Public Order Bill

Lord Davies of Gower Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

Moved by

[Lord Davies of Gower]

102: Clause 16, page 16, line 3, leave out “in England and Wales”
Member's explanatory statement
This amendment and the amendments in the name of Lord Sharpe of Epsom at page 16, line 12, page 17, line 20, page 17, line 35 and page 18, line 4 have the effect that in Clause 16 the amendments to sections 14 and 14A of the Public Order Act 1986 in relation to the British Transport Police apply in relation to Scotland as well as England and Wales.

[Lord Davies of Gower (Con)]

My Lords, Clause 16 closes a gap in existing powers at Part 2 of the Public Order Act 1986 for policing public processions and assemblies which may result in serious disorder. It does this by harmonising the position between on the one hand the territorial police forces—that is to say those covering a geographical force area—and on the other hand the British Transport Police and Ministry of Defence Police.

The present position is that the territorial forces are able to exercise these powers, but the British Transport Police and Ministry of Defence Police are not. Clause 16 extends to the British Transport Police and Ministry of Defence Police some of the powers at Part 2 of the 1986 Act in relation to their respective jurisdictions, where there is an operational case for doing so.

For example, the power may be used in a situation where a trespassory assembly is planned or is occurring on the railway or on railway property. This could be within a station, outside a station or in a retail area owned by the railway. In this case, the British Transport Police may be the most appropriate force to exercise the power. The railway is a unique and complex environment with specific risks which British Transport Police specialise in managing while minimising disruptive impact on the operation of the rail network.

To be clear, Clause 16 does not create any new powers, nor does it broaden the existing ones. It simply serves to close a potential gap in jurisdiction by extending certain existing powers to those two additional, non-territorial police forces. The powers contain various limitations and safeguards; for example, there is provision that only the most senior of the officers present may exercise the powers and a requirement that the officer must reasonably believe that the assembly may result in certain forms of serious disorder. Clause 16 reads these across, with necessary transpositions for the jurisdiction and functions of the British Transport Police and the Ministry of Defence Police.

While the provisions concerning the Ministry of Defence Police are reserved, as policing and railway are devolved matters, the provisions concerning the British Transport Police have practical application only in England and Wales. Following discussions, the Scottish Government have requested these powers be extended to the British Transport Police in Scotland. We have therefore tabled minor, technical amendments to the clause to facilitate the extension of the powers to Scotland.

[Lord Beith (LD)]

My Lords, the Government are stretching credulity if they say this creates no new powers; it creates new powers for the British Transport Police and Ministry of Defence Police. It is mostly on the British Transport Police that I want to concentrate.

This police force is not locally accountable. It is the police force of the operators of the railway system. It has its own structures and is essentially a nationally organised force with certain centres of activity. There are many cases where police support is needed, and we certainly see this in Berwick. The local police have to come on the scene some time before British Transport Police can come from 70 miles away to take part in whatever problem there may be. We have to be a bit careful about so readily extending powers to a very different kind of police force, which does not have the chain of local accountability that our civil police forces have.

If anyone thinks that the arrangements are all very smooth and there is not a problem in relations between local police and British Transport Police, they should read the proceedings of the Manchester Arena inquiry. They will discover some pretty uncomfortable things about how co-ordination between British Transport Police and other agencies is meant to work but does not always work in practice. I was slightly surprised that Scottish Ministers decided they wanted to extend the powers included here, but it is with the approval—if the case is in Scotland, it is not to the Secretary of State—of Scottish Ministers.

I will take the Minister back to an incident in the 1960s which he is too young to remember. It shows that these are not new problems requiring drastic new powers. A railway line called the Waverley route between Edinburgh and Carlisle was closed. Before it managed to get itself closed—it has since been partially reopened—people in the village of Newcastleton between Hawick and Carlisle protested vigorously. One night, when the night sleeper was heading towards Carlisle, the minister of the local kirk and some of his congregation and others gathered on the crossing and stopped the train. On the train at the time was Lord Steel of Aikwood, then the young MP for the Borders area. This incident was handled by the police quite smoothly and locally, without any involvement of the British Transport Police—I doubt very much that they ever got there.

Local police are used to dealing with these situations. I fear from the provisions we have now that, given the nature and scope of this Bill, someone proposing to have either a group of people in a station protesting against imminent cuts to the service, or a single protestor in the station building by the ticket office saying “Your service is going to be halved from next week—join me in a protest”, will find themselves subject to the powers of the Public Order Act. There will be an unnecessary level of police involvement by the British Transport Police. Without the powers here, they would be able to deal with it in the normal way, as the local police would. We are in some danger if we get the British Transport Police into the state of mind that they are policing protest. It is really not what they are good at and not what they are supposed to be good at.

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[Lord Coaker (Lab)]

That is a very good point—I was going to make that point and ask whether that made any difference. What makes this even more important is whether, tucked away in the Bill, there is some mechanism by which the Government could extend these protest-related powers to the Civil Nuclear Constabulary. The Government are saying that, at the moment, there is no need for it to have these powers because there have been no protests and it has not been appropriate—that is the information I received. All that I am asking—this is particularly relevant given the point of the noble Lord, Lord Beith, about it being armed—whether the Bill gives the Government the opportunity to do that, should they so wish, or whether they would have to come back and pass primary legislation to do that. It would be useful to find that out.

On Amendment 106 of the noble Lord, Lord Beith, which probes the breadth of the powers, can the Minister give us more clarity on the power to make an order prohibiting specified activities for a specified amount of time? What is the amount of time in scope, and who grants the order?

The clause references assemblies

“on land to which the public has no right of access or only a limited right of access”.

Would that activity therefore be covered under existing trespass offences? I am just asking for clarity on one or two of the specifics with respect to these amendments.

[Lord Davies of Gower (Con)]

I am grateful to noble Lords for their speeches in this group. I turn to Amendment 106, in the name of the noble Lord, Lord Beith, who explained that it is intended to avoid excessively wide use, at railway stations, of the power for a chief constable to make an order prohibiting a trespassory assembly if certain conditions are met. This is an outcome that we can all support: the Government are clear that public order powers should always be used proportionately and should have appropriate safeguards and limitations. However, I hope I will be able to provide him with assurances that his amendment is not necessary to achieve that outcome and indeed that it would not have the effect of limiting the use of this existing power at or around railway stations.

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[Lord Coaker (Lab)]

The Minister said, quite rightly, that he will write to the noble Lord, Lord Beith. For the benefit of the Committee, it would be useful for it to be put in the Library. The letter writing is fine but I sometimes worry about it because it means it is not in Hansard. For those people who read our deliberations, I think that could be a bit of flaw in them being able to understand what is going on. The answers often are in a letter or in the Library and not as widely available as they would be if they were in Hansard. It is a point that has increasingly bothered me, to be frank.

[Lord Davies of Gower (Con)]

I recognise what the noble Lord says and will make sure that the letter is placed in the Library.

Amendment 102 agreed.

Moved by

[Lord Davies of Gower]

103: Clause 16, page 16, line 12, leave out “in England and Wales”
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Sharpe of Epsom at page 16, line 3.

--- Later in debate ---

Moved by

[Lord Davies of Gower]

107: Clause 16, page 17, line 42, leave out “Secretary of State” and insert “relevant national authority”
Member's explanatory statement
This amendment and the amendment in the name of Lord Sharpe of Epsom at page 18, line 10 have the effect that the consent of the Scottish Ministers is required in order for the chief constable of the British Transport Police to make an order under section 14A(4D) of the Public Order Act 1986 prohibiting trespassory assemblies in an area in Scotland.