Police, Crime, Sentencing and Courts Bill

Anne McLaughlin Excerpts

Consideration of Lords amendments
Monday 28th February 2022 Commons Chamber

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. To help those people who have asked about the noisy protest and the right to protest, that is in group 3, not group 1 or 2.

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

I will keep my comments to Lords amendments concerning the extraction of information from electronic devices. To be clear, it is not that the Scottish National party does not have views about everything else, and it is certainly not that we do not care; it is because provisions on those other matters are applicable to England and Wales only.

The Scottish Government have been working with the UK Government to refine the draft code of practice for the data extraction provisions to account for Scotland's interests. The UK Government have confirmed that the draft code of practice would not be finalised until after the Bill attains Royal Assent to ensure that it is fit for purpose. They have also confirmed that the data extraction provisions will not be commenced in Scotland until the code of practice has been finalised. The Scottish Government are therefore content that the arrangements for the code provide sufficient scope for Scottish input.

We are generally content with the Government amendments, which improve the powers by, for example, starting to define an “agreement” to a digital search, but some are concerned that they do not go far enough to protect privacy rights and access to justice. Digital strip searches are now a common tool for the police and, as Big Brother Watch has said, experience tells us that policy changes and guidance are not enough.

What is required is clear statutory change and retraining. I urge the Government to ensure that that is in place before they consider the widespread use of digital strip searches.

In Scotland, we have concerns about amendments 39, 40 and 44. That needs some further discussion with the Scottish Government. In English law, all children are children until the age of 18, but that is not the legal position in Scotland. The age of legal capacity in Scotland is 16. It certainly does not feel right to us for a nearly-18-year-old to have no say in whether their phone is taken from them and its data extracted.

--- Later in debate ---

[Jesse Norman]

I want to speak in particular about the issue of noisy protest, but I should begin by saying that, as the Minister outlined very well, there is a great deal of good in the Bill, covering many different areas.

There are facts on which I think everyone in the House would agree from the off. No one can doubt that in recent years the capacity for effective protest has been dramatically enhanced by technology, and enhanced a second time through the use of social media. No one can doubt, I think, that there are irresponsible and aggressive individuals and organisations who seek to inflict the maximum interruption and difficulty on the lives of others in the causes that they promote. And no one can doubt that the public have a right to go about their business without undue impediment. I do not think that any Member would contest those points.

I thank the Minister for engaging with me on this issue and for his clarifications this evening, both on the number of protests that this measure would be likely to affect and on the possibility of a review over a suitable but, I hope, not too long period, but—in my view at least—the measure should not be on the statute book. No serious case has been made that noise is a genuine problem. The Minister has conceded, and one understands why, that the measure is not likely to be used except in the tiniest minority of cases. We therefore have to ask whether the justification for it is adequate and proportionate. The offence is still vague and poorly defined, which is never a good thing in law. The police, as has been conceded, already have significant legal powers in relation to protests, and I regret to say that, worse, in some quarters they are the subject of a degree of public mistrust, which may be increased by our adding to their discretionary powers. Furthermore, I suspect that the measure will be extremely difficult for the courts to handle and adjudicate, even it proves to be compliant with article 11 of the Human Rights Act. All those are conservative—with a small and a large “c”—concerns that people might have about the operation of the rule of law in this country.

When people in Kyiv are dying for their beliefs and for the rights of freedom of speech and of association, the timing is unfortunate. I understand the motivations, and I understand that this has been lightly and sparingly applied, but an increase in discretion to qualify rights of protest that have been fundamental to our society and democratic traditions for hundreds of years is, I think, highly regrettable.

[Anne McLaughlin]

Let me begin by speaking about Lords amendments 73 to 89, which broadly cover the provisions in part 3, on public order. Part 3 does not technically extend to Scotland, but we are still very keen to lend our voice of complete opposition. As I mentioned on Second Reading, we support amendments that seek to mitigate the worst elements of part 3 because they will have an impact on everyone in these islands. We all have the right to speak up and hold power to account, including anyone travelling from Scotland to protest here, at the seat of power. While decisions are made on behalf of the people of Scotland by this place—and we hope that that may not be the case for much longer—the people of Scotland must retain the right to protest outside it.

