Public Order Bill

Alex Cunningham Excerpts

2nd reading
Monday 23rd May 2022 Commons Chamber

[Alex Cunningham (Stockton North) (Lab)]

This is the first Bill of the Queen’s Speech and it is stark proof that the Government are out of steam and out of ideas. It is a sad day for democracy, as was best illustrated by some of the contributions that we heard from the Government Benches. Instead of the ambitious reforms that our country needs and deserves at a time when the cost of living is spiralling out of control for many of our constituents, the Government have served up these reheated proposals that contribute little, if anything, to the law. We on Teesside do not have a problem with protests, but we do have a huge problem with the massive increase in violent crime and antisocial behaviour. We also have a big problem with health inequalities and the fact that unemployment in our area remains over 30% higher than the national average. Dissatisfied by her attacks on our historical right to peacefully protest in the Police, Crime, Sentencing and Courts Act 2022, which has yet to come into force, the Home Secretary is trying to have a second bite of the cherry. However, if she thinks it is so important to restrict protests, why has she not introduced any of the statutory instruments to implement the measures in the Act before bringing forward yet another Bill this year? The hon. Member for North East Bedfordshire (Richard Fuller) also questioned that. It is just more evidence that she is more interested in headlines than real practical policies.

We on these Benches believe that the vital infrastructure and services on which we all rely must be protected from serious disruption and that protests must not put others at risk, but the police and courts already have powers to deal with such dangerous and disruptive protests, including the use of injunctions and existing criminal offences such as the obstruction of a highway and criminal damage, among others. It is worth noting that these existing powers have already been used to arrest people and to prosecute cases of obstructing infrastructure and locking on during the Insulate Britain blockade of the M25 and the Just Stop Oil blockade of Kingsbury refinery.

This Bill’s assortment of new offences will do nothing to actually safeguard vital national infrastructure and ensure that it is protected from serious disruption, and we know that the most effective measures for preventing such disruption already exist, and that is with injunctions. We do, however, recognise that there can be a real problem with delays in seeking injunctions, and a lack of preparation, planning and co-ordination between different private and public authorities. So why is the Home Secretary not focusing on this issue, and including provisions for co-operation between the police and public and private authorities to improve resilience and prevent serious disruption? That is what we would do.

We have already heard the Home Secretary blow and bluster at the Dispatch Box after the Police, Crime, Sentencing and Courts Act was passed, deploying all manner of dodgy statements about the Opposition’s approach to law and order. She could have had our full co-operation with that Bill—there were some very good proposals in it—but she chose to play silly political games by introducing other measures that served to shackle our people and diminish their rights. She knew all too well the game she was playing, but so did the public, who recognise that the Tory Government, rather than getting on with fixing crime, prefer to muck about with the rights to protest.

This new Bill introduces powers that are far too widely drawn and that could criminalise protesters and even passers-by. All of us who work here will have seen many enthusiastic protests outside in Parliament Square. It is what we expect while working in this the seat of democracy. Many of us, more likely those on this side, have enjoyed many a protest. My favourite goes back 50 years to when students were demanding a better deal from Ted Heath’s Government. It was very noisy, but very successful. The morning chant was simple: “Heath out, Heath out!” No one was more surprised than me when the chant changed later to “Heath’s out, Heath’s out!” because that was the day he called the general election.

If Parliament Square were designated as an area for suspicionless stop and search, which the Bill introduces, could Members of Parliament and our staff coming to work on the estate be stopped and searched by police? It seems far-fetched, but that may be a logical conclusion of the measures in the Bill. I would be grateful if the Minister shared his thoughts on his staff potentially being caught by these measures as they head into the office. As Justice has said, this Bill will

“criminalise a breathtakingly wide range of peaceful behaviour”.

As well as rapid injunctions to protect infrastructure against serious disruption, we would create a fast-track buffer zone outside schools and vaccine clinics to protect children and those accessing medical care from dangerous anti-vaxxers. What we have opposed and will continue to oppose is the criminalisation of peaceful protesters and passers-by. The Home Secretary has said this Bill is necessary to prevent “mob rule”, but would she call those protesting against the Russian invasion of Ukraine a mob? Is that the term she would use to describe the thousands of women who have gathered together for vigils to demand action on violence against women and girls? It is gatherings such as those on which her Bill will impact, not just potentially dangerous and disruptive ones. Why introduce a new offence of locking on when it is effectively covered by existing offences such as criminal damage, public nuisance and obstructing a road? Why introduce SDPOs when the Home Office’s own response was initially to reject them on the grounds that they would stop individuals exercising their right to protest?

It is time for the Home Secretary to stop playing petty political games, and time for the Government to stop wasting legislative time on the Home Secretary’s hunt for headlines and to bring forward legislation that will actually address the many issues facing our constituents.

Public Order Bill (Third sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 14th June 2022 Public Bill Committees

[The Minister for Crime and Policing (Kit Malthouse)]

Amendments 29, 46 and 30 target clause 1, which introduces a new offence of locking on. Locking on is an extremely disruptive and often dangerous tactic that can place both protesters and police at extreme risk. It is unacceptable that protesters can use bike locks, glue and an imaginative range of other equipment to inflict disruption on businesses and the public, and the testimony we heard in the oral evidence sessions highlights the need for the Government to act.

Amendment 29 would raise the threshold of the offence by requiring a person’s lock-on to have caused, rather than be capable of causing, serious disruption before they were liable for the offence. That would not account for situations where, for example, a person locks on with intent to cause serious disruption but is quickly removed by the police before serious disruption can be inflicted. If there is to be a deterrent effect, it is important that those who commit acts that could cause serious disruption face appropriate penalties. I do not see the value of accepting the amendment.

