Public Order Bill (First sitting)

Kerry McCarthy Excerpts

Committee stage
Thursday 9th June 2022 Public Bill Committees

[The Chair]

We are questioning the witnesses at this stage. In due course, I am sure you will have the opportunity to question the Minister.

[Kerry McCarthy (Bristol East) (Lab)]

Q Can I go back to the question of deterrent? With some of the groups we are talking about, particularly the environmental campaigners, the aim is to get arrested—that is very clearly stated. I have seen calls to action where it says, “Our objective is to have x number of protestors, resulting in x number of arrests.” What makes you think that deterrence will make any difference, because the more offences there are, the easier it is going to be to get arrested for something, and that is their objective?

John Groves: All I can say is that it is about the penalty that could follow an arrest. As I said earlier, if you contrast the number of incidents we have seen on HS2 sites against the number of arrests, there is a disparity. If there are more arrests as a result of what they are doing today, and there are more penalties, that should have a deterrent effect. In terms of fines, it is interesting that we have seen some offences being prosecuted and resulting in a fine. What sometimes happens, and we have seen this in other places, is that they will crowdfund and those penalties will be paid by others.

[Kerry McCarthy]

Q In that case, again, if they are willing and wanting to be arrested and are not worried about the level of fines because payment will be crowdfunded, that suggests that it is not a deterrent. I am a Bristol MP, and we saw with the Colston statue and the Black Lives Matter protests that the jury acquitted four of the defendants of criminal damage. My concern is that the more unreasonable the legislation is seen to be, the more bases it covers and the more it cracks down on what many people view as legitimate public protest, the more likely we are to see jury acquittals. Do you share that concern?

John Groves: We want the legislation to work so that it provides that deterrent. I do not think I can say any more than that.

[Kit Malthouse]

Q I want to pursue that point a little further. Mr Groves, as you see it, the current level of fines is not proving to be a deterrent because they can be crowdfunded. As I understand it, your view is that if we were specific about the offences of locking on and tunnelling, and we added a term of imprisonment and a criminal charge against those, that would be a ramping up that might prove to be a significant deterrent—is that right?

John Groves: Absolutely.

Public Order Bill (Second sitting)

Kerry McCarthy Excerpts

Committee stage
Thursday 9th June 2022 Public Bill Committees

[Anne McLaughlin]

Q Good afternoon and thank you for coming. This rehash of the protest parts of the Police, Crime, Sentencing and Courts Bill that did not get through Parliament seems to me to be more about reacting to issues that this Government disagree with and to protesters they do not like, such as environmental protesters and Black Lives Matter protesters. Regardless of whether that is the case, this Bill affects everyone, including the one group of people whom surely no one can get upset about, and that is the WASPI campaigners—I have just remembered, I am not supposed to talk about that. We have heard about disruption to people’s lives from protests, albeit we are talking about protests that are very short-lived and last only a few hours, as Sir Peter Fahy just said. Ideally, we would all live in complete harmony with no disruption to anyone’s life, but we do not. In your view, what will cause the most severe damage, the longest term damage and the damage to the most people—racism, environmental damage, people losing their pensions, or people staging protests?

Martha Spurrier: There can be little doubt that a Government should spend time looking at the root causes of a protest, whether that is the climate crisis rather than climate protesters, or racism rather than Black Lives Matter protesters. Of course, it is not news to say that protest is a foundational right, and that it is an article of faith in any democratic country that if there is something you disagree with, you can take to the streets to make your voice heard. It is of great concern to Liberty and those of us who work in this area—I am a lawyer, and I have been working in this area for the best part of 15 years—to see provisions in a Bill that not only have been rejected by Parliament once, but significantly expand police powers, often doing so in a very over-broad and imprecise way, such that it is difficult to see how they will be effectively implemented.

We would expect a disproportionate impact on marginalised communities from the exercise of those powers. We would also expect that they will fundamentally undermine the right to protest, and will not do what they are purported to do—deal with a hard core of some supposedly extremely disruptive protesters—but will in fact have a dragnet effect of chilling people’s right to protest and free expression, and deter ordinary people from exercising their fundamental rights. There is a whole range of examples in the Bill that we could talk about where it is very difficult to see why those measures are proportionate and justified ways of dealing with the perceived problem, let alone whether there is a problem as articulated.

Olly Sprague: I echo what Martha said. For an organisation such as Amnesty, it is not a case of either/or: we do not want to balance the harm that might be caused by climate change versus the positive duty that all states have to uphold the right to freedom of assembly and association and the right to protest. You have to manage all things.

One of the things that we bring here is that we are an international human rights monitoring organisation: we look at human rights internationally, and we look at where the UK is on the standards, obligations and legal frameworks that exist. It is worrying to say that for most of the provisions in the Bill, we see a clear gap between what the international standards require of the UK and what the UK proposes here, and it is the wrong gap. The UK is on the wrong side of where it should be. I am sure we will have the opportunity to go into why we think that and the areas where we think that is the case, but that is a very worrying direction of travel, especially when in terms of its foreign, defence and security policy aspirations, the UK sees itself very much as a champion of civil society space. It sees and acknowledges the fact that the world is becoming increasingly authoritarian, and wants to do things to stop that.

As a quick example, in April this year, Lord Ahmad—a Government Minister from the Foreign, Commonwealth and Development Office—was giving his closing remarks to the 49th session of the Human Rights Council. In that, he made specific reference to a very important resolution about the need to promote and respect the rights of human rights defenders around the world. It was a resolution that was welcomed and strongly supported by the UK Government; it was a very important resolution. That resolution essentially requires that all states refrain from measures that excessively criminalise human rights defenders and their rights to freedom of expression, so you have a bit of a disconnect here between the statements that the UK puts out internationally and the role we see ourselves playing in the world community, and the kinds of measures we are putting in place on our own domestic legislative front. They are out of step with each other, and it is not joined up.

