic Development Partnership with Rwanda

Lord Paddick Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

I agree with the noble and gallant Lord. Clearly, international co-operation is vital. That is one of the five limbs that the Prime Minister outlined in his Statement, and the agreement with Albania is part of that. It is a sad fact that a good deal of the criminality in the channel arises through the actions of Albanian gangs who cross borders around Europe. We are working with our European friends and with great vigour to address this criminality. The noble and gallant Lord is entirely right that this is an important part of the limb. The Rwanda scheme is just one part of a wider picture.

[Lord Paddick (LD)]

My Lords, the Minister has said that children may be sent to Rwanda, but my understanding is that there are no facilities for children in Rwanda. If an asylum seeker is determined to seek refuge in the UK, having, for example, family members here, what is to stop them from making their way from Rwanda across Africa, across Europe, and across the channel to the UK?

[Lord Murray of Blidworth (Con)]

Forgive me; I said earlier to the noble Lord, Lord Coaker, that families with children are potentially eligible for relocation, but the initial process will focus on adults. A further assessment of Rwanda’s capacity to accommodate children will be undertaken before this occurs. That is the Government’s position in relation to children. Regarding whether asylum seekers can leave Rwanda and come back here, in theory they could leave Rwanda, but one hopes that they would not be able to avail themselves of the criminal gangs to smuggle them across the channel because we would have broken the gangs’ business model.

Public Order Bill

Lord Paddick Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, with the leave of the Committee, we told the Government Whips that I was going to intervene at this stage.

I wish to put on record the apology I gave in person and in writing to the Minister for suggesting at col. 1345 on 22 November that what he had said about the stop and search powers in the Bill not being exercisable unless an officer is in uniform was not true. I have read the Official Report, and it appears I became somewhat confused—probably after three hours on buffer zones.

The noble Lord, Lord Coaker, expressed concerns about the new offence of obstructing a police officer in the exercise of the new stop and search powers in the Bill, with reference to the Sarah Everard murder and police advice to challenge any officer who detained a lone woman, and whether such advice would amount to an offence under the Bill. In answer, the Minister said the power extends only to police officers in uniform, which I mistakenly took to mean both suspicion-led and suspicionless stop and search powers in the Bill. At that point the Minister was talking about the stop and search power without suspicion, which is restricted to uniformed officers only.

Although I was correct in my assertion that the suspicion-led power could be carried out by officers in plain clothes, the new offence of obstructing an officer applies only when the officer is exercising the proposed new suspicionless power to stop and search, for which he has to be in uniform. Nevertheless, my understanding is that Sarah Everard’s murderer was in police uniform when he detained her, so the concerns that other noble Lords had about a lone woman resisting an officer exercising the new power to stop and search without suspicion, following police advice in the wake of Sarah Everard, remains.

However, I undertook to apologise to the Committee if I had misled noble Lords by suggesting that what the Minister said about officers having to be in uniform to exercise stop and search powers under the Bill was not true. When, in relation to the power the Minister was speaking about at that moment, he said:

“This power only extends to those in uniform”,—[Official Report, 22/11/22; col. 1342.]


it was true. I therefore apologise for unintentionally misleading the Committee.

Amendment 117

Moved by

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, I have been following this Bill carefully but have not been able to take an active part in it so far. It is difficult not to agree with what the noble Baroness, Lady Boycott, said about the importance of journalism, and I am sure the whole House agrees. I declare an interest as the chairman of the Independent Press Standards Organisation.

Of course, a good and accurate record or recording of what takes place at a demonstration is important for all parties, whether they be demonstrators, the police or the public. What concerns me a bit about the amendment is what it actually does, apart from sending a very important message. That may be enough; I do not know. It seems to me that in fact it would not be lawful for a constable to arrest anybody anyway for observing, recording or reporting a protest, and nor would the exercise of police powers in relation to those matters or indeed any other matter, but I will listen carefully to what the Minister says.

I would also be grateful for some clarification of how this might interrelate to the reasonable excuse defence that exists in various parts of the Bill. I know that there is some uncertainty at the moment about its scope, where it features in terms of the definition of the offence and whether simply saying—understandably, as the noble Lord, Lord Deben, said—that this an incredibly serious cause, ie, climate change, and therefore justifies all the potential offences here. This is a fascinating and important amendment, and I seek clarification in due course from the Minister as to its scope.

[Lord Paddick (LD)]

My Lords, we wholeheartedly support Amendment 117 in the name of the noble Baronesses, Lady Chakrabarti, supported by the noble Baroness, Lady Boycott, and signed by me for the reason so effectively introduced by the noble Baroness, Lady Boycott.

We have seen some very worrying developments. I remember that when I was serving, the police, following criticism, made strenuous efforts to work with journalists, in particular photographers, to ensure that their work was facilitated during protests. A colleague of mine who became chief constable of British Transport Police, Andy Trotter, made great strides in building a good rapport between journalists and the police. Recently, however, there is evidence of disregard for press cards—for example in a briefing from the National Union of Journalists on the arrests of journalists by Hertfordshire Police and other police forces. This seems to be going completely in the opposite direction to the progress made when I was serving.

As others have said, if journalists and photographers are afraid to do their jobs of being at protests and reporting on them, that is very dangerous for our democracy and the right to protest, having a chilling effect, as the noble Baroness, Lady Boycott, put it, on journalism in relation to protests.

As other noble Lords, such as the noble Viscount, Lord Colville of Culross, said, it points to the overly wide offences in the other parts of the Bill, for example,

“being present in a tunnel”.

As the noble Baroness, Lady Boycott, said, journalists have reported from inside these tunnels and could be guilty of those offences. It points not only to the importance of these amendments in protecting journalists but to the overreach of the offences in other parts of the Bill.

As the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hope of Craighead, said, Amendment 127A is an important extension of the original Amendment 117, extending the protections beyond journalists to legal observers, academics and even innocent members of the public watching what is happening and recording it on their smartphones.

