Public Order Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, in the case of Tabernacle v Secretary of State for Defence, the late, lamented Lord Justice Laws said:

“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them. Sometimes they are wrong-headed and misconceived. Sometimes they betray a kind of arrogance: an arrogance which assumes that spreading the word is always more important than the mess which, often literally, the exercise leaves behind. In that case, firm but balanced regulation may well be justified.”


That comment, itself both firm and balanced, is the lodestar by which I judge this Bill. The Public Bill Committee in another place heard detailed evidence of the disruption to transport networks and key national infrastructure caused by recent protests, including against projects given clearance to proceed after a prolonged and painstaking democratic process. HS2 said it spent £126 million to the end of March this year in removing protesters, including from a 25-tunnel network under Euston station where the protesters were using lock-on devices underground. National Highways pointed to incidents in which hours of gridlock had been caused by people gluing themselves to lorries, roads or infrastructure—for example, at Dover—and evidence was given of disruption to fuel distribution nationwide and to thousands of air passengers because of attempts to stop a flight from Stansted seeking to deport those whose legal rights had been exhausted.

This sort of organised and highly disruptive behaviour is a breach of the delicate compact, referred to by the noble and learned Lord, Lord Hoffmann, in the case of R v Margaret Jones, by which civil disobedience on conscientious grounds is accommodated by the community for as long as the protesters behave with a sense of proportion and do not cause excessive damage or inconvenience.

If the current arsenal of criminal offences and powers to seek injunctions is not adequate to the task and could be usefully expanded—a question on which the Minister will have to make the Government’s case, and on which I will be interested to hear the vast collective experience in public order policing of the noble Lords, Lord Hogan-Howe, Lord Blair and Lord Paddick, even if their opinions do not coincide on every point—then it seems that we have a duty to do something about that. However, two important elements of the Bill seem, on any view, excessive: the no-suspicion stop and search power in Clause 11 and the serious disruption prevention orders, which it is proposed to entrust to magistrates. Neither power is without precedent in our law but I question whether the precedent of exceptional measures targeted at terrorism, gang violence and sexual harm are appropriate ones to follow here.

On no-suspicion stop and search, the Government rely in their human rights memorandum on the Roberts case on the Section 60 power. I accept that many of the same safeguards that attend this highly unusual power are present in the Bill, but would our courts accept the proportionality of a no-suspicion power to search for bicycle locks and handcuffs as easily as they accepted, in Roberts, the life-saving Section 60 power to search for bladed instruments and other offensive weapons? That seems far from evident.

The characterisation of the proposed SDPOs as protest banning orders is potentially confusing. They do not ban protests, peaceful or otherwise, but they do perpetrate a more subtle mischief. They are expressly unlimited in their content, as in Clause 21(7), and renewable indefinitely—unlike TPIMs, the equivalent restraints on suspected terrorists. They are backed up by the whole sinister apparatus of tags, curfews and reporting requirements. The central estimate of the Government’s own impact assessment is that 400 persons per year will be restrained by such orders, 200 of them otherwise than during sentencing after conviction. If passed into law, they would prevent or inhibit principled, conscientious and even, under Clause 20, wholly law-abiding individuals exercising their fundamental right to participate in lawful protests. Is that the kind of country we want to live in? It would not be Belarus, but I would not want to live there.

I hope we will also look positively on numbers 1 to 11 of the amendments drafted by the Joint Committee on Human Rights in its rather moderate report, which there does not seem to have been much time to debate in the other place or to address in the Government’s brief written response. Perhaps I may end with questions on three issues arising from those proposed amendments.

First, the concept of serious disruption runs through the whole Bill and needs, to quote the evidence in another place of the West Midlands Police,

“as much precision … as possible”.—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 58.]

Why should some definition of it not be given in the Bill? The Joint Committee has made some useful suggestions.

Secondly, a reverse burden of proof has in the past been held to be compatible with the presumption of innocence only if it can be read down, using Section 3 of the Human Rights Act, so as to impose an evidential rather than a legal burden on the accused. Is that how the Government read the various requirements that the Bill places on defendants to prove a reasonable excuse? Will the so-called Bill of Rights, which would remove Section 3, be taken out of cold storage, and what will be the position if it is? What is the objection to reframing those clauses so that the absence of reasonable excuse is an ingredient of the offences themselves?

Thirdly, the Government have shown themselves keen in other contexts to specify matters to which judges should have regard when exercising discretions. Hard-pressed magistrates are given huge responsibilities under the Bill in relation to the public interest defence and, if we pass them into law, prevention orders. Why would we not want to remind those magistrates in the Bill of a factor that is nowhere mentioned in it, and that it will be only too easy for them to overlook: the importance in a democracy of the right of peaceful protest?

Public Order Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I have added my name to the other amendments in this group. If noble Lords will indulge me, as is usual with the first group of amendments, I will remind them why we have arrived at this point. The Government had already included draconian anti-protest measures in the Police, Crime, Sentencing and Courts Bill—including giving the police power to place restrictions on meetings and marches if they might be too noisy, including one-person protests—when, just before the Conservative Party conference in 2020, Insulate Britain began a series of protests, including dangerously and recklessly blocking motorways. Allowing a sentence of imprisonment for highway obstruction was proposed and agreed by this House, and now many Stop Oil protestors have been either sent to prison or remanded in custody pending trial.