Stephanie Needleman: I completely agree with what Martha and Olly have said. Picking up on something that Olly said about the disconnect between what the UK is doing internationally and what we are doing domestically, there is also an internal disconnect in what we are doing domestically in the UK. The right to protest is an element of the right to freedom of expression and assembly. On the one hand, that is being championed under the Bill of Rights consultation and the Higher Education (Freedom of Speech) Bill, but on the other hand, it is being severely restricted in this Bill, so there is an internal inconsistency there as well.

[Kerry McCarthy]

Q May I ask about the serious disruption prevention orders in clause 12? As I understand it, there could be an application to the court by the authorities to prevent somebody from taking part in protests, even if they had not been convicted of something but are deemed to have been involved in disruption. I did have further details, but I did not realise I would be called so quickly; I have given the general gist of my point. Do you have a clear idea of how much would have to be proved? If you are applying for an order on the basis that someone has been involved in something but they have never been convicted of it—let us assume they have not been taken to court and acquitted of it—I guess the idea is that they would be known to the police as having been involved in previous protests. How would you see that panning out? Could they find themselves being subjected to this process just because they have been photographed at previous protests at which other people committed disruptive acts? To what extent is it a collective thing? Or would it have to be proved that an individual had done something?

“Disruption” is such a vague term. What would a person have to have done for the police to be able to go down this route? I should probably ask the Minister, because I think the answer at the moment is that we do not really know, but how do you see this panning out?

Stephanie Needleman: I cannot see if Martha and Ollie are indicating that they will answer, but I can kick off, if that is helpful.

I think you have hit the nail on the head in raising the vagueness of when these serious disruption prevention orders can be imposed. They can be imposed not necessarily on conviction, as you said. The orders can cover an incredibly broad range of circumstances. Under clause 13(2)(a)(v), all you need to prove is that on two separate occasions somebody

“caused or contributed to the carrying out by any other person”—

they do not even have to have done the act even themselves; it could be done by someone else—

“activities related to a protest that resulted in, or were likely to result in, serious disruption”.

You do not need to have carried out the

“activities related to a protest”;

you just have to have “caused or contributed” to them. Those are incredibly vague and broad terms; they could cover almost anything done to assist someone doing anything related to a protest. For example, it could be driving somebody to a protest, or to shops selling paint or glue, if the person the glue is sold to subsequently glues themselves to something.

Linked to that, there does not seem to be any requirement for the person to have had knowledge that the protest activities were going to cause serious disruption when they “caused or contributed” to the carrying out of those activities. That could capture a vast range of behaviour.

[Kerry McCarthy]

Q How do you see the provisions working? As I understand it, an application has to be made to a court for the order. Would the person who was going to be subject to this order be entitled to legal representation? Would getting the order involve proving the person’s original involvement? Would they be able to challenge the fact that they were deemed to have been involved in supporting disruption on two previous occasions? Or would the police apply for the order and have it granted in absentia?

Stephanie Needleman: It has to be proved, but it only has to be found, on the balance of probabilities—the civil standard of proof—that one of the conditions has been met. As I said, the conditions are so broad and vague that it should not be that problematic for the police to approve. So yes, involvement would have to be proved, but given the vagueness and the broadness of the conditions, it is likely that it can be easily proved.

Martha Spurrier: It is right that, for example, legal aid would not be available to someone defending themselves against having one of those orders imposed on them, and of course they can be renewed; there is a suggestion in the Bill that they could be renewed indefinitely. Once the order was in place, you would not get legal aid for a lawyer’s assistance in dislodging it.

It is worth stepping back a little and looking at the serious disruption prevention orders. These have been proposed by the Met police before, under the name of protest banning orders. The Home Office was against bringing them in, on the grounds that they were neither compatible with human rights nor an effective deterrent that would solve the problem that they purported to. That relates to a slippage in principle and language that we see across the Bill. It is important to pay attention to it, because this is law; cases will be decided on these words. Article 10 of the European convention on human rights is of course not an absolute right. It can be interfered with. There is a balance to be struck between the interests of a protester and the interests of the wider community, for example.

There are many grounds on which you can interfere with the right to protest; one of them is crime and disorder, and another is the rights of other people. You already have a human rights framework for limiting protest in certain constrained situations, but what we see in this Bill is not the language of crime, disorder, or abuse of others’ rights, but the language of disruption, inconvenience and nuisance. That is a significant, conceptual, legal change in the language. As Stephanie says, it takes you into the territory of criminalising what we have hitherto understood to be non-criminal conduct—of criminalising protest tactics that have a long history and previously would not have been considered criminal acts. People who may have participated in a couple of protests over five years may suddenly find themselves within the purview of the criminal law, although hitherto both criminal and human rights law would simply never have brought them into that space. When thinking about all these definitions and new offences, it is important to recognise that significant paradigm shift in the concept of how you go about policing protest.

Add to that the fact that these new concepts, including the idea of serious disruption, will be defined in secondary legislation. This significant interference with the fundamental right of protest may result in terms being defined by a politician who gives the definition very little parliamentary scrutiny. The measures would then be implemented by a police service that interprets them as it sees fit; we do not need to go into the times when they get it right and the times when they get it wrong. There are lots of layers to this before you even get to the detail of what happens if someone is subject to one of these orders, how they would shift it, and whether being subject to an order would mean that they could no longer protest.

Olly Sprague: My colleagues have covered everything that I wanted to say on the domestic aspect. It is worth coming back to the question: where do the international standards sit? The United Nations Human Rights Committee’s general comment from 2020 is most useful here. It allows the criminalisation of individuals taking part in a demonstration only in very specific circumstances, and it sets the threshold at incitement to violence. It sets the time limit as “as short as possible”; it talks in terms of a few hours. The international standard allows individuals to be prevented from accessing a process, but the bar is very high. The Bill sets an extraordinarily low bar. There are two levels by which these orders can be put in place. One is based on a person having two previous convictions on the civil standard burden of proof; the other is not based on conviction at all, which is even worse. The UK is so far out of step with where it should be under international standards; it is quite alarming.

[Kerry McCarthy]

I could understand it to a point if somebody’s presence at a future protest could lead to a dangerous situation, which is what you say the international comparison would be; but under the Bill, basically your right to protest could be removed for five years because you had not behaved impeccably on previous protests.

