Public Order Bill

Baroness Blower Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Skidelsky (CB)]

My Lords, I am happy to add my name to the group of amendments in the name of the noble Baroness, Lady Chakrabarti, in perhaps a more crusading spirit than the noble Lord, Lord Anderson.

If asked, most people would say that the most important principle in our legal system is that a person is presumed innocent until proven guilty. They would be surprised, and should be alarmed, by the extent to which this principle has been steadily eroded in our legal practice, of which this clause is a good example. As the clause stands, a defendant would have to prove in court that they had a reasonable excuse for committing the offence specified in Clause 1(1)(a).

Our amendment is designed to ensure that the police must prove in court that the defendant had no reasonable excuse for committing the offence. In other words, the police would need to prove that A and B, charged with walking down a street linking arms, had no reasonable excuse for doing so. As the burden of proof will fall on the police, they are less likely to arrest and charge people indiscriminately without a reasonable cause for doing so.

It is a very important point. The effect of this amendment will be to diminish the number of people detained and arrested for no offence. If we can achieve that, it will be an important thing to have done.

[Baroness Blower (Lab)]

My Lords, my noble friend Lord Hendy has added his name to Amendment 60. In his unavoidable absence, I will speak to that amendment in words which are largely his, although I support and endorse all the amendments in this group.

The purpose of Amendment 60 is simple: to make more effective the protection the Government intend to provide for those with a reasonable excuse or those engaged in a trade dispute in the current version of Clause 7. I will focus specifically on trade disputes, with which I have some affinity.

By way of preliminary, it should be noted that the phrase

“in contemplation or furtherance of a trade dispute”

originated in the Trade Disputes Act 1906. It is now found in the Trade Union and Labour Relations (Consolidation) Act 1992, where is also found the definition of a trade dispute. For the purposes of today’s debate, it is sufficient to say that trade disputes encompass disputes over terms and conditions of employment and certain other industrial relations matters.

As drafted, Clause 6 recognises that obstruction or interference, which constitute the offence in subsection (1), may well be applicable to those picketing in the course of a trade dispute. Clause 6(2) seeks to exclude pickets from being found guilty of the subsection (1) offence. However, the way the subsection is drafted means that a person in such a situation, as we have heard, may be arrested, charged and brought before the court. It is only when presenting their defence that the trade dispute defence will achieve the protection afforded by the Bill.

Those who have signed this amendment and the rest of us who support it hope that, if someone is acting in contemplation or furtherance of a trade dispute, they will not be liable, as we have heard from the noble Lord, Lord Paddick, to be arrested, charged or brought to court for a subsection (1) offence. The defence should kick in before that point.

It is important to bear in mind three points. First, the right to picket in contemplation or furtherance of a trade dispute is a statutory right, now set out in Section 220 of the consolidation Act of 1992 but with its origins in the Conspiracy, and Protection of Property Act 1875. The price of the right to picket was that no protection was given for the offences created by the 1875 Act, such as “watching and besetting”, fascinatingly; nor has it been given for the 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 Trade Union and Labour Relations (Consolidation) Act 1992. This leads to the second point: the amendment seeks only to strengthen the protection against this specific offence; all other potential offences which might occur in the course of a trade dispute remain open to charge. The amendment does not seek to enlarge the right to picket.

The final point is this: a picket in the course of a dispute is not a secret activity; it is not one of which local police will be unaware. The very purpose of a picket—and I can attest to this from having stood on many of them myself—in the words of Section 220 of the 1992 Act is that of

“peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”

To this end, pickets draw attention to themselves, to their union, and to the dispute they seek to further in the hope of persuading others not to cross the picket line. Your Lordships will be familiar with images of picket lines, and over the last few months, perhaps even familiar with actual pickets. The police will have no difficulty in recognising those acting in contemplation or furtherance of a trade dispute long before they, no doubt vociferously, proclaim it.

More than that, under Section 220A, a picket supervisor must be appointed by the union. She or he must be familiar with the very extensive Code of Practice on Picketing, and, most importantly for our purposes, she or he must take reasonable steps to tell the police his or her name, where the picketing will take place, and how he or she may be contacted. The section also requires that the picket supervisor must be in attendance on the picket or able to attend at short notice. She or he must be in possession of a letter of authority from the union which must be produced on demand; significantly hedged about, therefore.