In the past, I have made the journey from Scotland to this place to protest against many things, including the Iraq war, and I genuinely look forward every week to seeing who will be outside and what they will be bringing to the demonstration, whether I agree with what they are demonstrating about or not. Who can forget the wonderful WASPI women and the numerous noisy protests they held in the streets around Parliament? Rosie Dickson from WASPI Glasgow has told me how concerned she is that Scottish women born in the 1950s who have been unfairly denied their pensions by a Westminster Government now face

“having their human right to protest against it removed”.

They are being unfairly denied their right to their pensions, and now unfairly denied their right to object to that.

We support Lords amendments 73, 80 to 82 and 87, which I will speak to. I have concerns about Lords amendment 88, although on balance it is probably better than what was there before. Lords amendment 73 would remove subsections (2) and (3) from clause 55, which, unamended, would allow the police to impose conditions on a protest if they had a reasonable belief that the noise generated by the participants in the protest may result in

“serious disruption to the activities of an organisation which are carried on in the vicinity of the procession”,

or may have a significant and

“relevant impact on persons in the vicinity”.

The attention these noise restrictions have received from the wider public and the media is telling. Everybody knows that protests are noisy—that is how people get their point across. The louder they shout, the more we listen. Every day we are witnessing people protesting against the atrocities in Ukraine. Why on earth would we usher in legislation to curtail that?

[Mr Carmichael]

The hon. Lady will have heard the noisy protests in this Chamber every Wednesday between 12 and 12.30. We are okay, because we are protected by parliamentary privilege, but surely if Conservative Members want to end noisy protests, they should be prepared to practise what they preach.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Some of us do try to keep that under control. We try our very best amid a lack of co-operation.

[Anne McLaughlin]

I was trying to find a way to work that into what I was saying, so I thank the right hon. Gentleman for that.

We know that without demos and protests, a lot of things would not change. The Minister said that things changed through political campaigning and getting elected, but actually things change because people in local communities rise up and tell us what they want us to do. That is how democracy should function.

[Alison Thewliss (Glasgow Central) (SNP)]

My hon. Friend is making some very good points on the importance of protests. One of the most significant protests in my constituency of late was when the people of Kenmure Street came together to try to stop their neighbours being removed from their homes by the Home Office. Does she agree that the Government should be trying to protect that kind of protest—the community involved and standing up for what is right for their neighbours—not trying to remove it?

[Anne McLaughlin]

I absolutely do, because if people feel empowered by being part of that democracy, other than getting to vote every four years, that can only be a good thing.

The notion that the police can intervene on any kind of noise threshold—as we have heard, we do not know what the threshold is—puts the fundamental right to protest at risk. This Bill will create a situation where people who are simply trying to have their voices heard will be dragged into the criminal justice system. We are going to need extremely large prisons by the time this Government have finished with all this legislation. The reduced knowledge threshold, where a person ought to have known that restrictions were in force, is an Orwellian nightmare. A protester will have to second-guess how the authorities will judge their behaviour.

The language used in clause 55 is vague at best: “serious unease”, “alarm” and “distress”. A protest may seem more alarming or distressing to one police officer than to another. This hands far too much discretion to the police, and there is a point when too much discretion becomes a burden. That was echoed by former police chiefs and senior officers, who have warned against the political pressure that this Bill will place on frontline officers. If the police do not think these powers are necessary, why do the Government? As we have heard from a number of speakers, the powers already exist for them to deal sufficiently with a protest that could result in serious public disorder, serious damage to property or serious disruption to the life of the community. I just do not think the Government have made a good enough argument that the powers are insufficient. For those reasons, we support Lords amendment 73.