However, the then Home Secretary felt that she had to say something to appease Tory supporters at the Conservative Party conference: that she would introduce even more draconian anti-protest measures. Despite the PCSC Bill having already passed through the Commons, the Government introduced these even more draconian anti-protest measures, those we have before us today, as amendments in Committee of the PCSC Bill in this House. Apart from custodial sentences for highway obstruction, this House rejected all these measures on Report of the PCSC Bill.

Apart from the new stop and search powers, which some police officers and His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services suggested the Government might introduce, but which the Home Office left out of the original PCSC Bill, none of the measures that we are being asked to agree to today in this Bill was requested by the police, none of the measures was supported by HMICFRS, and some that were considered, such as serious disruption prevention orders, were rejected as contrary to human rights, unworkable and likely to be ineffective.

I have Amendments 8, 29, 40, 55 and 60 in this group, which all relate to reasonable excuse. We saw, with the arrest and detention by the police of a journalist who was reporting on recent protests, the potential danger of only allowing a reasonable excuse defence to be deployed once charged, as the Government propose in this Bill. In other legislation, a person does not commit an offence if they have a reasonable excuse, and therefore cannot be lawfully arrested and detained. I might not go as far as the noble Baroness, Lady Chakrabarti, in saying that it should be for the prosecution to prove that the protestor did not have a reasonable excuse. I am reminded of the wording of Section 1 of the Prevention of Crime Act 1953, where

“Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence”.


If the Government are looking for compromise, as they should in the face of the opposition already expressed to these measures in this House in its consideration of the PCSC Bill and in the views expressed on this Bill at Second Reading, maybe this should be an option that they consider.

This is even more important than the offensive weapon example, in that these are basic human rights under Articles 10 and 11 of the European Convention on Human Rights—the rights of expression and assembly. To allow people who are exercising their human rights, who have a reasonable excuse for what they are doing, to be deprived of those rights by being arrested and detained, as the Government propose, but where the reasonable excuse for exercising their rights can only be considered once they have been charged, cannot be right.

In Clause 3(2), for example, the proposed legislation says, in relation to tunnelling,

“It is a defence … to prove that they had a reasonable excuse for creating, or participating in the creation of, the tunnel.”


Clause 3(3) says,

“a person is to be treated as having a reasonable excuse … if the creation of the tunnel was authorised by a person with an interest in land which entitled them to authorise its creation.”

I am sure that the Minister will correct me if I have this wrong but, say a landowner instructs workers to build a tunnel on her land, which she owns, before it is subject to a compulsory purchase order to facilitate a development, in order to disrupt the development, which she objects to, she and her workers can be arrested, detained and charged, and only then can they deploy the reasonable excuse defence that the Government provide for in the Bill. How can that be right?

In relation to the obstruction of major transport works, the Bill provides specifically, in Clause 6(2)(b), that if the action

“was done wholly or mainly in contemplation or furtherance of a trade dispute”,

the person has a reasonable excuse, but Clause 6(2) says that

“It is a defence for a person charged with an offence”.


Again, the Minister will correct me if I am wrong, but does that mean that lawful pickets, on a picket line, can be arrested by the police, detained, and charged and can deploy the reasonable excuse defence only once charged? The Minister may say that the police would not arrest those engaged in lawful picketing—even though the proposed legislation would allow it—but, presumably, the Minister also believes that a mainstream journalist, with an accredited press pass, reporting on a protest, would not be arrested and detained for five hours by the police, and would also deny that. Similar arguments apply in relation to Amendment 60 to Clause 7.

We have seen from the arrest of the journalist that the police cannot always be trusted in every circumstance to use their judgment and not use the powers given to them in legislation. If someone has a reasonable excuse for their actions—we will come to a discussion of what amounts to a reasonable excuse in the next group—such as an accredited press card holder reporting on a protest, they should not have a defence once arrested, detained and charged, but the police should not be allowed to arrest and detain them in the first place. That is the desired effect of the amendments in this group and we strongly support them.

[Lord Anderson of Ipswich (CB)]

My Lords, I put my name to Amendments 1 and 7 in the name of the noble Baroness, Lady Chakrabarti, and I support to similar effect Amendment 8 in the name of the noble Lord, Lord Paddick, which coincides with that proposed by the Joint Committee on Human Rights. They relate, of course, to the locking-on offence in Clause 1, which, as the noble Baroness said, is an offence for which the actus reus is extraordinarily broad. You do not have to attach yourself to railings to commit it; it is enough to “attach an object”—any object—

“to another object or to land.”

Nor is there any requirement that serious disruption be caused; it is enough that the act

“is capable of causing, serious disruption”,

a term undefined, at least so far, and that you are “reckless” as to whether it does so.

When I raised this point at Second Reading, the Minister was good enough to say that he would write to me on it, and I thank him for doing so. He makes the point in his letter that the defendant has personal knowledge of the facts, making it reasonable for him to have to establish them. I agree with that: no one, I understand, objects to the evidential burden resting on the defendant, and I apprehend that that is what the noble Lord, Lord Paddick, was just saying, but it is clear from the letter that the Government’s intention is to go further and to place the legal burden on the defendant of proving lawful excuse.

The letter explains that there are times when the evidential and legal burden of proof may legitimately fall on the defendant, notwithstanding the presumption of innocence. One of those times, as the Minister said, is when you are carrying a bladed article in a public place. You may then be expected to prove that you had good reason to avoid conviction under Section 139(4) of the Criminal Justice Act 1988. But as the court said in the relevant case, L v DPP:

“There is a strong interest in bladed articles not being carried in public without good reason”.


The public interest in objects not being attached to other objects is less strong, to put it mildly, particularly against the background of the fundamental right to protest.