Amendment 46 would inadvertently lower the threshold for serious disruption; it would remove the statement that serious disruption is caused by a lock-on only if the disruption applies to two or more individuals or the activities of an organisation. It is entirely reasonable to assume that if someone commits a lock-on that causes serious disruption to one or more person, they may be arrested and charged with the offence. I am not sure the hon. Member had the intention of lowering the threshold of application of this clause.

[Alex Cunningham (Stockton North) (Lab)]

I am looking at subsection (2) which says:

“It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection.”

Will the Minister please explain what is meant by that, and who might be caught by the Act? Who would actually have a reasonable excuse? Can he give us an example?

[Kit Malthouse]

The notion of reasonable excuse is well defined in our common law and is adjudged by courts daily, particularly in protest situations. We have seen that over the last few months. Although I assume that the hon. Gentleman seeks some precision in definition, “reasonable excuse” is for the courts to define, and they do so regularly.

Amendment 30 would raise the threshold for the offence of locking on by requiring individuals to have intended their lock-on to cause disruption, rather than having been reckless about that. Recklessness is, however, also a very well understood term in criminal law, and it applies to numerous criminal offences. I do not see the value in removing it from this clause, not least because, as I am sure the hon. Member for North East Fife knows, it is a well-known term in Scottish law and is often used in Scottish courts to adjudge an offence. For the reasons I have set out, I ask hon. Members not to press the amendments.

--- Later in debate ---

[Sarah Jones]

The point is that the offence would not be a deterrent, given that there are plenty of other things that people are charged with, and imprisoned and fined for. It would not be a deterrent to those difficult people who come back time and again, as they can already be arrested, charged and sent to prison for a multitude of existing offences.

[Alex Cunningham]

My hon. Friend is correct. I was surprised to hear the Minister say, “It’s okay: we can already charge these people. There are plenty of offences that they can be charged with and fined for.” Why the new legislation, then? I do not quite understand the Minister.

[Sarah Jones]

I absolutely agree. In addition—this is most peculiar—a whole raft of legislation on protest has been passed by this House but not yet implemented. We are layering legislation on top of a whole raft of legislation that has passed but not yet implemented, before we even know whether the previous legislation has worked.

Amendment 46 aims to amend clause 1 so that it actually deals with the scale of the disruption that our witnesses were concerned with. In doing so, it will also address the concerns of the public. I do not think that the public are much interested in protests that cause disruption to just two people. That is not so egregious, and certainly not egregious enough to risk seriously harming the right to protest. The National Police Chiefs’ Council agrees; it states in its written evidence that:

“we believe using the definition of ‘serious disruption to the community’ may be preferable to ‘two or more people, or an organisation’, as the former is more widely understood and will allow more effective application consistent with human rights legislation.”

Amendment 30, tabled by the hon. Member for North East Fife, would

“limit the new offence to ensure that there must be intent to cause serious disruption.”

As I have mentioned, one of our key concerns with this clause is how widely drawn it is. With such broad wording, it is fair to ask the police to determine whether there is genuine intent to cause serious disruption. As has been pointed out by Liberty and other organisations, the Bill already carries the danger of criminalising peaceful protest, and has the potential to sweep up many peaceful protesters. Recklessness is not a good measure in the law. How should the police try to prove that an individual has been particularly reckless? Recklessness is not a good measure in the law. Can the Minister say what “recklessness” is? Is it defined by a lack or an abundance of action? What would his definition be?

--- Later in debate ---

[Kit Malthouse]

That is just nonsense. The hon. Lady will not address the issue of disruption or reasonable excuse. I am sure the police are able to determine and the courts will interpret what is designed in this legislation. She has said rightly that the people we are talking about should go to prison. She said they are committing crimes. The only dispute between the two sides of the Committee is what offence they should be charged with, which is what we seek to provide.

Opposition Members have sought clarity and precision. We have seen that those who are arrested and charged in these circumstances are charged with a range of offences—obstruction of the highway, aggravated trespass, which the hon. Lady referred to, and criminal damage and public nuisance, depending on where the offence occurred and the circumstances. Unfortunately, we have seen situations where, on technicalities, a lack of precision in our ability to deal with the offence has meant that people have got off. For example—

[Alex Cunningham]

rose—

[Kit Malthouse]

As the hon. Gentleman will know, there were protesters who locked on to a printing press in Knowsley in Liverpool. They were charged with aggravated trespass, but avoided conviction because the prosecution was unable to prove where the boundary was between the private and the public land. We are trying to provide precision in that offence area, and that is what this part of the legislation does. Aside from the disruption and anger that they cause, lock ons also waste considerable amounts of police resource and time, with specialist teams often required to attend protest sites to safely remove those who have locked on.

The hon. Member for Croydon Central seems to imply that we should have at-height removal teams on stand-by in all parts of the country 24 hours a day, but it is not realistic for British policing to do that. Some lock ons, particularly those that occur at height, place both the police and protesters at serious risk of injury and even death. For example, protesters at HS2 sites have deployed bamboo structures, necessitating the deployment of specialist teams who are trained to remove them at height at considerable risk to themselves and the protesters they are removing. That is why the Metropolitan Police have asked us to provide them with more powers to tackle that kind of reckless behaviour, and the Government have now responded.

--- Later in debate ---

[Kit Malthouse]

Just a minute.

The clause creates a new offence of locking on that will be committed when an individual causes serious disruption by attaching either themselves or someone else to another individual, an object or to land, or attaching an object to another object or land. Their act must cause or be capable of causing serious disruption to an organisation or two or more individuals, and the person intends or is reckless as to that consequence. The offence carries a maximum penalty of six months’ imprisonment and an unlimited fine.

