Public Order Bill

Lord Paddick Excerpts

3rd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I want to say three things. First, I pay tribute to the noble Baroness, Lady Sugg, for the remarkable job she did after the contentious committee hearing on this clause. She forged a result which, although certainly not perfect, and which continues to evoke strong feelings, had the support of a very great majority of your Lordships.

Secondly, I thank the Minister for taking on board Amendment 9, which is surely not controversial but mends the hole in this Bill by ensuring that the same incidents are not taken into account for successive serious disruption prevention orders.

My third point is also addressed to the Minister, but I suspect more particularly to his ministerial colleagues. On both stop and search and serious disruption prevention orders, your Lordships’ House has not obstructed clear government policy but has found a way—with the benefit of our collective experience—to leave the police with the powers the Government say they need, while removing the excessive and unnecessary elements of each power. The things we removed are no-suspicion stop and search and the power to trigger SDPOs on the basis of activity that does not meet the criminal threshold.

I remind the Minister that all this was passed with overwhelming Cross-Bench support. All three amendments on these subjects were signed or supported by two Lord Chief Justices, two further judges of our highest court and a former Commissioner of the Metropolitan Police, my noble friend Lord Hogan-Howe, who, in my experience, knows exactly what he is talking about on these issues. The three amendments collectively attracted 162 Cross-Bench votes, with only eight against. Of course, these Benches are only a small part of the House, but not one, I hope, that anyone would willingly confuse with a crypto-anarchist front. I believe that the Minister, with his own policing experience, will see the force of these views, and I ask him to convey that to his colleagues in the Commons. I hope that this Bill can become law without tiresome ping-pong and with these amendments in place.

[Lord Paddick (LD)]

My Lords, we wholeheartedly support all the amendments in this group. Noble Lords often talk about the tremendous work the noble Baroness, Lady Sugg, has done on this Bill, although I realise they have not said it in those terms.

It may come as a surprise to Members of this House that I consider myself to be a Christian. I rather overdid it: I was baptised as an infant; then I became a Baptist and was baptised by total immersion; and then I went to Oxford and was confirmed in the Church of England. It was belt and braces as far as I am concerned. This legislation is not anti-Christian and, in respect of people who privately pray, my understanding is that prayer works very effectively outside of a 150-metre radius of an abortion clinic.

I have to apologise to the House: I should have been on my guard on Report. I refer to the debate on 7 February, when the Minister talked about the Government having tabled amendments

“which seek to allay some of the concerns expressed by your Lordships.”

I think the Minister knows what is coming. He went on to say that the second amendment, Amendment 58,

“reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years … It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs”.—[Official Report, 7/2/23; cols. 1147-48.]

Regrettably, when it came to Amendment 58, the Minister “not moved” his own amendment. I was not quick enough to intervene to rescue it, so that amendment is lost. It was not part of an amended part of the Bill, so it cannot be amended here at Third Reading, and it cannot be amended in the Commons either. As I said, I apologise for not being quick enough to spot that mistake. Having said that, we support all the amendments before the House today.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we too support all the amendments today. I open by thanking the noble Baroness, Lady Sugg, for all her work on this matter; I know that she has worked tirelessly between both Houses and both sides of this House. I am glad that we have reached this point and, to that extent, I agree with the noble Lord, Lord Cormack.

I reiterate what the noble Lord, Lord Paddick, said: plenty of Christians support the amendments and there are a number I know who would take exception to people describing them as somehow not as good Christians as those who wish to protest by praying within 150 metres of an abortion clinic. It is perfectly clear that you can pray wherever you like, but outside 150 metres of an abortion clinic.

I would like to reinforce the points made by the noble Lord, Lord Anderson, who talked about the strength of the votes at earlier stages of the Bill. He highlighted stop and search and SDPOs, and the strength of support from across the Cross Benches, including from many very senior former judges. I hope that when the Minister wraps up, at this stage or the next, he says something or gives us some hint about how far the Government will go in recognising the concerns that this House has expressed.

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There should be no doubt about the merits of the Bill’s ultimate objectives: namely to better balance the rights of protesters with the rights of individuals to go about their lives free from disruption or harm. Blocking motorways and slow walking in roads delays our life-saving emergency services, stops people getting to work and drains police resources, and the British people are rightly fed up with it. It is more important than ever that the Bill moves swiftly to become law.

