Public Order Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

The Joint Committee on Human Rights recommended the removal of Part 2 of the Bill—Clause 19 as well as Clause 20. I understand that, in areas such as this, the Government will often come to Parliament with a so-called concession strategy. If that is the case here, I can only hope that it is an extremely bold one and that the Minister will own up to it as soon as possible. Otherwise, I am sure that many of us will be driven to follow the Joint Committee’s recommendation.

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

My Lords, at this late hour, I will say just a very few words. I start, rather tiresomely, with a pedantic legal point. The explanatory statements for the first three numbered amendments in this group suggest that they relate to the “burden of proof”, but they do no such thing. As I say, somewhat pedantically, I point out that the burden is unquestionably accepted to be on those who wish to pursue this supposed remedy, but these amendments are directed to the standard of proof, which is so critically important here.

As the noble Lord, Lord Skidelsky, said, this is no place for balance of probabilities; it is for the criminal standard of beyond reasonable doubt. That is assuming that anything stays in this part at all. Having just listened with my usual awe and admiration to my noble friend Lord Anderson of Ipswich, and having been conducted down memory lane—TPIMs were a significant part of my past when I was here in a judicial capacity—let me say that his attack on Part 2, on the whole concept of SDPOs, is devastating and unanswerable, and hopefully, at some point, the Government, will recognise that if they have not done so already.

In case the Government have not the good sense and courage to abandon entirely this whole group of provisions, I say that the balance of probability has absolutely no place here at all. Of course, it is the standard by which we determine civil disputes and claims, but, as has already been pointed out, ASBOs—which were given to anti-social people who were being very tiresome with no sort of justification towards their neighbours—were initially put on a balance of probability basis and even that was regarded as unacceptable. But how much more unacceptable is it when, as here, fundamental civil liberties are at issue. To suggest that the touchstone for deciding whether people should be barred from exercising their historic rights should be the balance of probabilities—“Well, perhaps it is just more likely that he did or didn’t do whatever it is”—is a nonsense. Again to revert to legalese: “a fortiori” means if it is a nonsense for one thing it is particularly so for something else; and it is particularly so here, in the circumstances where one contemplates making these draconian orders even when there has been no conviction whatever.

I shall support those who I hope will pursue the stand part provisions here, but, failing that, it is unthinkable that this Bill could go through on a balance of probability basis.

[The Lord Bishop of Chelmsford]

My Lords, I intend to be brief, but I wanted to speak in favour of Amendments 128, 129 and 130, addressing the Bill’s provisions on serious disruption prevention orders, adding my support to the noble Lord, Lord Paddick, and others, and in particular my friend, the right reverend Prelate the Bishop of St Albans. SDPOs are particularly hard-line and risk undermining people’s fundamental rights to protest, and they risk subjecting individuals to intrusive surveillance—methods that, as we have heard, are not typical in this country, and nor do we want them to become typical. The terms used to define who they can apply to are worryingly broad. The definition of “protest-related offence” as

“an offence which is directly related to a protest”

leaves the door far too open to interpretation. It therefore seems appropriate that the burden of proof for imposing SDPOs to the criminal standard should be raised as set out in Amendments 128 to 130.

Public Order Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

My Lords, I remind the House that if this amendment is agreed to I cannot call Amendments 5, 14 or 24 due to pre-emption. As we are on Report, I remind noble Lords that they are allowed to speak only once.

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

My Lords, I support Amendment 1, and no less strongly I oppose Amendment 5 proposed by the Government, my noble and learned friend Lord Hope and others. I never feel comfortable at the opposite end of the spectrum from my noble and learned friend Lord Hope, but I trust that he feels at least as uncomfortable on the other end of the spectrum from me.

Before commenting briefly on the actual language of these rival amendments, let me make what seems to me to be a critical preliminary point, and it is this: the meaning of “serious disruption”—assuming it is to be defined by one of these proposed amendments—is closely related to the concept and discussion and issue of “reasonable excuse” and the rival proposed amendments to that. I recognise that “reasonable excuse” comes under the next group but it is important that it should not be ignored at this stage. As your Lordships will readily understand, the lower the threshold is set for what constitutes “serious disruption”, the less justification there is for narrowing down, let alone excluding, the defence of “reasonable excuse” or for putting the burden of that defence on the accused. It becomes highly relevant as to what is decided in group 1 when we get to group 2. I acknowledge that the converse is true too: the higher the threshold for what constitutes “serious disruption” then the readier the House may be to look at shifting the burden, as the Bill already does, on matters of that sort.

Let me now turn briefly to the proposed definitions. Is “serious disruption” really to mean no more than substantial—in other words, something that is merely more than to a minor degree—interference with someone’s daily activities, as proposed by the Government, such as somebody driving to the shops? “Hindrance”, which is the concept used in the proposed government amendment, is effectively just that: it is really no more than interference and inconvenience. What weight, one asks, is given in the Government’s proposed definition to the word “serious”? Is it to be suggested that this is sufficiently catered to merely by the “hindrance” in the definition having to be

“more than a minor degree”?

I would submit it is surely not.