As Lord Bingham went on to say in Sheldrake, now the leading case on reverse burdens, security concerns do not absolve the state from its duty to observe basic standards of fairness. There are cases not referred to in the Minister’s letter, such as DPP v Wright, a Hunting Act prosecution, in which it was held to be oppressive, disproportionate, unfair and unnecessary to impose a legal burden on the defendant. Then there is the point well made by the Joint Committee on Human Rights: if the reasonable excuse is an afterthought, rather than an ingredient of the offence, protesters will be liable to be arrested whether they had a reasonable excuse or not. It is undesirable in principle for the possible defence to arise for consideration only after arrest or charge.

The curious thing about this debate, it seems to me, is that it is unlikely to affect the ease of conviction one way or the other. Once it is accepted that a protester may legitimately be asked to bear the evidential burden, then the legal burden, whatever the legal significance of the point, will rarely matter much in practice. The court will take its own view on whether the excuse is reasonable or not and not usually spend much time on the technical issue of burden of proof. Indeed, that was another point made by Lord Justice Pill in the L v DPP case, on which the Government relied in the Minister’s letter to me. In other cases where the Government have overstepped the mark by putting a legal burden on the defendant when they should not have done so, Section 3 of the Human Rights Act has come to their rescue, by enabling the reverse burden to be interpreted as a merely evidential burden that does not get in the way of the presumption of innocence. That emergency cord will not be available to the Government if the courts rule against them on reverse burden after the Bill of Rights has removed Section 3, as appears to be their intention.

I approach this issue in a spirit not so much of crusading zeal as of some bafflement that the Government would take such a legally risky course for so little practical advantage. I suggest that the orthodox approach to these offences is also the fairer approach for members of the public, and the safer approach for police, prosecutors and the Government. The prosecution should simply have to prove its case in the normal way.

--- Later in debate ---

[Lord Marlesford (Con)]

My Lords, having not spoken at Second Reading, but having listened to the debate, I want to contribute one thought which I think follows rather well from what the noble Baroness, Lady Fox, said. This debate on the definition of the word “serious” is really pretty sterile. Talking about the word “serious” is rather like talking about whether a work of art is good or not good. What we are really talking about is judgment, and the judgment of many different groups: of the demonstrators, of the police, and of the courts and within the courts—juries, magistrates and all the rest of it. All we are striving to do is to get what the people as a whole—who are demanding something better than what is happening at the moment—want: better solutions when things happen. I do not believe that we can be precise in laying down in law what is serious or not serious, but that does not mean that we cannot use the word “serious” as shorthand for the collective judgment of all those interests involved.

[Lord Anderson of Ipswich (CB)]

My Lords, the noble Lord, Lord Hain, with his proud record of disruption, cautioned us against forensic critiques. I am afraid that he is in for another one, but in my defence, I will make it very short.

The Minister hinted at the end of Second Reading that he would give thought to a definition of “serious disruption”, which I think would be useful. That is certainly what police witnesses suggested in another place, and what some of us, including my noble friend Lord Hogan-Howe, suggested at Second Reading. I am grateful to the Minister for the opportunity to discuss it yesterday.

I put my name to Amendment 17, recommended by the Joint Committee on Human Rights, which is based on part of the definitions in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022. Having now had a chance to review Amendments 6, 27, and 38, in the name of my noble and learned friend Lord Hope, I am minded to jump ship—I hope that does not make me a rat—because I think his amendments may be better adapted to the purposes of the Bill.

The particular merit of my noble and learned friend Lord Hope’s approach is to recognise that the offences in Clause 1 on the one hand and Clauses 3 and 4 on the other are very different in nature. Disruption consequent on locking on is liable to be caused to any individuals or organisation based or carrying on business in the locality, and it is right that the definition should acknowledge this. Equally, it seems right that the threshold should be a very high one: “prolonged disruption of access” to homes, workplaces or other places to which there is an urgent need to travel, or

“significant delay in the delivery of time sensitive products or essential goods and services.”

That latter condition about significant delay appears in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022 but has, for some reason, been omitted from the JCHR definition.

The tunnelling offences are of a different nature. The serious disruption that they seek to address is to “construction or maintenance works” or related activities. Amendments 27 and 38 appropriately reflect that narrower scope.

If the Government are going to come back with a definition, or definitions, of “serious disruption”, I hope they will see the force of doing it in this way. My noble and learned friend Lord Hope modestly suggested that they might be able to manage something more proportionate and carefully phrased than he did—all I can say is, good luck with that.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Skidelsky (CB)]

My Lords, I enthusiastically support the amendment moved by the noble Lord, Lord Paddick.

I agree with the noble Lord, Lord Coaker, that we are not living in a totalitarian state, but George Orwell also warned of the slide from democracy to despotism: it becomes invisible so that, in the end, you cross a border without really knowing that your freedom has been taken away because you do not want to do anything that might lead to anyone wanting to take it away. We have not got there yet. Nevertheless, it seems that we are discussing areas of legislation in which we find, as the noble Lord, Lord Paddick, said, blocks of words being transferred mindlessly from one set of offences to another set of offences, rather like prefabricated hen houses. One has to guard against that, because the offences are of very different gravity and one must not use the same language when talking of one rather than the other.

Part 2 introduces the serious disruption prevention order, described by Liberty as a protest banning order, which gives police the power to ban a person who has not been convicted of any offence for up to two years from attending any protest, together with extraordinary powers of surveillance, including electronic surveillance. Now I am against prevention orders on the whole, because they tread the path of stopping the liberties of people who have not been convicted of any offence. That is the road down which they lead, so I am suspicious of that in principle.

