Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Debate between Viscount Hailsham and Lord Paddick

Tuesday 13th June 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, with little exception, I agree with what the noble Lord, Lord Pannick, has said. I start by having considerable sympathy with the motives that have caused the Government to come forward with this statutory instrument. However, for the reasons that were advanced by the noble Lord, Lord Coaker, I feel that the process is very defective. However, again, for constitutional reasons, which I shall mention very briefly, I cannot support the fatal amendment.

That, in summary, is my position; if I may, I shall elaborate a little further. So far as the motives of the Government that lie behind the statutory instrument are concerned, I share very many of these views, as indeed does the noble Lord, Lord Pannick. In a free society, individuals have a right to demonstrate. However, their fellow citizens have a right to go about their daily business without unreasonable obstruction. I fear that, increasingly, we are seeing on the part of demonstrators a disregard for the obligations they have to their fellow citizens.

So I can well understand the motives that activate the Government in bringing forward the changes in the statutory instrument. However, for the reasons advanced by the noble Lord, Lord Coaker, I have very real reservations about the process that is being adopted. The process and its defects were identified by my noble friend Lord Hunt of Wirral. He is entirely right, and his report is extremely direct on the subject. The statutory instrument is in fact designed to reverse the defeat in this House earlier this year.

If that is a desirable thing to do, it should be done by primary legislation. That is the point made by the noble Lord, Lord Pannick. Amendments made to a Bill by this House on Report can always be considered further in the House of Commons and, where appropriate, they can be the subject of ping-pong; that is the proper way forward.

A statutory instrument is an unamendable legislative device and, in my view, one that should not be used to make significant changes to the law, in particular to the criminal law. So one needs to go to the purpose of this statutory instrument. The Home Secretary set it out in yesterday’s debate in the House of Commons. At column 55, she set out the four purposes of the instrument, and said later, of the police, that

“we are trying to clarify the thresholds and boundaries of where the legal limit lies, so that they can take more robust action and respond more effectively”.—[Official Report, Commons, 12/6/23; col. 74.]

Now, that raises at least two pertinent questions. Either this statutory instrument, in effect, does no more than tidy up existing legislation and ensure that existing case law applies equally across the statutory waterfront, or it is intended to make significant changes to existing law. In the first case, it must be doubtful whether the statutory instrument is required; in the second case, if, as I suspect, the statutory instrument does make substantial changes to existing law, it should be done by primary legislation—and that is what this House intended to do in January.

So, finally, we get back to process, which is fundamental to tonight’s debate. I share all the reservations expressed in the amendment of the noble Lord, Lord Coaker. They constitute good reasons why the procedure adopted by the Government is flawed. I would like to think that if the amendment is passed—and in all probability, I will vote for it—the Government will withdraw the statutory instrument and resort to primary legislation.

I am afraid that I cannot support the fatal amendment moved by the noble Baroness. Here, I find myself in agreement with the views expressed by the noble Lords, Lord Reid and Lord Rooker. The House of Commons passed this statutory instrument last night by a very substantial majority. The fatal amendment has a much more dramatic consequence than those occasions when the House amends a Government Bill. In such cases, the Bill can be further considered by the Commons. However, if this House carries the fatal amendment, the statutory instrument is killed. That goes beyond that which an unelected House should in general do.

[Lord Paddick (LD)]

The noble Viscount seems to be saying that the difference here is that if this House votes down a measure in primary legislation, it goes back to the Commons to be reconsidered. That is not what happened in this case: the amendment was introduced in the House of Lords, not the other place, we voted it down and it disappeared. It did not go back to the other House. Exactly the same thing will happen tonight if noble Lords vote for the fatal amendment.

[Viscount Hailsham (Con)]

I entirely understand this point, but we need to draw a distinction between amendments that this House makes in Committee and on Report, when it is possible for the House of Commons to consider again and come back to this House, and—

[Lord Paddick (LD)]

Will the noble Viscount give way?

[Viscount Hailsham (Con)]

May I just finish this point?

In this particular case, if we pass a fatal amendment, as advocated by the noble Baroness, we will be killing a statutory instrument which was supported by the House of Commons last night. I am very unwilling to support that proposition as a precedent, and I agree with the views expressed by the noble Lords, Lord Rooker and Lord Reid.

I say this as one who was in the House of Commons for 30 years. I am under no illusion as to the nature of the House of Commons. My father used to speak and write about the “elective dictatorship”. He was entirely right, but at the end of the day we have to decide where authority lies, and however imperfect its authority may be down the road, it does have the authority of an election, and we do not have that. I give way to the noble Lord if he wishes to intervene further.

[Lord Paddick (LD)]

I am very grateful, but the noble Viscount makes another error in his assertions. This was not an amendment to the Bill introduced by the Opposition in this House. It was a Government amendment introduced in this House, which was defeated by this House, which means that the amendment could not then be considered by the House of Commons. Therefore, there is no practical difference between the voting down of that Government amendment, killing it completely, and voting for a fatal amendment to the statutory instrument, which would kill it completely.

[Viscount Hailsham (Con)]

The noble Lord is cavilling at this point. We are, in a sense, talking about principle. Where does authority, in the end, lie? It lies down there because they are elected. It does not lie here because we are not elected. It is for that reason that I shall vote for the amendment moved by the noble Lord, and I do not feel able—although I agree with a great deal that the noble Baroness said—to vote for the fatal amendment.

Public Order Bill

Debate between Viscount Hailsham and Lord Paddick

Report stage
Tuesday 7th February 2023 Lords Chamber

[Viscount Hailsham (Con)]

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

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

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

[Lord Paddick (LD)]

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

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

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

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

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