It is right that in the creation of this new offence the Government have not sought to encroach on the protection of the right to picket in industrial disputes, a right which is also protected by Article 11 of the European Convention on Human Rights, and hence the Human Rights Act 1998. This amendment is exceedingly modest: it asks that the protection be made effective by preventing a picket from being charged with a new offence.

[Lord Balfe (Con)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Blower, and even more of a pleasure to reflect on the words of our good friend, the noble Lord, Lord Hendy. Before he came into this House, I do not think that we had quite the same level of wisdom and knowledge about the details of trade union legislation.

I too rise to ask that the Minister gives serious consideration to accepting Amendment 60; all it does is make it quite clear that a person, picket or trade union does not commit an offence under the clause by removing the words:

“It is a defence for a person charged with”—


they should not ever be “charged with”. This is a perfectly legitimate action undertaken by people in pursuance of a trade dispute, and quite reasonable. So I ask the Minister to look very carefully at Amendment 60, and when it comes back, to see whether this amendment cannot be accepted, because it is a very sensible amendment.

One could make virtually the same speech on many of the clauses in the Bill. I do wonder: what are we trying to achieve? Most of the things in the Bill are already offences. If we have a problem, it is that the police do not seem to think that it is worth prosecuting them—of course, we saw in the last few days that glorious picture of 11 rather bewildered policemen standing in the middle of the M25, gazing at a gantry.

This is not a sensible way to make laws; I am not sure that it appeals even to the Daily Mail. A lot of the Bill is reflex action stuff. It is man-in-the-pub stuff: “Oh, we don’t like this”—of course we do not want people to stick themselves to the pavement, but the law already exists. Between now and Report, I ask the Minister to have a very careful look at what we are trying to achieve, whether the Bill achieves it and, in particular, Amendment 60 and the Bill’s effect on the trade union movement—I probably should have declared that I am the president of a TUC-affiliated trade union —and its many voluntary workers who spend their leisure time trying to improve the lives of their colleagues. Please can the Minister have another look?

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[Lord Macdonald of River Glaven (CB)]

My Lords, as a former prosecutor, I commend Amendment 6 to the Minister. I have no doubt at all that a definition along the lines of that pressed by the noble and learned Lord, Lord Hope of Craighead, would be of assistance to the police in judging their response to these sorts of events. A definition would certainly be of assistance to prosecutors in coming to a determination about what the appropriate charge is. It would assist judges in summing up cases to juries, and it would certainly assist juries in coming to fair conclusions by judging the conduct of defendants against an intelligible definition. If we do not have a definition, the danger is that people will be more at sea than they need be.

I have one other point. People who are proposing to go out and demonstrate are entitled to understand and to be able to predict with some confidence whether what they are proposing to do will be lawful or unlawful. This is an important aspect of the rule of law: that the law is predictable and the consequences attendant on the behaviour that demonstrators seek to engage in are predictable. This important aspect of the rule of law is clearly undermined by a lack of certainty in the Bill in the absence of a definition of one of its most important concepts—that of “serious disruption”.

[Baroness Blower (Lab)]

My Lords, my noble friend Lady Chakrabarti is unable to be in her place for this group, which affords me the opportunity to speak to Amendment 23, which would include in the Bill a definition of “serious disruption”—a single definition, in contradistinction to the ideas proposed by the noble and learned Lord, Lord Hope.

Much turns on this phrase; it appears a grand total of 132 times, acting as a core component to several new and extremely broad criminal offences. As things stand, the consequence of “causing or contributing to” serious disruption of varying kinds could result in a prison sentence, unlimited fines or a variety of conditions imposed through what many are calling protest banning orders, including GPS ankle tagging, bans on internet usage, prohibitions on associating with certain people and, again, imprisonment—yet, as we all now know, nowhere in the Bill is “serious disruption” defined.

The former Minister, Kit Malthouse MP, claimed at Second Reading in the other place that

“the phrase ‘serious disruption to the community’ has been in use in the law since 1986 and is therefore a well-defined term in the courts, which of course is where the test would be applied under the legislation.”—[Official Report, Commons, 23/5/22; col. 106.]