However, other noble Lords have not mentioned that it is also damaging to the police. The noble Baroness, Lady Boycott, talked about a dispute where the police asked journalists to turn off their lights and, under cover of the darkness that ensued, engaged in violence towards the protesters. In the situation the police service now faces of ever-diminishing public trust and confidence in it, stories of the police arresting journalists at protests could easily be hijacked and used by anti-police activists further to undermine public trust and confidence in the police.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, it is a privilege to speak to these important amendments in the name of the noble Baronesses, Lady Boycott and Lady Jones, my noble friend Lady Chakrabarti and the noble Lord, Lord Paddick. The way they spoke to the amendments, particularly the noble Baroness, Lady Boycott, was not only moving but challenging. I want to say something more generally, as other noble Lords have, about what happened to Charlotte Lynch.

Every now and again, something occurs in our society and our democracy which should act as a wake-up call. We all speak here and say that we are proud of our democracy and of our freedoms and traditions. Of course we are. I do not believe that we live in a totalitarian country, but even in a democracy things occur that are totally unacceptable. Such things require the state to act and respond, require Parliament to take action, and require a Minister of the Crown to look at what has happened, listen to what is being said and respond in the way that the noble Baronesses, Lady Boycott and Lady Jones, my noble friend Lady Chakrabarti and the noble Lords, Lord Deben and Lord Paddick, mentioned.

The Minister’s brief will probably say that the amendments are not necessary, that we have ways of dealing with this and that it is an isolated incident that means that no action is required—we can condemn it and say it should not happen, then move on. It is too serious to do that. You cannot do that with certain things that occur. This is not a weakness; it is a strength when a democracy responds in this way. It is a strength when a democracy shines a light on things that have happened. This is not to blame an individual officer or circumstance; it is to say that, for whatever reason, something happened in our democracy—this was about a journalist—and the police operated unacceptably.

That is what the amendments seek to do. They ask the Government, “If these amendments are not the right way of solving the problem, what are you going to do, other than say warm words, to ensure that it will not happen again?” That is what Parliament wants to hear and what all of us here expect from the Government. We do not want a massive condemnation of the country’s police or a massive assertion that every time you go out on a protest, people are arrested. But Charlotte Lynch, as well as the other two that the noble Baroness, Lady Boycott, mentioned, Felgate and Bowles, were reporting on a protest and were arrested. That is astonishing. It is incredible, quite frankly, when you go through the actual events. Despite producing a card, they were arrested, handcuffed, taken away and detained for hours.

That cannot just be explained away. How on earth did it happen? Where was the senior officer? Where was the very senior officer? Where was even somebody saying, “Hang on a minute. What is actually going on?” That happened in our country in 2022. Let me repeat: nobody is saying to the Minister that we live in a totalitarian state, but you cannot have a situation like that occurring without the Government of our country responding in a way that is appropriate and reflects the seriousness of it. That is why the amendments have been put forward. I do not know whether the noble and learned Lord, Lord Hope, is right that Amendment 127A is better because it talks about observing as well and has a broader scope, or whether the Government’s lawyers could come forward with an amendment, but something needs to be done that addresses something that has really occurred.

We talk about other countries where this happens, and ask why they do not do something about it. Actually, we need to look in the mirror and reverse it on to ourselves and say, “Why don’t we do something about it?” I repeat, because it is so important, that the Government’s defence mechanism—and I have been in government and know what happens—will be: “It’s a very serious matter, but, of course, it’s not the normal state of affairs.”. That is absolutely not the point.

I was rereading the briefing we have had from the NUJ, from Amnesty and from other people. It is just words sometimes, because words and principles matter. Principles that underpin out democracy are important, particularly when it comes to the freedom of the press, freedom of expression and freedom of journalists, broadcasters or whoever to go and do their business and report on demonstrations or protests. The Government’s own statement on 3 November said:

“Media freedom is an essential part of a healthy information ecosystem. The free flow of independently generated and evidence based information is the scaffolding for building democracy.”


That says it all.

Warm words matter, but so does policy and so does government reaction. It was a terrible situation that occurred with Charlotte Lynch. There are other examples where that has happened, and I cannot finish without responding to my noble friend Lady Symons. I played all sorts of roles during the miners’ strike. I was in Nottinghamshire as a local councillor representing and, by and large, working alongside miners who were on strike in a community where the vast majority were working. People know—and the noble Lord, Lord Murray, will also know the situation in Nottinghamshire with his background—the important role that journalists and broadcasters of all sorts played, including by my noble friend’s late husband, in reporting that. That is the strength of democracy. It is a crucial series of amendments, and if the Government are not prepared to accept what the noble Baroness, Lady Boycott, has said, what are they going to do about it?

Before I forget—I just got carried away with my own rhetoric—I want to ask one simple but important question. The Hertfordshire police did an inquiry into what happened in respect of Charlotte Lynch. They published five recommendations on 23 November. Given the importance of this, they made all sorts of recommendations about training and guidance. They also said:

“Hertfordshire Constabulary should consider ensuring that all officers engaged with public order activity complete the NUJ package and identified learning is shared.”


That means shared with other forces across the country. That is really important. If something good can come out of what happened to Charlotte Lynch, surely it is an improvement in police practice. It is also about the Government themselves considering whether something needs to be said in this Public Order Bill that strengthens and underpins the right of journalists to go about their business. Sometimes it is action that is needed as well as warm words.

[Lord Paddick (LD)]

Before the Minister responds, I have to say that, while I do not often take issue with the noble Lord, Lord Coaker—normally we are on the same side—I am more concerned than he appears to be about what happened in Hertfordshire. That is because, when somebody is arrested and taken to a police station, a sergeant or a custody officer has to satisfy himself or herself that there are grounds to detain that individual. I cannot believe that the journalist did not say to the custody officer, “I’m a journalist”. Yet a sergeant or above—as a custody officer has to be—authorised the detention of that journalist. That does not sound like officers on the front line getting a bit overenthusiastic and not having the right training; that was a sergeant in a controlled environment who was not at the scene of the protest and who authorised the detention of somebody he or she knew to be a journalist. That sounds more like something systemic than something unusual.

[Lord Coaker (Lab)]

I will respond to the noble Lord. If I, in any way, gave the impression that I underestimated the significance or seriousness of what happened to Charlotte Lynch, that was certainly not my intention. I hope that most noble Lords can see the vehemence with which I support doing something about what happened to Charlotte Lynch and using that—if that is the right way of putting it—as a way of ensuring that the Government respond in a way that protects journalistic freedom across our country, whatever the circumstances.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I have to say to my noble friend: I hope I was not giving the impression that I was saying that it was all right, because it was not. I have acknowledged that it was wrong and the police made mistakes in this particular case. But, to go back to the point I made in response to the noble Lord, Lord Coaker, we do not legislate for instances where it was clearly a false arrest and therefore unlawful.