Olly Sprague: The Bill would also potentially hold you responsible for the conduct of other people at a protest that you were organising. One of the great unfortunate misconceptions of protest, especially around violence and disruptive protest, is that a protest somehow gets characterised as being inherently violent because actions of violence occurred within it. It is perfectly legitimate for law enforcement officers to deal with and prevent those violent actions and make arrests. However, you cannot characterise a whole protest as violent just because some aspect of it was violent.

With the way the serious disruption prevention orders are drafted, you could, in theory, be held responsible for an altogether peaceful protest where a violent action that was completely beyond your control took place. You cannot really be held responsible for something that you were not responsible for, if that makes sense.

[Kerry McCarthy]

Q I think the Amnesty note says that in other countries, the issue is about not being allowed to organise a protest, but this measure, as I understand it, would mean that you were not allowed to participate. It could be quite specific: you would not be allowed in a particular place at a particular time, or in a particular area when something was going on. Is that right?

Olly Sprague: We have to be careful when making international comparisons. We do not really not compare and rank countries in some kind of league table. We look at each country individually and see where it marks up. It is interesting, though, that there are not that many examples around the world of measures akin to a protest banning order.

[Kerry McCarthy]

Q You say that in Belarus anyone who has been fined is not allowed to organise a protest for another year. This measure goes way beyond that.

Olly Sprague: We have not looked at 600 different laws for the purpose of this sitting. However, where we have looked, we found corresponding powers of a similar nature in places such as Turkey, the Philippines, Belarus, Russia and Egypt, I think. In all the cases where they have a measure that is similar to a protest banning order, it has been on the organisation of protests, not the participation.

[Kerry McCarthy]

Q You would like to think that our civil liberties protections were a bit better than those in Belarus, but the ban there is only for a year, rather than five.

Olly Sprague: Yes.

[The Chair]

Q Did you wish to say something, Ms Needleman, or was I misinterpreting you?

Stephanie Needleman: Yes, please. I want to add that when we talk about what these protest banning orders do, we should note that they do not necessarily just ban people from attending or organising protests. They have significantly wider, far-reaching applications into everyday aspects of people’s lives. As long as they are imposed for one of the purposes listed, the conditions that can be imposed when someone has been given one of these orders can be anything. Look at the conditions listed in the Bill: they can prevent people using the internet, associating with particular persons or participating in particular activities. It is not necessarily limited to protest. We are talking about activities that are far, far broader than just being prevented from attending protests.

Public Order Bill (Third sitting)

Kerry McCarthy Excerpts

Committee stage
Tuesday 14th June 2022 Public Bill Committees

[Sarah Jones]

I have not read about that.

As I said, Opposition Members have been horrified by the disruption that we heard about in the evidence sessions. However, everybody who gave evidence was clear that it is a very small proportion of protests that cause disruption; the vast majority pass by with no problems at all.

The final issue that I want to cover is the chilling effect that Matt Parr writes about in his report. If we look closely at the drafting of clause 1—the hon. Member for North East Fife has referenced this—we see that it is so broadly drawn that it criminalises an innumerable list of activities and not just what we typically consider to be lock-on protests, which would be dangerous and require intervention. The term “attach” is very broad and goes undefined in the Bill. Does it perhaps include the linking of arms? Yes, technically it does. Liberty, in its recent briefing, notes that the wording might interfere with articles 10 and 11 of the ECHR, as laid out in the Human Rights Act 1998. We have already debated what is a reasonable excuse and how that is defined. We note that someone does not even need to actually cause any disruption in order to commit an offence. They have only to be “capable” of causing serious disruption. That provides a practical difficulty and perhaps a headache for the police when determining the crucial context of a protest that might well cause serious disruption if it were to take place at a different time, but actually happens on empty roads in the middle of the night.

I will sum up by saying that clause 1 is unnecessary for the proper policing of protests. Most of the extremely irritating and disruptive events that were described by our witnesses were criminal acts, and they were already covered by a raft of existing legislation that allows the police to deal with protests. The police have the power; they need more support and more training, but this broad and ill-defined clause does not provide that support. Instead, it tips a crucial balance and risks criminalising, at a very low threshold, legitimate and peaceful protest, one of our core human rights.

[Kerry McCarthy (Bristol East) (Lab)]

I echo what my colleague on the Front Bench, my hon. Friend the Member for Croydon Central, was saying about how we approach the policing of protests in this country. Obviously, Bristol has had quite a reputation for protests, particularly around the time of the events involving the Colston statue. We know that the people involved in that protest were eventually acquitted of criminal damage.

I have been out with the police to see how they approach things. There were a number of weekends in a row when there were protests against the Bill that has become the Police, Crime, Sentencing and Courts Act 2022. People were, quite rightly, very unhappy about what the Government were trying to do. I went out with the police and also went to the operations centre to see their approach; what they wanted to do was to facilitate protest. They wanted to facilitate peaceful protest and were very good at trying to ensure that it did not turn into something that put people at risk. For the most part, they were successful. Can the Minister say where the parameters of the clause come in?

There are historical examples. My hon. Friend the Member for Croydon Central mentioned Greenham Common, but if we look back at the suffragettes, part of their tactics was to tie themselves with belts or chains to Buckingham Palace or Parliament. In January 1908, Edith New and Olivia Smith chained themselves to the railings at No. 10, which would not happen now, while one of their colleagues, Flora Drummond, went inside to disrupt the Cabinet meeting. I dread to think what the response would be now; they would not get anywhere near it. They chained themselves because that they wanted to make their voices heard. If they were immediately arrested, they would not have the chance to make their speeches, so it was a tactic to stay in place and at least get a few sentences out before they were removed.

