Public Order Bill

Baroness Chakrabarti Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, in moving Amendment 110 in my name, I will speak also to my Amendments 111 to 113 and 116 and the other amendments in this group. These amendments are about a power to be given to the Secretary of State to bring civil proceedings to curtail or prevent protest, including potentially with a power of arrest attached, if the Home Secretary “reasonably believes” that activities are causing or likely to cause disruption to the use or operation of any key national infrastructure or have a seriously adverse effect on public safety in England and Wales.

Amendments 110 to 112 in my name would increase the evidential test to

“has reasonable grounds for suspecting”

to ensure that the Secretary of State has to set out before the court the exact evidential grounds for her application. In meetings with the Minister and officials on the Bill, it was explained that protests could affect a number of different operators or local authorities and that it would be in the public interest to have an overarching injunction in such cases.

The HS2 nationwide injunction seems to prove that such an overarching injunction is available to those concerned without the intervention of the Secretary of State but, in any event, Amendment 113 is designed to ensure that the power is used if, and only if, it is not reasonable or practical for a party directly impacted by the activity to bring civil proceedings, and to ensure that the Secretary of State does not use the power where any party directly impacted does not consider such proceedings to be necessary. My Amendment 116 is designed to ensure that a power of arrest cannot be attached to an injunction simply on the basis that the conduct is merely

“capable of causing nuisance or annoyance”.

This is in Clause 18(2)(a), which the amendment removes from the Bill.

We wholeheartedly support the additional checks and balances proposed by the noble Baroness, Lady Chakrabarti, in her Amendments 114 and 115. I beg to move Amendment 110.

[Baroness Chakrabarti (Lab)]

My Lords, during Second Reading a number of noble Lords, including those who do not share my views of the Bill more generally, expressed significant scepticism about the new Clause 17 provision for the Home Secretary to bring civil proceedings against protesters, instead of being brought by directly affected oil, gas or transport companies, and so on. I share these concerns at the politicisation of both policing and civil disputes, and therefore oppose Clause 17 standing part of this Public Order Bill.

Not only is it constitutionally dubious for a politician to be standing in the shoes of the police in relation to the criminal law, or of affected companies in relation to the civil law; it also raises questions about this use of considerable sums of taxpayers’ money in expensive litigation that could and should be brought by those who profit from fossil fuel or other carbon-intensive development, and no doubt factor legal fees into their budgeting. The lack of transparency required by the new Clause 17 also brings a risk of corruption, in the event that the relevant firms should choose to donate to or otherwise “promote” a Home Secretary amenable to seeking civil legal proceedings on their behalf.

It should be noted that under Clause 17(5), the Secretary of State must only

“consult such persons (if any) as the Secretary of State considers appropriate, having regard to any persons who may also bring civil proceedings in relation to those activities.”

No transparency in the Secretary of State’s discussions, or non-discussions, with these “persons”—namely, large companies—or consideration of why they should not finance their own legal proceedings, is required. Never has the word “must”, in a provision supposedly creating a duty upon a Secretary of State to consult, constituted such a toothless tiger or illusory protection from the potential abuse of public money and political power.

In addition to supporting the amendments proposed by the noble Lord, Lord Paddick, I propose Amendments 114 and 115, which would create safeguards against corruption and abuse. They require the Secretary of State to publish the reasons for any decision not to consult; the results of any consultation; any representations made to the Secretary of State as to a proposed exercise of the new power; an assessment of why other parties should not finance their own proceedings; and assessments of why any proceedings have been brought by the Secretary of State at public expense, rather than by private companies themselves. Such publication will occur both each time an exercise of the power is considered, and annually on an aggregate basis.

Clause 17 is both unnecessary and undesirable. If it really must stand part, so must the vital safeguards previously referred to, but also those in Amendments 114 and 115, which I commend.

--- Later in debate ---

I thank the noble Baroness, Lady Chakrabarti, for tabling her thought-provoking Amendments 114 and 115. I understand that the amendments seek to create a requirement for the Secretary of State to publish an annual report regarding the uses of the powers in Clause 17, containing justifications and explanations for decisions taken in the use of such powers. While I agree with the noble Baroness on the need for checks and balances, I am inclined on this occasion to question the necessity of these amendments. There are currently sufficient measures in place to ensure that the powers granted by Clause 17 are used appropriately and proportionately. It is, of course, always for the courts to review the appropriateness of a civil claim and to grant appropriate relief, and we are satisfied that these are sufficient safeguards. There is also a recognition that civil proceedings are done in public and that the judgment of the court would be available. However, I recognise the intent behind the noble Baroness’s amendment and will consider whether further clarity around the process whereby a Secretary of State may seek to initiate such proceedings could be provided.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for giving way. He made a kind offer to consider this argument; when he is considering it, could he think about transparency versus corruption and the public expense? He has made his arguments about the new co-ordinating role of the Secretary of State, standing in the shoes of a consortium, if you like, of local government, business and central government, but there is still this issue about transparency versus corruption. When he takes this away, will he think about a scenario in which a press baron or an oil baron—whichever noble Baron, or ignoble Baron, it is—says to a Home Secretary, or a putative Home Secretary, “I’m sick of these legal fees, and I think it would be a jolly good idea if the Home Department brought these proceedings against these pesky demonstrators in my shoes”? Will he think about the risks to public trust in the good use of public money that might result if there is not transparency about this new power?

[Baroness Jones of Moulsecoomb (GP)]

My Lords, before the Minister resumes his speech, may I ask him about a word he used? I do not know if I misheard—and I have quite a good vocabulary—but I think he used the word “dubiety”. Does that mean dubiousness?