Referring only to the act of locking on rather than to the equipment used recognises that protesters deploy a wide range of equipment to lock on, from chains and bike locks to bespoke devices, and ensures that the offence will keep pace with evolving lock-on tactics. The offence can be committed on either public or private land, and that ensures that those who use that tactic in, say, an oil refinery do not evade arrest and prosecution for the offence. Furthermore, new stop and search powers that we will consider shortly will allow the police to take proactive action to prevent locking on in the first place, by seizing items that they believe will be used by protesters to lock on.

[Alex Cunningham]

The Minister has just referred to oil refineries and private space. Chris Noble said in his evidence

“If we moved more into a private space than currently, we would see that as potentially being incredibly significant for money and opportunity lost in terms of policing communities. Those abstractions would probably quite fundamentally change my local model of policing, in terms of being able to maintain that.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 13, Q17.]

Does the Minister accept that he is putting greater pressure on the police, and certainly on their resources?

[Kit Malthouse]

As I said earlier, I do not accept that because if we get the cocktail of deterrent correct, and get those protesters—

[Alex Cunningham]

It is not going to be a deterrent.

[Kit Malthouse]

He has to see all the clauses in the round. If we get those protesters to think twice about their actions, we hope that they will desist—

[Alex Cunningham]

But they won’t!

[Kit Malthouse]

Or at least they will be incarcerated, such that they will not be able to continue with their protests.

Public Order Bill (Fourth sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 14th June 2022 Public Bill Committees

The reality is that the Bill will not make it easier to minimise the disruption from protests on major transport works. It will just bring more and more people who are peacefully protesting into the criminal justice system.

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Dowd. I am extremely concerned about the unintended consequences that will result from the introduction not just of this clause but of the other provisions as more and more people are criminalised, as my hon. Friend the Member for Croydon Central said. We have already heard from police chief Chris Noble about the additional stresses the Bill’s contents will have on the police service and the difficulty the police may well have in interpreting which action they can take in which circumstances.

As the Government strive to build up the number of officers, and to replace at least some of those whom consecutive Governments have got rid of, we can expect more arrests, more charges, and perhaps even more convictions, and there will be a knock-on effect on our prisons. I have another interest, alongside that of improving public protection: my nephew Lewis Cunningham, who lives in Beverley, starts his police training in September. I am sure that colleagues across the House will join me in wishing him well. [Hon. Members: “Hear, hear!”] I thank them for that.

My hon. Friend the Member for Croydon Central has outlined in great detail the flaws in the clause and in the rest of the Bill. There will be another major knock-on effect of the Government’s measures, which will potentially criminalise thousands of people: the measures will affect our courts, which still have dire backlogs. The most recent statistics from Her Majesty’s inspectorate of constabulary and fire and rescue services reveal that the Crown court backlog remains great, and despite various measures having been put in place—they range from extra sitting days to Nightingale courts—it will take years to get the backlog down to a reasonable and manageable level. In the autumn Budget statement, the Treasury claimed that the backlog was caused by the coronavirus pandemic. That is completely false.

[The Chair]

Order. I appreciate that this is an important matter, but I must ask the Member to stick to the clause, which is on the obstruction of major transport works.

[Alex Cunningham]

I accept the reprimand, Mr Dowd, but I wanted to emphasise that the Bill has unintended consequences. It will have a knock-on effect on the number of arrests made, the number of police available, the number of court days required, and the number of officers called to court. Those are all consequences of this legislation, which I submit is totally unnecessary, and will criminalise many people. The crisis in the justice system could have been avoided, but this legislation may add to the problem. I am skipping over some of the stuff in my notes that relates directly to courts.

The Chancellor talked about providing more police officers; the same 20,000 were promised years ago, many of whom remain to be recruited. If that promise is fulfilled and more people are brought to justice—I keep saying this—it will mean more officers in court, more arrests, and more stress on the system. The Government need to account for that. We have seen some changes. There have been supportive comments from some people in the justice system, but the bottom line is that the impact on the courts will be tremendous. A National Audit Office report says,

“The Ministry has removed the limit on the number of Crown Court sitting days, but their use relies on courts having enough physical and judicial capacity.”

That capacity does not exist.

[The Chair]

Order. I appreciate the wider ramifications of the issue, but I must exhort the Member to focus his attention on the clause.

[Alex Cunningham]

I recognise that, Mr Dowd, but the whole system is in crisis, and the point that I am trying to get across is that the Government have not properly addressed the Bill’s impact on the entire justice system. We cannot look at these measures in isolation; we have to look at their effect across the whole system. The measures could needlessly criminalise hundreds, if not thousands, of people, so we have to consider their knock-on effects.

The crisis in the system means that justice can often be denied, even to those impacted by protesters or those locking on. Those affected deserve justice; unfortunately, it will have to come in the longer term, given the breakdown in the system.

I was going to quote former Member Anna Soubry on the problems that she had in court, but I will not. The Government must look at these measures in the round, rather than in isolation. Resources will need to be available across the piece, and there is no provision in this clause, or any other clause, to ensure that the entire system operates effectively. The time for action is well past. I submit to the Minister that instead of messing around with clauses as simple as this one, the Government should start tackling the crisis in policing, the rise in violent crime, the epidemic in antisocial behaviour and the massive courts backlog.

[The Chair]

I must ask the Member to stick to the clause. I have asked three times now.

[Alex Cunningham]

With that third reprimand, Chair, I shall wind up my remarks.

[Kit Malthouse]

I think we can take from that that the hon. Gentleman is voting against the clause. As the hon. Member for Croydon Central says, the clause creates a new offence of obstructing major transport works. We heard in strong evidence from the police, High Speed 2 and others why the offence is needed, and why the offence should ensure that all stages of construction and maintenance are protected from disruptive action, including necessary steps prior to construction, such as ecological surveys, and why the offence should also cover the removal of, or interference with, apparatus needed for construction.