Here, we have a penalty which can be imposed on a civil standard of proof, meaning that the conditions needed for being given an SDPO need to be proved only on a balance of probability. That compounds the offence. The Government are not only taking powers to inflict extraordinary penalties on someone who has not been convicted of anything, they are also claiming the power to do that on a balance of probabilities, rather than on having reasonable suspicion. That is what this amendment wants to remove and there are subsequent amendments to which the same logic applies. We need to put in a requirement of reasonable doubt into the whole series of these preventive disruption orders.

[Lord Anderson of Ipswich (CB)]

My Lords, I gladly put my name to the stand part amendments on Clauses 19 and 20, which of course stand for Part 2 as a whole, not because I am temperamentally inclined against compromise but because these clauses are so breath- takingly broad that I am not sure I would know where to begin the process of amendment.

Seeking perspective, I turned to the civil orders with which I am most familiar, terrorism prevention and investigation measures, or TPIMs, the replacement for control orders, mentioned by the noble Lord, Lord Paddick, which are currently being copied, I think reasonably, for hostile state actors in the National Security Bill. These are the most extreme forms of restriction known to our law, short of imprisonment. In a rational world, were measures such as these considered necessary in the completely different context of public order, they would be considerably lighter—but, in no less than six respects, the reverse is true. I shall briefly explain how.

The first respect is the trigger. TPIMs can be imposed only when it is reasonably believed that the subject is or has been involved in terrorism-related activity and that the TPIM is necessary to protect the public. An SDPO can be imposed under Clause 19 on someone who twice in the past five years has been convicted of something as minor as obstructing the highway, if an order is thought necessary to prevent them doing so again. Under Clause 20, the person need never have been convicted of anything, though of course if they breach any provision of their SDPO then, just like the suspected terrorist, they can be convicted and sent to prison.

The second respect is content. The range of TPIMs is limited to the specific measures specified in the Terrorism Prevention and Investigation Measures Act 2011. The Bill, by contrast, makes a virtue of the fact that the range of SDPOs is completely unlimited—a point emphasised in Clause 19(6), Clause 20(5) and again in Clause 21(7). Notification requirements seem to be envisaged as routine—as, remarkably enough, is electronic tagging—but these orders can require the subject to do, or prohibit the subject from doing, anything described in them. The extensive list of prohibitions in Clause 21(4) is for some reason not considered sufficient. The right to peaceful protest is not even referred to in the Bill as a consideration to which those imposing the orders must have regard, despite the obvious potential for these orders to inhibit the exercise of that right.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, as the noble and learned Lord, Lord Hope, said, the Constitution Committee considered that a definition of “serious disruption” would be useful. I think there is a measure of agreement around the House that it would be, but the debate is about how best to define it. The amendment tabled by the noble and learned Lord, Lord Hope, to which I have added my name, is an attempt to provide that clarification. I can well imagine a court asking itself, “What is a serious disruption?”, and looking to see whether Parliament has given any help. None is provided at the moment. So I welcome that the Government have accepted, albeit somewhat at the 11th hour, that a definition will be useful.

Amendment 1, moved by the noble Lord, Lord Coaker, and which has the support of others who have already spoken to it, places the bar high. When combined with the necessity of proving not only intention or recklessness on behalf of the putative offender but the absence of a reasonable excuse, which—if the amendment tabled by the noble Baroness, Lady Chakrabarti, is accepted—is a prerequisite before you get to the other elements in the offence, it seems to me that, with all those requirements combined, it would be very difficult, if not impossible, to establish that an offence had been committed. That may well be the underlying purpose behind the combination of amendments. The opposition parties may not approve of the legislation, and, if they cannot get rid of it altogether, they may wish to emasculate it to such an extent that, practically, it cannot be relied upon. That is a perfectly tenable point of view, but not one that I share—and neither do the general public, I think, having seen the effect of some recent demonstrations.

The definition proposed by the noble and learned Lord, Lord Hope, does not place the bar as high as the noble Lord, Lord Coaker, does in his amendment. The former provides for an act that

“will result in, or will be capable of causing, serious disruption if it prevents or would hinder to more than a minor degree”—

he emphasised that last phrase—

“the individuals or the organisation from carrying out their daily activities.”

Clearly, that would exclude mere inconvenience, but it would include “disrupting”—that is an important word—people going to work, hospital, a funeral or a sporting event or taking a child to school; in other words, their “daily activities”. If they were inconvenienced only to a minor degree, that would not be a serious disruption, but the amendment tabled by the noble and learned Lord, Lord Hope, would, I suggest, be a useful guide to courts in determining what amounts to a serious disruption. If it is suggested that it sets the bar too low, we should bear in mind those additional requirements: mere accidental interference is not enough. We should bear in mind, too, how those are bespoke amendments to deal with locking on or tunnelling; they are not general or vague attempts to raise the bar to a particular level.

I also think the opposition parties may wish to bear in mind what the Labour Party shadow Justice Secretary said in connection to this:

“Our brave emergency services are being held up from helping those in distress, and lives have been put at risk. On top of that, the public has been stopped from going about their everyday business.”


I do not suppose that the Opposition would wish to disassociate themselves from that. It seems entirely consistent with the amendments tabled by the noble and learned Lord, Lord Hope, on serious disruption—and, when we come to them, on “reasonable excuse”.

