Public Order Bill

Lord Faulks Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Coaker (Lab)]

That is the point I am making: there is of course going to be a debate about what various words mean. I have admitted it. I said to the noble Lord and to others that I have asked in the debate what “significant” means in certain situations. All I am saying is that I want to set the threshold higher; I want the threshold to be at a level at which “serious” can be used, rather than the “minor” level which the Government seek to introduce, supported by other noble Lords. Of course there will be a debate, whether about what I have put forward, or about “minor”, or about what “hindrance” means in certain situations. But this Chamber should be saying to the courts that what we mean by “prolonged” is that it has to happen not just once. It has to be more than a daily activity; it has to be something that impacts on the life of the community more than once or twice. That is what we are saying and that is why I am putting forward these amendments. I want the courts to realise that, when this Chamber passes these amendments, we are saying that serious means serious.

Of course there will be a debate about what that actually means. It is the same as with any other law we pass—it does not matter which one. The noble Lord, Lord Pannick, has much more experience in this than I do, but, in the end, the courts will have to determine what it means. We will come on to “reasonable excuse” in a minute, but I think the courts would want to know that this House has debated it. I am saying that “serious” means more than minor, and that “prolonged” means more than daily. In the end, the courts will have to determine that. But I say to the noble Lord, Lord Pannick, that that would be true whatever wording we use in the Bill: there will be a debate in the courts as to what it actually means. I want the courts to debate what “serious” means and what “prolonged” means. I do not want them to debate what “minor” means because the threshold starts too low.

[Lord Faulks (Non-Afl)]

I think the noble Lord said, just before the intervention from the noble Lord, Lord Pannick, that it would not be necessary to prove serious disruption. That cannot be right, with respect; I hope it was a mistake on his part. I understand that the proposed new clause inserted by the amendment is to go before the definition of the offence, which includes the words “serious disruption”, which will have to be established. Is that correct?

[Lord Coaker (Lab)]

Yes, of course. If I gave that impression, it was a mistake on my part. This is the whole point: there has to be “serious disruption”, as in my amendment. The debate—not the argument but the debate, as the noble Lord, Lord Pannick, just raised—is about what we actually mean by serious disruption. I thank the noble Lord, for pointing that out. If I said that, it was a mistake.

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[Lord Faulks (Non-Afl)]

My Lords, as the noble and learned Lord, Lord Hope, said, the Constitution Committee considered that a definition of “serious disruption” would be useful. I think there is a measure of agreement around the House that it would be, but the debate is about how best to define it. The amendment tabled by the noble and learned Lord, Lord Hope, to which I have added my name, is an attempt to provide that clarification. I can well imagine a court asking itself, “What is a serious disruption?”, and looking to see whether Parliament has given any help. None is provided at the moment. So I welcome that the Government have accepted, albeit somewhat at the 11th hour, that a definition will be useful.

Amendment 1, moved by the noble Lord, Lord Coaker, and which has the support of others who have already spoken to it, places the bar high. When combined with the necessity of proving not only intention or recklessness on behalf of the putative offender but the absence of a reasonable excuse, which—if the amendment tabled by the noble Baroness, Lady Chakrabarti, is accepted—is a prerequisite before you get to the other elements in the offence, it seems to me that, with all those requirements combined, it would be very difficult, if not impossible, to establish that an offence had been committed. That may well be the underlying purpose behind the combination of amendments. The opposition parties may not approve of the legislation, and, if they cannot get rid of it altogether, they may wish to emasculate it to such an extent that, practically, it cannot be relied upon. That is a perfectly tenable point of view, but not one that I share—and neither do the general public, I think, having seen the effect of some recent demonstrations.

The definition proposed by the noble and learned Lord, Lord Hope, does not place the bar as high as the noble Lord, Lord Coaker, does in his amendment. The former provides for an act that

“will result in, or will be capable of causing, serious disruption if it prevents or would hinder to more than a minor degree”—

he emphasised that last phrase—

“the individuals or the organisation from carrying out their daily activities.”