I reassure the hon. Lady that “apparatus” is a usual term in legal circles; any strict definition in the Bill might result in the Bill not being future-proof, or in its being too definitive in a way that protesters could find a way around. I am sure that it will not be beyond the wit of courts to interpret what “apparatus” means. When they do, anyone found guilty of the offence will face a maximum penalty of six months’ imprisonment, an unlimited fine or both.

As with other offences in the Bill, we have provided a reasonable excuse defence. In reference to something the hon. Lady said earlier, there is a defence for trade disputes, so those on strike will have a defence against this kind of offence. As she pointed out, “major transport works” are defined as works that have either been authorised by an Act of Parliament, such as HS2, or by a development consent order under section 114 of the Planning Act 2008, such as the Silvertown tunnel. The definition ensures that transport works of strategic importance in England and Wales are protected.

The hon. Lady raised the issue of human rights. That is a common issue that courts have to address when looking at offences committed by all sorts of people in all sorts of circumstances, and it is something we are used to. I confess that I am confused by the hon. Lady’s position. She is encouraging and supportive of national injunctions, which carry unlimited fines and prison terms that depend on the views of the judge at the time. They also provide less protection for the accused, as judges generally require a lower burden of proof in deciding whether the case is proven. Of course, we heard strong evidence last week that injunctions are cumbersome, long-winded, expensive for people to put in place and unpredictable in their efficacy.

Public Order Bill (Fifth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 16th June 2022 Public Bill Committees

It is worth being clear about what stop and search is used for now. It is so intrusive because it is used for very serious offences. Police stop and search for drugs, weapons, knives and guns. We know that it can be a useful tool and has the potential to stop murder, serious violence and acts of terror. While we do not disagree with the premise of stop and search and recognise that it can be very helpful—I am sure we have all had conversations with both police and communities who talk of its benefits—the clauses in the Bill are a big expansion of powers.

[Alex Cunningham (Stockton North) (Lab)]

My hon. Friend will recollect that when she and I worked on the Police, Crime, Sentencing and Courts Act 2022, many issues were raised about the disproportionate effect that that legislation would have on young black people. The same applies here. What comments would she make about how, yet again, we will see a disproportionate effect on people of ethnic minorities?

[Sarah Jones]

As always, my hon. Friend makes a good point. I will come on to talk about that in my later remarks.

Lord Kennedy, in the Lords, said:

“the Government are mirroring laws that currently exist for serious violence and knife crime.”

He went on to say that

“these measures apply to peaceful protesters, not people carrying knives or causing violence.”—[Official Report, House of Lords, 24 November 2021; Vol. 816, c. 992-993.]

Matt Parr, Her Majesty’s inspector, said that current suspicionless stop and search powers

“are intended to be used by the police to combat serious violence and the carriage of ‘dangerous instruments or offensive weapons’. Using a similar suspicion-less power to target peaceful protesters, who may cause serious (but non-violent) disruption, is a significantly different proposition. Given 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, we would expect any new suspicion-less powers to be subject to very careful scrutiny by the courts.”

In the same document, it was said that

“police officers highlighted operational difficulties in the targeted use of the power. Others were also concerned over the proportionality of any search as well as the potentially intrusive nature when looking for small items.

One officer reflected that the proposal had ‘complications’ – for instance, whether an otherwise innocuous items was really intended to be used to lock-on. He said that having a tube of superglue in your pocket, or chain and padlock that you intend to use to lock your bike, ‘doesn’t prove intent and presents difficulties’.”

Public Order Bill (Sixth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 16th June 2022 Public Bill Committees

[Sarah Jones]

I will start, as I did with clause 12, by noting that I and the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford, have put our names to amendment 13, which would leave out the entirety of clause 13.

This clause creates the new civil order, the serious disruption prevention order, which can be imposed on individuals who have never been convicted of a crime. Subsection (2) sets out the conditions that must be met for an order to be made, namely that the person in question must have done two of the following during different protests, or during the same protest but on different days: been convicted of a protest-related offence; been found in contempt of court for a protest-related breach of an injunction;

“carried out 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”;

caused or contributed to any other person’s committing

“a protest-related offence or a protest-related breach of an injunction”;

or

“caused or contributed to the carrying out by any other person of 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”.

The two trigger protest-related events must have occurred no earlier than the period starting five years before the order is made, but each event must have taken place after clause 13 comes into force, and the person concerned must be aged 16 or over at the time. The fact that an SDPO could be imposed on a person who has not committed a criminal offence at all, but only contributed to the carrying out by someone else of activities related to a person, goes way further than we believe makes sense in law. The vagueness of how and when the serious disruption prevention orders can be imposed is astonishing.

Under subsection (2)(a)(v), the courts must be satisfied on the balance of probabilities that on two different occasions someone

“caused or contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption”.

The person does not even need to have done the act themselves. Someone else could have caused—or not even caused, but just been likely to cause—the disruption of two people, and the person in question only needs to have caused or contributed to someone else’s action. Just to be clear, that other person does not need to have caused serious disruption to two or more people.

The wording is so broad. Rather than trying to work out what activity needs to be done to assist someone doing anything related to a protest, perhaps thinking about what would not need to be done would have been a shorter exercise. I am concerned that there does not seem to be any requirement for the person to have had knowledge that the protest activities were going to cause serious disruption when they caused or contributed to the carrying out of those activities.

The clause could also capture a wide range of behaviour. Let us say that the person being considered for an SDPO attends a peaceful protest, they shout something about the issue that they are angry about, and the person next to them becomes violent, but that act of violence was not within the control of the person who was shouting. Could that person who was shouting be held responsible under clause 13?

As I laid out when detailing our concerns about clause 12, the police are concerned that the use of serious disruption prevention orders is unworkable and potentially unethical. This proposal essentially takes away a person’s right to protest, and we believe it unlikely that the measure would work as hoped. In the evidence sessions, the National Police Chiefs Council protest lead said:

“From a policing point of view, unless we knew the exact circumstances of the individual it would be hard to say how exactly the orders could be justified.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 15, Q23.]