I am afraid that I do not think that explanation suffices. The test to which the former Minister refers is that set out in the Public Order Act 1986, which is now almost four decades old. It relates to the imposition of conditions on public procession, assemblies and one-person protests. This Bill is very much wider, and that framework does not necessarily neatly map on to what is before the House today.

I add that it is surprising that the Government should be content to allow legal uncertainty and let the courts, through lengthy and expensive litigation, rather than through Parliament, set the parameters of what actions they wish to criminalise. The lack of a definition of serious disruption in the Bill is an obvious and, in my view, critical deficiency and one which Members on all sides of this House and those in the other place have identified on several occasions.

The Joint Committee on Human Rights remarked in its report:

“It is unclear who or what would need to be seriously disrupted, what level of disruption is needed before it becomes serious and how these questions are meant to be determined by protesters and police officers on the ground—or even the courts.”


At Second Reading, the noble Lord, Lord Anderson, made apt reference to both the Joint Committee report and the evidence to the other place from West Midlands Police, who called for

“as much precision … as possible”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 58.]

in defining serious disruption. The noble Lord, Lord Hogan-Howe, who has much experience of police operations in response to protests through his time as Metropolitan Police Commissioner echoed this call for clarity. In another place, Sir Charles Walker condemned the overall thrust of the Bill, no doubt worsened by this vague and all-encompassing term, calling it “unconservative”.

Therefore, it was heartening to hear at Second Reading the Minister recognise the House’s “strength of feeling” on this issue and that

“a clear definition could bring benefits”.—[Official Report, 1/11/22; col. 204.]

This amendment would deliver such benefits, giving legal certainty and precision to what are otherwise vague and, frankly, highly draconian offences. It does so by clarifying that before the Bill’s offences are engaged, significant harm must be caused to persons, property or, per the Public Order Act 1986, the life of the community. It sets the bar at an appropriately high level, stating that “significant harm” must be

“more than mere inconvenience, irritation or annoyance”.

The example of people joining arms to walk down the street has already been given, so I will not repeat that. Under the amendment’s proposed definition, these ordinary everyday behaviours would be rendered safe from undue criminalisation. The definition also requires that significant harm must be

“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence, provided for under this Act.”

We have seen the police exercise existing powers inappropriately and disproportionately—I will not go into the case of Charlotte Lynch yet again, but it is one such.

This amendment is designed to prevent the future misuse of any new offences and powers created. Its benefits are threefold, giving guidance to the police in exercising their powers; safety to the public, who should be free to enjoy their right to protest free from prosecution; and clarity to the courts when they must interpret the law.

The criminal law acts as a powerful and coercive tool by which dividing lines are set between conduct Parliament has deemed acceptable or unacceptable. As the former senior Law Lord and eminent jurist, Lord Bingham, posited in the 2003 case, R v H and the Secretary of State for the Home Department, its purpose is

“to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society”.

Clear definitions are therefore indispensable, for without them, how is the public expected to understand what is proscribed, from what they are being deterred or what Parliament has concluded is sufficiently damaging to the interests of society?

I strongly believe that the Bill should be voted down in its entirety. It represents a dangerous and authoritarian boost to the state’s power to curtail the vital right to protest peacefully. However, this amendment’s definition would go some way to remedying one of the Bill’s many critical flaws. I therefore commend it to the House.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak to the amendments in my name and the name of my noble friend Lord Coaker. This debate has been about the threshold for committing an offence, the meaning of the phrase “serious disruption”, which is not defined in the Bill, and the need for the intent of an offence for an offence to be committed. The key overarching issue is the drafting of good law and not broad, poorly defined offences and powers which the police then have to try to navigate.

I turn first to Amendment 3, as drafted and recommended by the JCHR. It would change that threshold to causing serious disruption to the life of the community. This is supported by the National Police Chiefs’ Council, which in its written evidence stated

“In addition, 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.”


