Public Order Bill

Lord Coaker Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

Moved by

[Lord Coaker]

At end insert “and do propose the following amendments to Amendment 1A—

1B: In subsection (1)(a), leave out “more than a minor” and insert “a significant”

1D: In subsection (1)(c), leave out “disruption that is more than minor” and insert “significant disruption””

[Lord Coaker (Lab)]

My Lords, the Minister said that the noble and learned Lord, Lord Hope, proposed his amendment for “more than minor” and that was why the Government reintroduced it in the Commons and were supporting it again. Of course, that was lost when it was debated in your Lordships’ House and the Government have inserted “more than minor”—admittedly, with some flowers and curtains around it. I keep saying to noble Lords that it goes to the heart of the debate as to the threshold we wish to set where we start to undermine the right to protest. I still contend that the Government’s “more than minor” threshold is too low. Hence my Motion A1 would insert in subsection (1)(a) “significant” instead of “more than a minor”; in subsection (1)(b), it would leave out

“delay that is more than minor”

and insert “significant delay”, and in subsection (1)(d), it would leave out

“disruption that is more than minor”

and insert “significant disruption”. The point of that is, of course, to raise the threshold.

First, because I think it is important for noble Lords to understand, I want an assurance from the Minister that whatever we decide will be respected by the Government. To refer back to the Police, Crime, Sentencing and Courts Act 2022, Sections 73 and 74 define public nuisance and impose conditions on public processions, public assemblies and various sorts of activities, including defining what activity may result in serious disruption. Tucked away in those sections is the power for the Government to change any of that by regulation. I want a categorical assurance from the Minister that, were the Government to lose the amendments before us today, and they may win, and the Bill went back to the other place, or if the amendments that could not be reinserted in the Commons because they had been introduced in the Public Order Bill only in the Lords—namely, what we called the “slow walking” clause and the “reasonable excuse” amendments—were lost, the Government will not seek to overturn the expressed will of this Chamber and, I hope, eventually the will of the other place by using Sections 73 and 74 of that Act, which they could do. I would appreciate that.

The debate today centres on thresholds. At what level should we restrict the right to protest, above the laws that we already have? We already have a number of laws that restrict the right to protest and allow us to deal with protests as they occur. Indeed, many chief constables, including the chief constable of Manchester, have asked why we do not use the existing legislation. Notwithstanding that, the Government have panicked and come forward with the Bill to try to deal with what they perceive as a problem.

To make this real, I spent Sunday afternoon looking at various protests that have taken place around the country that, I contend, with a “more than minor” threshold would under the Bill be something that the police could arrest people for and stop. I ask everybody in this Chamber whether that is what people want, because I contend that it is what the “more than minor” threshold will mean, rather than the “significant” threshold that I am seeking to replace it with.

Let me quickly go through some of these protests that made the headlines, which would be illegal under the Bill. The first is “Protest in Oxford blocks major road in both directions”. I suggest that, before a court, that may not be significant but is more than minor. Next we have a “No HS2” protest. Some people may have more sympathy with that, but lots of protests have taken place with respect to that. “No nuclear power station” protests have taken place in Suffolk. Are they covered by the Bill? They come under “more than minor”, and I contest that offences would be committed under the Bill. East Sussex residents protested outside the housing department at the treatment of a road and blocked access. That is an offence under the Bill, and certainly above the “more than minor” threshold. Next is “Furious parents block road to protest poor enforcement of school street in north London”. I contend that that is an offence under the Bill. In the case of “Wellingborough: Protesters halt tree-felling plans”, they blocked the diggers and the cutters, which is not allowed under the Bill and is certainly more than minor. Two more are angry mothers blocking drivers over school drop-offs and unhappy Trowbridge residents turning out to block tree cutting. Under the Bill, some of these protests would be illegal and the police could potentially have the capacity to arrest.

We also saw the massive protests that took place last July when summer holidays were affected. Thousands of lorry drivers across the country blocked the M4, the M5, the M32 and the A38 in protest at the cost of fuel. My contention is that under the Bill that is more than minor and those protesting against the cost of fuel would be liable to arrest more than they are now. If you are blocking five or six motorways, that is certainly more than minor. What else did I find? Farmers blocked roads in protests; tractors were used in response to falling milk prices. That would not be allowed under the Bill. Blocking a major road is certainly more than minor. There is example after example showing that the Bill puts at risk the rights of people to protest. It puts at risk one of the democratic traditions of our country.

I do not hold with the idea that the Minister seeks to ban protests. That is ridiculous: I have never said that. What I have said is that the Bill unnecessarily restricts the right to protest and unnecessarily causes uncertainty about what is allowed or not. Lowering the threshold would mean that activity that is currently allowable in some of the examples I have given would not be. That is because of the phrase “more than minor”.

I am sure that many noble Lords will wish to comment on that, but all I ask is for noble Lords to reflect that if a tractor turns up, a mother turns up or a group links arms, before anything has happened it could be illegal under the Bill—this is the point made by the noble and learned Baroness, Lady Butler-Sloss. It does not even have to have caused disruption; it simply has to be capable of causing disruption. You can turn up with five tractors and park in a car park, and if the police think you are going to do something, even if you have not done anything, they could stop it because it is capable of causing disruption.

