Public Order Bill

Lord Davies of Gower Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, there is no doubt that there has been a growing incidence of public order situations recently. We even had a demonstration in Central Lobby a week or so ago. What I have observed is that no quarter has been given by the protesters, even to those seeking access to hospitals, those trying to pick up their children from school, those trying to go to work to earn the money that keeps this country afloat, those trying to provide services to those who need care to stay in their own homes, and so many others.

Extensive criminal damage has been caused. Just a couple of weeks ago, we saw the spray-painting of the famous sign at New Scotland Yard. The clear message, in attacking this iconic sign at the headquarters of the Metropolitan Police, was that they can do what they like and there will be no real consequences. We have also seen attacks in art galleries and desperate members of the public trying to clear roads as police officers stand by. We have seen protesters jumping on to the roof of police vehicles as police officers stand by.

Such behaviour by protesters is in breach of existing legal provision on many occasions. As has been said, the organisation Justice helpfully provided a list of relevant statutes. The Police, Crime, Sentencing and Courts Act 2022, for example, creates a statutory offence of public nuisance and allows the police to impose conditions on processions and assemblies which are too noisy. The Criminal Damage Act 1971 created offences of unlawfully destroying or damaging property belonging to another intentionally or recklessly, being reckless as to whether any such property would be destroyed or damaged, intending to endanger the life of another or being reckless as to whether the life of another would be thereby endangered. The maximum penalty for conviction on indictment is a term not exceeding 10 years. The Police Act 1996 provides an offence of assaulting a constable

“in the execution of his duty”,

an offence carrying, on summary conviction, a penalty of up to six months in prison or a fine. The Highways Act 1980 provides that:

“If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to imprisonment for a term not exceeding 51 weeks.”


The Road Traffic Act provides further offences.

These are just a few of the options available to deal with behaviour such as that which we have seen recently. The Joint Committee on Human Rights observed in its June 2022 report that:

“The criminal law and the powers of the police already allow for action to be taken against violent protest and disruptive non-violent protest. We are unconvinced that additional offences are necessary or appropriate.”


Why create new offences which would add significantly to the burden of police services in providing training and guidance to officers in how and when to exercise these powers or initiate and manage necessary investigations with a view to prosecution? Why add to the range of offences which may be committed in public order situations in a way which may, as noble Lords have said, be in contravention of the rights which citizens have under Article 9 to freedom of religion, thought and conscience, under Article 10 to freedom of expression and under Article 11 to the right of assembly and association?

All these rights are ensured to us in the Human Rights Act. They are not absolute rights. We accept that there are circumstances in which the exercise of those rights may be limited, but they are rights which all our people have. In circumstances in which we are seeing the limitation of rights in Hong Kong, the US, China and Russia, it is profoundly important that we, as a democracy, protect those rights which are part of our ancient heritage.

The Equality and Human Rights Commission has published its views on some of the proposed offences. Referring to the creation of the new offences of locking on and being equipped for locking on and the obstruction of major transport works, the introduction of new serious disruption prevention orders, the extension of stop and search powers with and without suspicion, and the granting to the Secretary of State of new powers to seek protest-related civil injunctions, the EHRC has said that it considers these offences to be “inconsistent” with the right to protest, noting that the Supreme Court recently determined that this type of protest was protected by Article 11 and that there should be

“a certain degree of tolerance to disruption to ordinary life, including disruption to traffic, caused by the exercise of the right to freedom of expression or freedom of assembly”.

The JCHR has said that the locking-on offences

“risk criminalising actions that fall within the protections of Article 10 and 11 ECHR and contain inadequate safeguards against this”,

and that these clauses would allow the police to take pre-emptive action against people planning to engage in lawful protest, which it says would undermine the right to protest. It says that the provisions are

“broad enough to interfere with Article 8 right to privacy and Article 14 rights to freedom from discrimination.”

Clauses 17 and 18, which give the Secretary of State the power to bring proceedings and apply for injunctions could, the JCHR says,

“have a chilling effect on the right to protest”,

creating a significant risk that large numbers of protesters could be criminalised.

Finally, I will say a word about Clause 9, a late amendment to the Bill in the other place which seeks to create an “Offence of interference with access to or provision of abortion services” and would introduce 150 metre-wide “buffer zones”—also known as “censorship” or “safe” zones—around abortion providers. When “protests” take place, they are typically quiet prayer groups which occasionally display signs or placards. However, participants do not cajole or harass women. There is no interference with access to or the provision of abortion services. Approximately 90% of all clinics and hospitals have not reported either activity as ever having occurred, according to the findings of the 2018 Home Office review. A blanket ban around abortion clinics would be disproportionate, a denial of the right to freedom of expression, it is unnecessary, and it could even be harmful.

