Public Order Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

I do not claim to have found the perfect solution; my aim is to invite the noble Lord and his Bill team to recognise the importance of providing a definition. If they agree with the suggestion that it is important to do so, and if my amendments are not acceptable, I invite them to come up with a more suitable, or perhaps more proportionate and carefully phrased, set of amendments than I have put forward. I hope I have made my position clear; it is about the meaning of words, which are of particular importance when one has regard to the significance of this particular phrase with which my amendments are concerned.

[Baroness Jones of Moulsecoomb (GP)]

I cannot sit still any more. I am starting to feel sorry for the Minister, who is on a very sticky wicket because this is clearly rubbish legislation. I do not understand how it got through or who directed the civil servants to write it. It is absolute rubbish. We have heard all of the arguments about how it is so broadly written and will criminalise too many people—many more than the peaceful protesters whom the Government are trying to target. I just wonder where the idea came from. This is so right-wing; it is not an appropriate Bill for a democracy.

The noble Lord, Lord Paddick, has beautifully laid out the lack of a definition of “serious disruption”, and I cannot better that. But, for example, what about arresting the Government for serious disruption to the NHS over the last 12 years? I would support that. But we would obviously have to know exactly what “serious disruption” meant.

The criminal courts in this country are crumbling and cannot cope with the number of cases that they have at the moment. Yet here the Government will insist on more cases, sometimes on very specious grounds, which will clog up the courts even more and make life even more difficult for people who care about justice and law. I beg the Minister to meet with some of the more learned noble Lords here and perhaps start either to clarify the Bill or to scrap it altogether.

[Lord Carlile of Berriew (CB)]

My Lords, I will make a very serious request of the Minister, who is dealing with this difficult Bill with great courtesy and who is very amenable to comment, even if he disagrees. I ask him to take the trouble, before he replies to this debate, to read Section 78 of the Police, Crime, Sentencing and Courts Act 2022—it is only one page, and I will lend him my iPad if he needs it. In this country, we have training for magistrates and judges, which is provided by the Judicial College— certainly for judges; indeed, I see the noble Lord, Lord Ponsonby, nodding that this is the case for magistrates as well. One of the reasons why this training is provided is to ensure consistency between courts around the country.

If there are two sets of legislation—this Bill and Section 78 of the 2022 Act—the Government cannot control who charges whom with what. It is quite likely that, in “Lonechester”, the police will charge someone who glued themselves to the passageway of the cathedral with this new law, while in “Scuddersfield” they will charge them with Section 78 of the 2022 Act. They are quite different: the Bill is basically a summary trial on these offences and has very low sentencing powers, but the 2022 Act, which we have already passed, has a maximum sentence of 10 years’ imprisonment, as the noble Lord, Lord Paddick, said. We cannot expect police officers to know these differences when they are busily rushing around trying to save the public from being stuck on the M25 for seven hours. But they can expect the law to make life easier for them by ensuring that it has that consistency. At the moment, we are breaking the rules which we generally set ourselves to scrutinise legislation so that we do not create ambiguity and inconsistency. In the context of what we are discussing now, nothing in the Bill is not covered under Section 78 of the 2022 Act, which has already had the scrutiny of your Lordships’ House.

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Moved by

[Baroness Jones of Moulsecoomb]

5: Clause 1, page 1, line 15, at end insert—
“(1A) In this section, “attach” means to connect by mechanical means, and does not include circumstances where persons, objects or land are merely touching, holding or being held, or seated or placed upon each other.”Member’s explanatory statement
This amendment probes the definition of “attach” in the Clause 1 offence of locking on, and whether it includes for example holding hands or sitting down.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am not going to describe all the amendments in this group. I am hoping that noble Lords will introduce their own.

I have one point to make about the arrest of Charlotte Lynch. I had the dubious pleasure of sitting on a panel with David Lloyd, the PCC for Hertfordshire, who seemed to suggest that it was the journalist’s fault and that journalists should not report on protests. He believed in a free press, but not always, so I was slightly worried about the Minister’s reaction, but he said that he used the wrong word.

All these offences deserve to be probed because they are so badly drafted, so broadly drafted, that we cannot be sure what they mean. For example, the Bill names the offence of locking on, but the definition is much broader. The Bill talks of a person attaching themselves or an object to another person, another object or land. What does “attach” mean? Does it mean people linking arms or holding hands? What if they were tied together by a ribbon with a loose bow that you could undo? Would that be attached? Exactly what does it mean? If it is easy to remove the attachment, does it count? Is it still criminal? It seems that these offences are absurd. I do not understand where the threshold is for criminal conduct. It makes the whole Bill worthless if we cannot be sure what it means, and certainly the courts are going to have a field day with this. I beg to move.