We also support Lords amendment 80, which would remove the police’s ability to impose greater conditions on static demonstrations. The Public Order Act 1986 was careful to delineate and differentiate the conditions that can be imposed on static demonstrations and those that can be imposed on a march or moving protest, which is sensible as it reflects the relative ease with which a static demonstration can be policed. Clause 56, which the amendment seeks to remove, will see the distinction removed.

In the words of Big Brother Watch, clause 56 could potentially hand the police

“unfettered discretion to impose any condition they see fit including, for example, restrictions on the words or slogans that can be expressed on placards.”

That is a democratic outrage. This is an attempt by the Government to level the distinction between static and moving protests. As they tend to do, they are levelling down, not levelling up. For that reason, we support Lords amendment 80.

We also lend support to Lords amendment 87, which removes the police’s ability to impose conditions on a one-person protest. What a situation. The might of the Government and their legislative power is bearing down on single protesters, which is ridiculous and disproportionate in equal measure. Worryingly, it has the potential to snare anyone who even stops to engage with that protester as committing a criminal offence. As I said, we are going to need much larger prisons.

Lords amendment 88 would narrow the scope of the offence of wilful obstruction of the highway to include only highways that are part of the strategic road network. We are caught in a trap where, on the one hand, I am glad to see this offence is restricted to the strategic road network but, on the other hand, I am alarmed to see the associated sentence increased from a fine to 51 weeks’ imprisonment—much larger prisons. This amendment is targeted at some very specific protesters whom we have all witnessed taking their protests to the streets and roads, but I feel this severe penalty has the potential to create a chilling effect—I have used that term all too often in the past six months during our consideration of the Judicial Review and Courts Bill and the Nationality and Borders Bill, although, from what I am hearing from the other place tonight, there is now not much left of the latter.

Turning to Government amendments 90 to 93, I am disappointed that the only amendments to part 4, on unauthorised encampments, appear to be technical clarifying amendments that do nothing to row back on the measures expanding the criminalisation of trespass and the accompanying police powers. Again, this is an area where existing powers are available to the police. This is more to do with targeting a minority than targeting trespass.

We know this Bill will disproportionately interfere with the right of respect for the private and family life of Gypsy, Roma and Traveller groups. The new seizure powers in respect of vehicles—vehicles often being the home of Gypsies and Travellers, in particular—are very likely to mean that people will end up facing homelessness. I can only hope that, in mitigation, the Government will focus on providing further support and funding to local authorities across these islands for authorised sites and implementing a national sites strategy. They might want to speak to the Scottish Government about some of their work on this. The Court of Appeal has set out that this community has an enshrined freedom to move from one place to another, and that the state has a positive obligation to protect Gypsy, Roma and Traveller communities’ traditional way of life.

What are the Government so afraid of? From the man outside Parliament today adorned in plastic bottles to make a point about the overuse of plastics, to the many who finally found their voice in the last two years through the Black Lives Matter movement, and who are using that voice to make a very simple point that black lives matter every bit as much as white lives. From our Ukrainian brothers and sisters here on these islands who feel so helpless right now and who need to come together to protest against what is happening in their country, to people who simply wish to save the planet. What are the Government so afraid of? Well, I thank and applaud those protesters. This Government want to stop and criminalise them.

[Robert Jenrick (Newark) (Con)]

I will be brief and speak to two issues: first, in praise and thanks; and secondly, by way of caution.

In praise and thanks, I am delighted that the Government have accepted the amendment moved in the other place by the noble Lord Best and the noble Lord Young repealing the Vagrancy Act 1824.

Almost 200 years ago, as the cities were filling with the dispossessed at the end of the Napoleonic wars, our forebears in this place came together and passed a piece of legislation that today seems anachronistic and wrong. As a result of the votes later tonight, we will consign that legislation to history. Our understanding of rough sleeping and homelessness has transformed unrecognisably over the course of those two centuries. Today, we see it as a crisis of housing, of health, of social justice and of the criminal justice system. We do not see it as a criminal offence for someone to find themselves sleeping rough on the streets, and we should not live in a country where it is a criminal offence.