[Kit Malthouse]

We might as well address that point straight away. As I said to the hon. Member for Croydon Central earlier, there are two tests that the police or, indeed, the courts will have to apply. The first is that serious disruption is caused. I am not sure necessarily that somebody chaining themselves to the railings outside this place would cause serious disruption. Secondly, there would be a defence of reasonable excuse. In the case of the suffragette who chained herself in St Stephen’s Hall, we would imagine that there may well be other offences but I doubt that this provision would apply. Indeed, if someone were able to chain themselves to the railings serious disruption would not necessarily be caused. We are trying to address some of the events we have seen over the last couple of summers, not least the fuel protests, which have been dangerous and caused massive and serious disruption to the community.

[Kerry McCarthy]

The Minister has rather pre-empted what I was going to say. The suffragettes knew that they would be arrested but took the decision because they felt their cause warranted it and they knew, roughly speaking, what the response would be and the sort of punishment available. If people are going to engage in this sort of activity and knowingly do things that would break the law, when we have an offence that treats something so seriously, my concern is at what point people can make that calculation on whether they are going to be arrested and taken to court under lesser legislation or whether the clause will be invoked. Its vagueness means that it is not clear where those parameters are.

This silly example is more for the Committee’s amusement: we had the case of an Extinction Rebellion protestor in Bristol who tried to glue himself to the doors of City Hall. However, they were automatic sliding doors, so the moment someone approached them, they opened. I think it was caught on camera, but every time he tried to glue his arms to the door, they opened. He could not manage to do it. I do not suppose the protestor would be dealt with under an offence of this kind and he probably deserves a prize for entertaining everybody.

That was an aside, but to give an idea of the sort of calculations people make, in my constituency I have a good activist on disability issues who has disabilities himself. He has a personal assistant who went on a protest with him, and he insisted that his personal assistant chain handcuff him to the pole by the door of a London bus. There was a big protest of disability activists blocking the streets—I think it was around Piccadilly Circus—to protest about accessibility and public transport. When the police came along, they did arrested not the guy who was chained up but the personal assistant for locking him to the pole. It was the personal assistant’s birthday and he spent the night in the cells, while somebody else managed to get my friend, the activist, home.

There is a clause in the Bill about locking somebody else to something and that raises interesting issues about the situation for a personal assistant. They are there to act at the will of the person they are assisting and to do anything they ask. If somebody were asking a personal assistant to commit a criminal offence, such as assaulting someone or something that is generally regarded as beyond the pale, the assistant would not do that. If disability activists want to exercise their right to protest, are they allowed to exercise their right to break the law as well? Personal assistants are not meant to have their own opinions on such matters; they are meant to do as they are asked.

--- Later in debate ---

[Andrew Bridgen (North West Leicestershire) (Con)]

Will the hon. Lady give way?

[Kerry McCarthy]

If I may just finish this point. They are entitled to make the decision to break the law and suffer the consequences. That is something that we accept in this country. People can choose to do that, provided they are willing to accept the consequences. To make that decision and exercise their democratic rights in that way, they need some certainty about how they will be treated by the law. It is a basic concept of operating in society that we ought to know how the criminal justice system will treat us.

What is likely to happen if the provision on excuses is invoked? If the clause is invoked when people do not feel it should be, the courts will acquit because it is unfair. I do not get a sense of clarity and I am looking for one from the Minister. We know that the clause will apply to the most serious cases, of people chaining themselves to planes. We know that it will not apply to a guy trying to superglue a hand to a sliding door at Bristol City Hall.

[Mr Gagan Mohindra (South West Hertfordshire) (Con)]

Why would it not?

[Kerry McCarthy]

The Parliamentary Private Secretary asks why not. That is quite worrying. Would that cause serious disruption, if he had one hand attached to the door and was wiggling backwards and forwards as everyone went in and out? That is exactly my point. If that is deemed to cause serious disruption, that is very worrying. I cannot think of many locking-on offences that would not be deemed serious disruption. It proves my point if the PPS thinks that the provision would cover a case as ludicrous and minor as that. That proves my point, so I will sit down and ask the Minister to explain where the middle ground and that clarity is.

[Kit Malthouse]

Clause 1 is a key part of the Government’s plans to protect the public from the dangerous and disruptive tactic of locking on. Recent protests have seen a minority of selfish individuals seek to cause maximum disruption by locking themselves to roads, buildings, objects and other people. That has seen traffic disrupted, public transport impacted and the transport of fuel from terminals ground to a halt, to name just a few examples.

Such tactics cause misery to the public, with people unable to access their place of work or schools, or to attend vital hospital appointments. It is impacting people’s ability to go about their daily lives and is causing considerable anger. The Committee will remember the frustration and anger expressed by members of the working public at Canning Town station in 2019, when protesters from Extinction Rebellion glued themselves to a Docklands Light Railway train during the morning rush hour, risking their own safety and that of the travelling public.

I welcome the condemnation of some of those protests by the hon. Member for Croydon Central, and her possibly belated support for the increase in sentencing in the Police, Crime, Sentencing and Courts Act 2022, which has just received Royal Assent. As she said, there is now a suite of offences that may or may not be committed. To address the point made by the hon. Member for Bristol East, we want people thinking about using this tactic to make a calculation about whether and how they break the law. It is not a human right to break the law. If people calculate that they want to do that, they must, as she said, face the consequences. In employing dangerous tactics and causing disruption, those who call themselves protesters, but are in many cases trying to effect a mass blackmail on the British public, should make a calculation about whether they are causing an offence, and there should be an air of jeopardy to what they do.

[Kit Malthouse]

My hon. Friend makes a very strong point. Certainly a lot of the most disruptive protests that we have seen will have taken meticulous planning and preparation and the acquisition of materials, not least the adhesive chemicals required, scaffolding poles and vehicles. We have seen all sorts of tactics employed, which, as he rightly says, take serious preparation to put into effect.

[Kerry McCarthy]

To clarify, when I was talking about protests in general and people breaking the law during a protest, I was not talking about locking on.

[Kit Malthouse]

I will give way to the hon. Member for Croydon Central.

Public Order Bill (Fifth sitting)

Kerry McCarthy Excerpts

Committee stage
Thursday 16th June 2022 Public Bill Committees

[Sarah Jones]

The point I was trying to make was to echo the concerns that the police have expressed about the expectation on them to go and do things on private land, the cost associated with that, and the need to deal with that issue. To reiterate, they have said that they think there are already suitable powers for them to stop people when they are committing a criminal act, which we agree tunnelling is. They have said they do not need this extra power. There is also criminal damage, which carries a sentence of up to 10 years in prison, so there are different forms of offences that we can look to.