Of course, I entirely accept that the right to protest is fundamental, and we must, as citizens, be prepared to put up with inconvenience caused by those exercising that important democratic right. We may find it noisy and annoying—depending on how much we sympathise with the cause, even very annoying—but that would not be enough to be a serious disruption. It must be something more than annoying, but less than the very high hurdle which must be surmounted by the wording of the amendment moved by the noble Lord, Lord Coaker. Ultimately, it may come down to whether your Lordships consider that the right to protest is so fundamental that it must trump the rights of ordinary people going about their everyday lives. It is a difficult balance to strike, but although I profoundly respect the right to protest and have sympathy for many of the relevant causes, it seems to me that one has to counterbalance that with the rights of others to go about their lives—those rights are entitled to protection, too, and this amendment attempts to achieve a balance between those respective rights.

[Lord Anderson of Ipswich (CB)]

My Lords, I am also glad that your Lordships’ House is trying to explain for the benefit of protesters and police what is meant by “serious disruption”, even if we are not finding it very easy.

I will start with the new tunnelling offences in Clauses 3 and 4, which, as I said in Committee in support of the consistent approach of the noble and learned Lord, Lord Hope, are in a very particular category. The key point, recognised in Amendments 14 and 24, is that the disruption liable to be caused by tunnelling is not to the general public but to construction or maintenance works. Delays to the delivery of time-sensitive products, and prolonged disruption of access to a rather specific range of goods and services specified in Amendment 1 of the noble Lord, Lord Coaker, are not really to the point. The one-size-fits-all approach in Amendment 1 is neither designed for nor appropriate to the tunnelling offences. I would add that to require disruption to be “more than minor” in order to constitute the new offences seems quite sufficiently generous to tunnellers who are seeking to disrupt those engaged in lawfully organised works. That is why I put my name to Amendments 14 and 24 and shall support them if they are put to a vote.

The arguments are more finely balanced in relation to Amendment 5. The locking-on offence, as the noble Lord, Lord Coaker, has said, can be constituted by a remarkably wide range of actions. I am wary of a test that is too easy to satisfy, bearing in mind that serious disruption, or the prospect of serious disruption, is the trigger for the no-suspicion stop and search power, and for SDPOs, the whole existence of which is controversial, at least to me. But I take comfort from the fact that, as the noble and learned Lord, Lord Hope, has explained, hindrance to the public needs to be significant before it can meet the test of being more than minor. Indeed, “significant”, not “substantial”, is the very word used in Amendment 1 when it refers not only to “significant harm” but to “significant delay”.

The recent Policy Exchange briefing, to which the noble Lord, Lord Coaker, referred, complains that the “more than minor” test may be interpreted in the light of the Strasbourg case law

“so as to maximise the space for protest”.

I agree that it will have to be interpreted in conformity with the ECHR. Policy Exchange seems dismayed by that; I am rather encouraged by it. When the definition offered by the noble and learned Lord, Lord Hope, is criticised from one side for being too easy to satisfy and from the other for being too difficult to satisfy, perhaps it is not too wide of the mark, even in this more sensitive context.

My main point is that whatever view noble Lords may take of Amendment 5, the case for Amendments 14 and 24 is a strong one. I hope we will have the chance to vote for them.

[Lord Brown of Eaton-under-Heywood (CB)]

Before my noble friend sits down, would he agree that there is no particular reason why Amendment 1—although plainly it would pre-empt Amendment 5—should pre-empt Amendments 14 and 24?

[Lord Anderson of Ipswich (CB)]

I believe the Deputy Speaker so directed at the outset of this debate—but I will be corrected if I am wrong about that.

[Lord Berkeley of Knighton (CB)]

My Lords, I would like to ask the noble Lord, and not from a musical perspective, whether if we change the words “more than minor” to “major” we might not make some progress, because surely that is what they mean.

[Lord Anderson of Ipswich (CB)]

I am conscious that an expert musician will certainly know the difference between minor and major. I take refuge in the fact that there is no such amendment before us, so perhaps I do not need to answer that today.

[Lord Pannick (CB)]

My Lords, the right to protest in a democracy is of central importance, but I cannot see that there is much of a right to glue yourself to another person or object in order to disrupt the daily lives of other people. That is what we are talking about here. There are many ways of protesting in our democracy without locking yourself on—without disrupting the lives of others. The conduct with which these clauses are concerned is very often, as the noble Baroness, Lady Jones, accepted, for the very purpose of disrupting the lives of others. I think that such conduct should not be unlawful, as Amendment 1 proposes, only if it causes prolonged disruption.

Preventing people going to work or taking their children to school or relatives to hospital should be unlawful. That is, as far as I can see, more at the minor end and sufficiently strong to outweigh the interests of the protesters, as the cases cited by the noble and learned Lord, Lord Hope, demonstrate.

I suggest that the House bears in mind one further point. There is a danger, when we consider all these amendments, that we do so by reference to protest with which we may sympathise—maybe environmental causes. But the protest may also be by those whose causes are far less attractive and far more damaging to a democratic society. Such protesters may also decide to lock on, and the law needs to deter and penalise them.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

56: Clause 19, page 22, line 20, leave out sub-paragraphs (iii) to (v)
Member's explanatory statement
This amendment would limit the trigger events for an SDPO to the commission of a protest-related offence and the breach of a protest-related injunction.