[Lord Paddick (LD)]

Will the Minister confirm that neither in his remarks nor apparently from what he said was the response of Hertfordshire police, was there any reference to the unauthorised detention of the journalist at the police station? The first thing that would have happened at the police station is that the journalist would have been asked to turn out their pockets, including their press pass, and yet they were still detained for five hours. What do Hertfordshire police and the Government say about a sergeant not at the scene of the protest authorising the detention?

[Lord Sharpe of Epsom (Con)]

Obviously, I defer to the noble Lord’s expertise on matters custodial, but—I am flying solo a little bit here—I imagine that, whatever the erroneous reasons given for the arrest, the custodial sergeant or whoever was in that position felt that some investigation was required.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was very excited when I saw this grouping: I thought that I had got my own group to myself. However, I am afraid that others have butted in. I am very grateful for that, obviously.

The noble and learned Lord accused me of trying to waste a lot of time on this—he is not listening—but I promise I will not. My aim here is to highlight the fact that, when we pass all these things in a Bill, is it sometimes very easy to miss their cumulative effect. For me, there is a slippery slope of anti-protest laws under this Government. It will not play very well with the public, or with them when they are out of government.

Each Bill that we pass diminishes our rights, little by little. We tend to see each of these measures in isolation because that is how we deal with them, so it is easy to lose track of the cumulative effect of the Government’s anti-protest agenda. I really hope that the opposition Front Benches can join me in committing to repeal these anti-protest laws when we finally get this Government out of power. I have merely highlighted the parts of the Bill that are the most egregious from the Police, Crime, Sentencing and Courts Act 2022, and I am pointing out that they should not have been in there and we really ought to have struck them out.

[Lord Paddick (LD)]

My Lords, it is difficult to argue with the point made by the noble Baroness, Lady Jones of Moulsecoomb: if the Government, as they have, bring back those parts of the Police, Crime, Sentencing and Courts Bill that they want to reinstate, why can she not ask this House to remove those parts of Police, Crime, Sentencing and Courts Act 2022 that she does not want retained? The noble Lord, Lord Coaker, has adopted a less provocative approach in his probing amendment, Amendment 127, to establish how often the new noise trigger powers have been used by the police in relation to protests outside buildings—with or without double glazing.

We on these Benches vehemently oppose the provisions in the Police, Crime, Sentencing and Courts Act that the noble Baroness wishes to repeal, although we subsequently and reluctantly accepted the usefulness of Section 80. But that was then, and this is now. I believe that the Committee should perhaps operate on the basis of appeals in criminal trials and ask this: what new evidence is there to persuade Parliament that we should now reverse the decisions that it made a year ago?

[Lord Coaker (Lab)]

Before I forget, I thank the noble Lord, Lord Paddick, for signing Amendment 127, which deals specifically with noise. I have a lot of sympathy with much of what the noble Baroness, Lady Jones of Moulsecoomb, has said about many of the powers, but I will concentrate specifically on noise, so may disappoint her.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I wish to make one or two brief observations in respect of the way these amendments tie together. The amendment in the name of the noble Lord, Lord Coaker, which I support, sees a good precedent in what Parliament sometimes does, which is to pass successive pieces of legislation without having in mind all the complexities of the earlier legislation. We saw this most clearly in my experience in relation to search warrants of premises, and I will come back to that in a moment. There is a huge advantage in having up-to-date guidance, and the best people to produce it are those who have practical experience—namely, the police institutions—so I warmly welcome that.

But its importance goes to Clause 30, because the question I ask myself is: why is Clause 30 there? Why can it not be dealt with in two other ways? One is the use of guidance given by independent police to other police, to get uniformity; and secondly, do not forget these are applications to a court, so can we not do what we did in relation to search warrants? That is, to provide in detailed form, through the Criminal Procedure Rule Committee, working closely with the police and other organisations, the information that needs to be put before a court to make the decision on the order. Now, if the Home Secretary feels that there are areas that you need to specify—for example, about the kind of person who should be asked to supervise or do something—why can the detail of what is required, the kinds of considerations, not be put properly and openly through an independent process of rules and forms? This worked for search warrants.

We ought to bear in mind the experience of ASBOs. It is not the time at this hour of night to go back to that rather unhappy chapter, but trying to supplement un-thought-through legislation of this kind with guidance is not the way forward; there are better mechanisms.

It seems to me, when one looks at Clause 30, one asks oneself, “What is it for?” In Clause 30(2)(c), the guidance is about

“providing assistance to prosecutors in connection with applications for serious disruption prevention orders.”

Is the intention that somehow the Home Office believes that the police do not help prosecutors? What guidance do they need? These are independent people and their independence should not be called into question. In most countries, the independence of the prosecution service, as in our country, is critical, and so is the independence of the police.

I do not want to go into the constitutional points under Clause 30, because I entirely agree with what has been said. I think one ought to look at this from a practical experience point of view to say that the clause is completely unnecessary. It should be possible to deal with the practical consequences of these orders in a way that takes into account experience. This is a criticism of the way in which the modern Civil Service is structured. There are probably few people in the Home Office who remember what I have just gone through. I thought a few grey hairs might remind people that there is a better way forward than this constitutional aberration, constituted by Clause 30.

[Lord Paddick (LD)]

My Lords, we support Amendments 126 and 144 in the name of the noble Lord, Lord Coaker. As recommended by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, consolidated public order guidance should be published, to include minimum training standards, clear information on relevant law and operational best practice. We must ensure that existing law and practice are used effectively and that police can then be held to account against that consolidated guidance.

The noble Lord, Lord Coaker, talked about ensuring that the police had excellent training. I go back again to my own experience: the Metropolitan Police were world leaders in public order policing and the training was extensive and excellent. Other forces used to come to the Metropolitan Police and engage in training with it and in that way good practice was shared.