The Government will say, “Of course, this is ridiculous —an overreaction. Stupid nonsense. Why on earth is that going to happen? Our police will not act in that way. Ridiculous. People will be shaking their heads in disbelief that anybody could posit that anything like this would happen in our country.” All I say is: why would you pass legislation that creates the potential and the risk for it to happen?

It is not the way to legislate. Existing laws are appropriate and satisfactory and could be used. They are not being used as effectively as they could be. The Government’s answer to Just Stop Oil, Extinction Rebellion and all that is to seek to pass a totally disproportionate piece of legislation. Through my Motion I am trying to mitigate the impact and effects of that. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, since the noble Lord was kind enough to mention my name, I should perhaps briefly explain the thinking behind the form of words the Government have introduced to this debate.

Before I do, I remind your Lordships of what the noble Lord, Lord Coaker, said at Third Reading—words that are worth listening to again. He said that

“the debates here and the changes made reflect a genuine attempt to address where the line should be drawn between the right to protest and the right of others to go about their daily lives.”—[Official Report, 21/2/23; cols. 1560-61.]

Those are valuable words and were worth saying again because they encapsulate exactly the dispute between us, which has been conducted with a great level of courtesy, certainly on the other side of the House and, I hope, on my side too, in trying to find a solution to the problem.

The words I chose were designed specifically to deal with the two groups of offences in the Bill, locking on and tunnelling. Those offences differ from the other kinds of protest activities. The noble Lord, Lord Coaker, has reminded us of a lot of examples of these. The whole purpose of those conducting these activities is to disrupt. That is their method of making their views known. That is quite different from people who assemble with flags, shouting, singing and so on, or who walk in a procession as their method of making their views known. If you make your views known by disrupting, the position is that you cross a line.

That line was identified by the Court of Appeal in the Colston case. It used the words “minor or trivial”. If that kind of activity goes beyond what is minor or trivial, you lose the protection of proportionality available under the European Convention on Human Rights—you have moved to something different—because the activity you are conducting is deliberate and the consequences of what you have done in the exercise of that deliberate decision are properly described as more than minor.

I was looking for a definition of the threshold because I took the view, rightly or wrongly, that when you are dealing with those categories of offences, there is a point—at a fairly early stage, as the Court of Appeal is indicating—where it should be available to the police to stop the activity. Tunnelling, for example, is designed to inflict economic harm on the body that is conducting the railway. We are talking about HS2, which has parliamentary backing. To inflict economic harm should not be allowed to continue for any longer than a minor interference.

Locking on is the same thing. Once it reaches a stage of going beyond minor, the sooner the police are free to take the necessary action, the better. It is their judgment, but the point of my amendment was to identify a threshold. The problem with “significant”, which is a perfectly respectable word for describing a state of affairs, is that it does not define a threshold. It defines a state of affairs. The police need a threshold to be clearly identified, which my words were designed to do.

The problem, and it is part of our debate with each other, is that in legislation we cannot use algorithms or numbers. We are driven to use adjectives, which are quite malleable creatures. They have a shade of meaning, and some people have different views as to what words such as “significant” mean. I would say that once you move beyond “minor” you have reached something that is significant.

That is the point: it is a state of affairs that you have reached, whereas my wording is to identify exactly the stage at which the threshold is crossed. As I said last time, “more” is absolutely crucial. I can well understand that “minor” excites fear and alarms but, with great respect, I do not think that is really justified. “Minor” has to be given full weight. In my submission, it achieves the object that I was trying to achieve and which I think that the Government have now accepted. It is the difference between a state of affairs and a threshold. In the end, that is the crucial point.

--- Later in debate ---

Finally, I will touch on government Amendment 17A. I hope noble Lords are wholly satisfied and I appreciate the indications that they are. The Government have accepted the principle of Amendment 17, while adding a clarification. I particularly thank the noble Baroness, Lady Chakrabarti—and, of course, others—for her not insignificant thanks.

[Lord Coaker (Lab)]

My Lords, I join others in thanking the Minister for listening, and my noble friend Lady Chakrabarti and the noble Baroness, Lady Boycott, for the amendment on journalists. The Government are to be congratulated for moving on that and for responding to people’s very real concerns.

I thank the noble and learned Lord, Lord Hope, for saying that there is a genuine attempt within this Chamber to deal with what is clearly quite a difficult issue, with genuine differences between people. It has been well argued and well debated. That has never been an issue. There is an issue about where the threshold is but there has never been an issue about the genuine nature of that and I welcome his point.

I also thank the noble and learned Lord, Lord Hope, the noble Lord, Lord Wolfson, and many other noble Lords practised in the law for my speed course in trying to understand what some aspects of it mean. I think the point made by the noble Lord, Lord Paddick, the noble Baroness, Lady Fox, and my noble friend Lady Chakrabarti, and indeed by the Minister in his response just now, goes to the heart of it. The Minister said—and I have not got this completely right so I hope he will correct me if I am wrong—that in the end there will be an element of subjectivity in the police and the courts.