[Lord Anderson of Ipswich (CB)]

My Lords, I rise to propose a number of amendments to Part 2 of the Bill, which provides for serious disruption prevention orders, or SDPOs. These are civil orders, breach of which is punishable by imprisonment. Imposed by magistrates at the request of the police, their intended effect is to prevent people, who may or may not have been convicted of a protest-related offence, from participating in or assisting future protest-related activities by means of blanket restrictions on their movement, activities, association, and use of the internet—see the list of permitted requirements in Clause 21(2) and the rather forbidding list of permitted prohibitions in Clause 21(4), neither of which is exhaustive.

In Committee, the Minister said, rather colourfully, that SDPOs are targeted on

“a small group of individuals”

who

“repeatedly trample on the rights of the public without let or hindrance”.—[Official Report, 13/12/22; col. 639.]

For those individuals, we are asked to assume that the availability of bail conditions and of ever-longer prison sentences for an ever-growing list of offences are insufficient.

My objections to SDPOs are twofold. My first is, to use the Minister’s language, that they can imposed not just on those who trample on others but on people who tiptoe over the boundary or enable others to do so and, indeed, under Clause 20, on people who have never broken the law and in respect of whom there is no evidence that they ever will. The likely effect of these clauses in chilling the freedom of assembly is obvious.

My second objection is that there are remarkably few lets and hindrances on SDPOs themselves, even by the standards of comparable orders aimed at the prevention of knife crime, domestic violence and terrorism. In Committee, I pointed out the six central respects in which SDPOs are more severe even than the TPIMs, successors to the once-controversial control orders that we impose on a tiny handful of dangerous terrorists and that I was much concerned with when I was Independent Reviewer of Terrorism Legislation. Yet the Government estimate that 400 SDPOs will be imposed every year: 200 after conviction for protest-related offences under Clause 19, and 200 under Clause 20 on people who need not have been convicted of anything at all.

I turn to the three categories of amendments in this group. The first category is the old stand part debates from Committee, renewed in the form of Amendments 59 and 63 in the name of the noble Lord, Lord Ponsonby, which I have signed, along with the noble Lord, Lord Paddick, and the noble Baroness, Lady Chakrabarti. These give effect to the views of bodies ranging from HMICFRS to the Joint Committee on Human Rights. They attracted wide and distinguished support when we debated them in Committee.

The second category of amendments are those tabled by the Government after the Minister’s promise to think further. Amendments 58 and 62 reduce from five years to three years the period in respect of which previous offences or other conduct may be taken into account before imposing an SDPO. That does not address the main concerns with SDPOs, but it is something. Amendment 65, with those consequential on it, deletes the express authority in the Bill for the use of electronic tags to monitor compliance with an SDPO. This removes one of the more eye-catching features of these orders but leaves unaffected the unlimited range of requirements that an SDPO may contain, limited only by the purposes broadly defined in Clauses 19(5) and 20(4). Finally, Amendment 69 provides that an SDPO may not be renewed more than once, although, since SDPOs can still be imposed for an unlimited duration, this might be considered a rather limited comfort. I thank the Government for these amendments, which are welcome. However, with respect, they do no more than nibble around the edges.

The third category of amendments are the seven that appear under my name, with the support of the noble and learned Lord, Lord Thomas of Cwmgiedd, and, as to six of the seven, the noble and learned Lord, Lord Hope of Craighead. I hope that it is fair to describe them as modest. I will say a brief word about each.

Amendment 56, to which I draw the particular attention of the House, and Amendment 60 would limit the trigger events for an SDPO to the commission of a protest- related offence or the breach of a protest-related injunction by the person to be subjected to an SDPO. The effect of that change is that you could not be a target of an SDPO, as you could under the Bill as it currently stands, if you drove your daughter to a demonstration in which serious disruption such as delay or hindrance was caused to two or more individuals.

Amendments 57 and 61 would ensure that a second or subsequent SDPO made in respect of any person was founded on trigger events that had not already been taken into account for the purposes of the imposition of a previous SDPO. I would be amazed if anything different were intended by Government, and I persist in the hope that these might be accepted as simply clarifying or tidying-up amendments.

Amendment 64 would limit the requirements that may be imposed by an SDPO to those having the effects specified in Clause 21(2). That would no longer be an illustrative list but an exhaustive list. But note the modesty of this amendment too: it would leave unaffected the long and draconian list of permitted prohibitions in Clause 21(4).

Amendment 71 would limit the total maximum duration of any SDPO to two years, which could be extended to a total of four years under the Government’s Amendment 69. Of course, new facts could form the basis of another SDPO even beyond that point.

Amendment 72 would remove the Secretary of State’s power in Clause 30(2)(b) to give guidance to the police

“about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.

That guidance power is an extraordinary infringement on the operational independence of the police, as I hope your Lordships will agree.

I am unrepentant in my opposition to SDPOs as unnecessary, disproportionate and dangerously broad. That is why I support the stand part amendments from the noble Lord, Lord Ponsonby, and will vote with him if he so invites the House to remove Clause 20 from the Bill. If there is insufficient appetite to remove Clause 19 and the Benches opposite indicate their support, I propose to test the opinion of the House on my Amendment 56, which would ensure that the trigger events for an order under Clause 19 are limited to protest-related convictions or breaches of protest-related injunctions.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I will need to clarify that but, given the other things that I have said, it would imply—I stress “imply”—that the person needed to be there, but I will come back on that point.

I also stress that those who make their voices heard without committing offences or causing serious disruption would not be affected.