[Lord Paddick (LD)]

My Lords, I thank the Minister and his Bill team for listening to at least some of the concerns noble Lords have raised, and for the way in which they have responded to them. When similar restrictions on protests were considered by this House in the Police, Crime, Sentencing and Courts Act, the Government were defeated on 14 occasions. This time, the Government were defeated eight times, but that was only because we did not feel there was enough time to vote against other measures that we were very concerned about. However, I thank the Minister and his team. I thank Elizabeth Plummer in the Liberal Democrat Whips’ Office, who has supported me throughout. I thank His Majesty’s loyal Opposition for the constructive way in which noble Lords of the Labour Party have worked together with us to ensure that the democratic right to protest has been maintained.

[Lord Coaker (Lab)]

My Lords, I start with some brief remarks. I very much thank the Minister, his colleagues on the Government Front Bench and the Bill team for their help and time during the passage of the Bill—including today’s clarificatory amendments which the Minister brought forward. It is an example of how this can and should be done, even when there are genuine disagreement between us. The briefings and discussions we had helped inform debate and, I hope, have led to better legislation—which is indeed what we all want. I thank the Minister very much for that; it is much appreciated.

I thank my noble friend Lord Ponsonby for his support and important contributions. I say to the Chamber that he brings a calmness to my more excitable character, which is extremely helpful. In thanking him, I also thank our office for its support, and in particular, over the last few weeks, Liz Cronin. I thank many of my noble friends for their contributions to this debate, particularly my noble friend Lady Chakrabarti. I thank the noble Lord, Lord Paddick, and his colleagues, and I thank him for the remarks he just made. I thank the noble Baroness, Lady Jones, for the contributions she has made, and a number of Cross-Benchers—including the noble Lord, Lord Hogan-Howe, who has been mentioned, the noble Lord, Lord Anderson, and others.

To those very senior former judges, including the noble and learned Lord, Lord Hope, I say that I very much appreciated my crash course in the law; I hope that I have appeared to know what I am talking about, which is always a start. The interventions of the noble and learned Lord, Lord Hope, and those of many of the other senior judiciary members who we have here, make a huge contribution to the difficult debates that we have, even where we disagree between ourselves. This is an extremely important Bill and the debate will no doubt continue as it returns to the other place for its consideration of our changes.

I want to emphasise—the noble Lord, Lord Anderson, mentioned this—that the debates here and the changes made reflect a genuine attempt to address where the line should be drawn between the right to protest and the right of others to go about their daily lives. It was not about those supporting a law-abiding majority and those putting the rights of protestors first. Across the world, democracy and the right to protest are non-existent or under threat. In our great democracy, tensions arise and anger around protests can sometimes, quite rightly, provoke public outrage. In seeking to deal with that, however, we must not, even inadvertently, damage freedoms that we all cherish.

I hope that the other place will reflect carefully not only on the actual amendments that we have made but on the debates that took place around them. They were debates, yes, on how we deal with the challenges emerging particularly from recent protests but also, crucially, on maintaining the democratic traditions of which we are all so rightly proud.

Authority to Carry Scheme and Civil Penalties Regulations 2023

Lord Paddick Excerpts

Tuesday 21st February 2023 Grand Committee

[Lord Murray of Blidworth (Con)]

This is the reference in paragraph 14(d) of the draft scheme. Clearly, this is not being added by these changes. However, I can reassure the noble Baroness that the courts have found in favour of decisions to refuse authority to carry where the Secretary of State is in the process of making a decision to exclude. Obviously, if a person has made an application and the exclusion order is not made, they are free to travel once they have their visa. It does not have the effect of precluding their travelling; it simply means that they cannot travel on that occasion. If, however, they are the subject of an exclusion order, repeated applications will simply result in the same outcome: they will be refused authority to travel by the carrier.

[Lord Paddick (LD)]

My Lords, I hope my asking a question is in order; I have been here throughout the debate. On a couple of occasions, the Minister said that this scheme applies to all carriers that are required to provide details of passengers and crew, on international routes and from the Republic of Ireland. Does that mean all carriers, or all carriers that are required to provide that information? If it is the latter, on what basis do the Government require some carriers to provide that information and not others?

Public Order Bill

Lord Paddick Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

Moved by

[Lord Paddick]

46: Leave out Clause 10

[Lord Paddick (LD)]

My Lords, I rise to move Amendment 46 in my name and to speak to Amendment 47, to which I have added my name. Amendment 46 would remove Clause 10 from the Bill; I am grateful for the support of the noble Baronesses, Lady Chakrabarti and Lady Meacher, and the right reverend Prelate the Bishop of Manchester, who have signed this amendment. Amendment 47 in the name of the noble Lord, Lord Coaker, to which I have added my name, would remove Clause 11 from the Bill. These clauses give the police new powers to stop and search for an article made, adapted or intended

“for use in the course of, or in connection with”

protest-related offences, such as highway obstruction, causing a public nuisance and offences under the Bill —Clause 10 based on suspicion and Clause 11 without suspicion—if a police officer of or above the rank of inspector authorises it in a particular place for a specified period. This can be done if the officer “reasonably believes” that people in the area are carrying prohibited objects.