Clearly, that would exclude mere inconvenience, but it would include “disrupting”—that is an important word—people going to work, hospital, a funeral or a sporting event or taking a child to school; in other words, their “daily activities”. If they were inconvenienced only to a minor degree, that would not be a serious disruption, but the amendment tabled by the noble and learned Lord, Lord Hope, would, I suggest, be a useful guide to courts in determining what amounts to a serious disruption. If it is suggested that it sets the bar too low, we should bear in mind those additional requirements: mere accidental interference is not enough. We should bear in mind, too, how those are bespoke amendments to deal with locking on or tunnelling; they are not general or vague attempts to raise the bar to a particular level.

I also think the opposition parties may wish to bear in mind what the Labour Party shadow Justice Secretary said in connection to this:

“Our brave emergency services are being held up from helping those in distress, and lives have been put at risk. On top of that, the public has been stopped from going about their everyday business.”


I do not suppose that the Opposition would wish to disassociate themselves from that. It seems entirely consistent with the amendments tabled by the noble and learned Lord, Lord Hope, on serious disruption—and, when we come to them, on “reasonable excuse”.

Of course, I entirely accept that the right to protest is fundamental, and we must, as citizens, be prepared to put up with inconvenience caused by those exercising that important democratic right. We may find it noisy and annoying—depending on how much we sympathise with the cause, even very annoying—but that would not be enough to be a serious disruption. It must be something more than annoying, but less than the very high hurdle which must be surmounted by the wording of the amendment moved by the noble Lord, Lord Coaker. Ultimately, it may come down to whether your Lordships consider that the right to protest is so fundamental that it must trump the rights of ordinary people going about their everyday lives. It is a difficult balance to strike, but although I profoundly respect the right to protest and have sympathy for many of the relevant causes, it seems to me that one has to counterbalance that with the rights of others to go about their lives—those rights are entitled to protection, too, and this amendment attempts to achieve a balance between those respective rights.

[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.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, in the temporary absence of the noble and learned Lord, Lord Hope, from the Chamber, I speak to the amendments in his name, to which my name and that of the noble Lord the Minister have also been added.

The Constitution Committee, in its report published on 11 November 2022, considered the question of “reasonable excuse”—which is used, as has already been pointed out, in a number of contexts in this part of the Bill—and pointed out that it was not defined. It also said, at paragraph 14 of its report, that the offence does already

“require intent, which may render redundant the need for a ‘reasonable excuse’”.

The committee considered it unsatisfactory to leave to the court the task of determining what might be a “reasonable excuse” without Parliament indicating what it intends the defence to cover. Including a “reasonable excuse” defence invites arguments as to whether certain, but not other, political motivations might constitute an excuse. What the committee recommended was that that,

“unless a precise definition of ‘reasonable excuse’ is provided then the ‘reasonable excuse’ defence”

should be

“removed from Clauses 1, 3, 4 and 7”—

apart from anything else, in the interest of legal certainty.

This was a report from a committee looking at the constitutional aspects of the Bill. It included, as the House will know, Peers from all parties and none. I confess to some uncertainty as to what the Government can have intended by originally including a defence of “reasonable excuse”. If you cause serious disruption by attaching yourself to an object or land or otherwise locking on, as defined in the Bill, and you do so intentionally or recklessly, what could provide a “reasonable excuse” for doing so?

It seems to me that probably the only excuse that could be offered would be that your cause is a noble one: in particular, that you are concerned about the damage to the planet caused by climate change. I see the noble Lord, Lord Deben, taking a close interest in this debate, but I am not suggesting for a moment that he would be inclined to lock himself on—but that has been the stance taken by Extinction Rebellion and Just Stop Oil, as we know. It could be argued that any demonstration, however serious the disruption, is justifiable if it contributes in some way to putting extra pressure on the Government to take appropriate steps to, if not completely turn back climate change, at least substantially reduce its effect.

I suspect that “reasonable excuse” was put in the Bill in an attempt to ensure that the Bill then complied with the Human Rights Act: in particular, that it did not contain provisions that, in the light of the Supreme Court’s decision on Ziegler, might be said to be in breach of a demonstrator’s convention rights. The Ziegler decision has been controversial. Policy Exchange, in particular, in a number of publications has pointed out the flaws in the judgment, or at least the flaws in how the judgment has been interpreted.

