Crime and Policing Bill

Lord Faulks Excerpts

Committee stage
Tuesday 13th January 2026 Lords Chamber

Finally, we must confront the constitutional issue. The European Convention on Human Rights, as given domestic effect by the Human Rights Act, has come to operate as a break on Parliament’s ability to legislate decisively against disruptive protest. The balancing exercise required by Strasbourg jurisprudence is not neutral. It systematically favours protest activity even where it causes serious harm to others. These amendments would simply reassert Parliament’s right to draw clear boundaries in the public interest. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, my Amendment 382H, to which the noble Lords, Lord Godson and Lord Hogan- Howe, have added their names, covers the use in this area of the law of the defence of lawful or reasonable excuse in relation to public order offences.

As the noble Lord, Lord Davies, has said, the law is in a state of incoherence at the moment. It is important, of course, that the law in this area adequately reflects the right to protest, about which there is no issue among any of your Lordships. It also must reflect the interests of third parties significantly affected by protests. The law must be sufficiently clear for the police to be able to know what their powers are and to exercise them sensibly and lawfully. Finally, the law has to be sufficiently clear that members of the public think that it reflects the various interests reasonably involved in the whole question of what lawful protest is and its limits.

The decision in Ziegler was, I think it is broadly accepted, a wrong turning by the Supreme Court; it is accepted by people across political persuasions. I too, like the noble Lord, Lord Davies, very much praise the long and persistent work of Policy Exchange to expose the shortcomings of that decision and the uncertainty it has created in terms of the application of the law. It is never easy for a court to decide what is a reasonable or lawful excuse, but the amendment we have put down assumes that there is sufficient evidence for there to be an offence in the first place. That is a significant rider, of course, but it also provides, in proposed subsection (2), that there is no excuse for the conduct if:

“(a) it is intended to intimidate, provoke, inconvenience or otherwise harm members of the public by interrupting or disrupting their freedom to carry on a lawful activity, or (b) it is designed to influence the government or public opinion by subjecting any person, or their property, to a risk, or increased risk, of loss or damage”.

What is perhaps somewhat unusual about this amendment, as opposed to the other amendments in the group, is subsection (5) of the proposed new clause, which says:

“For the purposes of the Human Rights Act 1998, this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.


As the noble Lord, Lord Davies, said, the European convention and its incorporation in our law by the Human Rights Act has very much changed, or potentially changed, the analysis of all sorts of legal situations, particularly in this area. The common law provides that there are certain rights that we recognise, such as the right to free speech or freedom of association. But, as those of us who remember our legal lectures will be told, those rights exist only in so far as they are not made unlawful by some other intervention, either of the courts or of Parliament. Those rights do not trump anything but, none the less, nobody would doubt that we have freedom of speech and freedom of assembly.

One of the problems about the European convention is that it states rights, and some of the rights are absolute and some of the rights are qualified, such as—relevant to this particular area of the law—Articles 10 and Articles 11. Therefore, it does not provide an absolute trump card that you can never, as it were, contravene a law on the basis that you have an absolute right to freedom of expression under Article 10 or a right to peaceful assembly under Article 11. In fact, the European court in Strasbourg has not said that it is not open to individual countries to decide what are reasonable limits of those rights.

Where I think Ziegler went seriously wrong was, as it were, ducking the issue by simply saying that, quite apart from what Parliament has said about reasonable excuse and the like, a particular court has to decide proportionality for itself, whether that is by a judge or a jury. In particular, paragraph 59 said:

“Determination of the proportionality … with ECHR rights is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case”.


With great respect, that is not very helpful for a court in deciding whether an offence has been committed or whether a defence is permitted in law.

In fact, I think it went too far because the European Court of Human Rights does not say that individual legislatures should not attempt to legislate by striking the balance, to reflect those matters that I referred to at the beginning of my remarks. For example, in the case of Laurijsen v Netherlands, in 2024, the court said that,

“physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom as protected by Article 11 of the Convention”.

In other words, Strasbourg does not say that Parliament cannot legislate in this space if it thinks it appropriate to reflect the various matters that are so important in deciding what the limits of lawful protest are.

My amendment—and I support other amendments in this group—would make the law a great deal clearer. It says that you should not invoke some vague notion of proportionality; you simply decide whether there is a lawful excuse, in accordance with the fairly straight- forward provisions we have contained in our amendment, and you may remove from your considerations any of the vagueness of proportionality that emanates from the European court at Strasbourg. That is because we can take it that Parliament has decided that, in all the circumstances, it has taken into account all those rights—whether they be rights of common law or rights in accordance with the European Convention on Human Rights—and it has satisfied itself, just as the noble Lord, Lord Hanson, satisfied himself about this Bill, that it complies with the European Convention on Human Rights. That is clarity; that is what this amendment seeks.

I imagine that the Minister may have in his notes, when responding to this group, the name of the noble Lord, Lord Macdonald of River Glaven. By the look on his face, I am not wrong about that. I greatly respect the noble Lord, Lord Macdonald, and am sure that he will come up with some extremely sensible suggestions. However, we know that the law is not in a good place at the moment and that protest is a particular feature—and why not at the moment, when there are, after all, so many things to protest about? We need the law to be clearer sooner than even the diligence of the noble Lord, Lord Macdonald, may produce. I therefore suggest that the Minister, who I know will be taking on board all the ideas in this space, should consider carefully whether we can remedy this wrong and make the law clearer, so that all involved in this sphere of law can know what the law is.

