Public Order Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

1: Clause 1, page 1, line 5, at end insert “without reasonable excuse”
Member's explanatory statement
This amendment makes the lack of a reasonable excuse a component part of the offence of locking on, thus placing the burden of proof upon the prosecution.

[Baroness Chakrabarti (Lab)]

My Lords, I will rise slowly to allow the mass exodus from the Chamber of noble Lords who are fascinated by the civil liberty implications of this terrible draft legislation. The exodus is nearly, if not quite, complete.

I have the unhappy duty of opening the first detailed debate on this Bill, which has so many problems. One of them is that it criminalises innocent, legitimate activity in a way that is so vague and broad it risks a great deal of potential injustice. It is really not appropriate for legislators in either place to allow this kind of shoddy work to pass, risking the liberties of our people, many years into the future.

[Lord Foulkes of Cumnock (Lab Co-op)]

I am sorry to interrupt at such an early stage. My noble friend rightly said that she has the unhappy duty to move this amendment. It is astonishing that we are considering the Bill and these amendments today. My noble friend has been very much involved in the detailed discussions in relation to the Bill. In view of the outright opposition, right across the country, to some of the provisions in the Bill, have the Government given my noble friend any indication that they propose not to proceed with the Bill? It is outrageous that we continue to consider these details and amendments, and I am sure that my noble friend would agree with me. Surely the Government have had second thoughts on this by now.

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[Baroness Chakrabarti (Lab)]

I am grateful, as always, to my noble friend, who has been a parliamentarian of distinction in both Houses, over many years, and who cares a great deal about our constitutional climate and integrity in this country. I regret to inform him that I have heard no such cause for comfort or indication of any reflection on the part of the Government in relation to the Bill. I agree with my noble friend that that is a matter of enormous regret. As it happens, I have not heard even a hint of potential listening or movement around the Bill’s detail, let alone what my noble friend and I would prefer, which is that this terrible attack on British liberty is dumped by a Government who have seen reason.

A case in point is the new proposed criminal offence of locking on. As noble Lords will remember, a person commits this offence if they

“attach themselves to another person, to an object or to land … attach a person to another person, to an object or to land, or … attach an object to another object or to land”.

That is very vague and broad. The Bill also says that a person commits this offence if

“that act causes, or is capable of causing, serious disruption”—

it does not define this—

“to … two or more individuals, or … an organisation”,

and if they “intend” the act to have that disruptive consequence or

“are reckless as to whether it will have such a consequence.”

By the way, noble Lords in the Committee will remember the rather colourful and entertaining speech of my noble friend Lord Coaker when these provisions came this way the first time, before the current reheated version. It was either my noble friend Lord Coaker or my noble friend Lord Kennedy who talked about two people linking arms as they went down the road together. It was a rather colourful example of the two of them linking arms and going down the road together, which caused some amusement on all Benches in your Lordships’ House—they would perhaps take up a bit of space, if I can put it like that. But the idea that that simple, innocent act would potentially be impugned by an offence of the breadth that I have just set out is not a laughing matter, despite the amusing example.

The only crumb of comfort that the draftsmen and policymakers in the Home Department have offered is a defence—not part of the criminal offence itself—if the person charged proves that they had a “reasonable excuse” for this attachment, be it human to human, bicycle to railings or whatever. So the burden is put upon the accused person, rather than residing where it should in our criminal law: with the prosecution.

This is a terrible offence. The principle of burden flipping—reversing the burden of proof—is in relation to the new proposed offence of “locking on”, but it is present elsewhere with other offences. I object per se to reverse burdens; they are inherently very dangerous. They are sometimes necessary, but, when they are necessary, the actual conduct being impugned must be very tightly limited. It would be one thing to have an offensive weapon without a “reasonable excuse”—because you can license the holding of offensive weapons; that would make sense to me—but it does not make sense to include attaching yourself “to another person” or to property, linking arms with your chum, attaching your bicycle to railings, et cetera. These are all examples of conduct which can be potentially impugned by this criminal offence, and for which one could go to prison for nearly a year. This is totally outrageous and unacceptable.