Senior officers noted that protest banning orders would necessarily curtail people’s democratic right to protest and be a massive civil rights infringement, and in the evidence sessions Matt Parr could not have been any clearer in what he said:

“I have mentioned that we were not supportive of SDPOs.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 55, Q117.]

I suggest to the Committee that these views are not just held by Liberty or Amnesty International—the pressure groups founded on the basis of protecting human rights—but are concerns from senior, experienced police officers and the Home Office.

[Alex Cunningham (Stockton North) (Lab)]

It strikes me that my hon. Friend is talking about the need for training. The Minister has talked about guidance and all manner of other measures being put in place, but if the police do not understand what they are doing in relation to this particular set of orders, how on earth are we supposed to train them to recognise the extent of their powers and how they can apply them?

[Sarah Jones]

My hon. Friend makes a really good point, and we have seen exactly that with the pilots of the knife crime prevention orders. In the first six weeks only two police officers made the request to the courts, and both were turned down. Probably because of the lack of clarity about how the orders should be imposed, there were not vast numbers of police officers coming forward. Equally, there must have been confusion between what the police thought the conditions were and what the courts thought the conditions were, because the courts turned those two cases down.

[Alex Cunningham]

I am grateful to my hon. Friend for giving way again.

I was chastised on Tuesday by the Chair for talking about the courts at some length. My hon. Friend has already talked about the need to go to court for this particular order, which seems a waste of time to me. More and more time is being placed on the courts, which of course are in crisis as it is, so perhaps this is one that the Government could let go.

[Sarah Jones]

My hon. Friend is exactly right. In the HMICFRS report on protests, many interviewees expressed intense frustration with the system, and the many reasons they gave for protest cases being stopped included “substantial backlogs in court” and

“so much time passing since the alleged offence that the CPS deemed prosecution to be no longer in the public interest”,

which is really important and has probably stopped quite a lot of people going to court who should have done. Those issues cannot be ignored when we are looking at this subject.

As I was saying, it is not just the likes of Liberty or Amnesty that have issues with the Bill; it is experienced senior officers and many organisations involved in criminal justice. We do not believe that SDPOs are workable in practice, and the language of the clause reflects the concerns that we have had throughout. A serious disruption prevention order could be applied to someone who has never committed a criminal offence before, but who is deemed—on the civil standard, not the criminal one—to have contributed to someone else’s action that is “likely to result” in serious disruption to two or more people.

It is worth picking that apart. Any one of us in the room could be given an order—one with really intrusive measures attached—on the mere probability that we have contributed to, not caused, another person’s action that has possibly, but not definitely, caused disruption to two or more people. I do not have to have attended a protest and no disruption needs to have been caused, and all this is on the balance of probability. Surely basing the orders on hard cases and a minority of hardliners could have wide-ranging implications for peaceful protesters.

The Bill was the Government’s flagship legislation in the Queen’s Speech. Despite the fact that crime has increased significantly in the last two years, prosecutions are down significantly. There is a cost of living crisis, a climate crisis and many other things with which the Government could concern themselves. There was no victims Bill in the Queen’s Speech, and nothing to tackle violence against women and girls. The Government have focused on this Bill, which is full of broadly drafted and unworkable clauses that would apply the same kinds of restrictions to peaceful protesters who have been convicted of no crime as could be applied to violent criminals and terrorists.

--- Later in debate ---

[Alex Cunningham]

These orders will apply to women, as they will to men. Has my hon. Friend seen the statement from Hannah Couchman, the senior legal officer for Rights of Women? She says:

“Rights of Women has joined together with 17 other women’s rights and VAWG organisations to resist the measures outlined in this Bill. Protest is a feminist issue, firmly embedded in the struggle for women’s rights—and particularly the rights of Black and minoritised women. Our fight to end violence against women relies heavily upon our ability to gather together and collectively demand change.”

These types of order could prevent people from organising effective protests with Rights of Women and other groups.

[Sarah Jones]

My hon. Friend makes a good point. I have not yet quoted from the evidence we had from the coalition of about 20 very reputable women’s organisations that have come together to form a view, which is worth listening to.

Similar conditions that exist in law are imposed on terrorists and violent criminals, but we do not think these conditions should be imposed on protesters. These provisions will increase disproportionality, bring peaceful protestors unnecessarily into the criminal justice system and undermine public trust in the police trying to do their job. We have seen worrying figures about public confidence. We deeply support the police and want them to do the best job they can, but public confidence in policing has gone down in recent times because of a series of events that have taken place.

It is our job in this place to do everything we can to ensure that the public can and do have confidence in the police, but passing this broad, difficult to implement legislation, which may never even be implemented because it is too complex, is not helpful. We should be giving the police the resources they need, being much clearer about what we expect them to do, and ensuring they can spend the right resources in the right places in order to reduce crime and support victims.

Although potentially open to interpretation, in his report Matt Parr called for only a “modest reset” of the scales. Throughout the debates on the Police, Crime, Sentencing and Courts Bill, we argued that that Bill was not introducing a modest reset of the scales, but this is a whole raft of legislation on top of what is in Police, Crime, Sentencing and Courts Act 2022 that has yet to be implemented.

On clause 13, does the Minister genuinely believe that the creation of the serious disruption prevention orders, which can be given to people who have not committed any criminal act, is a modest reset? We think it is not and that the orders will contribute to the chilling effect on peaceful, legitimate protest that we have talked about, and we are not convinced that they would stand up in court. The requirements and prohibitions in this clause, as in clause 12 and as laid out in clause 15, are too harsh and too intrusive, and we cannot support it.