Does the Minister know what the impact of cuts to police budgets has been on the quality and amount of training in public order policing—the involvement of other forces in training with the Metropolitan Police, for example? My understanding is that special constables, who are part-time volunteers, are now being trained as public order officers. This is a very difficult, sometimes dangerous, skilled area of policing. One would question whether part-time volunteers are the right officers to be used in that sort of situation, requiring knowledge of public order legislation that is getting longer and more complex as we go on.

What has been the impact of the police cuts on the number of public order trained officers? Before the Minister stands up and talks about the uplift in the number of officers, I point out that across 16 constabularies, the number of police officers over the last 12 months has gone down rather than up and the Metropolitan Police has given notice to the Government that it will not reach its target of the uplift of an additional 30,000 officers.

HMICFRS talks in its public order report about the lack of regular officers volunteering to be public order officers because it involves increased weekend working—which is not popular—an increased risk of complaints, and the increased risk of being verbally and physically abused. What steps are the Government taking to mitigate these factors, which are working against having highly trained, highly skilled public order officers in sufficient numbers to be able to handle protests?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for the amendments in this group. I turn first to Amendment 126, which would require the College of Policing to publish guidance consolidating the public order authorised professional practice and NPCC and college operational advice for public order policing. The Government would be required to lay the consolidated guidance before Parliament and the guidance would need to be reviewed annually and updated when appropriate.

The noble Lord’s explanatory statement clarifies that this builds on a recommendation from His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to the College of Policing. For the benefit of the House, when giving oral evidence to the Public Bill Committee, His Majesty’s Inspector Matt Parr has said of policing’s response to the report that it was

“the most professional and thorough response”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 55.]

he had seen to a report that he had done.

The college has drafted a new public order public safety authorised professional practice that is in the final stages prior to consultation, which precedes publication. A draft version will be published for consultation by public order practitioners by the end of December and the college plans to publish the final version in early 2023.

To provide further reassurances to all those present who have shown interest in public order guidance, noble Lords will perhaps allow me to detail some of the work that the college has undertaken beyond the authorised professional practice to improve public order training.

On guidance, the college publishes regular bulletins, including on changes to processes, legislation and new training products. Its summary guide to the Police, Crime, Sentencing and Courts Act has been circulated to all forces and widely shared with officers involved in policing public order and protest. This guidance reiterates the need for a balanced approach with a reminder of the recent HMICFRS conclusion that

“the police do not strike the right balance on every occasion. The balance may tip too readily in favour of protesters when – as is often the case – the police do not accurately assess the level of disruption caused, or likely to be caused, by a protest.”

In April, the college drafted the National Police Chiefs’ Council’s Protest Operational Advice Document, which reiterated the need for a rapid response to disruptive disorder. The document aims: first, to support consistency of decision-making and engagement with stakeholders; secondly, to signpost guidance, legislation, key legal decisions, policies and practice which may assist in the policing of protest, thereby promoting public safety, preventing or reducing crime, disorder and/or terrorism to support overall public safety; and, thirdly, to assist decision-makers in achieving outcomes which support the exercise by peaceful protestors of their rights under Articles 8, 9, 10 and 11, while striking the appropriate balance between those rights and the rights of others affected by protest. This is being reviewed by the college, which aims to publish the revised version in February 2023.

On training, over the last six months the college has rolled out significant changes to protestor removal training. This used to be a very niche skill with very few people trained to a high level, but this meant the response was slow. The college has since developed new, quicker training for simpler lock-ons, which has meant a substantial improvement in the speed of the police response to these. I could go on, but I think I have made the point. The college is a professional organisation that is proactive in response to protests to ensure that officers are trained to the highest possible standards. It does not need a legislative stick to make them do so. That is why the Government do not support this amendment.

I thank the noble Lord, Lord Coaker, for specifying that Amendment 144 is a probing amendment to query the demand for, and the capacity of, specialist protest officers across police forces. I presume by “specialist protest officers” the noble Lord is referring to both public order trained officers and officers trained in the removal of protesters who lock on. For the benefit of the House, it is worth clarifying that, for the most part, protests are non-violent and are managed effectively by general patrol officers. When there is a risk of violence, officers with additional specialist public order training are deployed.

On specialist public order trained officers, the NPCC has set a national requirement of 297 police support units across England and Wales, alongside 75 in London. A police support unit consists of one inspector, three sergeants and 18 constables as well as three drivers. On level 3, which is basic public order training, the NPCC has set a requirement for 234 basic deployment units.

On the question from the noble Lord, Lord Coaker, on specialist officers, the NPCC has identified a national requirement for 108 officers trained in debonding protestors, 189 officers trained to remove protestors and another 189 who are trained to remove protestors from complex environments such as height. The noble Lord also asked about non-specialist officers. They are deployed to respond to peaceful protests and all have level 3 public order training.

The noble Lord, Lord Paddick, asked me about specials. Peaceful protests would seem to me to be well within the abilities of volunteer police officers—indeed, I have seen it in my own service overseas. He also mentioned cuts. I am afraid I am going to disappoint him by saying that we are well on the way to the 20,000 police uplift that was promised. I will also of course say that the nature of protests has changed and, therefore, so has the nature of policing, as reflected in much of this Bill.

[Lord Paddick (LD)]

I am sorry to interrupt the Minister and am grateful to him for giving way. I have seen evidence that special constables are being trained to level 2 and being issued with specialist equipment, so I am not talking about special constables trained to level 3, as the noble Lord suggested.

The noble Lord gave a whole series of numbers. The National Police Chiefs’ Council has decided that there should be specified numbers of level 3 and level 2-trained units of one, three and 18—one inspector, three sergeants and 18 constables—as the requirement nationally. To what extent have police services fulfilled those requirements? The indication that the Minister gave was that that is the target that the National Police Chiefs’ Council has given, but to what extent have police forces been able to fulfil that target?

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not know the answer. I will write to the noble Lord with the detail. Regarding the specials, as long as they are trained, surely that is the point.

Chief officers are responsible for demonstrating that they can appropriately mobilise to a variety of public order policing operations at a force, regional and national level in accordance with the national mobilisation plan. The College of Policing sets consistent standards across England and Wales to ensure consistency across forces, allowing officers from different forces to operate in tandem when deployed to other force areas.