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[Lord Sharpe of Epsom (Con)]

My Lords, I think I have already gone into that. As I say, the Bill creates another set of offences designed to deal with evolving protests, but I will come back on the specific point about the PCSC Act.

[Baroness Chakrabarti (Lab)]

My Lords, I am almost speechless. I do not blame the Minister, but those briefing him really need to consider what we have been discussing today; we are talking about the rights and freedoms of people in this country, and it is a very serious issue.

I thank all noble Lords who have participated in this debate on the first group. I particularly thank the noble Lord, Lord Paddick, for, as always, bringing his policing expertise as well as his parliamentary skills to the debate. I also thank him for mentioning Charlotte Lynch, the LBC journalist who was arrested last week beside the M25 with a valid press card and with a microphone that was clearly branded with the name of her broadcaster. She offered her press card to the police, who then slapped handcuffs on her. They took her mobile phone from her and started scrolling to see who she might have been speaking to. Perhaps she had been tipped off about the protest by protesters; that is what journalists do in a free society. She was subjected to a body search and taken to Stevenage police station. She was detained in the police station in a cell with an open toilet and a simple bed for five hours, and was eventually let go without a police interview. Records show that they arrested her for the offence of “conspiracy to cause a public nuisance”. That happened under the existing law.

Now, without addressing concerns about incidents of that kind, and in the wake of what happened to Sarah Everard and all the crises there have been in public trust in policing in this country, the Government are proposing this suite of new offences—yet the Minister has not been able to identify the gap that those offences are supposed to address. That is a matter of considerable concern—a concern which was mentioned by almost every speaker in this debate, with the exception of the noble Lord, Lord Horam, and the Minister himself. The noble Lord, Lord Horam, called for clarity in the law, but I am afraid I was not totally clear which provisions or amendments he was addressing.

The noble Lord, Lord Anderson of Ipswich, gave a master class on issues of burdens of proof and reverse burdens, which are sometimes used in law. However, I remind the Minister that, when they are used in law, it is in relation to very tight offences that are problematic per se, such as carrying a blade or point in a public place. Most members of the public understand that that is not innocent activity; it is incumbent on somebody to explain why they needed to be carrying that knife in the street. That is not the case with carrying a bicycle chain or linking arms with a friend. That is innocent activity per se that is rendered criminal in certain circumstances, and so it is particularly dangerous to flip the burden of proof. Further, on the point made by the noble Lord, Lord Paddick, it is essential that the person should be able to say to the police officer before they are arrested—not seven hours later, in Stevenage police station—that they have a legitimate reason for what they have done. I ask the Minister to think about Charlotte Lynch when he reflects on the powers that he is being asked to justify by others in this Chamber.

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[Lord Balfe (Con)]

I suggest to my noble friend that it also leads to juries being less and less likely to convict because they see these offences as being very spurious.

[Baroness Chakrabarti (Lab)]

I could not agree more with the noble Lord, Lord Balfe. Again, it echoes something that the noble Lord, Lord Carlile of Berriew, said. He will forgive me if I summarise his excellent contributions: let us not bring the law into disrepute—not in this place. We are not an elected House, but we are a scrutinising Chamber; we have the time and expertise to make sure that we do not bring our statute book into disrepute. That is where we agree, across the Benches and across this Committee.

I totally agree with the noble Lord, Lord Macdonald of River Glaven, that having proportionality in our law is not a problem; it is a benefit. Ministers should not work so hard to squeeze out the judgment and proportionality that must be employed by decision-makers, including police officers and courts.

I will stop there, save to say once more to the Minister that he has not been well served in some of his briefing. Respectfully, it is perfectly legitimate for Members in this Committee to begin by asking the Government to justify why they are legislating and where there is a gap in the existing law, because that central point has not been addressed in this hour of debate. If we do not address it, there will be more cases like that of Charlotte Lynch, and others who are not journalists—in some cases they are bystanders and in some cases they are peaceful dissenters. There is plenty of police power on the statute book and some of it has been abused. There are plenty of criminal offences and some of them have not been used when perhaps they might. It really is for the Government to justify interfering further with the spirit of British liberty. With that, I will—for now only—beg leave to withdraw my amendment.

Amendment 1 withdrawn.