Public Order Bill (Seventh sitting)

Alex Cunningham Excerpts

Committee stage
Tuesday 21st June 2022 Public Bill Committees

[Anne McLaughlin (Glasgow North East) (SNP)]

Thank you for allowing me to speak, Mr Dowd, despite my being a couple of minutes late. I am sorry, but I could not find room 10; I could find rooms 9 and 11 but not 10. I thought I was in a Harry Potter plot.

[Alex Cunningham (Stockton North) (Lab)]

It is the one in between.

[Anne McLaughlin]

Yes, but it does not have a number outside. I was unable to be here last week due to a diary clash, and I apologise for that, although I advised the Committee.

I recall that the previous week the Minister and others in the debate and here today suggested that there is some hypocrisy going on. That is my reason for saying a few words today. I want to explain why they are wrong in their assessment. That said, the measure applies to England and Wales only, so I will abstain in any vote because, as most colleagues know, the SNP does not vote on matters that do not directly impact on their constituents. However, I will put my name to a motion similar to this at the SNP conference later this year.

The position is not hypocritical, because there is a world of difference between somebody being harassed, as the Minister puts it, by protesters, and being told an airport is not doing enough for climate change. There is a world of difference between that and somebody being told with words, verbally, on a poster, or implied by presence, “You are killing your child. You individually are responsible for the death of your child.” That is what those protesters are saying.

I know women who have had abortions, and even those certain from the outset that it is absolutely the only and right choice for them, wrestle with their conscience, and they live with that decision forever. The guilt is there already; they do not need somebody else to make them feel even more guilty, yet that is what the protesters do. Even the ones who silently stand and pray quite often have posters with pictures of foetuses and the message that abortion is murder. It is cruel in the extreme.

Nobody changes their mind once they have got to the clinic. Nobody who turns up at the clinic and who is attacked by someone verbally, on posters or by their presence, stops and says, “Wait a minute—you are right. I am killing my child. I am going to cross the road to you and ask for your help.” That does not happen. It is fine for people to have those views and want to offer assistance, but not at that stage and in that way. That is why it is completely different from any other type of protest talked of in the Bill. I am sorry that I cannot vote for it. That is not much good for the hon. Member for Ealing Central and Acton, though others are not going to vote for it anyway. However, I do want to voice solidarity, because I support the gist of what she is trying to do.

--- Later in debate ---

[Dr Huq]

My ideal would be to sit down with the Government to make something better. I will not press the new clause to a vote today, because I think it can be improved—I take those points—so I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 2

Hostility towards sex or gender

“(1) After Section 5 of the Public Order Act 1986 insert—

‘5A

Offences aggravated by sex or gender

(1) An offence under section 5 of this Act is aggravated by sex or gender where the offence is—

(a) aggravated by hostility toward the sex or gender of the victim,

(b) of a sexual nature, or

(c) both of a sexual nature and aggravated by hostility toward the sex or gender of the victim.

(2) A person guilty of an aggravated offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

(3) It is not a defence under this section that a person did not believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress if a reasonable person in possession of the same information would think that there was a person within hearing or sight who was likely to be caused harassment, alarm or distress.

(4) An offence is “aggravated by hostility towards the sex or gender of the victim” for the purposes of this section if—

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s sex or gender (or presumed sex or gender); or

(b) the offence is motivated (wholly or partly) by hostility towards members of a group based on their sex or gender.

(5) In this part, gender has the same meaning as in the Gender Recognition Act 2004.’

(2) Part 3A of the Public Order Act 1986 (Hatred against persons on religious grounds or grounds of sexual orientation) is amended as follows—

(a) In the heading for Part 3A at the end insert ‘or grounds of sex or gender’.

(b) In the italic cross-heading before section 29A at the end insert ‘and hatred on the grounds of sex or gender’.

(c) After section 29AB insert—

‘29AC

Meaning of “hatred on the grounds of sex or gender

29AC In this Part “hatred on the grounds of sex or gender” means hatred against a group of persons defined by reference to their sex or gender.’

(d) In the italic cross-heading before section 29B at the end insert ‘or hatred on the grounds of sex or gender’.

(e) In section 29B(1) at the end insert ‘or hatred on the grounds of sex or gender’.

(f) In section 29C(1) (publishing or distributing written material) at the end insert ‘or hatred on the grounds of sex or gender’.

(g) In section 29D(1) (public performance of play) at the end insert ‘or hatred on the grounds of sex or gender’.

(h) In section 29E(1) (distributing, showing or playing a recording) at the end insert ‘or hatred on the grounds of sex or gender’.

(i) In section 29F(1) (broadcasting or including programme in programme service) at the end insert ‘or hatred on the grounds of sex or gender’.

(j) In section 29G(1) (possession of inflammatory material) at the end insert ‘or hatred on the grounds of sex or gender’.”—(Alex Cunningham.)

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

The new clause was tabled by my hon. Friend the Member for Walthamstow (Stella Creasy), to whom I pay tribute for her tireless campaigning on this issue. Last year, when we were debating the Police, Crime, Sentencing and Courts Bill, I and my Labour colleagues on the Bill Committee spoke at length about how the Government were missing a golden opportunity to take robust action to protect women and girls from the violence and harassment that they face every day. Sadly, however, the Government chose to miss that opportunity, instead pushing the Bill through without any consideration of the steps that they could take to ensure that women and girls were able to go about their lives without worrying about their safety.

You can imagine, Mr Dowd, how pleased I was last week when, about to present my private Member’s Bill on the Floor of the House, I heard the right hon. Member for Tunbridge Wells (Greg Clark), a few Bills ahead of mine, presenting his Protection from Sex-based Harassment in Public Bill to make provision against causing intentional harassment, alarm or distress to a person in public when the behaviour is done because of that person’s sex. I do not know whether he was seeking some form of review or specific action, but clearly there is support for such measures in all parts of the House. It is time for the Government to put aside all the talk about acting on misogyny and to accept the new clause. Furthermore, given the Minister’s speech in the debate on new clause 1, I feel somewhat encouraged that he, too, is ready to take some action.

