Public Order Bill

Joanna Cherry Excerpts

Report stage
Tuesday 18th October 2022 Commons Chamber

[Caroline Nokes]

The hon. Gentleman is absolutely right. We need national legislation; we do not want a piecemeal approach or to push the problem to a different area or from one clinic where a public space protection order has been put in place to a clinic where protest may still be legal. It is imperative that we have a coherent national approach and that we protect women from that sort of harassment.

I hope the Minister will confirm what further action the Home Office will take in the event that this new clause falls today. I hope it will be successful; I hope this House can come together and recognise the benefit that the new clause will provide, and that we can make some progress on the issue.

I will speak briefly about the finances. I referred to the cost to a local authority and the hon. Member for Birmingham, Selly Oak (Steve McCabe) indicated that in his constituency it will have been expensive for the council to bring a PSPO forward. Too often, councils face legal challenges from campaign groups with very deep pockets, which are potentially not even funded from this country.

I vividly remember going to a sixth form college just outside my constituency at the start of the summer and talking to the female students there, girls aged between 16 and 18. They talked to me specifically about abortion, because they were scared that they would see their right to access healthcare being eroded. They asked whether I thought the overturning of Roe v. Wade would travel across the Atlantic and impact us here.

At the time I said, “No, I don’t”, but since then I have watched the deep pockets of largely American-funded campaigns opposing our local councils when they seek to bring legal orders to protect women from harassment. How can I now look at those teenagers and say, “Of course the overturning of Roe v. Wade won’t come here. Of course the American influence will not impact your right to access healthcare in this country”? It is about time that this country and this Government were prepared to step up where the United States has stepped back. That is why I will be supporting new clause 11, tabled by the hon. Member for Walthamstow. It is imperative that we send a message to women—I was going to say young women, but it is actually to all women in this country—that we are on their side.

[Joanna Cherry (Edinburgh South West) (SNP)]

I rise to speak to the amendments in my name and the name of the hon. Member for Vauxhall (Florence Eshalomi), which arise from the legislative scrutiny of the Bill by the Joint Committee on Human Rights. They are amendments 28 to 31, 33, 34 to 36, 37 to 40 and 41 to 49, and also amendments 12 to 15, which appear first in the name of my hon. Friend the Member for Glasgow North East (Anne McLaughlin), and 1 and 2.

I remind hon. Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords, and we undertake scrutiny of the human rights implications of all Bills. I speak here in my capacity as the Chair of the Committee rather than in my personal capacity. I have great sympathy for new clause 11—similar measures are being taken in the Scottish jurisdiction—but, as my Committee did not have the chance to consider it, I will not be speaking about that new clause.

The Public Order Bill contains further significant changes to the law on public order in England and Wales, following on from those introduced in the Police, Crime, Sentencing and Courts Act 2022. It is obvious from my accent that I am a Scottish MP. Despite the fact that this law only applies in England and Wales, it is of interest to a lot of Scots, because they come to London to protest—I see the Minister laughing, but it is the truth, and many of us have been doing it for years, since before we were elected to this House.

[Jeremy Quin]

I welcome that. I am a firm believer that we are stronger together and a firm believer in the Union. I always welcome hearing the views of Scots people in London, and indeed of English people who wish to protest in Edinburgh.

[Joanna Cherry]

I suspect the Minister will still hear our views after we become independent, so I would not get too upset about that.

During the passage of the Police, Crime, Sentencing and Courts Bill, the Joint Committee looked very carefully at a large volume of responses and heard from two panels of witnesses about the issue of the public order provisions. The Minister has said the stated intention of the Bill is to strengthen police powers to tackle dangerous and highly disruptive protest, but we think the measures go beyond that, to the extent that we believe they pose an unacceptable threat to the fundamental right to engage in peaceful protest. That was the conclusion of the Committee’s report dated 17 June, in which we proposed the amendments that I am speaking to today.

[Wendy Chamberlain (North East Fife) (LD)]

I wanted to reflect on the point that it is not just about our constituents in Scotland being concerned about the provisions in the Bill. One of the fundamental parts of policing in the UK is mutual aid, so there will be considerations for Police Scotland in relation to the Bill, if it is passed, when we have police officers from Scotland attending protests in other parts of the UK.

[Joanna Cherry]

That is a very good point and I am grateful to the hon. Lady for making it.

It is a matter of regret that when the Government responded to our cross-party report they said:

“Any chilling effect on the right to protest, damage to the UK’s reputation, or encouragement of other nations seeking to crack down on peaceful protest is more likely to arise from the misleading commentary on the PCSC Act and this Bill”

than anything else. No, Minister. That is not the case. The Committee’s conclusions are not misleading commentary. They are the conclusions of a cross-party Committee of this House, informed by evidence from many different sources and advice from our own legal experts on the European convention on human rights, to which, thank God, the UK is still a signatory and which is still enforceable under the Human Rights Act 1998, which seems, thankfully, safe for the time being.

Before I turn to the amendments, I want to quickly make the point that the criminal law and the powers of the police already allow for action to be taken against violent protest and disruptive non-violent protest. That is addressed in detail in paragraph 18 of our report, where we list all the existing provisions under the criminal law of England and Wales that cover the situations about which the Minister says he is concerned. So not only do we think that the Bill is an attack on the fundamental rights of freedom of speech and freedom of assembly, but we believe that it is unnecessary and simply replicating existing law.

Our first tranche of amendments deal with the new offences set out in clauses 1 and 2—the proposed offences of “locking on” and

“being equipped to lock on”.

The purpose of those amendments is to try to water down what we consider to be far too stringent positions. We are particularly concerned about the reversal of the burden proof, putting it on the accused. The purpose of our amendments is to reverse that and put that burden on the prosecution, as is consistent with the presumption of innocence and therefore with article 6 of the ECHR. So amendments 28 to 33 would narrow the scope of clauses 1 and 2 and improve safeguards against violation of convention rights.

