Public Order Bill

Lord Paddick Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Paddick (LD)]

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

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

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

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

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

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


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

Amendment 117

Moved by

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[Lord Faulks (Non-Afl)]

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

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

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

[Lord Paddick (LD)]

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

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

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

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

“being present in a tunnel”.

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

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

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

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[Lord Coaker (Lab)]

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

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

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

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

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

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

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

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


That says it all.

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

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

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


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

[Lord Paddick (LD)]

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

[Lord Coaker (Lab)]

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

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[Lord Sharpe of Epsom (Con)]

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

[Lord Paddick (LD)]

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

[Lord Sharpe of Epsom (Con)]

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

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[Baroness Jones of Moulsecoomb (GP)]

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

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

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

[Lord Paddick (LD)]

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

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

[Lord Coaker (Lab)]

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

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[Lord Thomas of Cwmgiedd (CB)]

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

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

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

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

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

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

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

[Lord Paddick (LD)]

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

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

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

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

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

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[Lord Sharpe of Epsom (Con)]

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

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

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

he had seen to a report that he had done.

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

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

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

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

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

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

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

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

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

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

[Lord Paddick (LD)]

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

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

[Lord Sharpe of Epsom (Con)]

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

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

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

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

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

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Moved by

[Lord Paddick]

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

[Lord Paddick (LD)]

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

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

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

HMICFRS says of serious disruption prevention orders:

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


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

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

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

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

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

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


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

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

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

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

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

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

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

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

[Lord Skidelsky (CB)]

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

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

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

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

--- Later in debate ---

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

[Lord Paddick (LD)]

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

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

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

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

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

Amendment 128 withdrawn.

--- Later in debate ---

[Lord Paddick (LD)]

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

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

[Lord Davies of Gower (Con)]

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

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

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

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

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

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

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

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

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

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

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

[Lord Paddick (LD)]

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

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

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

[The Lord Bishop of Chelmsford]

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

--- Later in debate ---

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

[Lord Paddick (LD)]

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

Independent Cultural Review of London Fire Brigade

Lord Paddick Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

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

[Lord Paddick (LD)]

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

[Lord Sharpe of Epsom (Con)]

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

Manston Update

Lord Paddick Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

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

[Lord Paddick (LD)]

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

[Lord Murray of Blidworth (Con)]

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

[Lord Murray of Blidworth (Con)]

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

[Lord Paddick (LD)]

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

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

Lord Paddick Excerpts

Monday 28th November 2022 Grand Committee

[Lord Paddick (LD)]

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

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

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

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

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

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

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

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

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

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

Proceeds of Crime (Money Laundering) (Threshold Amount) Order 2022

Lord Paddick Excerpts

Thursday 24th November 2022 Grand Committee

This statutory instrument forms part of a package of reforms to the DAML regime within the Economic Crime and Corporate Transparency Bill currently in the other place. I therefore commend this motion to the Committee. I beg to move.

[Lord Paddick (LD)]

My Lords, again I thank the Minister for explaining this order. Raising the threshold from £250 to £1,000, the £250 limit being unchanged since 2005, seems quite a reasonable increase. I understand from the Explanatory Note that some organisations wanted the threshold to be raised to £3,000. I think The Home Office is right to limit the increase to £1,000. Law enforcement must focus its limited resources on transactions that are likely to be the result of money laundering. This order has the additional benefit of reducing the burden on commercial organisations, which can, in any event, report suspicious activity to law enforcement despite the changes in the limits in this order. Therefore, we support it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this order as well. As the noble Lord, Lord Paddick said, it seems a reasonable increase and some organisations would have gone to £3,000. However, there were other respondents to the consultation who were against the increase to £1,000; they wanted to keep it at the lower limit. Can the Minister say what their concerns were? Although I agree with the noble Lord, Lord Paddick, that £1,000 seems reasonable, other people thought it should have stayed at its original level: does the Minister know why they thought that? He indicates that he does not know why—okay.

I have some of the same figures that the Minister quoted. The Explanatory Memorandum states that the volume of DAMLs is rising steeply and gave those figures. The question is: what percentage of those 105,000 referrals were over the new £1,000 threshold—what difference will increasing the threshold to £1,000 make?

On the further figures that the Minister quoted, he said that only 2% of all DAMLs were refused consent in 2019-20, of which only 1,062 progressed towards asset denial. The question is, of that 2%, how many of those DAMLs were for amounts over £1,000 and so would still be caught? Both those questions are about how much the amount of work will be reduced by increasing this limit, although we of course approve of the objective.

One of the main benefits suggested by the Government, with which we agree, is that this measure should free up law enforcement to pursue other activities. We welcome that in itself. We heard from the current Home Secretary’s predecessor that the National Crime Agency has been asked to make staffing cuts of up to 20%. Can the Minister say anything about whether that previous expectation is still in place or has now been ruled out?

The Explanatory Memorandum states:

“A full Impact Assessment has been published alongside the Economic Crime and Corporate Transparency Bill, which considers the impact of the changes in this instrument.”


One of our key concerns about that Bill is its failure to tackle fraud and economic crime, with falling rates of enforcement and prosecution. I understand that this change is intended to reduce the number of ineffective DAMLs, but what action is being taken alongside that to try to increase the prosecution rate? It is a huge problem and it is very time-intensive to secure successful prosecutions—I understand that—so although we support this SI I would be grateful if the Minister could set out in a slightly broader context how he will try to increase the possibility of getting successful convictions.

Investigatory Powers Commissioner (Oversight Functions) Regulations 2022

Lord Paddick Excerpts

Thursday 24th November 2022 Grand Committee

[Baroness Chakrabarti (Lab)]

My Lords, I apologise for coming in when the Minister was already on his feet. I declare an interest as a council member of Justice, the all-party law reform group that took a significant interest in the CHIS Bill when it was going through the House. It was a very strange time: it was during lockdown when we had Zoom Parliament and so on, as the Minister will recall.

All noble Lords will appreciate that the legislation was—and remains—controversial. Whatever the arguments for and against its necessity, it is controversial to grant advance immunity from prosecution not only to police officers or direct officials and agents of the state but to those whom they run in the community, including in criminal fraternities. We have had the arguments in relation to the legislation itself. None the less, we all need to recognise the dangers that exist with that kind of advance immunity from criminal prosecution, including for quite serious crimes.

