Public Order Bill

Lord Beith Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am not going to describe all the amendments in this group. I am hoping that noble Lords will introduce their own.

I have one point to make about the arrest of Charlotte Lynch. I had the dubious pleasure of sitting on a panel with David Lloyd, the PCC for Hertfordshire, who seemed to suggest that it was the journalist’s fault and that journalists should not report on protests. He believed in a free press, but not always, so I was slightly worried about the Minister’s reaction, but he said that he used the wrong word.

All these offences deserve to be probed because they are so badly drafted, so broadly drafted, that we cannot be sure what they mean. For example, the Bill names the offence of locking on, but the definition is much broader. The Bill talks of a person attaching themselves or an object to another person, another object or land. What does “attach” mean? Does it mean people linking arms or holding hands? What if they were tied together by a ribbon with a loose bow that you could undo? Would that be attached? Exactly what does it mean? If it is easy to remove the attachment, does it count? Is it still criminal? It seems that these offences are absurd. I do not understand where the threshold is for criminal conduct. It makes the whole Bill worthless if we cannot be sure what it means, and certainly the courts are going to have a field day with this. I beg to move.

[Lord Beith (LD)]

My Lords, the noble Baroness has raised the absurdity of the locking-on offence and the problems that will arise, which are addressed by some of the amendments in this group.

I want to introduce the Minister to an issue he may not be familiar with—perhaps it does not happen in his part of the country. Quite a lot of young couples go about carrying padlocks. Why do they do that? It might not be immediately apparent to a constable that they are wishing to pledge their lifelong devotion to each other. They go to a place such as the High Level Bridge in Newcastle, and they attach the padlock to the bridge; they then throw the key into the water. Explaining that that is what you are about to do might be pretty difficult when your average police constable says that you are carrying a padlock, obviously intending to lock on to somewhere. But they do not lock on to anything—except perhaps each other, and they might be caught by that, as the noble Baroness just pointed out. That is simply one example.

Another obvious example which has been raised by noble Lords before is that of bicycle padlocks. People have to carry them whenever they are going to use their bicycle. Again, these are pretty obvious cases for the locking-on offence as the Government have conceived it.

These are things that just happen in ordinary life. When you compound the offence created in the Bill with the offence of obstruction of a constable, you can see really difficult situations arising, where citizens with no intention of creating serious disruption are nevertheless caught because they are carrying such things in the vicinity of somewhere where serious disruption might be about to arise, or might be known to be about to arise.

I really think that the Government have got to clean up this Bill if they want to proceed with it, and remove from it things that drag ordinary citizens into conflict with the criminal law when they have no criminal intent at all—and do not need to have for the purpose of some of these offences—and are not involved in serious protest. Serious protest is itself, of course, an often justifiable activity, as the courts have demonstrated in some recent cases. Quite apart from the problems faced by those who want to engage in legitimate protest, we should not be passing legislation that simply confuses ordinary citizens as to what they are allowed to do.

[Lord Paddick (LD)]

My Lords, on Amendment 5, in the name of the noble Baroness, Lady Jones of Moulsecoomb, we agree that there needs to be far more clarity as far as the offence of locking on is concerned.

On Amendment 18, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, to which I have added my name, we agree that the scope of going equipped for a locking-on offence should be limited to where the person intends to use the object for locking on, rather than including an object that may be used for locking on. There is a real danger of innocent people carrying innocuous objects being drawn into this offence, as my noble friend Lord Beith has just illustrated.

If we look at a similar offence in Section 25 of the Theft Act 1968, “Going equipped for stealing, etc.”, we see that the wording is:

“A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat.”


There is no mention of any article that may be used in the course of or in connection with the substantive offence. Can the Minister explain why there is a difference in this case from the Theft Act’s “going equipped” and these “going equipped” offences?