The evidential threshold of SDPOs was also the subject of discussion. I am sure that many noble Lords support the courts’ imposition of injunctions which are made on the civil burden of proof and ban large numbers of people protesting in certain locations, including, on occasions, “persons unknown”. The burden of proof is the same for SDPOs, and they are made against known individuals whose actions have shown that an order is necessary.

Noble Lords also raised the question of how SDPOs will be enforced. As I hope I conveyed in Committee, it will ultimately be for the courts to place necessary, proportionate and enforceable conditions on protesters subject to an SDPO and for the police to exercise any powers of arrest in relation to breaches. However, I assure the House that the Government will be setting out statutory guidance for SDPOs to aid the police and courts in due course.

The use of SDPOs is critical when equipping the police with powers to ensure that they can take proactive steps against prolific protesters. So in removing SDPOs fully from the Bill, we will continue to see the police struggle to get ahead of those protesters who are hell- bent on repeatedly inflicting serious disruption.

The noble Lord, Lord Paddick, mentioned the HMICFRS’s comments about banning orders not being compatible with human rights, but the report from the policing inspectorate considered only orders that would always ban an individual protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption, so depending on the individual circumstances this may mean that the court will not consider it necessary to stop individuals attending protests.

Nevertheless, as I made clear when we discussed these measures in Committee, I recognise the strength of feeling expressed by your Lordships. In that vein, I turn to the amendments tabled by the noble Lord, Lord Anderson. I thank him for his continued engagement on this Bill as a whole. His amendments all seek to amend the SDPO regime in some way, be it limiting the trigger events for an order, limiting the maximum duration of an SDPO, limiting the requirements that can be imposed on an individual or amending some of the guidance that is to be issued by the Secretary of State concerning these measures. We still believe that SDPOs are an important and useful tool for stopping repeat protesters committed to causing disruption. For this reason we regrettably cannot support the amendments proposed, which we assess amount to a substantial dilution of the Bill’s effectiveness. However, we recognise the sentiment behind them, as well as the other concerns raised, which is why I committed to take the matter away.

As a result of that consideration, the Government have tabled amendments which seek to allay some of the concerns expressed by your Lordships. We have tabled an amendment which removes the electronic monitoring provisions from the Bill, meaning that no individual subject to an order would have the requirements and prohibitions imposed monitored electronically. This was a particular concern of your Lordships, and we have responded accordingly. The second amendment reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years. The final amendment addresses a criticism made by your Lordships concerning the renewal of an order. Indeed, many noble Lords expressed concerns that an order could be continuously renewed. The amendment we have tabled therefore addresses this by setting a limit on the number of times an order can be renewed to only once. It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs. I encourage all noble Lords to support the amendments in the Government’s name and to reject the others in this group.

[Lord Anderson of Ipswich (CB)]

The Minister will recall that I described my Amendments 57 and 61 as clarificatory. It seemed to me that the Government must surely have not intended that a second or subsequent SDPO made in respect of the same person could be founded on trigger events that had already been taken into account for the purposes of a previous SDPO. I understand that the Minister does not accept my amendments, but can he at least clarify that that is the Government’s understanding of the Bill?

[Lord Sharpe of Epsom (Con)]

I can clarify that that is the Government’s understanding.

[Lord Anderson of Ipswich (CB)]

I am grateful to the Minister for that and for his engagement throughout this process. I am also grateful to all noble Lords who have spoken in this debate, in particular to the noble and learned Lord, Lord Hope, for his extremely pertinent points on the three sub-paragraphs that my Amendment 56 would remove from Clause 19, and to the noble Viscount, Lord Hailsham, for the broader point, which I tried to make as well, that those sub-paragraphs capture conduct that is simply too remote to justify the imposition of such a draconian order.

Very fairly, the noble Viscount made the point, echoed by the Minister, that a magistrate asked to make these orders under Clause 20, for example, must think it “necessary” for certain purposes—he noted the strength of that word. The noble Viscount is right about that, of course, but I simply ask the Government to have in mind, as I am sure they do, that the purposes for which it can be necessary are expressed very broadly indeed. For example, if you look at Clause 20(4)(c), you see that it can be necessary to prevent a person

“causing or contributing to … the carrying out by any other person of activities”.

One has all the same, very indirect language that I seek to remove by Amendment 56.

My amendments leave the police with a completely workable system to deter the small group of individuals who, in the Minister’s words, are hell-bent on repeating serious disruption; there can surely be no doubt about that. Both my amendment and the amendment relating to Clause 20 are too modest to impact on that objective. That is less than some of us would have wished, and I am sure the Government and the House of Commons will be well aware of that when it goes back to them, if these amendments are carried.

I have sympathy with the noble Lord, Lord Paddick, who does not think that my Amendment 56 goes far enough. I would love to have seen other amendments put to the vote, but I am told that politics is the art of the possible. I think the noble Lord agrees that this amendment is a great deal better than nothing and that this improvement will be greater still if Clause 20 can be removed from the Bill. I would like to test the opinion of the House on Amendment 56.

Public Order Bill

Lord Anderson of Ipswich Excerpts

3rd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Cormack (Con)]

My Lords, I rise briefly to support what my noble friend has just said. I am grateful, as we all are, to my noble friend Lady Sugg, who has made a genuine effort to improve things since the first time she moved her amendment. That should be, and I think is, acknowledged throughout the House.

As my noble friend Lord Jackson said, we are potentially on a slippery slope here, because the stigmatising of someone who privately prays and does not necessarily say anything at all is very dangerous. We sometimes debate what happens in other countries, and although this is a long way off Chinese practice, it is going in that direction. We should be very careful. The law as it stands, without Clause 10, is adequate to deal with any problems that might arise. I can see that they might from time to time, but I do not believe that the “sledgehammer to crack a nut” approach is the right one. As my noble friend said, the Bill will go on the statute book. It will accompany many other imperfect pieces of legislation that we really should not have allowed through your Lordships’ House.