During the passage of the legislation the Government said that the Human Rights Act would be a safeguard, and the Minister has repeated that. But we are constantly told that the Human Rights Act is in jeopardy and, with the return of Mr Raab to the Office of the Deputy Prime Minister and as Justice Secretary, that remains in the balance. That needs to be on our minds when we consider these powers and the codes of practice made thereunder.

I will make one further point, about the consultation around the CHIS codes of practice. Justice informs me and other noble Lords that the consultation took place between 13 December 2021 and 6 February 2022—an eight-week period that included Christmas and serious restrictions because of the rise of the omicron variant. That was of concern not only to Justice but to other charities and NGOs that had concerns about the legislation and about victims’ rights in particular. One of their substantive concerns is that there is not enough in the current codes of practice to encourage victims to seek compensation in the event that they are harmed as a result of advance criminal immunity being given to CHIS.

Christmas is a problem for people who work in the sector in any event, because staff are on holiday and so on, but lockdown made it harder still. What Justice says about that is if the Home Office had compensated for the short festive period by going out proactively to consult potential interested parties, that consultation deficit could have been met. But that, I am told, did not happen. As a result, both Justice and the Centre for Women’s Justice, which of course had been very involved in supporting the female victims of the spy cops scandal, made their views known to the Home Office. That has not been a satisfactory engagement.

I know there is a limit to what can be done about this at this point but I intervene today to put this to the Minister. He perhaps was not the Minister responsible at the time of the consultation but might, none the less, keep this under review and possibly open up a line of ongoing communication with Justice and the Centre for Women’s Justice. Although these regulations are of course going to pass, these codes of practice need to be kept under review, as does the operation of this legislation with the codes of practice. I know from my dealings with him that the Minister is a reasonable person. After the regulations pass, I hope that he will perhaps meet these people to keep that conversation going and ensure that the operation of these provisions and vital codes of practice is monitored, and that the monitoring from the Home Office actively encourages involvement from those who work on victims’ rights and in the sector.

[Lord Paddick (LD)]

I thank the Minister for introducing these draft statutory instruments. As he said, the Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022 cover highly controversial changes made to the Regulation of Investigatory Powers Act 2000 by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 which enable the police, security services and other public bodies to task informants or agents to commit crime, where it is necessary and proportionate, for which they will be immune from prosecution and civil damages. As the noble Baroness, Lady Chakrabarti, has just said, that is not just the officers who task the individuals or authorise that tasking, but the individuals involved in the criminal acts themselves.

Taking up the point made by the noble Baroness, my understanding is that victims who have suffered as a result of the participation of CHIS in crime cannot make claims because the agents and CHIS are immune from being sued in the civil courts, as well as from criminal prosecution. In relation to the spy cops issues, can the Minister clarify whether that immunity from civil claims is not retrospective and that where undercover officers were inappropriately engaging in relationships with protesters and activists, they may therefore still be liable for civil damages?

The Act’s measures were fiercely debated in this House and, despite the safeguards that were brought in through amendments passed by it, they remain controversial—not least given the potential tasking of children and vulnerable adults to commit crime, and the danger and safeguarding issues surrounding the use of children and vulnerable adults in this way. Since the safeguards introduced in the CHIS Act came into force in 2021, can the Minister explain why it has taken until now to publish these codes of practice, which instruct the police and the security services on how they must comply with the 2021 Act?

The Explanatory Memorandum says:

“It is not considered that relevant public authorities or the IPC need to be provided with additional time to adopt different patterns of behaviour with a delayed commencement date”


as the changes contained in the revised codes of practice have been in force since 2021. If, as the Explanatory Memorandum says,

“the new provisions in the CHIS Act”

provide guidance

“covering the way that Criminal Conduct Authorisations … must be authorised and reflects the changes made to the use of children and vulnerable adults as CHIS”,

what is the point of the revised codes of practice? If they are important, even essential, to ensure the relevant authorities comply with the law, why have those authorities been allowed to operate without them since 2021, bearing in mind that there was no statutory basis for authorising CHIS to participate in crime before the 2021 Act?

Hotel Asylum Accommodation: Local Authority Consultation

Lord Paddick Excerpts

Thursday 24th November 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

Obviously it is not for me to comment on the entirety of the commercial operations of Clearsprings; nor do I know the extent to which the contracts for asylum accommodation are responsible for its profit margin, so it would not be appropriate for me to answer that question.

[Lord Paddick (LD)]

My Lords, will the Minister comment on the Home Secretary’s evidence yesterday in the other place, where she seemed to suggest that the only way that many asylum seekers could claim asylum in the UK is on arrival in the UK? In other words, the only way for genuine refugees and asylum seekers to claim asylum is to pay people smugglers to cross the channel and then claim asylum in the UK. Is the Government’s policy not feeding the business model of people smugglers rather than trying to dismantle it?

[Lord Murray of Blidworth (Con)]

No, it is absolutely to the contrary. Safe and legal routes, such as the ones we operate in Afghanistan, and in Iraq and Jordan in the past, were designed to provide an opportunity for genuine refugees to make asylum claims to come to the UK. The idea that people can promote their own claims over those of others and cross themselves into the country in order to claim asylum is simply not a sensible way of running an asylum system. It is clearly contrary to the public interest that those able to afford to pay people smugglers are able to come here and claim asylum. That is why the safe and legal routes are the only proper way of delivering asylum sanctuary.

Solihull Murders

Lord Paddick Excerpts

Wednesday 23rd November 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I think it is of rather more importance than investigating burglaries; we should all think that. I do not necessarily agree that it is not a priority for the police forces. The police forces are certainly saying the right things but, as I have already said from this Dispatch Box, I, the Minister in the other place, the Home Secretary and the Government think they have more to do.

[Lord Paddick (LD)]

My Lords, is not the problem here—the difference between burglary and domestic violence—the attitude of police officers towards women? What are the Government doing about that?

Counterterrorism: Martyn’s Law

Lord Paddick Excerpts

Wednesday 23rd November 2022 Lords Chamber

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very sound point. He is, in effect, asking me about the scope of the proposed legislation and that work is ongoing. It would not be appropriate for me to comment at this point.