Amendment 19 in my name, supported by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Fox of Buckley, probes what “in connection with” means; in this case, “in connection with” locking on. Can the Minister give an example of where an object can be used in connection with locking on but is not used to actually lock on? Similarly, Amendment 48 in my name, supported by the noble Baroness, Lady Fox of Buckley, seeks to establish what “in connection with” means in relation to offences of going equipped to tunnel. Can the Minister give an example where an object can be used in connection with tunnelling but is not used to actually construct, or even to be present in, a tunnel?

Amendment 20, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, and signed by me, includes the question around the term “in connection with” but extends to whether it should also include items for use by someone else, through the term “by any person”. This is the substance of my Amendment 21, signed by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Fox of Buckley, which would replace “any person” with “them.”

As in the Theft Act example, surely it makes no difference if the person carrying a pair of handcuffs with the intention of committing an offence of locking on is the person who is actually going to chain themselves to the railings. If the thief and his mate go looking to break into cars, but the person carrying the crowbar is not the thief who is actually going to use it, the thief’s mate is still guilty of the offence of going equipped to steal. Why then is it necessary to include “by any person” in this offence when it is not present in the offence under Section 25 of the Theft Act 1968?

Similarly, Amendment 49 in my name, supported by the noble Baroness, Lady Fox of Buckley, seeks to understand why “any person” is included in the offence of going equipped for tunnelling when there appears to be no need for this widening of the offence.

Amendments 51 and 52 in my name, and supported by noble Lord, Lord Coaker, seek to understand what would be caught within the offence of obstructing major transport works by including Clause 6(1)(a)(iii), which includes obstructing someone

“taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works”.

This seems to be extraordinarily wide, to the extent that it is almost impossible to understand what would or would not come within the remit of the offence. For example, if a construction worker working on a major transport works is prevented from filling her car with petrol the day before she is due at work—a car she uses to get to work—is that caught within the remit of this offence? Where is the line drawn? Can the Minister give a clear understanding of what is included in the offence, and if not, how does he expect protestors to know whether they are going to be committing an offence?

Amendment 53 in my name, and supported by the noble Lord, Lord Coaker, seeks to probe why Clause 6(1)(b) is necessary. It refers to interference with apparatus, for example. Can the Minister explain how interfering, moving or removing apparatus relating to the construction or maintenance of any major transport works would not amount to obstructing the construction or maintenance, an offence under Clause 6(1)(a)? If it did not amount to obstructing the construction or maintenance, why should it be a criminal offence?

Amendment 65, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, and signed by me, seeks to narrow the scope of the criminalisation of interference with the use or operation of key national infrastructure to cases where the use or operation of the infrastructure is prevented to “a significant” extent, rather than to “any extent”. In other parts of the Bill, reference is made to serious disruption, so why is there no such caveat in this part of the Bill? Would teenagers involved in horseplay, for example, where one throws the other’s mobile phone on to the train tracks, resulting in staff temporarily halting trains so that the phone can be retrieved, be guilty of an offence under this section as drafted?

Amendments 66 and 67 in my name are intended to probe what Clause 7(5) means. It states that

“infrastructure is prevented from being used or operated for any of its intended purposes … where its use or operation for any of those purposes is significantly delayed.”

That makes sense, and that would be the effect of Amendments 66 and 67. Can the Minister explain how adding “The cases in which” at the beginning of that subsection and “include” in the middle of the subsection extend the offence beyond the specific example of significant delay? What else would count as preventing its use or operation?

We support Amendments 69 and 78 in the name of the noble Baroness, Lady Chakrabarti, to probe whether “broadcasting and telecommunication services”, as well as “newspaper printing infrastructure”, should be included in the definition of “key national infrastructure”.

We also support Amendment 70 from the noble Lord, Lord Coaker, which I have signed, to narrow the definition of “road transport infrastructure” to A roads rather than both A and B roads, as recommended by the Joint Committee on Human Rights. Highway obstruction is already an offence for which a custodial sentence can be given, and the enhanced penalties for this offence should be limited to key roads such as motorways and A roads.