With regard to the new powers, there is also the issue of training. According to the Police Foundation, over the seven years up to 2017-18, 33 forces reduced their budgeted spending on training in real terms by a greater percentage than their overall reduction in spending. Some 40% of police officers say they did not receive the necessary training to do their job, so I am concerned that many things in the Bill, particularly the new clauses, need to go along with properly resourced training to make sure that people understand and know what the new powers are. We have talked about the complexities of introducing new laws and expecting the police to understand them all many times before, not least with all the covid legislation.

[Kerry McCarthy (Bristol East) (Lab)]

I thank my hon. Friend for mentioning that, because it is something that has been bothering me. As I have said before, I was with the police in the operation centre when they were looking at protests in Bristol. Part of the briefing before protests involves telling the police what offences might be committed, what to look for and so on. We have a plethora of offences, and they have to make judgments on whether something is a serious disruption. The more complex it is, the more difficult it will be for the police to know what they are supposed to do when they are out on the streets in a very difficult situation.

[Sarah Jones]

I thank my hon. Friend for that perfect point. This is the challenge that policing has, and we have seen it with the recruitment of new officers as well. We need to make sure that everybody has the right training and understands the legal routes that they can use, and piling new and complex legislation on top of what we think is satisfactory legislation is problematic.

--- Later in debate ---

[Sarah Jones]

As always, my hon. Friend makes a good point. I will come on to talk about that in my later remarks.

Lord Kennedy, in the Lords, said:

“the Government are mirroring laws that currently exist for serious violence and knife crime.”

He went on to say that

“these measures apply to peaceful protesters, not people carrying knives or causing violence.”—[Official Report, House of Lords, 24 November 2021; Vol. 816, c. 992-993.]

Matt Parr, Her Majesty’s inspector, said that current suspicionless stop and search powers

“are intended to be used by the police to combat serious violence and the carriage of ‘dangerous instruments or offensive weapons’. Using a similar suspicion-less power to target peaceful protesters, who may cause serious (but non-violent) disruption, is a significantly different proposition. Given the potential ‘chilling effect’ on freedom of assembly and expression in terms of discouraging people from attending protests where they may be stopped and searched, we would expect any new suspicion-less powers to be subject to very careful scrutiny by the courts.”

In the same document, it was said that

“police officers highlighted operational difficulties in the targeted use of the power. Others were also concerned over the proportionality of any search as well as the potentially intrusive nature when looking for small items.

One officer reflected that the proposal had ‘complications’ – for instance, whether an otherwise innocuous items was really intended to be used to lock-on. He said that having a tube of superglue in your pocket, or chain and padlock that you intend to use to lock your bike, ‘doesn’t prove intent and presents difficulties’.”

[Kerry McCarthy]

Concern about that has been expressed in Bristol. There are a lot of cyclists in Bristol and many who would be carrying bike locks around with them. College Green is the area where people tend to congregate if there is going to be a march or a protest. However, there would be an awful lot of people in that area who might well be carrying things that, if the police wanted to be difficult, might put them under suspicion. Does my hon. Friend share my concern? [Interruption.] I do not quite know how it works if I am intervening. I am intervening on my shadow Minister, not the Minister.

[The Chair]

The Minister will have the opportunity to have his say at the end of this discussion.

--- Later in debate ---

[Kerry McCarthy]

To give one example, a few years ago there was a protest in Bristol that involved people blocking the road by sitting and laying their bicycles down in it. That would potentially mean that they would have bike locks on them and could be subject to stop and search, would it not?

[Sarah Jones]

My hon. Friend is right. I urge colleagues to read the powers in clause 6. They are very clear and broad.

When Her Majesty’s inspectorate of constabulary and fire and rescue services consulted police on the Home Office’s proposal for a new stop-and-search power, one officer said that

“a little inconvenience is more acceptable than a police state.”

That was a police officer speaking. HMICFRS went on to state that it agreed with that sentiment.

As I have said already, stop and search is a useful tool. It is important in preventing crime. But it is an invasive power and can be counterproductive and undermine the legitimacy of and trust in policing if it is not used correctly. Rightly, it is designed to be used to prevent the most serious crime—knife crime, or drug dealing—and the police themselves have recognised serious concerns about disproportionality and that those who are black are much more likely to be stopped and searched than those who are white.

--- Later in debate ---

[Kit Malthouse]

The amendments, I am afraid, are a deliberate attempt to water down the courts’ ability to place an SDPO on those who are intent on repeatedly disrupting the lives of others, as we have talked about a lot during our consideration of the Bill. Amendments 38 and 39 attempt to raise the burden of proof required for SDPOs from

“on the balance of probabilities”

to “beyond reasonable doubt”, in effect requiring the criminal rather than the civil standard of proof. Amendment 38 raises the burden of proof required when considering whether an offence constitutes a protest-related offence for the purpose of making a serious disruption prevention order. Amendment 39 does the same when a court considers whether a person has engaged, in the last five years, in previous behaviour that would qualify them for an SDPO.

The amendments would make it more challenging for a court to place an SDPO on prolific activists who engage in criminal or unjustifiable behaviour. As this is a court order, I see no issue with requiring the civil burden of proof. The Opposition have shown much enthusiasm for injunctions, which operate to a civil burden of proof, and the same burden would be required here. For the avoidance of doubt, for someone to be convicted for breaching an SDPO, the criminal burden of proof would apply.

[Kerry McCarthy]

I want to query the Minister’s use of the phrase “unjustifiable behaviour”. What would that cover?

[Kit Malthouse]

We have discussed the range of offences that offenders commit. In presenting the requirement for this order to a court, the police would have to make a case that a series of offences had occurred, or indeed that serious disruption had been caused by the individuals’ behaviour, to warrant this order. We will come on to the substance of those matters, and we can debate it at that point. For the reasons I have given, we do not agree with the amendment, and we hope that the hon. Member will withdraw it.