These are a significant expansion of police powers at a time when confidence in the police is waning and on a day when another police officer has been given multiple life sentences for, among other things, abusing his authority. There is potentially an endless list of objects that could be made, adapted, or intended

“for use in the course of or in connection with”

protest offences. Coupled with the power to stop and search without suspicion, this could result in many innocent people being stopped, searched and potentially arrested for being in possession of commonplace objects. If a protest takes place in central London, for example, shoppers in Regent Street and Oxford Street could potentially be stopped, searched and arrested for possessing household objects that they had just bought in John Lewis.

Stop and search is a highly intrusive and potentially damaging tool if misused by the police. The fact that you are seven times more likely to be stopped and searched by the police if you are black than if you are white where the police require reasonable suspicion, and 14 times more likely where the police do not require reasonable suspicion, presents a prima facie case that the police are misusing these powers.

As a commander in the Metropolitan Police Service in July 2000, I presented a paper to my senior colleagues entitled “It is Time to Face the Realities of Stop and Search”. It attempted to demolish established explanations, provide an analysis of why in reality disproportionality was happening and set out steps that needed to be taken to ensure that stop and search was more accurately targeted. That was almost 23 years ago, at a time when disproportionality in stop and search with suspicion was running at eight times; it is now seven times.

A Joint Committee on Human Rights report of November 2020 stated that 25% of black voters in Great Britain were not registered to vote compared with an average of 17% across the population. Even more black people are likely to be excluded as a result of the new requirement to produce photographic identification at polling stations before you can vote. Black people are therefore likely to have less confidence in the electoral process, making protest more important to them as a way of making their voices heard. The same report cites the fact that 85% of black people are not confident that they would be treated the same as a white person by the police.

Put the two things together, and add the seven to 14 times disproportionality in stop and search, and you create a situation where the powers in Clauses 10 and 11 are likely to have a significant chilling effect on black and other visible minority people’s participation in protest. Not only is that reprehensible in itself but it is likely to increase the chance of serious violence as significant numbers conclude that violent protest is the only alternative means that they have of getting their views taken into account.

The only difference between Clauses 10 and 11 is the degree to which black and other visible-minority people will be deterred from participating in legitimate, peaceful protest. As the JCHR highlights, stop and search without suspicion has been available in the past only to combat terrorism—but was subsequently repealed because of police misuse—and serious violence. The JCHR said:

“It is surprising and concerning that the bill would introduce similar powers to deal not with serious offences punishable with very lengthy prison terms, but with the possibility of non-violent offences relating to protest, most of which cover conduct that is not even currently criminal.”


Even the Police Federation has concerns. Commenting on serious violence prevention orders, another expansion of stop and search without suspicion, a representative said:

“I imagine we would be deeply concerned about moving away from a form of stop and search that is not 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.”


A previous Home Secretary asked HMICFRS to do a report on policing protests, page 109 of which says:

“Arguing against the proposal for a new stop and search power … another officer stated that ‘a little inconvenience is more acceptable than a police state’. We agree with this sentiment.”


Neither of these clauses should be part of the Bill. Depending on the support from other parts of the House, I may wish to test the opinion of the House on Amendment 46.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this House is wonderful. Your Lordships have heard from a former police officer exactly what the police think of this and how they will handle, or possibly mishandle, it; we are shortly to hear from a lawyer who has experienced court cases about this sort of thing; and here your Lordships have the inveterate protester who has been arrested at a protest—a peaceful one—and it was extremely unpleasant.

Basically, Clauses 10 and 11 could fundamentally change the relationship between police and protesters. At the moment, you can take my word for it, that relationship is usually quite good until the police are told to move in and arrest us or whatever. Most of the time it consists of natural talking, with us explaining what we are there for and them saying what they had for breakfast and that sort of thing. It is not as disastrous a relationship at the moment as it will be if these clauses pass.

Clauses 10 and 11 will definitely be able to change that relationship for the worse. The police will be able to physically stop and search protesters with or without suspicion. I do not know how awful that sounds to noble Lords, but we feel that we are in a democracy. We are not in Iran or Russia; we are meant to be in a democracy where the police are not allowed to do things like that.