[Lord Paddick (LD)]

My Lords, I pay tribute to the noble Lord, Lord Harris of Haringey, and to Martyn’s family for their work on these issues. What else can the Government do to encourage small venues to improve security, while we await this long-overdue legislation? What about a public information campaign or a security rating scheme for venues? Lives may be unnecessarily at risk because of government inaction.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes an interesting point. ProtectUK was launched in March 2022 as a digital tool. Its work includes offering guidance, advice and engagement with counterterrorism experts via an online platform. As it develops, it will establish itself as a central digital location for counterterrorism support. There are a number of other aspects to that, which I could go on about at some length, but considerable work is being done in that space.

Public Order Bill

Lord Paddick Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

Does the noble Lord understand that prosecutors, in authorising and not authorising charges, have discretion in whether to prosecute a case? No prosecutor I have met would ever prosecute a case on the facts the noble Lord has just set out.

[Lord Paddick (LD)]

Is the noble Lord also aware that one of the amendments tabled by the noble Baroness, Lady Sugg, addresses exactly this issue, making somebody voluntarily accompanying a person to a clinic exempt from this clause?

[Lord McCrea of Magherafelt and Cookstown (DUP)]

The noble Lord, Lord Beith, did say that it went some way in this regard, but that it did not deal with all the issues that he and I expressed concern about.

It has been bandied about in this debate for quite some time that the other place voted by a large majority for this legislation. According to certain interpretations, that could be correct. Like the noble Lord, Lord Cormack, and the noble Viscount, Lord Hailsham, who spoke recently, I was in the other place, for 25 years. There are 650 Members of the Commons. Of those, 297 voted for this legislation—46%—while 110 voted against and 243 abstained, meaning that 54% of the other place did not vote for this clause. So often in this debate it has been said that there was a vast majority in the other place and that we must submit to its will, yet 54% did not vote for this clause. It is good to be factual on percentages and numbers in the other place.

It is a fundamental and widely accepted principle of sentencing that the punishment must fit the crime—that is, if you feel that freedom of expression and peaceful protest are a crime, which I do not. However, the fines envisaged in Clause 9(4) are grossly disproportionate to the types of protest activities that often occur outside abortion clinics. A six-month prison sentence for a first offence, which could be the result of a volunteer offering support to a pregnant woman, surely strikes most people as neither reasonable nor proportionate, and nor does a two-year sentence for someone who offends multiple times.

The Government reviewed this in 2018. People have dismissed the review as if it does not matter today, but mind you, if it had said something different, they would be happy to mention it. It found that the vast majority of these activities are passive in nature; that they involve everyday lawful activities such as silent prayer and handing out leaflets offering help and support to women who may not want an abortion, but who may feel they have no other choice; and that they occur outside a small number of abortion clinics. Inside this buffer zone, to stand in silent prayer could get you six months’ imprisonment. What country are we living in? This is not China, and it is not Iran. It is the United Kingdom. I have heard the Prime Minister and previous Prime Ministers, and Ministers in this House, say at the Dispatch Box that the most persecuted people in the world today are Christians. But to express your Christian opinion, even in silent prayer to God, can be regarded as an offence inside a buffer zone and you could find yourself in prison.

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[Baroness Barker (LD)]

The answer is that the situation has moved on, so what was an answer before the existence of PSPOs is no longer relevant.

I have said enough. I think we all know where we are on this and the positions we came from. I would like to work with those Members who want to, and with the Minister, to make sure that we get to where the vast majority of us, and of the public, want to be: women being able access a service legally and safely, and 150 metres down the road you can be as extreme in your opposition as you like.

[Lord Paddick (LD)]

We on these Benches accept that many people have strong views both on abortion and on this clause, on both sides of the argument, as reflected in our debate. I want to say two things at the outset. First, my understanding is that organisations that provide abortion services, such as the British Pregnancy Advisory Service, talk through the options available in the case of an unwanted pregnancy, including continuing with the pregnancy and arranging adoption or fostering, becoming a parent and ending the pregnancy with an abortion. The second is that it must be one of the most difficult, life-changing decisions anyone has to make.

To be subjected to one-sided opinions by well-meaning, passionate but in some cases fixated individuals at such a vulnerable moment cannot be right, whether outside or inside an abortion clinic. As the noble Baroness, Lady Bennett of Manor Castle, said, this is about targeting an individual seeking medical services. Many noble Lords have talked about free speech. There is a difference between offering advice and support, and forcing advice and support on those who do not want it. By all means, campaign, demonstrate and provide advice, help and support on the internet, for example, but not when someone is on their way to an abortion clinic.

What is said inside an abortion clinic is regulated and controlled; what is said outside by campaigners against abortion is not. There is a series of amendments in the name of the noble Baroness, Fox of Buckley, supported the noble Baroness, Lady Hoey. Amendment 80 brings us back to the debate we had last week about “reasonable excuse”. I am very grateful to the noble and learned Lord, Lord Hope of Craighead, for that debate and for his contribution today.

This brings us back to the potential argument that the more important the issue, the greater the excuse to break the law. Last week, we debated whether anything could be more important than saving the planet from catastrophic climate change and therefore, there could be a “reasonable excuse” to do anything, however unlawful, if saving the planet was the intention. I am sure there are some who feel that nothing is more important, as they see it, than “saving the life of an unborn child”, so any means justify the ends. Such an amendment would render buffer zones ineffective.

Amendments 81 and 86 lead potentially to the whack-a-mole scenario—or, as my noble friend Lady Hamwee more eloquently put it, the displacement of protests from one clinic to another—whereby those wanting to get those wanting an abortion to change their minds at the last minute would travel around the country until every local authority had a buffer zone around every clinic. Either there is a right to abortion without last-minute interference, or there is not. I am not clear from the wording of Amendment 86 whether it would amount to a maximum of a two-year buffer zone, or simply the expensive and bureaucratic process of having to renew the buffer zone every year.

Amendment 82 introduces the concept of “intentionally or recklessly” interfering, which no doubt would result in endless arguments about whether the offering of advice, or whatever form the interaction takes, amounted to interference or not. Amendment 89, also supported by the right reverend Prelate the Bishop of St Albans, would allow “silent witness” by those who persistently, continuously or repeatedly picket abortion clinics. That sounds to me like quite intimidating behaviour, even if it is silent prayer. We cannot support these amendments. Either the Committee supports this clause or it does not; creating uncertainty about whether the interaction is reasonable, which clinics have a buffer zone or what amounts to interference is unhelpful.