Public Order Bill (Sixth sitting)

Kerry McCarthy Excerpts

Committee stage
Thursday 16th June 2022 Public Bill Committees

[Sarah Jones]

Clause 17 covers the general issue that we have debated already in considering earlier clauses, and although we object to it, I do not have anything further to add.

[Kerry McCarthy (Bristol East) (Lab)]

I seek a couple of quick clarifications. Subsection (3) states that there is a duty to notify the police about

“the address of any other premises at which…P regularly resides or stays.”

However, subsection (4) then refers to P deciding

“to live for a period of one month or more”

somewhere else. Obviously, there is a difference there, so I wondered what counted as regularly residing or staying. What happens if P was in a relationship with somebody and stayed over somewhere? Quite a lot of people have a permanent home address but they stay over at somebody else’s for a few days or weeks, and they might notify that. But let us suppose they were not in a relationship at the time the order was granted and so have not given notice of a second address. I understand the provision to mean that if they were then in a relationship, they would not have to give notice of it if it was the sort of set-up in which they were staying somewhere else for part of the week, and that they would have to provide notification only if they were doing it for a month at a time. Is that right?

[Kit Malthouse]

No, that is not my interpretation. In that example, when the order is granted and the individual is not in a relationship, they would give their home address. If during course of the order they enter a relationship and start spending time at somebody else’s address on a regular basis—they might be there a couple of nights a week—they should also notify as to that address. If they then move from either of those addresses for one month or more and reside elsewhere, they should provide notification of those changes as well.

[Kerry McCarthy]

I do not think that is actually what the Bill says, although it is a fairly technical point.

I have one other query on notifications. Subsection (6) says that the notification can be given by

“attending at a police station”,

which is fair enough, or by

“giving an oral notification to a police officer, or to any person authorised for the purpose by the officer in charge of the station.”

I am a little concerned about this “oral notification”. Will there be a process for recording it and making sure there is a record of it happening? I am surprised that a notification in writing would not be accepted. Is there a particular reason why that would not be allowed?

[Kit Malthouse]

The notification requirements and the notification change requirements broadly mirror other notification requirements that are given to the police. However, although I am keen to keep the clause in the legislation, I am happy to discuss matters and provide clarity to the hon. Lady before we get to Report, so that she can see that, as I say, it is not unusual in these kinds of circumstances for people to have to notify their whereabouts or their likely whereabouts overnight to the police.

--- Later in debate ---

[Kerry McCarthy]

I have slightly lost track as to whether we are still at an intervention or not, but I think I am continuing my speech.

I have had immigration cases in which people have had a duty to report to the police station and their attending has somehow not made it on to the record, and people have fallen foul of the law as a result. It can be quite difficult for someone to prove that they did something if the police did not keep accurate records of their doing it. I just want to avoid that situation.

[Kit Malthouse]

Understood.

[Kerry McCarthy]

That is the end of my speech.

Question put and agreed to.

Clause 17 accordingly ordered to stand part of the Bill.

Clause 18

Duration of serious disruption prevention order

Question proposed, That the clause stand part of the Bill.

[Kit Malthouse]

Clause 18 provides that an SDPO may last for a minimum of one week or a maximum of two years. This provides flexibility to courts in deciding for how long any prohibitions or requirements of an SDPO are necessary to prevent the subject from causing serious disruption at a protest—we should never forget that high bar of serious protest. In particular, a court can specify that certain requirements or prohibitions of an SDPO may apply for a more limited period than the order itself, thereby allowing courts maximum flexibility when the determine individual cases for an SDPO.

In the case of an SDPO that imposes electronic monitoring requirements, the requirements may last for no longer than 12 months at a time. As I said earlier, this is to prevent a disproportionate encroachment on the subject’s right to a private life. That is in line with existing legislation on electronic monitoring.

Normally, an SDPO will take effect on the day the court imposes it. However, when someone is subject to an SDPO and is remanded in custody, serving a custodial sentence or on licence, the clause provides that their SDPO may not take effect until they are released from custody or cease to be on licence. This reflects the fact that, due to the restrictions imposed by a custodial sentence, they are unlikely to attend a protest.

--- Later in debate ---

[Kit Malthouse]

As we have discussed, clause 20 creates various offences relating to a serious disruption prevention order. It will be an offence for an individual to, without reasonable excuse, fail to comply with any requirement of their order, or do anything that the terms of their order prohibit them from doing. For example, an individual subject to an SDPO could commit an offence if they attend a protest at a designated time and place that is prohibited under the terms of their order. In line with the notification requirements established in clause 17, an individual subject to an order will also commit an offence if they knowingly provide false information to the police as part of their notification requirements.

If found guilty of one of these offences, upon summary conviction, the court will be able to impose a maximum sentence of 6 months’ imprisonment and/or an unlimited fine. Subsection (3) provides that the maximum term of imprisonment will increase to 51 weeks if section 281(5) of the Criminal Justice Act 2003 comes into force. This sentence reflects how seriously the Government take anyone breaching the terms of an SDPO, and also acts as a deterrent to anyone considering breaching this judicially imposed and supervised order. As I outlined while discussing clause 19, courts will be required to make clear the possible penalties for a breach of an order to each individual subject to an SDPO, so there will be clarity about what happens if they do not do as the order requires.

[Kerry McCarthy]

Can I ask the Minister to clarify a bit more? He said that someone would be in breach of the order if they attended a protest that the order covered. In Bristol, we tend to have quite a lot of political activity. We have marches that wind their way through the city centre and parks. We also had the Police, Crime, Sentencing and Courts Bill protests, which lasted for several days in certain pockets. I am concerned about how “attending a protest” would be interpreted; if someone was just walking through the city centre alongside a march, would they be deemed to have attended the protest? I am concerned about how the courts would interpret “without reasonable excuse”. It might be difficult to prove that someone was just on their way through town, as opposed to being part of a march.