The Greens will vote against these as unjust laws, and I very much hope that the majority of noble Lords will follow suit. We all have a very vaunted idea of what Britain, our freedoms and democracy are all about. Here we are seeing a retraction of that and a diminution of our freedoms. I do not see how anyone can vote for that, even the Government Front Bench over there. I very much hope that this measure comes to a vote, and I will definitely vote against.

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I have heard the concerns raised about stop and search more generally, which I hope I have responded to adequately. But the police have supported stop and search measures, and we believe they will be highly effective for preventing the sort of disruption we have seen in recent months. As such, I ask noble Lords not to press their amendments.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords who have spoken from all sides of the House and of the debate, from former police officers to the noble Baroness, Lady Jones, who was arrested at a protest.

The noble Lord, Lord Wolfson of Tredegar, made a great play on John Lewis. I emphasised in my speech that I was talking about everyday household objects, some of which may be purchased from John Lewis. The red herring was the noble Lord’s emphasis on John Lewis, rather than my emphasis on everyday objects and so forth.

The noble Lord, Lord Deben, asked what stop and search without suspicion was and what an officer would do. I accept that an inspector or above has to authorise officers to go ahead and stop and search without suspicion. The power means that police officers who are so authorised can stop and search whoever they like and do not have to justify what they are doing.

I should not waste noble Lords’ time dividing the House on an amendment that Labour will not support, and a vote that we therefore cannot win, however passionately I and other noble Lords feel about Clause 10. Therefore, I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I may be labouring under a misapprehension, but surely there is a critical difference between this country and China. As I understand it, the proposed new clause would prevent a constable exercising a police power for the principal purpose of preventing someone observing or reporting on a protest. If we do not pass this amendment, that act—that is, arresting somebody for the principal purpose of preventing reporting on a protest—would still be unlawful: it would be an abuse of police powers to do that. The difference is that here we are being asked to pass legislation to make illegal that which is already unlawful. That is the concern I have with it. When I was a Minister, I was frequently told, “You should add this clause and that clause to send a signal”, and I kept saying, “The statute book is not a form of semaphore.” My problem with this clause is nothing to do with the content of it; I just have a problem with passing legislation to make unlawful that which is already unlawful.

[Lord Paddick (LD)]

My Lords, there cannot be any legitimate objection to journalists, legal observers, academics or even members of the public who want to observe and report on protests or on the police’s use of their powers related to protests. We have seen in incident after incident how video footage of police action, whether from officers’ own body-worn video or that taken by concerned members of the public, has provided important evidence in holding both protesters and police officers to account for their actions. The need for this amendment is amply evidenced by the arrest and detention of the accredited and documented broadcast journalist, Charlotte Lynch, while reporting on a Just Stop Oil protest. It is all very well for noble Lords to say, “Well, if somebody was arrested in the way that Charlotte Lynch was arrested, it was unlawful”, but the fact is that Charlotte Lynch was taken out of the game for five hours and detained in a police cell, where she could not observe what was going on. We need upfront protection for journalists and observers, and not to rely on a defence that they can put after they have been handcuffed, arrested, and put in a police cell even though they are in possession of a police-accredited press pass. We support this amendment and will vote for it if the noble Baroness divides the House.

[Lord Berkeley of Knighton (CB)]

My Lords, there is something to be said for semaphore in the wider sense. That is, one of the problems that I think many noble Lords have had with the Bill is that it is sending a signal, as the noble Lord, Lord Patten, just suggested, against freedom of expression. Certainly, we need clarity in making law—I have changed my mind on two amendments today thanks to the interventions of the noble and learned Lord, Lord Hope. However, I will not change my mind on this one, because I think back to those women who were dragged around at the protest after Sarah Everard’s murder and who themselves filmed what was going on, to the disgust of the whole nation. Sometimes semaphore is very important. We are looking not just at the fine lines of the law today but at the message we are sending to the population: that we are a free society and that we want a free press. I will support the amendment.

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[Viscount Hailsham (Con)]

My Lords, I will make three brief comments about these amendments. First, regarding the trigger points, I entirely agree with Amendments 56 and 60 from the noble Lord, Lord Anderson, which the noble and learned Lord spoke to. The reference to an injunction is particularly worrying because, for the reason the noble and learned Lord mentioned, members of the public would not be aware of it. In any event, what are or could be contemplated in the third, fourth and fifth trigger events are acts that are very remote from the mischief the Bill contemplates. Therefore, I very much hope that the amendments are put to the House, and I shall support them if they are.