That is the very point made by the noble Lord, Lord Paddick, the noble Baroness, Lady Fox, and my noble friend Lady Chakrabarti. If there is an element of subjectivity, if a police officer or Vernon Coaker is walking down the street and you said that something is “significant”, I would see that as more serious than something that is “more than minor”. I cannot argue it with all the case law that the noble Lord, Lord Wolfson, used. I cannot use the legal terminology that the noble and learned Lord, Lord Hope, and many others would use. But I absolutely defy anybody to prove to me that 130,000, or however many there are, police officers across our country would not see “more than minor” as a lower threshold than “significant”. I just do not believe it.

The Minister himself said that there would be subjectivity. Of course, there will be subjectivity, which is why I raised the examples that I did. The Government have panicked. It was outrageous what happened with Just Stop Oil and Extinction Rebellion—and none of us supported the disruption caused by that. Many of us in this Chamber asked why the police were not using the powers on obstruction that they had and quickly sorting it out by using those powers. They should have had the confidence to use them and to know that this Chamber and the other place would be behind them, sorting those protesters out and dealing with the issue in the way it should have been done.

The Government’s response through the Public Order Bill and some of these measures will impact on people who should not be impacted on in any way, especially if you have a definition of “more than minor”. A police officer will go to those people who are driving tractors and protesting about milk, they will go to people slowing lorries down on the motorway because of fuel prices, and they will go to parents blocking roads because of school playgrounds—they absolutely will. If people start getting cross, as they inevitably will, the police will say, “Well, this is more than minor”, and do something about it—rather than what they would do if they had a threshold of “significant”. That will be the practical reality of the legislation that this Government are asking this Chamber to pass, supported by the other place. It is simply not tenable, and simply not good legislation; it will have consequences that the Government do not intend for it.

There was one thing on which I disagreed with the noble and learned Lord, Lord Hope, when he talked about disruption. I have not been on many protests that have not caused disruption, and I suspect that not many noble Lords have been on protests that have not caused some sort of disruption. I do not want to be controversial, but sometimes the point is to cause some disruption—that is the absolute point. I am sure that there are many noble Lords, not just behind me but on other Benches, who have been on demonstrations and protests and have caused disruption. The argument is over whether that is serious disruption—and according to the Bill it has to be serious; well, “more than minor” —whereas I am saying that it should be “significant”. At the end of the day, that is the point of difference between us.

All I say in closing is that the police, in policing the Public Order Act, as it will become, will treat “more than minor” at a much lower level in dealing with protests than they would if “significant” was in the Bill. For me, that trumps any arguments of case law or that the courts will have problems defining it. The courts always have problems defining things, and that is why, in the end, you have courts, because they will use their best judgment to define it—but I would rather they had to define “significant” than “more than minor” in dealing with protests. I wish to test the opinion of the House.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, police stop and search is an intrusive power that is used disproportionately against visible minorities. As I said on Report, you are seven times more likely to be stopped and searched by the police if you are black than if you are white if suspicion is required, and 14 times more likely to be stopped and searched if no suspicion is required. The facts show that the police have been targeting black people for stop and search, the overwhelming majority of those stopped and searched having done nothing wrong.

In 2020, 25% of eligible black people in the UK were not registered to vote, compared with 17% of eligible white people. Black people, even more than the population as a whole, have little or no confidence that the political system represents them. Protest is therefore more important to them than the population as a whole. Giving the police powers to stop and search in connection with protests will deter black people from exercising their human rights to freedom of assembly and freedom of expression. We cannot and will not support the inclusion of new stop and search powers for the police in connection with protests for these reasons, whether with or without suspicion.

However, at this stage of the Bill, if this House again insisted on removing stop and search without suspicion from the Bill the other place would have to move. That is something that many noble Lords around the House, for constitutional reasons, would be reluctant to do. I therefore do not intend to test the opinion of the House on my Motion B1.

On the basis that the perfect should not be the enemy of the good, we support Motion B2 in the name of the noble Lord, Lord Coaker, which, as he will no doubt explain, would restrict the circumstances in which the police can invoke stop and search without suspicion in relation to protest. We will support the noble Lord should he divide the House. I beg to move.

[Lord Coaker (Lab)]

My Lords, I will speak primarily to my Motion B2, which I will move and seek to test the opinion of the House on. In doing so, I very much agree with some of the points made by the noble Lord, Lord Paddick. We have arrived at a place where I and, I suspect, many in this Chamber would not wish to be. In other words, frankly, suspicionless stop and search should not be in the Bill.

--- Later in debate ---

Moved by

[Lord Coaker]

As an amendment to Motion B, at end insert “and do propose the following amendments to the words so restored to the Bill—

6B: Clause 11, page 12, line 17, leave out “inspector” and insert “chief superintendent”

--- Later in debate ---

[Lord Coaker (Lab)]

I wish to test the opinion of the House.