On Amendment 94, I can understand why the noble Baroness, Lady Fox of Buckley, has drawn a parallel with Part 3 of the Police, Crime, Sentencing and Courts Act 2022 and public space protection orders, but the latter refers to things like banning the drinking of alcohol in a local park—otherwise innocuous activities that are causing a particular problem in a specific area. This measure is about interfering with a person’s right to choose to access abortion services. They are very similar in terms of protecting public space, but very different in terms of the kind of activity they are trying to prevent.

We support Amendments 80A, 82A, and 82B in the names of the noble Baronesses, Lady Sugg and Lady Watkins of Tavistock, and my noble friend Lady Barker, which would bring the phrase “buffer zones” into line with similar legislation in other jurisdictions. We support the amendments in the name of the noble Baroness, Lady Sugg, supported by the noble Lord, Lord Ponsonby of Shulbrede, and my noble friend Lady Barker.

On Amendment 84, if we are going to have buffer zones, they need to be around every place where abortion services are provided. Amendments 87 and 91 helpfully clarify that the proposed offences apply only in relation to abortion services. Amendments 95, 96 and 97 also usefully exempt anyone invited to go along to the clinic with the person seeking abortion services, and anything said or done when all parties are in someone’s home or a place of worship.

We also support the clarification provided by Amendment 93A in the name of my noble friend Lady Hamwee, supported by my noble friend Lady Barker and the noble Baroness, Lady Sugg: that an “abortion clinic” should include places where advice and counselling related to abortions is provided.

[Baroness O'Loan (CB)]

Is the noble Lord saying that we should have buffer zones outside every location at which somebody can get, for example, the medical intervention for abortion, such as Boots the chemist, or every facility offering counselling?

[Lord Paddick (LD)]

My noble friend’s amendment is a probing amendment for the House to consider what sort of premises might be included in buffer zones to ensure that places where women go to get advice are included. The noble Baroness makes an important point, but this is a probing amendment so that the House can consider between Committee and Report whether an amendment in line with the wording that my noble friend has provided is right.

I understand the intention behind Amendment 85 in the name of my noble friend Lord Beith and supported by the right reverend Prelate the Bishop of St Albans, but I think it is now covered by Amendment 96. If someone decides to go into a place of worship on their way to an abortion clinic, that is their decision.

Similarly, I understand the intention behind my noble friend’s Amendments 88 and 90, supported by the right reverend Prelate and the noble Baronesses, Lady Fox of Buckley and Lady Hoey: they want to protect free speech. But freedom of speech is a qualified right, and this restriction of it applies only in this very specific and limited scenario in relation to abortion services and clinics. I am not a lawyer, but my understanding is that the European Convention on Human Rights contains qualified rights, as the noble Viscount said. If a country believes that restrictions need to be placed on a qualified right because there is a justification for it, it is open for it to do so—that is exactly what we are considering here. Whether something is clearly contrary to European Convention on Human Rights, as my noble friend suggested, will be for the courts to decide. I understand—not least following discussions with the Minister and officials—that there is an expectation that, if Clause 9 were passed in its original form, it may be subject to legal challenge. But that is the proper place for a decision to be made on whether the qualified right should be restricted by this clause.

There are other places and other times when those opposed to abortion can make their views known and can seek to influence others. If freedom of speech is to be protected at all times and in all places, why are only noble Lords allowed to speak in this debate? Advise and persuade someone not to have an abortion all you like—for example, by talking to the providers of abortion services to ensure that they include “pro-life” choices in clinics—but do not do so when someone has decided to go to an abortion clinic and is about to enter.

Similar arguments apply to Amendment 92 in the name of the noble Baroness, Lady Fox of Buckley, supported by the noble Baroness, Lady Hoey. Amendments 98 and 99, in the name of the noble Lord, Lord Farmer, and supported by the right reverend Prelate the Bishop of St Albans, helpfully point out the Home Office review conducted in 2018, which many noble Lords have quoted. It concluded that buffer zones would be disproportionate, which is at least helpful in understanding the Government’s reluctance to support this clause, as it might be portrayed as yet another U-turn. The then Home Secretary explained his decision in a Statement about the 2018 review, which a number of noble Lords have selectively quoted from. He actually said:

“The review gathered upsetting examples of harassment and the damaging impact this behaviour has had on individuals. This behaviour can leave patients distressed and has caused some to rebook their appointments and not follow medical advice in order to avoid the protestors. In some of these cases, protest activities can involve handing out model foetuses, displaying graphic images, following people, blocking their paths and even assaulting them. However, what is clear from the evidence we gathered is that these activities are not the norm, and predominantly, anti-abortion activities are more passive in nature. The main activities reported to us that take place during protests include praying, displaying banners and handing out leaflets. There were relatively few reports of the more aggressive activities described above. Nevertheless, I recognise that all anti-abortion activities can have an adverse effect, and I would like to extend my sympathies to those going through this extremely difficult and personal process … Through the review, we also found that anti-abortion demonstrations take place outside a small number of abortion facilities. In 2017, there were 363 hospitals and clinics in England and Wales that carried out abortions. Through the review, we found that 36 hospitals and clinics have experienced anti-abortion demonstrations … Having considered the evidence of the review, I have therefore reached the conclusion that introducing national buffer zones would not be a proportionate response, considering the experiences of the majority of hospitals and clinics, and considering that the majority of activities are more passive in nature.”—[Official Report, Commons, 13/9/18; col. 37WS.]


Even if “passive activities” is not a contradiction in terms, passive activity can leave patients distressed and cause some to rebook their appointments and not to follow medical advice in order to avoid protesters.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a wide-ranging debate that has re-run a lot of the points from Second Reading. I added my name to all the amendments in the name of the noble Baroness, Lady Sugg, who ably introduced that group, which I of course agree with. She opened her speech by talking about the large majority in the other place, which we have heard about, but she made the additional point that each political party had a majority in favour of passing the amendment. She then went on to talk about the argument regarding a “reasonable excuse”, and she did not think that there could be an argument for harassing women seeking a legal service.