We support Amendments 71 and 72 in the name of the noble Lord, Lord Coaker, which I have also signed, recommended by the JCHR, to probe the extent of “rail infrastructure” and “air transport infrastructure”. Does “rail infrastructure” include, for example, the Romney, Hythe and Dymchurch railway, a narrow-gauge steam service used solely for tourism purposes? Does “air transport infrastructure” include small, private airfields or airstrips with little or no air traffic? In what way are they part of “key national infrastructure”?

We also support Amendments 73 to 76 in the name of the noble Lord, Lord Coaker, which I have signed, to probe what facilities would be considered as being used “in connection with” infrastructure, in relation to

“harbour infrastructure … downstream oil infrastructure … downstream gas infrastructure … onshore oil and gas exploration and production infrastructure … onshore electricity generation infrastructure”.

Finally in this group, my Amendment 79 seeks to probe whether all periodicals and magazines should be included in the definition of “newspaper”. Noble Lords will be able to think of several disreputable or trivial titles that should not be considered part of “key national infrastructure”.

--- Later in debate ---

[Lord Beith (LD)]

Can the Minister help the Committee by saying how he would answer this question, and if he has asked himself this question? If he were one of the people carrying something that a constable challenged him for—maybe the padlock that I talked about earlier that a young couple were going to put on a bridge, or maybe a packet of cable ties—what would his answer be to the constable who challenged him? Does he think it would result in him not being charged?

[Lord Sharpe of Epsom (Con)]

My Lords, these things are judged on a case-by-case basis. It would depend entirely on where I was, what I was doing and also the intention as described in Clause 2 of the Bill.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to my Amendments 11, 30, 34, 41, 57 and 63. That may seem a bit of a mouthful but they are all in exactly the same terms. They refer to the reasonable excuse defence in Clauses 1, 3, 4, 6 and 7. Perhaps I should preface my remarks, particularly in the light of the comments made by the noble Baroness, Lady Jones of Moulsecoomb, by saying that I very much subscribe to the view that these measures are not needed at all. These are laws we do not need and they may cause confusion, but I have to take the Bill as it is. I am making my remarks with reference to the Bill as we find it, not as I would like it to be.

The Constitution Committee examined the phrase “reasonable excuse” and its implications, and said that it is

“constitutionally unsatisfactory to leave to the courts the task of determining what might be a ‘reasonable excuse’ without Parliament indicating what it intends the defence to cover”.

There are two points in particular: first, it invites argument over whether certain, but not other, political motivations might constitute an excuse—how serious they are and their consequences, and so forth; secondly, and perhaps even more important, is whether the defence of reasonable excuse should be available at all in cases where serious disruption has been caused. This is exactly the other side of the argument that the noble Baroness put forward a moment ago. The committee’s recommendation was that unless a precise definition of reasonable excuse is provided, the defence should be removed from Clauses 1, 3, 4 and 7 altogether.

The point is really this: if the wording remains in the Bill as it is, it opens the door to arguments that bodies such as Extinction Rebellion and Just Stop Oil use to justify their actions. I recall the lady who was sitting up on a gantry when she was interviewed on television. With tears in her eyes, she said, “I know I’m causing terrible disruption to many people”—you could see all the cars stuck behind the police cordon—“but I’ve got no alternative. Look at the serious disruption that climate change is giving rise to; that’s my case. We’ve got to do something about it, so I don’t mind how much disruption I cause to however many people because I’ve got to get that message across.” The problem with the reasonable excuse defence is that it opens up that kind of argument.

The committee’s recommendation was, as I say, that unless a precise definition is provided it should be removed. My amendments propose that the question

“is to be determined with reference to the immediate interests or intentions of the individual, not any public interest which that person may seek to invoke”.