In the Commons Committee stage, the Minister, Kit Malthouse, referenced disruption to the life of the community as the threshold for the offence of locking on. He said that some behaviour

“would not necessarily cause serious disruption to the life of the community, and would therefore not necessarily constitute an offence under the Bill.”—[Official Report, Commons, Public Order Bill Committee, 14/6/22; col. 93.]

So it seems that the Minister already agrees that there may be a more appropriate threshold.

Moving on to Amendment 17, this is a JCHR recommendation that goes hand-in-hand with Amendment 3 to provide a definition of serious disruption to the life of the community in the Bill. I recognise that the noble Lord, Lord Anderson, has jumped ship and is supporting the noble and learned Lord, Lord Hope. I reserve my judgment; I may do the same at a later stage but, for the moment, I will press ahead with Amendment 17. It is one option, as drafted by the JCHR. It replicates the definition eventually added by the Government to the PCSC Act but, as we have heard, this group contains multiple possibilities for how the necessary level of disruption could be appropriately and clearly defined.

Turning again to the evidence submitted by the National Police Chiefs’ Council, it has requested clarity to allow it to respond operationally, saying:

“Within public order legislation ‘serious disorder, serious damage to property and serious disruption to the life of the community or intimidation of others’ is a key phrase. The elements of serious disorder, serious damage and intimidation are accepted and clear. However, the term ‘serious disruption’ has been subject to much discussion and debate. Within any new legislation we would welcome clarity or guidance about the threshold and interpretation of this to allow operational commanders to best apply their operational responses.”


This amendment is about clarity, as well as passing laws that can be easily understood by both the public and the police.

Amendment 23, spoken to very powerfully by my noble friends Lady Blower and Lord Hain, would provide a definition of serious disruption as actions

“causing significant harm to persons, property or the life of the community.”

It specifies that serious harm must mean

“more than mere inconvenience, irritation or annoyance”

and be action

“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence”

provided here. I support that amendment as well.

Amendment 54 is again a JCHR recommendation. It adds, first, a threshold of causing serious disruption, and secondly, a requirement that there was an intent to cause serious disruption to the offence of obstructing major transport works. The JCHR said that

“there is no requirement that the offending conduct could be capable of causing significant disruption and there is no requirement that these actions be carried out with any particular intention of causing obstruction or disruption. This means that inadvertent actions could result in arrest or even a criminal penalty.”

Across this group of amendments, the question of intent is integral to the debates that we have been having. The question of whether it is intended or reckless is really key to these debates. Can the Minister say something more about what recklessness covers? It is a phrase that is used in many other aspects of law, but how will the police be expected to prove that a person has been acting recklessly or not?

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Amendment 61 similarly seeks to strengthen the defences available. As I have said, whether someone has a reasonable excuse for their actions is very specific to each incident.

[Baroness Blower (Lab)]

Before the arrival of the Minister in the Chamber, the noble Lord, Lord Sharpe, said that he would return to my point about picketing in the response to this group of amendments. Clearly this is what is happening now. However, I am afraid I did not really understand what the Minister was putting to us about other things in the Bill. Could he recap a little on what is intended by

“furtherance of a trade dispute”

in that context? I am sure it is entirely my own fault, but I just did not understand this.

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[Lord Murray of Blidworth (Con)]

Clearly, the provisions of the locking-on offence do not expressly contain the same provision. Therefore, it is correct to say that the Bill envisages a defence for the involvement in industrial disputes in relation to key national infrastructure, but there is no need for such a like provision in respect of locking on. I will obviously clarify that with my officials and respond to the noble Lord in on that.

[Baroness Blower (Lab)]

I just seek some clarification. In response to the speech I made earlier about picketing, and since there is no intention in Amendment 60 to expand picketing, or any rights in relation to picketing, is the Minister therefore saying that, on everything that has been permitted by law in terms of picketing—which is already hedged with quite a lot of regulation and requirements—there is no intention in this Bill to make any alteration to the lawful carrying out of picketing in furtherance of a trade dispute? I believe that is what I am hearing the Minister say, and I hope that is the case.

[Lord Murray of Blidworth (Con)]

Can I confirm with my officials and write to the noble Baroness in respect of that point? My understanding is that that is so, but I want to check that before I confirm.