We also heard some figures, which the noble Lord, Lord Paddick, has repeated, about there being only five PSPOs currently operating in the country but about 50 targeted clinics where there are regular protests. This creates a patchwork of provision, which a number of noble Lords have spoken about. So tactics have evolved, and there has been an increase in protests.

I want to mention one particular Conservative Minister, Victoria Atkins, who I always think is very perceptive and who has been an active defendant on domestic abuse issues in her previous roles in the Ministry of Justice. She supports this legislation. That has particular significance for me.

I also refer to my noble friend Lady Thornton, who made a central point: the amendments from the noble Baroness, Lady Sugg, try to address in a reasonable way the points raised at Second Reading—that was the spirit in which she put forward that suite of amendments. The vast majority of noble Lords who have spoken against them have not addressed any of the points that she made when she introduced them. I accept that the noble Lord, Lord Beith, is an exception to that, but the vast majority of other speakers did not acknowledge her points.

I turn briefly to the speech by the noble Baroness, Lady Watkins, in which she made the particularly telling point that many of the women going to seek an abortion may have been subject to coercive sex. For that reason, they may be particularly vulnerable to intimidation as they are going to get advice on whether and how to progress with an abortion. This was a perceptive comment, especially as it came from a nurse; it is something I recognise from the courts in London in which I sit as a magistrate. I also acknowledge her point that she wants a good resolution of these issues rather than a fast resolution.

The noble Viscount, Lord Hailsham, gave an absolutely excellent speech; I agreed with every word he said, which is quite unusual from these Benches. Nevertheless, he made a very good point about demonstrators, whom he comes across in other contexts where he would not dream of trying to limit their ability to protest. However, here we are of course talking about an individual, often in a vulnerable state, trying to access a legal service, and that changes the argument about whether demonstrators should be allowed to influence them. As the noble Baroness, Lady Bennett, said, Clause 9 does not prevent anybody protesting against abortion; it only prevents them protesting against abortion within

“150 metres … of an abortion clinic”.

I will now pick up the point made by the noble and learned Lord, Lord Hope, on the argument regarding reasonable excuse. As he said, we have had a debate about reasonable excuse in other contexts—for example, in relation to the protests by Extinction Rebellion and the other protest groups which would use that argument for the types of protest they undertake. My understanding of his argument is that basically it is for Parliament itself to take a decision on this sort of thing, rather than pushing these decisions down to courts, judges and magistrates. That was a powerful argument against Amendment 80.

The other speech which resonated with me was that of the noble Lord, Lord Hogan-Howe, which I am sure came from absolute front-line experience. He said that we are not talking about a discussion on abortion occurring as people—women, of course—try to receive these services; rather, it is a monologue and bullying which is meant to be intimidatory. He was absolutely right in pointing that out.

In conclusion, I will say something that is so obvious that nobody seems to have said it in this debate: the Government agree with, and accepted, Clause 9. I accept that there are debates about the wording, the compliance with the ECHR and all the rest, but clearly the Government believe that the situation has moved on since the 2018 review. They clearly believe that there is an advance in the tactics and the money deployed to intimidate women as they are trying to access these legal services. If the Government believe that, we should pay attention. It is not often from this Dispatch Box that I say that we need to listen to the Government because they have clearly taken a decision, but the response by the Minister will perhaps be the most important speech that we will hear in today’s debate.

[Lord Paddick (LD)]

No pressure.

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

My Lords, I thank the noble Lord, Lord Ponsonby, for his closing words; as the noble Lord, Lord Paddick, said, “No pressure”. I thank all noble Lords for their impassioned contributions to what has obviously been a very substantive debate.

Clause 9 seeks to establish buffer zones outside abortion clinics in England and Wales to ensure that persons accessing or providing abortion services are free from harassment or intimidation. As the Committee will be aware, this clause was inserted into the Bill on the basis of a free vote in the other place. I will not get involved in second-guessing the motivations of those who voted, but the result was 297 votes in favour to 110 votes against. As I have said before, and I am very happy to say again, the Government respect the will of the House of Commons.

It is obviously clear—today’s debate makes it even clearer—that there are very strong views on both sides of the argument. Many noble Lords want the clause to become law, and many want to alter or to delay it. Amendments 80 to 97—tabled by the noble Baronesses, Lady Hoey, Lady Fox, Lady Watkins, Lady Barker and Lady Hamwee, my noble friend Lady Sugg, the noble Lords, Lord Ponsonby and Lord Beith, and the right reverend Prelate the Bishop of St Albans—all seek to make an array of changes to Clause 9, be that by raising the threshold for the new offence or by seeking to clarify the clause in some way.

Amendments 98 and 99 tabled by the noble Lord, Lord Farmer, seek to introduce buffer zones pending the outcome of

“a consultation … to determine if there has been significant change in”

protests “outside abortion clinics since” the Government’s last review. Amendments 87 to 93 look to ensure that only activities relating to abortion services within a buffer zone constitute an offence, while Amendments 88, 96 and 97 seek to ensure that activities within private dwellings and places of worship are exempt. Amendments 80 to 82 seek to provide a person within a buffer zone with the opportunity to defend their actions and

“to strengthen the burden of proof required to establish an offence.”

As I said before, I thank all noble Lords for their interest and ideas to amend the existing clause in its current form, particularly their well-intentioned attempts to tighten what was described in the other place by the Minister as a “blunt instrument”. It remains the Government’s view, based on legal advice, that this amendment does not meet our obligations under the European Convention on Human Rights and would require a Section 19(1)(b) statement to be provided. That said, after having been brief, I am now even more keen to meet noble Lords in the coming days, and I encourage them to meet me so that we may discuss the next steps for the clause. For now, I invite noble Lords not to press their amendments.

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Debate on whether Clause 10 should stand part of the Bill.

[Lord Paddick (LD)]

My Lords, I intend to oppose the question that Clauses 10 and 11 stand part of the Bill, and I shall speak to the other amendments in this group. It is not particularly helpful to have a clause stand part notice beginning a group rather than an amendment, but there we are.

This group of amendments relates to the new police powers of stop and search in relation to protest. Noble Lords will know the intrusive nature of being stopped and searched by the police, but I respectfully suggest that the full impact on a totally innocent member of the public being detained and searched by a police officer on the street, in full view of passers-by, can only be imagined by those of us who have never been subject to such an experience.