[Kit Malthouse]

Obviously, those questions would be matters for judicial judgment. When an individual is presented to the judge for breach of the order, it is for the judge to decide what penalty is required. The police, in presenting that individual, will have to provide evidence. These are not novel matters. An individual has already been barred by a judge from attending a protest outside Parliament. If that individual were to walk down Whitehall and the police were to apprehend them and present them to court for breach of that order, evidence would have to be produced. That is a standard practice; we have courts in which police and others can offer evidence and the accused can offer a defence. A judge can then decide. The same would be true in these circumstances.

--- Later in debate ---

I am pretty sure that Sir Peter did not mean, as it was suggested the shadow Minister meant earlier, that police officers are not capable of interpreting legislation. It absolutely does not mean that, but the job of a police officer is a little bit like the job we do as MPs, in that we are generalists. We have to know lots about everything. If we are very lucky, we get to specialise in a particular area, but we know a lot about a number of things so that we can respond appropriately to our constituents and to legislation.

[Kerry McCarthy]

I entirely agree with the hon. Lady. As I said, the police in Bristol will be used to dealing with these sorts of situations on the streets, but we will have to bring in police from other forces who will not be accustomed to dealing with them. Does she agree that that is of particular concern? They will not have the knowledge that comes from just being on the job, dealing with cases and talking to colleagues.

[Wendy Chamberlain]

I agree with the hon. Member. The COP26 policing effort of last year involved mutual aid. That involved, for example, training in Scots law for officers coming from England and Wales, so that created an additional training requirement as well. We have to think about those things. As for my own police experience, my specialism was in sexual offences; I was a sexual offences-trained officer, but from a general perspective, I policed football matches, marches and local demonstrations, and interpreted the law accordingly.

Returning to the evidence given by Chief Constable Noble, the chief constable for Staffordshire, if his numbers are reflective of England and Wales as a whole and assuming that no more officers need to be trained—although I have illustrated why I do not think that is the case—over 3,000 officers across England and Wales will have to be removed from duties and trained in these new laws. That is equivalent to about 125 lost days of frontline policing in local communities, and once those people are fully trained, they will need to be diverted from their duties to police the offences set out in the Bill.

It is logical to think that if it takes 25 officers, currently, to police a protest—I am not putting a number on how many people might be there—through the additional offence of being equipped to lock on, and opening the door to extensive stop and search, many more officers may be required. As I said on Tuesday, if we start arresting protesters, we will run out of police officers before we run out of protesters. I also remember Chief Superintendent Dolby talking about the fact that part of their safety techniques in dealing with protesters involves five police officers to arrest a single protester, so the Minister can quickly see how the odds shift.

Nearly 47,000 incidents of knife crime were reported to the police in England and Wales in 2021. That is 128 every day. There were nearly 185,000 sexual offences —more than 500 each day. Given the choice between having police officers responding to those calls, filling in paperwork for SDPOs or stopping and searching protesters, I think I know what I and the public would choose. In a recent YouGov poll, more than half of respondents stated that they do not have any confidence in the police to deal with crime. Traffic offences were the only crime that more people than not thought the police were handling with enough rigour.

I also know what the police would choose. That is because our witnesses told us, and because it is set out in the HMICFRS report. Accepting that protests do need policing, all the evidence tells us that best practice requires strong, pre-existing community relations, which simply cannot be established by constantly lifting police officers in and out of the day job and abstracting them to other duties.

I would hope that these amendments would just require the Government to properly look at how the police are resourced. Government Members want this legislation to be successful, but it will not be if the police are under-resourced. Again, Sir Peter Fahy referenced the fact that, in relation to the response to protest, the police could be viewed as incompetent. I am sure that those on the Government Benches would not like that to be the outcome of this legislation.

The Minister heard the same evidence that I did, and he will have heard the same significant concerns about resourcing. Will we get to a position where, in all areas, police officers have been called to deal with protests, and where a demonstration is more strongly policed than crime? The police cannot be given more work and left to struggle. I would argue that all our communities deserve more. I am potentially looking to withdraw my amendment, but I would be happy to discuss, constructively, with the Minister, how we ensure that capability is there.

Public Order Bill (Seventh sitting)

Kerry McCarthy Excerpts

Committee stage
Tuesday 21st June 2022 Public Bill Committees

[Dr Rupa Huq (Ealing Central and Acton) (Lab)]

I beg to move, That the Clause be read a Second time.

At the last count, 35 other right hon. and hon. Members, from seven parties, including at least one Member of every party of England and Wales, had signed up to the new clause. I do not know whether the number has gone up since then.

We have talked quite a lot in Committee about what could happen. We have talked about what could happen if someone was carrying, as I am today, a bike lock— I thought I would have to cycle in; I cycled part of the way, to the house of another Member who gave me a lift the rest of the way—and whether I could be criminalised for having that on my person. Could two little old ladies from the Women’s Institute be arrested for linking arms? The new clause, though, addresses what is actually happening every day, up and down our country, at abortion clinics.

Some of the fanciful stuff we have talked about, such as members of Extinction Rebellion gluing themselves to trains, or the blocking of the A40 in my constituency, which I have spoken about, are pretty rare and the exception, not the rule; but every day, women are unable to make their way into abortion clinics to have a perfectly legal procedure. It has been legal in this country since 1967 or 1968, I think—for more than 50 years, anyway. There is disruption not just to the women who use the clinics, but to users of the public highway and local residents. The figures are there—the Home Office has done the crunching—and they show that tens of thousands of women, at a number of locations, are affected every year.

I have previously ventilated this issue through a ten-minute rule Bill and a letter to the then Home Secretary, Amber Rudd. Loads of MPs from both sides of the House signed up to those, because they know, as do their local police forces, what a waste of time it is for the police to have their people tied up in adjudicating between two groups of protesters. There are two groups. There are the anti-choice people, and then there is a group in my constituency called Sister Supporter; its members, who wear pink hi-vis vests, want to escort women into the clinic. There is friction, and the police, who should be fighting crime, are tied up there.