Last week I received a letter from the hon. Member for Louth and Horncastle, who is the Minister for ending violence against women and girls. She provided an update on the Government’s response to the end-to-end rape review. She ended her letter by saying:

“Thank you for your engagement on these crucial issues. Violence against women and girls is a global problem and it is our collective mission to support victims and bring perpetrators to justice. I look forward to working with you to address these crucial issues and bring about the transformational change that victims deserve.”

I found that message extremely heartening because she is, of course, correct that we need to work together in all parts of the House as a collective to improve the dire outcomes that women and girls face when seeking justice. I hope the Minister will share that sentiment, engage positively with the substance of the proposed new clause and accept that it should be included in the Bill.

I know that the Minister will be aware of the scale of the problem, which affects women and girls across the county on a daily basis. Some 66% of girls in the UK have experienced sexual attention or sexual or physical contact in a public space. That gets worse with age: a report by UN Women UK published in January 2021 showed that in a poll of 1,000 women, 71% had experienced sexual harassment in a public space. That figure rose to 97% for women under 25. That harassment, intimidation and abuse never shows up in formal crime statistics, not because it is not serious enough, but because women do not think that going to the police will help.

House of Commons Library data shows that half a million crimes against women go unreported every year, and women are less likely than men to report abuse to the police. Research shows that two thirds of women experience abuse or harassment in public places, but 80% of them do not report those crimes to the police as they do not believe they will be addressed or taken seriously.

There are two reasons why it is so important that these supposedly lower-level offences are taken seriously by the police and the criminal justice system. First, those who perpetrate violence against women are often repeat offenders whose violence and abuse shows a pattern of escalation. That is not to say every misogynist who shouts at women in the street goes on to violently attack women, but many of those who do carry out such attacks start by throwing verbal abuse. If we can identify, monitor and—where necessary—restrict those who commit the early offences, we will be better able to prevent the all-too-familiar pattern of escalation before it has dire consequences.

Secondly, by letting these offences go unregistered or unpunished, we are sending a message about how seriously—or not—we take violence against women and girls. If someone is abused because of their sexuality, ethnicity or religion, the law rightly says that the abuse—based on who someone is—is unacceptable. Unfortunately, the law does not say the same thing if someone is abused simply for being a woman or a girl.

We all recognise that more needs to be done to tackle misogynistic abuse, but if we do not act, we are endorsing a legal system that is permissive of such abuse. If we do not act, we are endorsing a system that sees women repeatedly targeted but then choosing not to report the crime because they—too often rightly—suspect that it will not be treated as seriously as it should. I cannot repeat that fact enough: until we demonstrate that the law is on the side of women and girls, most of them will not report the abuse, which we ought to recognise as crimes.

The proposed new clause would be a crucial first step in tackling the harassment and abuse that women and girls face every day. It would, in simple terms, put in place harsher sentences for those who commit abuse or harassment motivated by misogyny or misandry. Sentences would be set at the same level as intentional harassment, allowing courts to recognise the higher degree of culpability that these crimes should carry. It would, for the first time, recognise that there is something particularly damaging about targeting someone solely because of their sex, in the same way that we do if someone is targeted for other aspects of their identity.

During the passage of the Police, Crime, Sentencing and Courts Act 2022 in the other place, the Minister there said that the Government would bring forward a consultation on public sexual harassment. That was some time ago, but I am afraid there are two reasons why I do not think that is an appropriate solution. First, a myopic focus on sexual harassment ignores other harassment that women and girls face on a daily basis. If the focus is narrowed to only behaviour that is explicitly sexual or for the purposes of sexual gratification, conduct such as ripping off a Muslim woman’s hijab would not be covered.

That would be counterproductive, because it would suggest that such behaviour is somehow less serious than sexual harassment, and it would prevent the police from gathering crucial information about patterns of offending. Instead, we need to adopt the approach that the new clause takes and recognise that, at its root, sexual harassment is about power and hostility, and we should treat it as such. We should not separate out sexual abuse from sexist abuse; we should treat them as symptoms of the same underlying problems.

The second reason is that we all know that a Government consultation is absolutely no promise of action. Indeed, the Government’s own adviser on sexual harassment has said that both she and the Home Secretary are supportive of action, but the idea is being vetoed by those higher up in Government. Given how few people are able to overrule the Home Secretary, the Minister will forgive me if I am sceptical that a Government led by the current Prime Minister will take action on sexual harassment without being pressed to do so.

Even putting those misgivings aside, this is not an issue that can wait for the slow cogs of Government policy making to engage. If we do not take the opportunity that the new clause offers us, it could be years before we have another opportunity to act. In that time, millions more women will experience this behaviour and not report it because they know our legal system does not treat it with the seriousness it deserves. I appreciate that we are yet to see the detail of the Protection from Sex-based Harassment in Public Bill, in the name of the right hon. Member for Tunbridge Wells. Whatever measures he may succeed in introducing, however, it could be a year or more before they take effect. We can take out the uncertainty now and prevent further delay.

Proposed new subsection (2) is aimed at those who may never carry out a violent or abusive act themselves, but who may encourage others to do so. Encouraging racial or homophobic abuse is already a criminal offence, and rightly so. As we have seen across the world, and during the tragic events in Plymouth last year, there are people out there who seek to stir up hatred of women for no reason other than that they are women. That is clearly unacceptable, and I was pleased that the Law Commission recommended last year that we bring our laws into the 21st century and tackle the stirring up of misogynistic and misandrist hatred.