The reality is that many of those taking part in these vigils often provide help to vulnerable women. Historically, as a result of expressions of prayer and offers of help, women have been able to avail themselves of practical, emotional and other forms of support of which they may previously have been unaware or were unable to access. Some women, who may be uncertain but feel forced to terminate a pregnancy because of their fears that they cannot cope, and who might be reassured by what they might hear before they get into the clinic, will inevitably suffer if a disproportionate ban is enforced. Some of these women have never had the opportunity to receive impartial counsel and support as they consider their options.

On 24 October the Minister said that the Bill is generally compatible with convention rights. I regret that I do not agree with him on that point. However, I agree with his comment on Clause 9:

“I am unable, but only because of clause 9, to make a statement that, in my view, the provisions of the Bill are presently compatible with Convention rights”.


He was saying that Clause 9 is not compatible with the convention rights.

Current laws already provide wide-ranging powers for authorities to keep public order and protect women and the public from genuine harassment and intimidation, including outside abortion clinics. The Ealing PSPO shows that a nationwide ban is unnecessary and that further measures to ban peaceful demonstrations can have the unintended consequence of harming individuals seeking to express their views. Clause 9 is poorly drafted. It is so broadly worded that it could be used to criminalise people who merely express opinion outside an abortion facility.

In 2018, the Home Office concluded there was no need to introduce buffer zones. The then Home Secretary, Sajid Javid, said that:

“introducing national buffer zones would not be a proportionate response, considering the experiences of the majority of hospitals and clinics, and considering that the majority of activities are more passive in nature.”

This position has been consistently reaffirmed by the Government since then, most recently on 27 September 2022.

A June 2021 poll undertaken by Savanta ComRes shows that only 21% of the population support introducing buffer zones around abortion clinics nationwide. A majority support either having no restrictions on speaking about the issue of abortion outside abortion clinics or restrictions in line with current legislation.

Clause 9 is not only not convention-compatible but disproportionate, as police officers already have the powers to intervene. If a vigil is causing harassment or harm, they can intervene under the Public Order Act, the Protection from Harassment Act, and the civil provisions of a public spaces protection order under the Anti-social Behaviour, Crime and Policing Act 2014.

A person guilty of these new offences would be liable, in the first instance, to imprisonment of up to six months and/or an unlimited fine, and in further instances up to two years’ imprisonment and/or an unlimited fine. The offences vary from “seeking to influence”, advising, persuading and informing, to “persistently, continuously or repeatedly” occupying the area within the proposed buffer zone. We value and believe in free speech—

[Lord Davies of Gower (Con)]

I realise that the nine-minute time limit is advisory but can I ask the noble Baroness to bring her speech to an end, please?

[Baroness O’Loan (CB)]

Yes; I will do so shortly. Surely we do not think it appropriate to criminalise those who seek to exercise their rights to free speech by advising, persuading or informing or even by simply being present, quietly and unobtrusively? This is what happens in places such as Hong Kong, China and Russia, not the UK.

Such a penalty would be imposed in our country on those who seek only to pray and to offer help to women who may be in a desperate situation, and for whom help can be provided. I have met some of these women and their babies. I have seen their joy in the presence of their little ones. This is not an argument about access to abortion or preventing access—that right exists in law. Clause 9 would deprive people from offering help and support to women, for whom such help could be the difference between the choice to terminate the life of their unborn child and the ability to bring that child into the world in a safe place.

The Bill also reverses the traditional burden of proof which lies on the prosecution to prove any criminal offence beyond a reasonable doubt—

[Lord Davies of Gower (Con)]

I must ask the noble Baroness to bring her speech to an end, please.

[Baroness O’Loan (CB)]

I will—I have very little to say. I ask noble Lords to bear with me; this is an important point. That clause is inconsistent with the common-law presumption of innocence and the protections under Article 6.

In conclusion, the Bill, while well intentioned, and probably reflecting a desire by the Government to try to show that they are strong, will deprive people of their historic and indeed ancient rights to protest. This is not what we as a country should be doing. We must not place an additional and unnecessary burden on our police. We need at this perilous time in the world to protect the rights of people to protest peacefully, and to utilise existing laws to deal with those who commit some of the many criminal offences which we have witnessed. We can do this, but the Bill is disproportionate in its effect and would be very damaging to those freedoms and constitutional rights which we have cherished as a people across the centuries.