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.