The required capacity for public order capabilities is informed by the assessment of threats, harm and risk from the National Police Coordination Centre, as agreed by the National Police Chiefs’ Council. Officials and Ministers in the Home Office regularly probe the National Police Coordination Centre on its confidence that forces can respond to disorder. At present, it assesses that forces are able to meet current protest demands. Forces have been able to use public order resources to respond to incidents including the awful disorder in Leicester in August and September, as well as Just Stop Oil’s recent disruptive campaign on the M25.

Amendment 142A seeks to ensure that statutory guidance issued under Clause 30 is subject to the affirmative scrutiny procedure, rather than the negative procedure, as the Bill currently allows. This follows a recommendation from the Delegated Powers and Regulatory Reform Committee, as explained by the noble Lord, Lord Rooker, and the noble Baroness, Lady Meacher. I thank the committee for its consideration of the Bill. I hope, but am afraid I doubt, that noble Lords will forgive me for echoing the arguments made in the Government’s response here. SDPOs do not represent a new concept. Successive Governments, dating back at least to 1998 and the creation of anti-social behaviour orders in the Crime and Disorder Act, have legislated for civil preventive orders of this kind, which can impose restrictions on liberty, backed by criminal sanctions. Many of these preventive order regimes include similar provision to that in Clause 30 for the Secretary of State to issue guidance which was not subject to the draft affirmative scrutiny procedure. Guidance issued for serious violence reduction orders is subject to the negative scrutiny procedure. Having said that, I listened very carefully to the speech by the noble Lord, Lord Rooker, and I will write to him with an attempt to unravel some of the discrepancies that he mentioned.

We therefore see it as entirely appropriate that the guidance is subject to the negative scrutiny procedure and respectfully encourage noble Lords not to press their amendments.

--- Later in debate ---

Moved by

[Lord Paddick]

128: Clause 19, page 22, line 8, leave out “on the balance of probabilities” and insert “beyond reasonable doubt”
Member's explanatory statement
This amendment raises the burden of proof for imposing a serious disruption prevention order to the criminal standard.

[Lord Paddick (LD)]

My Lords, Amendment 128 is in my name, supported by the noble Lord, Lord Skidelsky, the noble Baroness, Lady Fox of Buckley, and the right reverend Prelate the Bishop of St Albans. I will also speak to Amendments 129, 130, 133 to 136, and 139 to 142 in my name and to the other amendments in the group; and I will oppose Clauses 19 and 20 standing part of the Bill.

Serious disruption prevention orders are modelled on the orders given to terrorists and knife carriers, with similar draconian provisions, yet these are to be imposed on peaceful protestors, some of whom will never have been convicted of a criminal offence and some of whom will have never even attended a protest. These orders will effectively prohibit British citizens from exercising their human rights of free expression and assembly. They include the possibility of electronic tagging and restricting people’s use of the internet.

Liberty gives an example, which, in my own words is of someone who could be subjected to an SDPO, who has never been convicted of an offence, who attended two protests in the last five years and who, at those protests, based on inadmissible hearsay and on the balance of probabilities, contributed towards someone else doing something that was likely to result in serious disruption. The purpose of the order would be to prevent the person subject to the SDPO from contributing towards another person doing something that was likely to result in serious disruption at some point in the future.

HMICFRS says of serious disruption prevention orders:

“Such orders would neither be compatible with human rights legislation nor create an effective deterrent. All things considered, legislation creating protest banning orders would be legally very problematic because, however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order”.


In the same report, senior police officers are quoted as saying that SDPOs would

“unnecessarily curtail people’s democratic right to protest”;

that such orders would be a “massive civil liberty infringement”; and that,

“the proposal is a severe restriction on a person’s rights to protest and in reality, is unworkable.”

That is the police’s view. They added that it appeared unlikely that the measure would work as hoped, because a court was unlikely to impose a high penalty on someone who breached such an order if the person was peacefully protesting, to which HMICFRS said:

“We agree with this view and that shared by many senior police officers.”


It is what we would expect in Russia or Iran, not in the United Kingdom.

These orders can also be imposed on those convicted of public order offences, and although we impose their imposition on anyone, it cannot be right that a person can be convicted of a criminal offence of breaching a serious disruption prevention order and sentenced potentially to a term of imprisonment, on the basis of an order imposed on the balance of probabilities, potentially based on evidence such as hearsay that would not be admissible in a criminal trial. I have rehearsed these arguments time and again in relation to similar orders in the past.

The origins of this type of order are to be found in anti-social behaviour orders—ASBOs—another order imposed on the balance of probabilities but with criminal sanctions for a breach, which Parliament decided was unfair and unreasonable, and so replaced with an entirely civil-based, non-criminal approach. In the case of knife crime prevention orders, the Government used the argument that the police had advised them that knife carriers would not take the orders seriously if no criminal sanctions were attached to them. Even if noble Lords had some sympathy with that approach in relation to the potentially fatal consequences of knife crime, surely serious disruption prevention orders are far closer to ASBOs than to knife crime.

The noble Baroness, Lady Fox of Buckley, and the right reverend Prelate the Bishop of St Albans have added their names to my Amendments 128, 129 and 130; and the noble Lord, Lord Skidelsky, has also added his name to my Amendment 128. The amendments require a court to be satisfied “beyond reasonable doubt” —the criminal standard of proof—before imposing a serious disruption prevention order, rather than depending on the civil standard of “on the balance of probabilities”.

We support Amendment 131 in the name of the noble Lord, Lord Hendy, which states that participation in a lawful trade dispute should not result in the imposition of a SDPO. I can see what the noble Baroness, Lady Jones of Moulsecoomb, is doing with her Amendment 132, and, if she were here, I would have looked forward to her explanation of it to the Committee.

Although electronic tagging is limited to 12 months, serious disruption prevention orders can be imposed for up to two years—but they can also be renewed indefinitely. That means that someone who has never been convicted of an offence can be prohibited from being in or entering a particular area indefinitely, prohibited from being with particular people indefinitely, prohibited from engaging in particular activities indefinitely, and prohibited from using the internet for particular purposes indefinitely. Can the Minister explain how that provision would be enforced, if they could use the internet for some purposes and not others? My Amendments 133, 135, 136, 137, 138, 139, 140, 141 and 142 would prevent serious disruption prevention orders being renewed, effectively placing a maximum limit of two years on their imposition.