Imagine, then, being black. During a round-table discussion held by the Home Affairs Committee, a black child said that

“we know the police treat Black people differently… it means that we do not feel safe ever.”

Black people are seven times more likely to be stopped and searched than white people, if the stop and search is allegedly based on suspicion. However, according to the latest Home Office data, black people are 14 times more likely to be stopped and searched under powers that require no suspicion.

In relation to tackling knife crime, prohibited objects are limited and obvious, and the consequences of carrying such weapons can be fatal. In relation to these new powers and related offences, the prohibited objects can be almost anything, and the consequences of carrying them can be completely innocuous. What exactly is an item

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

highway obstruction, or

“intended by the person having it with them for such use by them or by some other person,”

or an item

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

causing a public nuisance, or

“being present in a tunnel”?

I do not need nor intend to come up with ever more ludicrous suggestions as to what completely innocent objects might be caught up in such an offence. Even if there were noble Lords without much of an imagination, they would still be able to do that for themselves. The noble Baroness, Lady Jones of Moulsecoomb, has a few suggestions in her Amendment 101. I do not know about Amendment 101—this is Room 101.

The Government say that these powers are needed in order to prevent these types of offences, but in recent weeks the police have made arrests prior to offences being committed under existing legislation, based on intelligence and targeted at specific individuals. These powers are disproportionate to the outcomes they seek to achieve. Even if stop and search to combat knife crime were effective in reducing crime, which Home Office research shows, at least above a certain level, it is not, the argument that saving young people’s lives justifies the damage to trust and confidence in the police in some communities caused by badly targeted stop and search does not hold water in relation to peaceful protest. The number of instances where an arrest follows a without-suspicion stop and search is four in every 100, by the way.

Secondly, the right to freedom of expression, assembly and association—the right to protest—is likely to be impacted by such powers, disproportionately affecting those who feel disfranchised and for whom peaceful protest is an important safety valve: not just black and minority ethnic people but, per the letter noble Lords will have received from the Body Shop, young people, who disproportionately take part in protests because they feel that the democratic process does not represent their views.

If you fear the police, not least because of your lived experience, supported by the data which demonstrates that you are likely to be targeted by the police for stop and search—seven or 14 times more likely depending on whether suspicion is required—if you are black, you are likely to be dissuaded from exercising your human right to protest. It is not just me or the usual suspect NGOs saying this; His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services set out in its report on public order policing

“the potential ‘chilling effect’ on freedom of assembly and expression in terms of discouraging people from attending protests where they may be stopped and searched … Such powers could have a disproportionate impact on people from black, Asian or other minority groups.”

I am not claiming that some offences of highway obstruction, locking on, public nuisance, tunnelling, being present in a tunnel or any of the other offences in this Bill might not be prevented by these stop and search powers. I am arguing that, whether with suspicion, which is bad enough, or without suspicion, which is outrageous, to give the police these powers is disproportionate in terms of the harm that is likely to be caused compared with the benefit that is likely to result.

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[Baroness Hayman of Ullock (Lab)]

This is so important. I do not think the Minister or the Government appreciate how vulnerable women can feel walking, particularly in the dark or on their own, and it gets dark very early in the winter. This is really serious. I also do not think they realise how much young women, particularly if they are attractive, can get hassled. If you have been hassled a lot, you can snap because you are sick and tired of it. I really do not think this has been thought through.

[Lord Paddick (LD)]

Before the Minister responds, he may also wish to think very carefully about what he said about these powers not being exercisable by officers in plain clothes. I am prepared to apologise to the Committee for misleading it when I say that these powers alter Section 1 of PACE, which has nothing in it about an officer having to be in uniform to exercise powers of stop and search. So what the Minister said about these powers not being exercisable unless the officer is uniformed is not true.

[Lord Sharpe of Epsom (Con)]

If I am incorrect I will most certainly correct my statement. That was the information that I was given. If it is incorrect in any way, I will of course come back and apologise. It was inadvertent if that is the case.

I think we are getting slightly off topic, but I say to the noble Baroness that the Minister certainly appreciates that women and girls can feel very vulnerable, particularly at night, and I understand the level of hassle. However, a road where one is likely to be alone is not likely to be subject to the Section 60 power, so we are in the realms of the hypothetical to some extent. I accept and understand the concerns that have been raised, but I reiterate that it is everyone’s right to ask a police officer for identification, and I believe that under the suspicionless basis the officer has to be wearing uniform, but I will confirm that later with the Committee, certainly if I am incorrect. I do not have an answer for the noble Baroness, Lady Jones, so I will have to write to her.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords who have participated in this debate. The noble Baroness, Lady Jones of Moulsecoomb, questioned the area in which suspicionless stop and search could be operated. Marches that occur in central London traditionally start at Marble Arch, go down Park Lane and sometimes through Oxford Street and Regent Street. The number of people who could be subject to suspicionless stop and search as the result of that sort of demonstration is mind boggling.

In his real-world experience as adviser to the police on these issues, the right reverend Prelate the Bishop of Manchester talked about these powers being invariably used disproportionately. The Minister has said nothing to reassure the Committee that the powers will not be used disproportionately, with the damage that will be caused to the reputation, trust and confidence in the police.

The noble Lord, Lord Coaker, made the valid point that the powers can be used against children. Public nuisance is such a wide offence. I also raised the offence of being present in a tunnel. How can someone go equipped to be present in a tunnel? There was no answer about that.

Before this, there were two elements to suspicionless stop and search. The Minister talked about Section 60 of the Criminal Justice and Public Order Act, which is to do with serious violence. The other was Section 44 of the Terrorism Act, which the Conservative Government repealed because it was being used disproportionately. The Government withdrew suspicionless stop and search in relation to terrorism because they considered that its impact on trust and confidence in the police was disproportionately negative. It does not exist any more in relation to terrorism, but this Government want to introduce it in relation to people exercising their lawful right to protest.

The Minister made no reference to what HMIC said was likely to be a chilling effect on people exercising their human rights under Articles 9, 10 and 11. There was not a word about this, even though HMICFRS raised it. There was nothing about the disproportionate impact on minority communities. Minority communities and young people are more likely to be engaged in protest because they do not feel that the parliamentary process represents their views. As the noble Lord, Lord Coaker, said, we will return to these issues on Report. I am sure we will vote on them.