I am sure the Minister will say that the Government are considering very carefully what the Law Commission has said and will respond in due course, but we know that when it comes to radicalisation, every day can make a difference. Every day that the Government delay is another day in which poisonous ideologies, such as so-called incel culture, have a chance to spread further and do more damage to the fabric of our society. This new clause would enable us to skip the inevitable delays of Government going back and forth over an issue when the right course of action is clear to us all, and immediately tackle those who seek to spread such hate. I know that the Government may act eventually in this area, but I appeal to the Minister and other Government Members to put an end to it all—end the talk about the issues I have raised, end the delay in taking action and back the new clause.

[Anne McLaughlin]

I certainly support properly acknowledging and tackling crimes motivated by sex or gender, but this new clause applies to England and Wales only, so I will abstain, in keeping with my party’s aforementioned stance. However, I think it would be useful for Members to look at the report commissioned by the Scottish Government on misogyny, entitled “Misogyny—a Human Rights Issue”. The independent working group was headed up by Baroness Helena Kennedy QC from the other place, and the report was published on International Women’s Day, 8 March—also my birthday, if anybody wants to put that in their diary. The recommendations were described by the First Minister as “bold” and “far reaching”. It would be great to have both Governments working together on this.

I offer my solidarity with the hon. Member for Walthamstow (Stella Creasy) and the hon. Member for Stockton North, who has just given a really good speech, on the issues that they are trying to tackle with the new clause. I could say a lot more about misogyny—we all could—but I think he has covered it really well.

[Kit Malthouse]

The matter of whether and where sex or gender fits into hate crime legislation was, as the hon. Member for Stockton North has said, subject to significant deliberation during consideration in the previous Session, only six weeks ago, of the Police, Crime, Sentencing and Courts Act 2022. Before that, it was widely discussed during consideration of the Domestic Abuse Act 2021. Both Houses had an opportunity to express their views and come to a settled position, and I am afraid that I do not believe matters have changed since then. The hon. Gentleman has cited some distinction between new clause 2 and the previous attempts of the hon. Member for Walthamstow to amend the law in this area, but the essential issue remains the same. I suggest that we should consider hate crime laws in the round, rather than seeking to pick off individual items in a piecemeal way.

Let me deal first with the new clause’s proposed new section 5A to the Public Order Act 1986. To put it into ordinary language, it is an attempt to introduce a new offence of public sexual harassment. I remind Members that during debate on the Police, Crime, Sentencing and Courts Act in the previous Session, the Government committed—as the hon. Gentleman has said—to launch a consultation before the summer recess. I can confirm that that remains our intention. We are finalising those plans now, so given that undertaking, I am a bit surprised that the hon. Member for Walthamstow has tabled this new clause, as its effect would be to pre-empt that consultation. I have my views on the intrinsic merits of new clause 2, but it would be fairer and better for us to wait for that consultation to run its course and then draw our conclusions from it.

The other part of the new clause would amend part 3A of the Public Order Act, which deals with what could be described in shorthand as hate speech offences. The hon. Lady has in the past cited recommendation 23 of the Law Commission’s review, which does, in a basic sense, endorse the notion that those offences be extended to cover sex or gender. However, I am afraid that that overlooks a crucial detail: while the Law Commission dedicated just over 10 pages to that extension, it dedicated more than 70 pages to the need for those offences to be fundamentally reformed. The new clause does nothing to contribute to such reform, but root-and-branch change is needed, given that these are hate speech offences. They have the basic potential to significantly chill free speech, and are an area of law in which public consent for change must be carefully considered. The Law Commission noted that those offences represent

“some of the most controversial aspects of hate crime laws.”

There are also issues with the current legislation that we first need to grapple with. The Law Commission noted that the legal defences for people accused of those crimes are currently unclear, and certain terms used in the legislation are legally ambiguous. Most importantly, it tempered all proposals to expand the law with a condition that doing so must be coupled with provisions that make clear what is not criminal. For each characteristic added to the law, those so-called free speech provisions would clarify that merely offensive speech on topics related to such characteristics is not in itself a crime. The Law Commission noted that, particularly in relation to gender identity,

“without such protection, activists would seek to test the limits of the extended offence.”

The new clause does not account for those free speech protections. More broadly, it does nothing to reform the existing provisions as the Law Commission proposes; it only adds to the statute book, whereas the Law Commission suggests repeal and replacement.

In short, any reform of these laws would need to be comprehensive. If it is not, we risk compounding the problems in the law that the Law Commission identified and potentially harming free expression rights. We would essentially be building on very shaky foundations. The Law Commission found that one change is usually interdependent with another. As the hon. Member for Stockton North has said, the Government are actively considering all of the Law Commission’s recommendations, and I can assure the Committee that we are putting the final touches on the Government’s response to all 34 of the Law Commission’s recommendations and will publish that response shortly. I think it would be wiser for the Committee and, indeed, the House to wait for its publication. We do not think it is wise to put the cart before the horse, so I encourage the hon. Gentleman to withdraw the new clause.

[Alex Cunningham]

First, I know that the hon. Member for Glasgow North East cannot change the policy of the Scottish National party on the hoof, but I ask her to think about her sisters in England and Wales. Moreover, I do not think it is necessary for the Government to look at anything that has been brought forward by the Scottish Government or any other organisation, because the evidence on this issue is staring us in the face. We do not need additional evidence to prove that this sort of change in the law is needed.

The Minister mentioned how we have talked about these issues in the past while debating this or that Act, or this or that review. We have talked about it till the cows come home, but nothing has actually happened—there has not yet been any change in the legislation. He said that the Government are still hoping to launch their consultation ahead of the summer recess. On Monday we will be five weeks away from the summer recess. While the Minister says that they are still hoping for this, that does not give him very much time, especially if he does not actually know when it is going to start happening. Now is the time for action. He said that the Law Commission says that the law in this area is unclear. I am inviting the Committee to make it clear today by supporting the new clause. For that reason, I will be pushing it to a vote.

Question put, That the clause be read a Second time.