Someone who breaches a serious disruption prevention order can be sentenced to a maximum of 51 weeks in prison and an unlimited fine. My Amendment 134 questions whether an unlimited fine is appropriate for such an offence, for the reasons I have argued in previous groups.

Most of those amendments should be redundant, because I urge all noble Lords on all sides of the House to join me and the noble Lords, Lord Ponsonby of Shulbrede and Lord Anderson of Ipswich, and the noble Baroness, Lady Chakrabarti, in opposing the proposition that Clauses 19 and 20 stand part of the Bill. I beg to move Amendment 128.

[Lord Skidelsky (CB)]

My Lords, I enthusiastically support the amendment moved by the noble Lord, Lord Paddick.

I agree with the noble Lord, Lord Coaker, that we are not living in a totalitarian state, but George Orwell also warned of the slide from democracy to despotism: it becomes invisible so that, in the end, you cross a border without really knowing that your freedom has been taken away because you do not want to do anything that might lead to anyone wanting to take it away. We have not got there yet. Nevertheless, it seems that we are discussing areas of legislation in which we find, as the noble Lord, Lord Paddick, said, blocks of words being transferred mindlessly from one set of offences to another set of offences, rather like prefabricated hen houses. One has to guard against that, because the offences are of very different gravity and one must not use the same language when talking of one rather than the other.

Part 2 introduces the serious disruption prevention order, described by Liberty as a protest banning order, which gives police the power to ban a person who has not been convicted of any offence for up to two years from attending any protest, together with extraordinary powers of surveillance, including electronic surveillance. Now I am against prevention orders on the whole, because they tread the path of stopping the liberties of people who have not been convicted of any offence. That is the road down which they lead, so I am suspicious of that in principle.

Here, we have a penalty which can be imposed on a civil standard of proof, meaning that the conditions needed for being given an SDPO need to be proved only on a balance of probability. That compounds the offence. The Government are not only taking powers to inflict extraordinary penalties on someone who has not been convicted of anything, they are also claiming the power to do that on a balance of probabilities, rather than on having reasonable suspicion. That is what this amendment wants to remove and there are subsequent amendments to which the same logic applies. We need to put in a requirement of reasonable doubt into the whole series of these preventive disruption orders.

--- Later in debate ---

The noble Lord, Lord Anderson, very eloquently asked the Government how we can justify SDPOs when they impose tighter restrictions and have less oversight than terrorism prevention and investigation measures. SDPOs would improve the police’s ability to take a proactive approach to policing protest by preventing prolific protesters who are hell-bent on causing chaos time and time again doing so in the first place. Having said that, the Government thank the noble Lord for his comparison of SDPOs with TPIMs. Without wishing to—or committing to—own up to anything, we will reflect on his views. I would also like to reassure the noble and learned Lord, Lord Thomas, that that does mean a proper think. For the reasons I have outlined, I ask all noble Lords not to press their amendments.

[Lord Paddick (LD)]

My Lords, I am grateful to all noble Lords for their contributions to this debate. As many noble Lords have said, this is about restricting the human rights and civil liberties of unconvicted people on the basis of the balance of probabilities. The noble Lord, Lord Anderson of Ipswich, described the “breathtakingly broad” provisions, more draconian than those imposed on terrorists, that the Government propose to impose on peaceful protesters.

I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood—of course it is the standard of proof, not the burden of proof—and to the right reverend Prelate the Bishop of Chelmsford, for pointing that these orders will be imposed on activities in relation to a protest. As the noble Baroness, Lady Blower, described on behalf of the noble Lord, Lord Hendy, not only would lawful picketing be included but somebody who organised or chipped in to pay for coaches to bus people down to London to take part in a protest would be covered by these provisions.

The noble and learned Lord, Lord Thomas of Cwmgiedd, hit the nail on the head: quite clearly, there has not been enough thinking. I cannot believe that we have got to Committee in the House of Lords, having gone all the way through the process in the House of Commons, before a Minister agreed to start thinking about the consequences of these provisions. In defence of the Home Office and its officials, we should remember that Home Secretary Priti Patel was facing a potentially hostile Conservative Party conference in the wake of Insulate Britain protests and demanded an immediate, draconian response. That is how we have come to copying and pasting terrorist legislation and applying it to peaceful protesters without a second thought.

I agree with the noble Lord, Lord Ponsonby of Shulbrede, that we should support civil orders to protect victims of domestic violence, for example, but with civil sanctions. That is why anti-social behaviour orders are now anti-social behaviour injunctions, with civil penalties, which can include contempt of court and imprisonment. We are not talking about soft options here.

I could not believe the description of the sort of person on whom the Government think these orders are designed to be imposed. It was the most outrageous and extraordinary description of people going around telling young people all sorts of things. I have never heard or experienced anything like it in my life. If it is true, I am glad that the Government will now think about what has been said as a result of noble Lords in this Committee, whom the House has the utmost respect for and will listen very intently to when we come, as we inevitably will, to vote that these clauses do not stand part of the Bill. The Government need to do some long and hard thinking about these clauses because, with the support that we have seen across the House for these provisions to be taken out of the Bill, we will carry the House if the Government do not see sense on these measures. In the meantime, I beg leave to withdraw my amendment.

Amendment 128 withdrawn.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, we support Amendment 143 in the name of the noble Lord, Lord Coaker, to which I have added my name. We on these Benches believe that the prison service is overwhelmed. As a result, prisoners have no real opportunity for rehabilitation, and this can lead to a revolving door of offending, conviction and imprisonment. Liberal Democrats want to reduce the number of people unnecessarily in prison by introducing a presumption against short prison sentences and including the use of tough community sentences and restorative justice where appropriate. We want to transform prisons into places of rehabilitation and recovery by improving the provision of training, education and work opportunities.

That cannot be done against a background of an ever-increasing prison population. In particular, custodial sentences should be restricted to the most serious types of offending that place public safety at risk. We believe that peacefully exercising basic human rights of freedom of expression and assembly are not included in the types of offending warranting a custodial sentence in most cases. That it is why it is important to review sentencing for public order and protest-related offences to ensure that the right balance is struck between the right to protest and the disruption such protests may cause. If the balance is wrong, it is an indication of a repressive regime that seeks to stifle the democratic right of citizens in a free society to gather and express their concerns about the way the Government and Parliament are operating. We therefore support the proposed review.