[Lord Anderson of Ipswich (CB)]

My Lords, I want to say three things. First, I pay tribute to the noble Baroness, Lady Sugg, for the remarkable job she did after the contentious committee hearing on this clause. She forged a result which, although certainly not perfect, and which continues to evoke strong feelings, had the support of a very great majority of your Lordships.

Secondly, I thank the Minister for taking on board Amendment 9, which is surely not controversial but mends the hole in this Bill by ensuring that the same incidents are not taken into account for successive serious disruption prevention orders.

My third point is also addressed to the Minister, but I suspect more particularly to his ministerial colleagues. On both stop and search and serious disruption prevention orders, your Lordships’ House has not obstructed clear government policy but has found a way—with the benefit of our collective experience—to leave the police with the powers the Government say they need, while removing the excessive and unnecessary elements of each power. The things we removed are no-suspicion stop and search and the power to trigger SDPOs on the basis of activity that does not meet the criminal threshold.

I remind the Minister that all this was passed with overwhelming Cross-Bench support. All three amendments on these subjects were signed or supported by two Lord Chief Justices, two further judges of our highest court and a former Commissioner of the Metropolitan Police, my noble friend Lord Hogan-Howe, who, in my experience, knows exactly what he is talking about on these issues. The three amendments collectively attracted 162 Cross-Bench votes, with only eight against. Of course, these Benches are only a small part of the House, but not one, I hope, that anyone would willingly confuse with a crypto-anarchist front. I believe that the Minister, with his own policing experience, will see the force of these views, and I ask him to convey that to his colleagues in the Commons. I hope that this Bill can become law without tiresome ping-pong and with these amendments in place.

[Lord Paddick (LD)]

My Lords, we wholeheartedly support all the amendments in this group. Noble Lords often talk about the tremendous work the noble Baroness, Lady Sugg, has done on this Bill, although I realise they have not said it in those terms.

It may come as a surprise to Members of this House that I consider myself to be a Christian. I rather overdid it: I was baptised as an infant; then I became a Baptist and was baptised by total immersion; and then I went to Oxford and was confirmed in the Church of England. It was belt and braces as far as I am concerned. This legislation is not anti-Christian and, in respect of people who privately pray, my understanding is that prayer works very effectively outside of a 150-metre radius of an abortion clinic.

I have to apologise to the House: I should have been on my guard on Report. I refer to the debate on 7 February, when the Minister talked about the Government having tabled amendments

“which seek to allay some of the concerns expressed by your Lordships.”

I think the Minister knows what is coming. He went on to say that the second amendment, Amendment 58,

“reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years … It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs”.—[Official Report, 7/2/23; cols. 1147-48.]

Regrettably, when it came to Amendment 58, the Minister “not moved” his own amendment. I was not quick enough to intervene to rescue it, so that amendment is lost. It was not part of an amended part of the Bill, so it cannot be amended here at Third Reading, and it cannot be amended in the Commons either. As I said, I apologise for not being quick enough to spot that mistake. Having said that, we support all the amendments before the House today.

Public Order Bill

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I will intervene very briefly to make two points. I spent about eight years overseeing police work on counterterrorism in London and more generally. The use of the Section 44 power, which gives the police the power to stop without suspicion, was one that most people, when they thought about it, would say was acceptable: they understood that they were in an area where there was an obvious terrorist target and heightened concern.

When that power was exercised, was it without controversy? I am afraid that the answer is no. There was enormous resentment towards it, precisely because of the issues about disproportionality that have already been referred to and the complications that ensued from that.

That was in circumstances when most people might understand it, when they had it quietly explained to them—which does not usually happen during the course of a normal stop and search—that, “We’re stopping you, because we’re in this area, you are close to this and we are stopping people at random, just to make sure that they are not carrying explosives or a bomb”. But this is about circumstances where people are engaging in a demonstration or exercising their civil rights. That is of a completely different order and what makes this disproportionate.

My second point may sound trivial by comparison. We have had the point made about what rank of officer should look at this. It was suggested by the noble Lord, Lord Hogan-Howe, that it might be quite difficult to find a chief superintendent at the right moment. All I would say is, if this is a matter of such seriousness that we are being asked to approve these extraordinary, disproportionate powers, then there should be a chief superintendent or people of equivalent rank overseeing and supervising what is happening.

[Lord Anderson of Ipswich (CB)]

Before the noble Lord sits down, I should say that he refers to the Terrorism Act power of stop and search. Of course, Section 44 is now replaced by Section 47A, which adopts a similar model to Clause 11. Has the noble Lord noticed and does he have any comment on the provision that the power to authorise no-suspicion stop and search under Section 47A, which can be exercised only when there is a reasonable suspicion that an act of terrorism will take place, may be taken only by a senior police officer—in other words, a commander or an assistant chief constable?

[Lord Harris of Haringey (Lab)]

The noble Lord interrupted me before I sat down, although I regarded myself as having sat down. The noble Lord, Lord Anderson, is absolutely correct. The reason Section 44 was changed was because of the concerns that I have expressed. The conditions on that, in circumstances when most sensible people would regard it as appropriate, perhaps, to have in your back pocket the power to stop without suspicion, were tightened in a way which this Bill would not allow.