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?