[Lord Davies of Gower (Con)]

My Lords, I thank the noble Lords, Lord Coaker and Lord Paddick, for tabling this amendment. I empathise with the importance of understanding sentencing for criminal offences. However, the Government do not feel that it is necessary to accept this amendment. There are already adequate mechanisms in place to scrutinise sentencing. The Sentencing Council for England and Wales exists to promote greater transparency and consistency in sentencing. It issues guidance on sentencing and is responsible for monitoring sentencing. Its objectives are to promote a clear, fair and consistent approach to sentencing, to produce analysis and research on sentencing and to work to improve public confidence in sentencing.

As a result of the delegation of these functions, it is felt that the Government are not best placed to undertake such a review. I therefore respectfully ask that the amendment be withdrawn.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate those still here. We end, of course, with commencement, because that is the tradition. In moving Amendment 146 I will speak also to my Amendments 147 and 149. I also support Amendment 148 from the noble Lord, Lord Paddick, and Amendment 150 from the noble Lord, Lord Paddick, and my noble friend. We are dealing with the tension between ever more police powers on the one hand and the lack of equivalence in resources, training and vetting for policing on the other hand. This tension has been more and more exposed in graphic terms in recent months and years.

We began this evening with the eloquent speech from the noble Baroness, Lady Boycott, who spoke powerfully about incidents of abuse of police power in relation to journalists. We were assured, I think sincerely, by the Minister that it was far from the intention of the Government that those things happened. The Government apparently agreed with me that those were wrongful arrests, yet they have happened more than once. There are some in the police community who hold the view that this is a legitimate thing to do to prevent serious disruption, which is undefined in statute. So, with the amendments, we are seeking to ensure that there is some check on the new blank cheque that we are putting on the statute book, in addition to blank cheques that have already been put there by broad concepts such as conspiracy to cause a public nuisance, et cetera. That is what we are trying to get at.

Amendment 146 prevents the commencement of most provisions of the Bill until there has been

“a report by His Majesty’s Chief Inspectorate of Constabulary and Fire Services on improvements to the vetting, recruitment and discipline of specialist protest police officers”.

In another group, the Minister said, “If they’re trained, they’re trained”. So this is about ensuring that that is the case before additional power is granted. Amendment 147 is consequential to that.

Amendment 149 is crucial at a time when more than one police force is in special measures. It provides that provisions should

“not be brought into force for any area in which the police service is under special measures, the engage phase of monitoring, or other unusual scrutiny … by His Majesty’s Chief Inspectorate of Constabulary and Fire Services.”

That seems to be a perfectly reasonably check on the new powers and a perfectly reasonable request to make of Ministers, so I beg to move.

[Lord Paddick (LD)]

My Lords, I have tabled Amendments 148 and 150 in this group, and will speak also to Amendments 146, 147 and 149.

My amendments would mean that the new offences in the Bill—the delegation of functions and serious disruption prevention order provisions—could not come into force until the Government have laid before Parliament a report assessing the current capability of police services to use the provisions in those sections. Most of the 10 police forces inspected by HMICFRS said that the limiting factor in the effective policing of protests was a lack of properly trained and equipped police officers, not gaps in legislation. If that is already the limiting factor, what assessment have the Government made of the additional strain that the new provisions will have on already-stretched police officer numbers? What is the point of new legislation if the police do not have the resources to use it effectively—or, indeed, to use existing legislation effectively?

I can understand the principle behind Amendments 146, 147 and 149 tabled by the noble Baroness, Lady Chakrabarti; the right reverend Prelate the Bishop of Manchester has added his name to Amendments 146 and 147. Were it to be within the scope of the Bill, I too would support a moratorium on giving the police any further powers unless and until Parliament had a chance to consider a report by HMICFRS into the vetting, recruitment and discipline of all police officers, not just public order officers—particularly in forces that are subject to the “engage phase” of scrutiny by HMICFRS, commonly understood to be “special measures”. With so many forces requiring intensive scrutiny and intervention by HMICFRS, and public confidence in the police being so low, the police should not be given further powers until HMICFRS has reassured the public that they can have confidence in the police use of existing powers, let alone new ones.

[The Lord Bishop of Chelmsford]

My Lords, I add my support to Amendments 146 and 147, to which my right reverend friend the Bishop of Manchester added his name—I know he regrets that he is unable to be here today. I thank the noble Baroness, Lady Chakrabarti, for bringing these important amendments forward. Throughout the debate on the Bill, it has been clear that there are many justified and genuine concerns about provisions and the expansion of police powers laid out in it. I believe that it is therefore appropriate that further reflection should take place, and these amendments would provide for exactly that opportunity, requiring parliamentary debate of an HMCI report concerning improvements to the vetting, recruitment and discipline of protest police officers. In recent years, we have arguably seen an accelerated decrease in trust in the police, and it is critical that any expansion of powers such as those set out in the Bill does not occur without regard for the real implications of such measures.

--- Later in debate ---

It is our conviction that these measures should come into force as soon as is reasonably practicable. For that reason, I respectfully ask that the amendment be withdrawn.

[Lord Paddick (LD)]

Can the Minister clarify what I thought I heard—noble Lords know what I am like with making mistakes about what a Minister actually said and what I heard. Did he say that the provisions in the legislation are designed to “deter protesters” and therefore relieve pressure on the police? Can he just clarify what he meant by that?

Independent Cultural Review of London Fire Brigade

Lord Paddick Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I cannot speculate about what the Prime Minister might say so I shall speak for myself. I agree with the noble Baroness: I am disturbed by many of these reports that I have to stand here and talk about.

[Lord Paddick (LD)]

My Lords, rather than concentrating on who is to blame, should the Government not be focused on solutions? What have they done to look at parallels between this report and that of the noble Baroness, Lady Casey of Blackstock, into the Metropolitan Police? What are the common lessons and what, therefore, are the urgent steps that need to be taken in both the police service and the fire brigade?

[Lord Sharpe of Epsom (Con)]

I think I made it abundantly clear that I was blaming no one; I was stating a fact. I also made it very clear that we published a fire reform White Paper in May and that Andy Roe has committed to acting on all 23 recommendations.