We believe that the offence of obstructing major transport works in clause 6 is so widely drafted that it could easily criminalise the peaceful exercise of rights under articles 10 and 11, so our amendments 34 to 36 would narrow its scope, including by introducing a requirement of intent and removing the unnecessary reversal of the burden of proof.

We think the proposed offence of interfering with “key national infrastructure” is too widely drawn and thus risks criminalising, without justification, behaviour that would fall within the provisions of articles 10 and 11 of the ECHR. Amendments 37 to 49 would narrow its scope and remove the unnecessary reversal of the burden of proof.

The proposal to extend stop-and-search powers to cover searches for articles connected with protest-related offences risks exposing peaceful protesters and other members of the public to intrusive encounters with the police without sufficient justification. We would like the utilisation of these new powers to be carefully monitored. In that respect, I note with approval the terms of new clauses 9 and 10 in the name of the hon. Member for Battersea (Marsha De Cordova).

Public Order Bill

Joanna Cherry Excerpts

Consideration of Lords amendments
Tuesday 7th March 2023 Commons Chamber

[Sir John Hayes]

I will not give way again; I see that you, Madam Deputy Speaker, if not yet on your feet, are edging forward in your Chair, and so asking me to bring my remarks to a conclusion.

Freedom is not just about the capacity to hear from others with whom we agree; a free and open society is one in which we hear from those with whom we do not agree. That freedom is at risk. Amendment (a) is most reasonable, and I urge the House to accept it with these final words from the author and statesman John Buchan:

“You think that a wall as solid as the earth separates civilisation from barbarism. I tell you the division is a thread, a sheet of glass.”

Today I will vote against barbarism by voting for this amendment. I mission everyone in this Chamber to exercise their conscience and vote for it with me.

[Joanna Cherry (Edinburgh South West) (SNP)]

I will confine my comments to the amendments that touch on the recommendations of the Joint Committee on Human Rights, which I chair. We did not look at the debate on abortion buffer zones because that was not part of the original Bill, so I will not comment on that. In general terms, some of the points made by the right hon. Member for South Holland and The Deepings (Sir John Hayes) could be carried across. I could very well ask of him why, if that is what he so clearly believes, he would support a power to stop and search without reasonable suspicion? So it cuts both ways.

However, I will confine my comments to support for Lords amendments 1, 6 to 9, 20, 21, 23, 27, 28, 31, 32 and 33, which can basically be grouped into suspicion and stop and search, serious disruption prevention orders, and the meaning of the phrase “serious disruption”. I will speak to the Joint Committee’s report on our legislative scrutiny of the Bill, which was published on 8 June last year. It was a unanimous report of our cross-party Committee, which of course contains both MPs and peers.

The right to peaceful protest is a cornerstone of our democracy, which should be championed and protected rather than stifled. The Joint Committee concluded that while the stated intention behind the Bill was to strengthen police powers to tackle dangerous and highly disruptive protest tactics, its measures went well beyond that to the extent that we feel the Bill poses an unacceptable threat to the fundamental right to engage in peaceful protest. We have heard speeches about the historic basis of that right, and of course it is also protected in modern times under article 10 of the European convention on human rights, which deals with freedom of speech, and article 11, which deals with freedom of association.

In our report, we recommended that the power to stop and search without reasonable suspicion should be removed from the Bill. Other hon. Members have spoken about that in some detail. Basically, what we said was that the power to stop and search without reasonable suspicion inevitably gives rise to a risk of arbitrary or discriminatory use, and that it is disproportionate and inconsistent with the right to engage in peaceful protest. As we heard from other hon. Members, the police themselves said it is counterproductive and I do not understand that it is a power the police actually want as a whole. Lords amendments 6 to 9 take that out of the Bill, and I think that should be supported by this House.

[Chris Philp]

I am extremely grateful to the hon. and learned Lady for giving way. On a point of clarification, clause 11, prior to amendment by the Lords, states that although an individual does not have to be subject to suspicion before an officer can activate this section, the officer has to “reasonably believe” that a number of offences may be committed. So it is not a wholly unconstrained power to search. That reasonable suspicion in clause 11(1) does have to be engaged.

[Joanna Cherry]

I am not sure the Minister is right about that. I think what he is trying to say is that the police officer could have a highly subjective view prior to stopping, and a highly subjective view is not a reasonable suspicion. We took all these matters into account in our report.

[Stuart C. McDonald]

I think what the Minister is trying to point out is that before the 24-hour period where the suspicionless stop and search can come into force, there has to be a reasonable belief that somebody somewhere in the locality may commit one of these wishy-washy offences. If that happens, then everybody in that locality can be subject to suspicionless stop and search. I am afraid that is just not an adequate answer to the fact that everybody in that locality could be subject to suspicionless stop and search. It is nonsensical.

[Joanna Cherry]

The Minister must know that we are still bound by the European convention on human rights. Clearly, from what the Home Secretary said earlier this afternoon, some Government Members are trying to find a pretext to take us out of the convention, but we are still bound by it just now. The Minister must know that in order to interfere with freedom of assembly or freedom of association, under article 11 the interference has to be lawful, necessary and proportionate. What my hon. Friend just described is not lawful, necessary and proportionate.

[Chris Philp]

rose—

[Joanna Cherry]

The Minister will get to speak at the end. I do not want to take up too much time as I have already spoken for five minutes and I do not want to upset Madam Deputy Speaker. The Minister can take the tenor of the comments so far across the House, including from the Government Benches. People are not happy about the power to stop and search without reasonable suspicion. The cross-party Committee of MPs and peers shared that unhappiness.