The immediate interest point would cover the case of the journalist Charlotte Lynch, who was arrested by the police. In her position, she could obviously say that as a journalist she was doing her job. That would undoubtedly be a reasonable excuse if she was having to defend a charge in this situation, and one could think of many other examples, so the opening words of my amendment are designed to deal with people of that kind. But they are intended to meet the very point on which the noble Baroness, Lady Jones, focused on so clearly: the position of protesters who are protesting because of climate change, for example, or other big public interests that people feel it necessary to protest about.

There are various problems with leaving the words as they are. The offences described in Clauses 1 and 6 are to be tried summarily before magistrates. I am conscious that the noble Lord, Lord Ponsonby, is here with his experience but I suggest that leaving it to magistrates to decide whether a particular public interest excuse is reasonable, without any guidance from Parliament, is not satisfactory. There is a risk of inconsistent decisions between one bench of magistrates and another but there is another problem, too. These arguments, if they are to be raised in a magistrates’ court, may take up a great deal of time. I have heard at second hand of a case where one of these issues was raised in a magistrates’ court and it took hours and hours as people deployed their arguments. The magistrates’ courts are not equipped for that kind of interference in their ordinary business, so one has to have regard to the consequences of leaving it to them to decide issues of this kind. That important factor needs to be borne in mind.

[Lord Beith (LD)]

Could the noble and learned Lord explain whether he thinks that phrasing the clause in this way dispenses with the proportionality issue, which was so important in the Supreme Court judgment in the Colston statue case?

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord because I am coming on to deal with exactly that. Indeed, it leads me into the next paragraph in my notes. I am just making the point that one has to consider the practical consequences for prosecutors and the police of leaving this expression as wide as it is and without qualification of some kind. Of course, I am pointing to a particular qualification that needs to be made.

The Supreme Court, in a well-known case called Ziegler in 2021, held that protesters had been rightly acquitted of obstructing a highway when protesting about an armament fair. That is not an easy judgment to read or understand, not helped by the fact that there were two dissents in a court of five, but it has been thought to support the view that invoking the public interest defence in that context is acceptable. However, a series of decisions in the Court of Appeal have narrowed the window that Ziegler left open. The point is that we are dealing now, in the offences that we are considering in the Bill, with offences that require proof of serious disruption. The Court of Appeal’s point is that that changes the balance between what is proportionate and what is not, which is at the heart of this issue. The proof of serious disruption was not a necessary element of the offence of obstructing the highway considered in Ziegler, but it is important to notice that in our offences it is a vital and essential element.

The Colston case was the subject of the most recent Court of Appeal decision, which is Attorney-General’s reference no. 1 of 2022. The court was asked to rule on what principles judges should apply when determining whether the convention rights are engaged by a potential conviction for acts of damage during a protest, and when the issue of proportionality should be withdrawn from the jury. The court held that the convention did not provide protection to those who cause criminal damage during a protest that is violent, not peaceful. That was the Colston case.

However, it went on to say that a conviction for causing significant damage to property, even if inflicted in a way that could be called peaceful, could not be held to be disproportionate either. The prosecution in the Colston case was correct, both because the toppling of the statue in that case was violent and, as a separate issue, because the damage to the statue was significant. The words “serious disruption”, which appear in these offences, seem to fall into the same category. In other words, a person who engages in criminal conduct that causes serious disruption cannot take advantage of this defence.

It has been pointed out that a case raising this issue is expected to be heard by the Supreme Court before Christmas. I think there are problems with that. The judgment is not likely to be given until well into next year because the court takes a considerable time to consider all the issues. I think one would be fortunate if the judgment were out before the early summer. This is a problem that needs to be solved now, and I will come back to the question of the magistrates’ court and the problems that could arise there.

I stress again that the offences we are dealing with here all require proof of serious disruption. That is why the reasonable grounds defence should be removed altogether or qualified in the way I am suggesting, to confine it to circumstances that affect the position of the individual on the ground at the time he or she is causing the disruption. That qualification would be welcome, and undoubtedly useful, in many cases. Without it, I suggest that the whole defence be removed.