[Kerry McCarthy (Bristol East) (Lab)]

My hon. Friend mentioned the impact of the people outside the clinics on the people going into the clinics, and the obstruction of the pavement and passers-by, but does she agree that there is a difference between the two? As we have discussed in Committee, protests that cause people inconvenience are legitimate, but there is quite a difference between that and the harassment of people making a possibly difficult life choice. Does she agree that there is a difference in the impact on people, and that protesters could hold a protest without being close to the clinic?

[Dr Huq]

My hon. Friend makes a really good point. When is a protest not a protest? These women are subject to harassment. There is a time and place for protest. If someone wants to attack legislators, they should protest here, or they could protest at the Department of Health and Social Care, wherever that is now—I know it is not in Richmond House anymore, because my office is there. There are legitimate places where people can hold a protest without shaming individual women and rubbing their noses in it. We have heard how these things are filmed and put on Facebook Live, and the new clause takes that into account.

The Minister has chided me on this before, but last time there was a Labour amendment on this issue, it also concerned anti-vax protests. The former Minister for vaccines used to have a Friday call with all of us that was very popular, and he pointed out that stuff has been done in law to stop those protests. This is not dissimilar. We said after the horrible Sarah Everard episode that women should be able to go about their lawful business, to use the public highway and to walk down the street without being impeded by others. Some people would describe what is happening outside clinics as a protest; the people doing the “protesting” would say they were holding vigils and offering advice to the women, but there is a time and a place for that, and it is not at the clinic gates when women are making the most difficult decision of their life, as my hon. Friend the Member for Bristol East said. They are not doing it lightly, and it may be for all sorts of reasons, such as fatal foetal abnormality.

Other jurisdictions have similar legislation. The French legislation brackets the offence with causing psychological distress, and the amendment is lifted from British Columbia. Several American states have such an offence, as does Australia. I have given the example of Ealing before, and I am proud that my local authority was the first to set up a public spaces protection order, or PSPO. Ministers have told me, “Well, councils can do that,” but that order was set up in 2018, and only three other councils in the country have done the same, although new locations for such action are popping up all the time. The Minister might not understand, but my hon. Friend the Member for Bristol East and the shadow Minister, my hon. Friend the Member for Croydon Central, will know that walking past certain unpleasant things will send a shiver down a woman’s spine anyway. Imagine how that might be magnified when they face a difficult medical procedure. Women can sometimes be uneasy about using the public highway; such activity adds a whole new dimension.

As I say, only three other councils have used a PSPO. Why have other councils not done so? Because setting them up is time-consuming and clunky for local authorities, who have quite a lot on their plate. In Ealing, we have the west London Marie Stopes clinic. It is not just my constituents who use it; women come from all over the country, and women from Ireland historically have used it. We are lucky in Ealing: protesters are moved away from the clinic gates. They are moved only 150 metres away, because there is a main road boundary there. We could be flexible about the limit; it could depend on where the clinic gates are, and where women have to pass. As a mother, I have taken little ones past these groups. We are not just talking about protests; there can also be gruesome images of foetuses and 3D dolls. I have been asked, “Mummy, what’s that?” People who are not even using the clinic have had to divert and use other roads so as not to pass that distressing scene.

Other councils have not followed Ealing because doing so is very resource intensive. We had this situation for 24 years in Ealing before the council took the imaginative route of using antisocial behaviour order byelaws; that is what PSPOs are thought of as being. The order is only temporary; it lasts three years before it has to be renewed, and a huge burden of evidence is needed. There is the principle of consistency before the law. We are lucky in Ealing, but this should not be a matter of luck. People should have equal protection under law, wherever they live, and there should be such restrictions for every clinic. I understand that Birmingham has two clinics, one in the north and one in the south; sometimes the protest gang will be at the north clinic, and sometimes at the south one. The element of uncertainty needs to be eliminated. Life has enough uncertainties as it is.

We are often told in Committee, “There is sufficient legislation.” Opposition Members have at times asked the Government, “Why do you want to create a new offence? There is sufficient legislation out there. These people can be stopped.” In this instance, it is proven that there is not sufficient legislation. Whenever I have ventilated the issue, the idea of taking action has been popular on both sides of the House. As constituency MPs, we all know about the complaints we get in our postbags when a street becomes unusable and police are tied up in dealing with unnecessary stuff. I was discussing this offline with a Committee member who I cannot see in his place today. He has an issue with abortion, but this is not about abortion at all; it is not about the number of weeks before which a person can have an abortion, or about being anti-abortion or pro-abortion. It is just about people not having a protest within the buffer zone, however many metres wide we define that as being. People can make their protest in a way that does not interfere with women’s right to walk into the clinic and have the procedure.

As my hon. Friend the Member for Bristol East pointed out, having an abortion is a huge, difficult decision, and women should be informed of the pros and cons and their choices by medical professionals, counsellors and family members. These things should not happen in the street, in a pressurised environment, and in a distressing and confrontational way that is about trying to bring on all these feelings of guilt and shame.

This issue is just not going away. The number of protest sites is growing year on year. The stuff going on across the Atlantic, where Roe v. Wade is being revisited, is very regressive. I do not want us to take a polarised position in Britain. As I have said before in this Committee, the Ealing decision has been challenged at every level—in the High Court, the Supreme Court and the Court of Appeal—and it has always won. Judges have seen that someone having a medical procedure has a right to privacy that trumps freedom of belief, thought, conscience and expression. The two do have to be balanced, and people can have their protest, but not in a way that interferes with women’s right to use the public highway, and to have a procedure to which they have been legally entitled for decades—for longer than my lifetime. All the medical opinion supports this approach; it is supported by the British Medical Association, all the royal colleges, the nurses and midwifery people, and even good old Mumsnet, who are not normally seen as militant crazies.

I think I have said my bit for now. As I say, this measure was massively popular when it was a ten-minute rule Bill, and that was at the height of covid, so not everyone was in the building, but I think the numbers in support of it were crushing. If there was a free vote on the measure, I think that the House would support it. The Government should adopt it; they can then show that the Sarah Everard case was not in vain, and that something has been done for women and girls, even though there are zero mentions of the issue in the Bill.