[Lord Sharpe of Epsom (Con)]

My Lords, I should like to clarify my remarks about uniforms. Section 60—which is what I was talking about—applies only to officers in uniform. Section 1 powers can apply to all officers.

[Lord Paddick (LD)]

Can the Minister clarify whether these powers—not Section 60 powers—to stop and search people in relation to protests can be exercised by officers in plain clothes?

[Lord Sharpe of Epsom (Con)]

As I think I explained, we are basing these powers on Section 60.

[Lord Sharpe of Epsom (Con)]

Our intention is to mirror the approach used in Section 60. I said that very clearly earlier. I have already explained its geographical extent.

[Lord Paddick (LD)]

Can the Minister point to the part of the Bill that says that suspicionless stop and search powers are restricted to officers in uniform?

[Lord Sharpe of Epsom (Con)]

I am afraid I cannot.

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[Lord Beith (LD)]

My Lords, the Government are stretching credulity if they say this creates no new powers; it creates new powers for the British Transport Police and Ministry of Defence Police. It is mostly on the British Transport Police that I want to concentrate.

This police force is not locally accountable. It is the police force of the operators of the railway system. It has its own structures and is essentially a nationally organised force with certain centres of activity. There are many cases where police support is needed, and we certainly see this in Berwick. The local police have to come on the scene some time before British Transport Police can come from 70 miles away to take part in whatever problem there may be. We have to be a bit careful about so readily extending powers to a very different kind of police force, which does not have the chain of local accountability that our civil police forces have.

If anyone thinks that the arrangements are all very smooth and there is not a problem in relations between local police and British Transport Police, they should read the proceedings of the Manchester Arena inquiry. They will discover some pretty uncomfortable things about how co-ordination between British Transport Police and other agencies is meant to work but does not always work in practice. I was slightly surprised that Scottish Ministers decided they wanted to extend the powers included here, but it is with the approval—if the case is in Scotland, it is not to the Secretary of State—of Scottish Ministers.

I will take the Minister back to an incident in the 1960s which he is too young to remember. It shows that these are not new problems requiring drastic new powers. A railway line called the Waverley route between Edinburgh and Carlisle was closed. Before it managed to get itself closed—it has since been partially reopened—people in the village of Newcastleton between Hawick and Carlisle protested vigorously. One night, when the night sleeper was heading towards Carlisle, the minister of the local kirk and some of his congregation and others gathered on the crossing and stopped the train. On the train at the time was Lord Steel of Aikwood, then the young MP for the Borders area. This incident was handled by the police quite smoothly and locally, without any involvement of the British Transport Police—I doubt very much that they ever got there.

Local police are used to dealing with these situations. I fear from the provisions we have now that, given the nature and scope of this Bill, someone proposing to have either a group of people in a station protesting against imminent cuts to the service, or a single protestor in the station building by the ticket office saying “Your service is going to be halved from next week—join me in a protest”, will find themselves subject to the powers of the Public Order Act. There will be an unnecessary level of police involvement by the British Transport Police. Without the powers here, they would be able to deal with it in the normal way, as the local police would. We are in some danger if we get the British Transport Police into the state of mind that they are policing protest. It is really not what they are good at and not what they are supposed to be good at.

[Lord Paddick (LD)]

My Lords, I support the comments of my noble friend. The only observation I was going to make about the powers being given to the British Transport Police is that it is primarily funded by the rail industry and whoever pays the piper calls the tune. Can the Minister confirm that the BTP is accountable to the British Transport Police Authority, the members of which are appointed by the Secretary of State for Transport? What does the Minister believe to be the consequences, for example, for protests at railway stations, of such funding and accountability mechanisms?

[Lord Coaker (Lab)]

My Lords, Clause 16 covers the British Transport Police in England and Wales. It is reasonable that, as the Minister explained, the government amendments also cover the BTP in Scotland, since that has been requested by the Scottish Government. We disagree with the premise of the Bill, as was visible in many of the groups, not least the last one, but we understand recognising the specific roles that the MoD and British Transport Police play as part of the wider policing family. Can the Minister confirm—this is part of what the noble Lords, Lord Paddick and Lord Beith, said—that the use of their powers is strictly limited to the areas under their jurisdiction?

Prior to today’s debate, I asked the Minister why the Civil Nuclear Constabulary was not referenced in the clause. Helpfully, he responded. I received a letter that said:

“we have not seen assemblies outside civil nuclear establishments and … the public do not have access to this land, so any assembly outside them … falls under the jurisdiction”

of the usual territorial force. I take that to mean that it is not included because no need has been identified for it to have these powers, which is welcome. It would be handy if the Government had applied that logic elsewhere in the Bill.

Does the Bill allow the Government to extend these powers to the Civil Nuclear Constabulary, should they wish to do so? In other words, we have just seen the Government announce and give the go-ahead to the building of Sizewell C, and the Civil Nuclear Constabulary would presumably be involved in and around that sort of site. Would the Government have to come back to Parliament to get primary legislation through in order to give the Civil Nuclear Constabulary similar powers to those in the Bill? Is some secondary legislation tucked away that would allow them to do that, without us being able to properly scrutinise that to determine whether we believe the Civil Nuclear Constabulary should have these protest-related powers?

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Moved by

[Lord Paddick]

110: Clause 17, page 19, line 26, leave out “reasonably believes” and insert “has reasonable grounds for suspecting”
Member's explanatory statement
This amendment is intended to raise the threshold for the Secretary of State to bring civil proceedings.

[Lord Paddick (LD)]

My Lords, in moving Amendment 110 in my name, I will speak also to my Amendments 111 to 113 and 116 and the other amendments in this group. These amendments are about a power to be given to the Secretary of State to bring civil proceedings to curtail or prevent protest, including potentially with a power of arrest attached, if the Home Secretary “reasonably believes” that activities are causing or likely to cause disruption to the use or operation of any key national infrastructure or have a seriously adverse effect on public safety in England and Wales.

Amendments 110 to 112 in my name would increase the evidential test to

“has reasonable grounds for suspecting”

to ensure that the Secretary of State has to set out before the court the exact evidential grounds for her application. In meetings with the Minister and officials on the Bill, it was explained that protests could affect a number of different operators or local authorities and that it would be in the public interest to have an overarching injunction in such cases.