Secondly, your Lordships need to keep in mind that the test of necessity, which is dealt with in Clause 20(1)(d), is quite a high bar. I deal with it in interim orders made by the regulatory panels, which are fully aware that “necessity” is different from “desirability” and requires quite a high threshold.

My last point is a query to the Minister, if he would be so kind. It is a very long time since I dealt with complaints before magistrates’ courts, so I apologise for not really being familiar with the procedure. In any view, these SDPOs are very serious. Does the complaint, which presumably has to be made both by the court and to the person named, specify the concerns felt by the senior police officer? Does it specify the relief being sought in the order itself? I assume that these are inter partes hearings, not ex parte. Does the person against whom the order is sought have the opportunity to make representations, give evidence, be represented and object to the relief being sought? This is ignorance on my part, but I fancy that quite a lot of your Lordships would like to know the procedure being invoked.

[Lord Paddick (LD)]

My Lords, as we have heard, most of the amendments in this group seek to restrict the proposed provisions in serious disruption prevention orders so that they are more in line with terrorism prevention and investigation measures. TPIMs are primarily designed for instances where the case against someone who is believed to be a serious threat to society—a suspected terrorist—is based on intelligence rather than evidence that could be given in open court. They are supposed to be a temporary measure while attempts are made to secure the evidence necessary to convict the person of a criminal offence. SDPOs as originally drafted were potentially limitless banning orders preventing people from involvement in protests, even if they had never physically been present at a protest before and, in the case of Clause 20, had never been convicted of a criminal offence.

As the noble and learned Lord, Lord Brown of Eaton- under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights if a court was satisfied on the balance of probabilities—depriving people of their human rights on the weakest of evidential tests. Even in the case of Clause 19, on serious disruption prevention orders on conviction, where the court is convinced beyond reasonable doubt that a criminal offence has been committed, the court needs to be satisfied only on the balance of probabilities that the offence was protest related. It then has to be satisfied—again, only on the balance of probabilities—of a second involvement in a protest. For example, if someone had contributed to crowdfunding to pay for coaches to take protesters to London and, in the end, there were not enough protesters and the coaches never went, but serious disruption was likely to have resulted if they had and the coaches had been full of protesters, on the balance of probabilities the court could impose an SDPO.

That many of the amendments in this group attempt to weaken SDPOs, making them merely outrageous rather than totally unacceptable, is no reason to support them—perhaps with the exception of Amendment 56, which seeks to limit those who would be made subject to an SDPO and which, frankly, goes nowhere near far enough. The House should not make legislation less bad when it has an opportunity to oppose it in its entirety. The noble Lord, Lord Anderson, expressed his support for that by signing Amendment 59.

As His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported in its review of public order policing, the police’s view was that courts would be reluctant to deprive individuals of their right to protest by granting protest banning orders in the first place, and even more reluctant to impose any significant penalty should someone breach an order by peacefully participating in a future protest. If they caused serious disruption, they would be convicted of a substantive public order offence. As a result, SDPOs were seen as unworkable and having no real deterrent effect.

We support the amendments in the name of the noble Lord, Lord Ponsonby of Shulbrede—to leave out Clauses 19 and 20—which have been signed by me, the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Chakrabarti. We cannot support depriving anyone of their human rights on an evidential test of the balance of probabilities, especially when the police believe that the courts would be unlikely to impose SDPOs or a deterrent penalty for any breach. We will support the noble Lord when, we hope, he divides the House on Amendments 59 and 63.

Hillsborough Families Report: National Police Response

Lord Paddick Excerpts

Thursday 2nd February 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I agree with my noble friend and, of course, the noble Lord, Lord Addington. It would be preferable if I were able to state a date. I am not, but I will certainly take the noble Lord’s concerns back and ask the department to firm up on this. I stress, though, that the Policing Minister in the other place has committed to speeding this process up.

[Lord Paddick (LD)]

My Lords, to go back to the question asked by the noble Baroness, Lady O’Loan, with trust and confidence in the police at historically low levels, why did the Government oppose placing a clear, simple and easily understood statutory duty of candour on the police in primary legislation, as exists for the NHS? A statutory duty of co-operation in secondary legislation is not the same thing.

[Lord Sharpe of Epsom (Con)]

My Lords, I appreciate that point, but the former Bishop of Liverpool’s report is being considered. We will publish our full response in due course, and I am quite sure that the duty of candour will form part of that response.

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.]

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[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.

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[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”.

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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”?

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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.

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[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.

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[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.

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[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.