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.