Public Order Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Rooker, has done a service to the House in focusing such clear attention on the Delegated Powers Committee report, and the issue that it raises. I simply want to pursue one of the points that he mentioned, which is one of the features of the guidance to which this power relates:

“guidance about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.

What does the Secretary of State know that the police do not know about who it would be appropriate to make serious disruption prevention orders about? On what basis does the Secretary of State know what the police do not know and therefore have to be advised about?

The only basis I can think of is not a helpful one for the Government. It is that there is a political reason here and that what the Government want to do is say, “Never mind those people who are protesting about this, go after those people who are protesting about that.” This is the very kind of power which we have always tried to avoid giving, in the form of direction to the police, to anybody, including police and crime commissioners. There has been a very necessary reluctance to have the police directed in a way which could become political, and in which the choice of where to deploy resources was based on whom the authority concerned—in this case, the Government—disliked and wanted to see penalised in some way.

I cannot see any respectable argument for the Secretary of State saying to the police “You do not realise what I realise; this is the guidance I am giving you about identifying appropriate persons.” It is the sort of thing that even the affirmative procedure would not give us a very good chance to deal with, because you cannot amend statutory instruments, even under the affirmative procedure. But to leave it simply to the negative procedure, which is so limited and so inadequate, particularly in the other Chamber, is simply not satisfactory. The Government’s response to the Delegated Powers Committee has been wholly inadequate so far.

[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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[Baroness Blower (Lab)]

My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Chelmsford. Noble Lords will recognise this speech in style and content as the work of my noble friend Lord Hendy, of Hayes and Harlington, who is unable to be in his place this evening. I speak in his place on Amendment 131.

Clause 20 is wholly objectionable because it enables the imposition of criminal penalties in respect of conduct for which the defendant has not been convicted of any criminal offence, as we have heard from all around the Chamber. However, assuming the clause is to stay in the face of opposition from various parts of the Chamber, there is another defect.

The conduct at which it is aimed clearly comprehends picketing in the course of an industrial dispute. There will not be much effective picketing in the course of a trade dispute which does not offend against the description in Clause 20(2)(a)(iii), which refers to

“activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales”.

The very purpose of picketing, as legitimated in Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992, is to attend a workplace for the purpose of “peacefully persuading any person” not to work. If effective, this will seriously disrupt those so persuaded and their employer and will render nugatory the right to picket

“in contemplation or furtherance of a trade dispute”,

contained in Section 220 of the 1992 Act. That right has been statutory in this country since the Conspiracy, and Protection of Property Act 1875. The right was subject to offences created by the 1875 Act such as “watching or besetting” and an array of other potential offences such as obstructing a public highway or an officer in the exercise of his duty, or more serious offences.

Since 1875, the right to picket has been regulated and restricted by many amendments to the relevant law, the latest being several requirements imposed by the Trade Union Act 2016, now found in Section 220A of the 1992 Act. Yet the right remains. This clause would destroy it altogether. It is also a right protected by Article 11 of the European Convention on Human Rights, the right to freedom of association, and, in particular, the right to be a member of a trade union for the protection of one’s interests. It is likewise protected by ILO Convention 87, Article 6(4) of the European Social Charter, and many other international instruments that the UK has ratified.

What is needed is protection against this provision for those who are acting

“in contemplation or furtherance of a trade dispute”,

to use the time-honoured phrase, which is now found in Section 244 of the 1992 Act. The Government have used this protection in relation to Clause 6 to provide such protection against the offence there created. This modest amendment seeks its protection in relation to this new provision.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support the analysis so eloquently made by the noble Lord, Lord Anderson of Ipswich, and supplemented by the points made by my noble and learned friend Lord Brown. It is easy to think of ways of making these clauses, chipping here and chipping there. However, the approach of the noble Lord, Lord Anderson, was plainly correct. The Government have got themselves into the mess of putting this into legislation without understanding the context of where these orders were made in the past and what they are seeking to do now.

Being a lawyer, I always go back to precedent. You look at it and copy it all out, but at the end of the day you have to sit in your chair and think. There are two things the Government ought to think about. First, can they achieve what they want to do by something that is much more sensible?—to which the answer is plainly yes—and, secondly, what is the consequence of what they are doing? When you are dealing with people who carry knives, with terrorists, or with people who engage in activities that disrupt neighbourhoods, people gathering together, and violence in a social context, that is one thing. But here we are dealing with people who genuinely believe that they are fighting the existential threat to the planet—or they may be fighting for trade union rights, or for liberty. If you treat those people, who have a noble cause as they see it, in the way that you treat terrorists, what do you do for justice? You can only damage it severely. I therefore humbly ask the Minister to sit back in his chair and have a good think about the wisdom of this.