[Lord Beith (LD)]

My Lords, the noble Baroness has raised the absurdity of the locking-on offence and the problems that will arise, which are addressed by some of the amendments in this group.

I want to introduce the Minister to an issue he may not be familiar with—perhaps it does not happen in his part of the country. Quite a lot of young couples go about carrying padlocks. Why do they do that? It might not be immediately apparent to a constable that they are wishing to pledge their lifelong devotion to each other. They go to a place such as the High Level Bridge in Newcastle, and they attach the padlock to the bridge; they then throw the key into the water. Explaining that that is what you are about to do might be pretty difficult when your average police constable says that you are carrying a padlock, obviously intending to lock on to somewhere. But they do not lock on to anything—except perhaps each other, and they might be caught by that, as the noble Baroness just pointed out. That is simply one example.

Another obvious example which has been raised by noble Lords before is that of bicycle padlocks. People have to carry them whenever they are going to use their bicycle. Again, these are pretty obvious cases for the locking-on offence as the Government have conceived it.

These are things that just happen in ordinary life. When you compound the offence created in the Bill with the offence of obstruction of a constable, you can see really difficult situations arising, where citizens with no intention of creating serious disruption are nevertheless caught because they are carrying such things in the vicinity of somewhere where serious disruption might be about to arise, or might be known to be about to arise.

I really think that the Government have got to clean up this Bill if they want to proceed with it, and remove from it things that drag ordinary citizens into conflict with the criminal law when they have no criminal intent at all—and do not need to have for the purpose of some of these offences—and are not involved in serious protest. Serious protest is itself, of course, an often justifiable activity, as the courts have demonstrated in some recent cases. Quite apart from the problems faced by those who want to engage in legitimate protest, we should not be passing legislation that simply confuses ordinary citizens as to what they are allowed to do.

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[Lord Sharpe of Epsom (Con)]

My Lords, I am afraid I do.

[Baroness Jones of Moulsecoomb (GP)]

I thank all noble Lords who have contributed to this debate. I have really enjoyed it and I think we are expecting some better answers in the future. The Minister said something about probing us on what we thought, but it is our job to probe him about what this legislation means. So far, it is not coming out very well.

Personally, I hope it gets thrown in the rubbish bin because, quite honestly, we are spending an awful lot of time and energy debating it when we know it is awful. It is not as if we can see a glimmer of hope that it might solve some problems. The Minister talked about the damage and disruption that these protesters are doing. In fact, the Government have done more damage and disruption to our social fabric than XR, Insulate Britain or Just Stop Oil could ever do. They have had 12 years and made the most horrendous mess.

Getting back to the Bill, the Minister did not answer my question about “attach”. I still do not know what “attach” means. I am happy to wait and hear a longer answer, if he has one, on another occasion.

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Moved by

[Baroness Jones of Moulsecoomb]

9: Clause 1, page 1, line 18, at end insert—
“(2A) It is a defence for a person charged with an offence under subsection (1) that their actions were likely to avoid greater disruption or were otherwise in the public interest.”Member's explanatory statement
This amendment creates a defence for actions that are in the public interest or which avoid greater disruption.

[Baroness Jones of Moulsecoomb (GP)]

Again, I will just talk to my two amendments. The noble and learned Lord, Lord Hope, and I are probing the Government from both ends with our amendments. I am probing on the basis that the offences are so broadly drawn that they require equally broad defences to protect innocent people from being criminalised. I imagine that the noble and learned Lord is being rather more forgiving on the drafting of the offence, and therefore trying to ensure that it works by not making the defences overly lenient. I am happy to be corrected, but both perspectives can be true. That is why the drafting is so bad. These issues will not just detain us here—she says, bitterly—but will create hours, days and weeks of legal arguments in the courts, which is very much to be avoided.

There is an opportunity in this legislation which I might explore later: that fossil fuel companies and other environmentally destructive actors could be prosecuted and convicted for locking on. For example, if a fracking company attaches a drilling rig to land, that potentially causes serious disruption to two or more individuals. It could leak or cause earthquakes; it could contribute to climate change, or two people might have wanted to walk through that field but now there is a rig in the way. Local people could be seriously inconvenienced by having to protest against the fracking rig, rather than pursuing their hobbies such as birdwatching.

