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.