Since the Supreme Court decision on Ziegler, there have been other cases which seemed significantly to water down its effect—the case of Cuciurean and the Colston statue case. However, the recent decision in the Northern Ireland abortion case, handed down in on 7 December 2022—after the Bill had progressed a long way in your Lordships’ House—has made it perfectly clear that Ziegler needs to be very substantially qualified. The ingredients of an offence can themselves ensure that it will be compatible with convention rights even if it does not include a defence of reasonable or lawful excuse.

It would be perfectly convention-compliant, in my view, to remove the defence of reasonable or lawful excuse altogether. I have to say that was my original preference, but I have been persuaded that it is better to retain the defence giving the possibility of a reasonable excuse that is restricted in the way the amendment allows. It would not be enough to say in relation to the offence that there is a worthwhile cause, such as combating climate change, and then to say that that is a reasonable excuse and have us ask a fact-finding tribunal, whether it be magistrates or even a jury, to give its views as to whether a reasonable excuse exists in the circumstances.

On the analysis of the relevant jurisprudence, the Supreme Court in the Northern Ireland case referred, among other cases, to the well-known animal defenders case decided in 2013. That case, and the European Court of Human Rights case law, shows that the state is granted a margin of appreciation in these areas. It would be a question of law rather than fact whether an offence sufficiently reflects the principle of proportionality. The prosecution will have to establish a serious disruption. It will also need to establish intention or, at least, recklessness. It seems entirely consistent with the Northern Ireland case that there is no need, as a matter of law, to provide for the free-ranging and imprecise defence of reasonable excuse.

The right to protest is extremely important. It is reflected in the ECHR, just as it was in the common law before the Human Rights Act was enacted, but this right should be balanced with the right of our citizens to go about their everyday life without interference. Inconvenience is something we should be prepared to put up with but where there is serious disruption involved, defined as the amendment which succeeded in the previous debate says, it should not be an answer for a defendant to say: my cause is so important that it trumps your right to go to hospital, to take your children to school or to go to work. This amendment is consistent with the law and with what the vast majority of the population would want.

[Lord Skidelsky (CB)]

My Lords, I support the amendments in the names of the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Brown. They would require the police to prove that a person charged with an offence lacked reasonable excuse, rather than the person charged to prove that they had a reasonable excuse. In other words, they restore the presumption of innocence rather than guilt.

The presumption of innocence is not just an archaic legal point. The intricate legal arguments are worthy of great respect but I do not think they get to the heart of the matter. Presumption of innocence is a cardinal principle of a liberal society—a cardinal political principle. Governments and law-enforcement agencies are always disposed to believe that their citizens are potential lawbreakers, I am afraid, so placing the burden of proof on the police is an essential safeguard for civil liberties. That seems to me the crucial point because unless that cardinal political principle is there, you are reducing the extent to which the police are answerable to the courts—and lawyers should be very interested in that point. You are reducing their accountability to the courts and that is why, in systems such as those in Russia and China, there is very rarely an acquittal because the presumption is that the person charged with an offence is guilty. The bias is then all in favour of the conviction rather than the acquittal. It is on the basis that this group of amendments embodies a fundamental political principle that I support it.

--- Later in debate ---

Moved by

[Lord Faulks]

8: Clause 1, page 1, line 18, at end insert—
“(2A) The fact that the person did the act mentioned in paragraph (a) of subsection (1) as part of or in furtherance of a protest on an issue of current debate will not constitute a reasonable excuse for doing that act.”Member’s explanatory statement
This amendment seeks to limit the scope of the reasonable excuse defence, as the ingredients of the offence themselves ensure consistent with case law that its interference with a protester’s Convention rights is proportionate.

[Lord Faulks (Non-Afl)]

The House has heard the debate, and I am not going to repeat the arguments, which have been well set out. I suggest that it is clear as a matter of law that this is a perfectly sensible and legal amendment to the Bill that would provide clarity. The alternative approach is that the police somehow have to assess the absence of reasonable excuse. It is a difficult balance to achieve; what the amendment does is strike a balance between the undoubted and important right to protest and the right of people to go about their everyday life. I commend this amendment to the House, and I wish to test the opinion of the House.