I do not wish to damage the points made by the noble Lord, Lord Coaker, and I would risk doing so if I were to go on at any great length. Surely the preferable definition is that which is proposed in Amendment 1, “significant harm”, as illustrated in the amendment. It is that significant harm, not merely interference or inconvenience, against which this legislation is directed, and it is certainly only that which could possibly justify most of the regressive, repressive features of this Bill. I therefore support Amendment 1.

[Lord Paddick (LD)]

My Lords, I will first address the opening remarks of the noble Lord, Lord Coaker. As I have told the House before, I have considerable experience of public order policing and my view is that the police have sufficient powers without any of the measures contained in this Bill. In fact, that is the view of many serving police officers who were interviewed by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, some of whom referred to the powers that currently exist as an “armoury” of powers to use in public order policing. Now even the Just Stop Oil protesters say they are no longer going to protest in the way that they have before because too many of them are in prison. If too many of them are in prison, and they are not going to protest in the way that they have before, why do we need yet more powers for the police and more laws?

I have Amendments 3, 4, 12, 13, 22 and 23 in this group, which are nothing to do with the definition of “serious disruption”, so let me deal with these first. These amendments relate to the new offences of locking on, tunnelling and being present in a tunnel. The new offences include activity that is capable of causing serious disruption, even if no disruption whatsoever is caused—another example of giving the police the power to intervene in anticipation that serious disruption may be caused before a protest has even started.

Amendments 3, 12 and 22 restrict the offences to activities that actually cause serious disruption. The new offences are not only committed by those who intend to cause serious disruption, but also extend to those who are reckless as to whether serious disruption may be caused, even if they have no intention of causing serious disruption. Amendments 4, 13 and 23 remove the “reckless” element.

Amendments 5, 14 and 24—and part of Amendments 50 and 51, as we have heard—relate to the definition of “serious disruption”. The Minister will no doubt cite the Commissioner of Police of the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” was clearer. Amendment 1, to which I have added my name—[Interruption.]

--- Later in debate ---

[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.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, I first thank noble Lords; so too does Cole Porter from the grave, because “how strange the change” would have been from “major” to “just a little bit more than minor”.

This second group deals with the concept of “reasonable excuse”, which noble Lords will remember is present in a number of the new criminal offences in the Bill. As noble Lords have heard, some, including locking on in particular, are very vague and dangerous. I have some amendments, with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that attempt to set straight a reversed burden of proof, inappropriate in criminal law, where the Government have sought to place the burden on the innocent cyclist with the bike lock or the protester, or whoever, to demonstrate that they had a reasonable excuse when, really, the lack of a reasonable excuse should be a component part of the criminal offence and, indeed, something that a police officer considers before arresting someone.

The noble Lord, Lord Paddick, has said eloquently many times in your Lordships’ House that criminal offences need to be fit for purpose not just in a courtroom or even during a charging decision in a police station, but on the ground when an officer is considering who to arrest. Therefore, it is important that the lack of a reasonable excuse be a component, core part of the offence and not something that a hapless bystander or protester has to prove.

The noble Lord, Lord Paddick, will speak to other amendments in this group that he has tabled. I support all of them, whether my name is there or not; it is there in spirit. I would like to be clear about that and, similarly, with attempts to improve these offences and improve the definition of “reasonable excuse”. But, on account of time, I just want to focus on and prioritise the importance of not supporting the government amendments or, should I say, the amendments that Ministers have now signed in the name of the noble and learned Lord, Lord Hope of Craighead.

It seems harsh, to say the least, to single out “protest” from all the potential excuses that may or may not be reasonable in a particular case and a particular set of circumstances. Why single out protest as something that can never be reasonable? That seems to me to be an attempt to take proportionality out of the mind of a decision-maker—not just a court but a police officer on the ground. I think that is a mistake.

The noble and learned Lord, Lord Hope, will no doubt cite very leading authority on circumstances in which proportionality is so clearly part of an offence that there is no need for second guessing at the arrest or prosecution stage. But that will not be the case in relation to some of these offences and, I venture, locking on in particular.

I will not attempt to repeat the eloquence of my noble friend Lord Coaker with the various descriptions of linking arms, but the idea that an offence that can be committed with such trivial activity should not have an element of proportionality put in the mind of a decision-maker is of huge concern to me.

Without further ado, I commend the various amendments that I have described, but also ask noble Lords not to support any attempt to single out protest as the one excuse that is never reasonable. That seems rather unreasonable to me. I beg to move.

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

My Lords, I support the noble Baroness on her amendments and am opposed to Amendment 8 from the Government and the noble and learned Lord, Lord Hope, which seeks to exclude and narrow down very dramatically the scope which, I submit, should be present in this offence for a defence of reasonable excuse.

Why should not a demonstration against measures concerning, for example, climate change as a question of fact and degree for the trial judge be adjudged reasonable, as was the case in DPP v Ziegler, which went to the Supreme Court. It is perfectly true and perfectly right that I should acknowledge this. Indeed, my noble and learned friend Lord Hope drew my attention way back at the end of last year to the latest Supreme Court decision, which he mentioned today with regard to group 1, in the Northern Ireland abortion case. It is a reference from the Attorney-General for Northern Ireland.