The HS2 nationwide injunction seems to prove that such an overarching injunction is available to those concerned without the intervention of the Secretary of State but, in any event, Amendment 113 is designed to ensure that the power is used if, and only if, it is not reasonable or practical for a party directly impacted by the activity to bring civil proceedings, and to ensure that the Secretary of State does not use the power where any party directly impacted does not consider such proceedings to be necessary. My Amendment 116 is designed to ensure that a power of arrest cannot be attached to an injunction simply on the basis that the conduct is merely

“capable of causing nuisance or annoyance”.

This is in Clause 18(2)(a), which the amendment removes from the Bill.

We wholeheartedly support the additional checks and balances proposed by the noble Baroness, Lady Chakrabarti, in her Amendments 114 and 115. I beg to move Amendment 110.

[Baroness Chakrabarti (Lab)]

My Lords, during Second Reading a number of noble Lords, including those who do not share my views of the Bill more generally, expressed significant scepticism about the new Clause 17 provision for the Home Secretary to bring civil proceedings against protesters, instead of being brought by directly affected oil, gas or transport companies, and so on. I share these concerns at the politicisation of both policing and civil disputes, and therefore oppose Clause 17 standing part of this Public Order Bill.

Not only is it constitutionally dubious for a politician to be standing in the shoes of the police in relation to the criminal law, or of affected companies in relation to the civil law; it also raises questions about this use of considerable sums of taxpayers’ money in expensive litigation that could and should be brought by those who profit from fossil fuel or other carbon-intensive development, and no doubt factor legal fees into their budgeting. The lack of transparency required by the new Clause 17 also brings a risk of corruption, in the event that the relevant firms should choose to donate to or otherwise “promote” a Home Secretary amenable to seeking civil legal proceedings on their behalf.

It should be noted that under Clause 17(5), the Secretary of State must only

“consult such persons (if any) as the Secretary of State considers appropriate, having regard to any persons who may also bring civil proceedings in relation to those activities.”

No transparency in the Secretary of State’s discussions, or non-discussions, with these “persons”—namely, large companies—or consideration of why they should not finance their own legal proceedings, is required. Never has the word “must”, in a provision supposedly creating a duty upon a Secretary of State to consult, constituted such a toothless tiger or illusory protection from the potential abuse of public money and political power.

In addition to supporting the amendments proposed by the noble Lord, Lord Paddick, I propose Amendments 114 and 115, which would create safeguards against corruption and abuse. They require the Secretary of State to publish the reasons for any decision not to consult; the results of any consultation; any representations made to the Secretary of State as to a proposed exercise of the new power; an assessment of why other parties should not finance their own proceedings; and assessments of why any proceedings have been brought by the Secretary of State at public expense, rather than by private companies themselves. Such publication will occur both each time an exercise of the power is considered, and annually on an aggregate basis.

Clause 17 is both unnecessary and undesirable. If it really must stand part, so must the vital safeguards previously referred to, but also those in Amendments 114 and 115, which I commend.

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[Lord Murray of Blidworth (Con)]

I thank both noble Baronesses for their interventions. Turning to the question about transparency, we will certainly engage on that, and I appreciate it. It is always important that government actions are transparent. It is clearly an important public principle, and on that we agree.

As to corruption, in this context, it is really not a terribly likely hypothetical scenario. I say that because, if one were an ignoble baron seeking to pursue an injunction to preclude some sort of serious disruption, it is unlikely that the cost of pursuing an injunction would be sufficiently high to warrant seeking the assistance of the Secretary of State in bringing that injunction. It would be more likely that such costs would be borne by the company or person themselves, given the urgency and the much larger costs incurred by the disruption occurring. While I accept that there is a hypothetical concern, therefore, I find it unlikely in reality that such an envisioned scenario would eventuate.

I thank the noble Lord, Lord Paddick, for tabling Amendment 116. Let me start by saying that I, again, recognise the sentiment in this amendment. It is important that the Government intervene only in matters that are serious and proportionate to the public interest. However, I wish to remind noble Lords that causing nuisance or annoyance to the public can have a far-reaching impact when it occurs on a widespread scale. The recent protests targeting the M25 have shown just that. Furthermore, while a Secretary of State may apply for the power of arrest to be attached to an injunction, it is for the courts to decide whether or not this is an appropriate measure.

Finally, I turn to Amendment 145, tabled by the noble Lord, Lord Coaker. Again, I understand and have considered the need for scrutiny and transparency, as I touched on earlier, and therefore I entirely understand the logic of the tabling of that amendment. None the less, it is the Government’s view that while a review is not needed to ensure that activity relating to these provisions is necessary, it is important that transparency is carefully considered, and I will ensure that that is done.

There are already several clear provisions in the Bill that serve to ensure that the use of these powers by a Secretary of State will be subject to scrutiny and safeguards. As has already been noted, of course, in Clause 17(5) there is a requirement for consultation as may be appropriate ahead of initiating civil proceedings. Moreover, as we have already touched on, civil proceedings can be issued in the interest of the public only when it is considered expedient to do so in the judgment of the judiciary hearing the claim. As I have already committed to the noble Baroness, Lady Chakrabarti, I will nevertheless consider what further clarity could be provided on the circumstances in which a Secretary of State might seek to initiate such proceedings. I therefore invite the noble Lord to withdraw his amendment.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for their contributions to this debate. If I can try and get the sense of the House, we on this side feel that this is constitutionally dubious, potentially providing opportunities for corruption, and that it is a very serious step to allow the Secretary of State to apply for an injunction to prevent a protest. On the government side, the Minister thinks it is reasonable if lots of people are affected—different organisations, private and public—and that it would be expedient for the Secretary of State to represent all parties and apply for an injunction on their behalf. Therefore, there is a clear difference of opinion as to whether we are satisfied that there are sufficient safeguards, as opposed to the Minister being satisfied that is the case. As the Minister reflects on what the noble Baroness, Lady Chakrabarti, said, we too will reflect on what the Minister has said, and we will no doubt return to this on Report. In the meantime, I beg leave to withdraw Amendment 110.

Amendment 110 withdrawn.