The Government probably do not mean to criminalise fracking and other oil and gas extraction, but this is a logical consequence of such broadly drafted offences. I rather suspect that people such as those at Greenpeace or the Good Law Project might enjoy some time in court with private prosecutions of that kind. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to my Amendments 11, 30, 34, 41, 57 and 63. That may seem a bit of a mouthful but they are all in exactly the same terms. They refer to the reasonable excuse defence in Clauses 1, 3, 4, 6 and 7. Perhaps I should preface my remarks, particularly in the light of the comments made by the noble Baroness, Lady Jones of Moulsecoomb, by saying that I very much subscribe to the view that these measures are not needed at all. These are laws we do not need and they may cause confusion, but I have to take the Bill as it is. I am making my remarks with reference to the Bill as we find it, not as I would like it to be.

The Constitution Committee examined the phrase “reasonable excuse” and its implications, and said that it is

“constitutionally unsatisfactory to leave to the courts the task of determining what might be a ‘reasonable excuse’ without Parliament indicating what it intends the defence to cover”.

There are two points in particular: first, it invites argument over whether certain, but not other, political motivations might constitute an excuse—how serious they are and their consequences, and so forth; secondly, and perhaps even more important, is whether the defence of reasonable excuse should be available at all in cases where serious disruption has been caused. This is exactly the other side of the argument that the noble Baroness put forward a moment ago. The committee’s recommendation was that unless a precise definition of reasonable excuse is provided, the defence should be removed from Clauses 1, 3, 4 and 7 altogether.

The point is really this: if the wording remains in the Bill as it is, it opens the door to arguments that bodies such as Extinction Rebellion and Just Stop Oil use to justify their actions. I recall the lady who was sitting up on a gantry when she was interviewed on television. With tears in her eyes, she said, “I know I’m causing terrible disruption to many people”—you could see all the cars stuck behind the police cordon—“but I’ve got no alternative. Look at the serious disruption that climate change is giving rise to; that’s my case. We’ve got to do something about it, so I don’t mind how much disruption I cause to however many people because I’ve got to get that message across.” The problem with the reasonable excuse defence is that it opens up that kind of argument.

The committee’s recommendation was, as I say, that unless a precise definition is provided it should be removed. My amendments propose that the question

“is to be determined with reference to the immediate interests or intentions of the individual, not any public interest which that person may seek to invoke”.

The immediate interest point would cover the case of the journalist Charlotte Lynch, who was arrested by the police. In her position, she could obviously say that as a journalist she was doing her job. That would undoubtedly be a reasonable excuse if she was having to defend a charge in this situation, and one could think of many other examples, so the opening words of my amendment are designed to deal with people of that kind. But they are intended to meet the very point on which the noble Baroness, Lady Jones, focused on so clearly: the position of protesters who are protesting because of climate change, for example, or other big public interests that people feel it necessary to protest about.

There are various problems with leaving the words as they are. The offences described in Clauses 1 and 6 are to be tried summarily before magistrates. I am conscious that the noble Lord, Lord Ponsonby, is here with his experience but I suggest that leaving it to magistrates to decide whether a particular public interest excuse is reasonable, without any guidance from Parliament, is not satisfactory. There is a risk of inconsistent decisions between one bench of magistrates and another but there is another problem, too. These arguments, if they are to be raised in a magistrates’ court, may take up a great deal of time. I have heard at second hand of a case where one of these issues was raised in a magistrates’ court and it took hours and hours as people deployed their arguments. The magistrates’ courts are not equipped for that kind of interference in their ordinary business, so one has to have regard to the consequences of leaving it to them to decide issues of this kind. That important factor needs to be borne in mind.

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[Lord Murray of Blidworth (Con)]

I thank the noble Lord for his intervention. The short answer is that these cases are always going to be fact-specific. If there was a serious disruption in a London Underground tunnel, I suspect that there would potentially be many offences being committed other than those under this Bill. As my noble friend Lord Sharpe has already said, this situation will be considered and we will come back to the noble Lord. I invite the noble Baroness to withdraw her amendment.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I thank all noble Lords who have contributed. I enjoyed the critique of reasonable defence from the noble and learned Lord, Lord Hope, and I was delighted that the noble and learned Lord, Lord Judge, has come into the debate. However, I ask both of them not to be helpful to the Government—I just want to vote against everything in this Bill and they are making it difficult.