Manston Update

Lord Paddick Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

Taking that question in reverse order, yes, the conditions are now suitable for those held there. I do not have the answer as to whether people were transferred directly from Manston to Napier barracks: I can make inquiries about that and write to the noble Baroness. As for her final point, on the provision of healthcare at Napier barracks, similarly, those operating that accommodation facility will provide healthcare and signpost healthcare facilities to those who are resident there.

[Lord Paddick (LD)]

My Lords, why will the Government not consider humanitarian visas, where people’s initial application for asylum could be considered in situ and they could be vaccinated against serious diseases before they arrived in the UK?

[Lord Murray of Blidworth (Con)]

It is because the Government believe in encouraging migration via safe and legal routes, and not by those who choose simply to cross the channel in a small boat.

[Lord Murray of Blidworth (Con)]

I understood the noble Lord, Lord Paddick, to ask me whether those who had arrived at Manston should be given a humanitarian visa and be inoculated. That is not the case. On the method that the right reverend Prelate asked about, there are safe and legal routes from the countries that were discussed in the earlier topical Oral Question. Those are the routes that are to be utilised.

[Lord Paddick (LD)]

If the House will indulge me, I shall clarify my question. The Home Secretary was asked at the Home Affairs Select Committee last week what would happen to a genuine refugee, say from sub-Saharan Africa, where there are no safe and legal routes. Why could someone in that situation not make an initial application in country for a humanitarian visa and be vaccinated in country before they arrive in the UK? The clue in the question I asked previously was “before they arrive in the UK”.

Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)

Lord Paddick Excerpts

Monday 28th November 2022 Grand Committee

[Lord Paddick (LD)]

My Lords, that was an extremely powerful contribution from my noble friend Lady Ludford, with which I wholeheartedly agree. I thank my noble friend Lady Hamwee, her eminent committee members and their officials for this impressive report, the importance of which cannot be overestimated. There have been equally impressive contributions from members of the committee, although not exclusively from them.

I am no Luddite. I am impressed by new technology and could be described in my own way as an early adopter of it, even if it is the new iPhone or the latest laptop—boys’ toys, as my noble friend just commented. Perhaps I get too excited by technology in the way that she mentioned. However, there are inherent dangers in the way that technology is being used in the criminal justice space that are a real cause for concern, as the report clearly points out and as noble Lords have described.

I do not know whether I am correct in thinking that, like direct and indirect racism, there are perhaps first and second-degree dangers in the use of advanced technology. As in the hackneyed phrase, when it comes to computers, of “Rubbish in, rubbish out”, there is a clear potential danger that artificial intelligence built on the results of biased policing and biased decision-making by the courts will be hard-wired into AI systems, as the noble Baroness, Lady Primarolo, said. Whether it is about the likelihood that a convicted person will reoffend or when used in connection with vetting inquiries, where racial bias in human decision-making is copied and pasted into AI systems, artificial intelligence also has the danger, for example, of being racially biased.

As my noble friend Lady Hamwee said, the report points out what I might call second-degree prejudice and discrimination, such as where AI is used to predict where volume crime might occur but not used to focus police resources on what used to be called white-collar crime, such as high-value fraud. This application bias has the danger of focusing police resources on poor neighbourhoods, where black and other minority ethnic people live, while majority white crime is seen to be even less solvable as the opportunities provided by AI to solve crime are focused elsewhere. The first-degree racism dangers in Durham’s predictor of how likely someone is to commit a crime in the future, or the Home Office sham marriage detector, should not overshadow the second-degree racism that might result from focusing advances in technology on the poor and disadvantaged.

It is not just having the mantra of “If you’ve done nothing wrong, you have nothing to fear” to downplay the harm caused by disproportionality in stop and search that we must be alert to, but that facial recognition technology is likely to give false positive results with women and black people. Operators that are not effectively regulated could load databases of political activists—or even images from Facebook groups that the system could be asked to trigger alerts for—allowing the police to track the individual movements of innocent citizens. That the city council of Santa Cruz in the United States placed a moratorium on the same live facial recognition software used by Kent Police between 2013 and 2018, because that council believed it endangered civil rights and civil liberties, and exacerbated racial injustice, perhaps indicates the dangers and how the UK is lagging behind other jurisdictions in addressing these dangers, as my noble friend Lord Clement-Jones said this evening.

I found the Information Commissioner’s remarks, quoted in the report, that every technology can create benefits or risks, depending on the context, governance and oversight measures, a little like the Chinese phrase “We live in interesting times”. It was fairly obvious but not particularly helpful, unlike the report, which not only shows how and where the governance and oversight measures are inadequate but, helpfully, recommends how and where they can be improved, as my noble friend Lady Hamwee described.

The report also points out that the courts are filling gaps in the legislation, something judges are reluctant to do. They want clear laws to interpret, not an absence of law that they then have to invent. I am reminded of going, as part of my Master of Business Administration degree, into the bank where my twin brother was a senior executive so we could act as quasi-management consultants and carry out a project on the system that the bank used to regulate salaries. The view of the operational arm of the bank was that the human resources department was holding back the business from moving forward, and that senior executives should be able to reward high performers outside the salary and grading structure.

Similarly, I appreciate how difficult it is for legislation to keep up with technological advances. However, given the erosion of civil liberties and, for example, the overpolicing of certain communities, that should not mean sacrifices just because, to quote Bill Heslop from the film “Muriel’s Wedding”, “You can’t stop progress!” That was his campaign slogan when he was running for political office and he did not win—not that I am suggesting that there are similarities between that character and my twin brother, or Kit Malthouse, the former Minister quoted in the report.

The report’s conclusions, that there is no clear line of accountability for the misuse or failure of technological solutions used in the application of the law and, as a result, no satisfactory recourse mechanisms, are worrying, together with the fact that there is a lack of transparency in the use of advanced technological solutions. Mandatory impact assessments are a safeguard, provided they are objective and independent.

Committee reports such as this one are a fundamental aspect of the work of the House, and we overlook them at our peril—this report perhaps more than many. As my noble friend Lady Hamwee said, the credibility of the criminal justice system could be at stake. As my noble friend Lady Ludford pointed out, the Government’s response could be described as complacent. I look forward to the Minister’s response saving the day by reassuring this Committee that he has taken on board the recommendations of this important report.