[The Lord Bishop of Manchester]

My Lords, the more I listen to the debate this afternoon, the more worried I am getting. It seems to me that, over recent years, we have successively tightened up regulations around protests, including quite peaceful protests, making it harder and harder for people to express publicly their deep concerns around a whole range of issues. I am not sure that we need more clarity; that is for judges and juries to determine on the details of a particular case. The whole principle of the jury system is that we are judged by our peers and that, if we have undertaken some activity which has brought us before the courts, it is for other people like us to determine on the particular instances. They can take into account the culture and context, in a way that is impossible to do by way of legislation. I am quite wary about over- specifying here. Sometimes clarity is not necessarily the best thing to achieve.

I have one final small point. A number of amendments in this group and others refer to processions. In the area I grew up in, the Whit Friday processions in Mossley and Saddleworth in Greater Manchester are a thing of beauty and a joy for ever. In whole towns and villages, many roads are closed for much of the day, clearly causing massive disruption to people who would otherwise be travelling on those through roads. I want some assurances from the Minister that there is no intention for Bill to be used to prevent traditional religious processions or other processions simply because they happen to close the road for a while.

I think of the procession in Liverpool city centre a few months ago, when that dreadful incident happened; I guess the bloke driving his car felt that his journey was being impeded. But people must have the right to hold their processions to celebrate the victories of their football teams—even in Liverpool, which, as a Mancunian, I struggle with—to have civic processions, football processions and, please, in Greater Manchester, religious processions. I would be grateful if the Minister could assure us that nothing in this Bill could be used to limit those kinds of peaceful, traditional celebrations and processions.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will confine what I say to a few points in response to some of the speakers we have heard from.

I found myself in considerable agreement with the general concerns about balance expressed by the right reverend Prelate the Bishop of Manchester. It seems to me that, in some of the consideration of these clauses, we have lost sight of what we agreed in Committee last week. Everybody agreed that questions for the courts and others about considering breaches of public order law—as well as the introduction of new public order provisions—do raise the question of balance between, on the one hand, the right to protest and, on the other, the rights and freedoms of others.

I will resist the temptation to respond in detail to the amendments from the noble Lord, Lord Blencathra, in spite of his claim that he relished the Minister’s demolition of my arguments about stress-testing this legislation for the future and not relying on the benign intentions of this Government. I have concerns about the noble Lord’s amendments; I am sure that the Minister will deal with them. They include questions about what “serious disruption” is and what should amount to “essential services” within the meaning of the Act, as well as he whole question of cumulative disruption, to which we will turn later.

Those concerns—and the Minister’s comments in the previous group on the publication of the review of the noble Lord, Lord Macdonald of River Glaven—raise an important issue about the timing of this legislation, compared with the timing of the noble Lord’s expected report. I share the confidence that he will consider all these issues with great care, but might it not have been better had the review come first and the introduction of this legislation and its consideration in this House come second? From what the Minister said in his speech on the previous group, I take it that it is the Government’s present intention to give further consideration to public order law in the light of the noble Lord’s expected report. If that is the case—and if that attention will be given objectively and carefully, and then lead to such legislation as is necessary—that may be the best we can do with the timing that we have now. But my comments stand about the order in which this has been done stand.

I turn to the speech of the noble Lord, Lord Hogan-Howe. I do not propose to give him many hours of pleasure in listening again to arguments about balance as a matter of law; however, I do repeat the question asked by the noble Lord, Lord Leigh of Hurley, about how confident he is that police officers, including senior police officers, always get the balance right. That is a difficult assertion to make or defend. I am not suggesting that he went as far as that, but it is very important, not only for the Government but for us as parliamentarians, to consider the possibility that police officers sometimes fail to get the balance right.

I take the point that the noble Lord, Lord Hogan-Howe, made that it is often a very difficult balance to strike. We need to be very careful in commenting on how the police should strike it and not place too much confidence in the police in the future and, in particular, in the event of changes in government that, as the noble Lord recognised, might be unwelcome to many of us. Nevertheless, they could be changes of an elected Government.

That brings me to Amendment 382H, which was welcomed by the noble Lord, Lord Murray of Blidworth, and elegantly presented by the noble Lord, Lord Faulks. I will draw the Committee’s attention to one problem. Proposed new subsection (5) is not simply definitional; it is designed to act—and would act, in some sense—as an ouster for the purposes of domestic courts of the effect of the convention rights. It uses the language of Article 11 when it states:

“For the purposes of the Human Rights Act 1998, this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.


Article 11 requires that the rights that are respected

“are necessary in a democratic society … for the protection of the rights and freedoms of others”.

If Parliament legislates that a section must be treated as necessary, it precludes within this jurisdiction any testing of the proposition that such provisions, as interpreted, are necessary in a democratic society for the protection of the rights and freedoms of others. That is the province of the European Court of Human Rights to consider. It is a requirement of the Human Rights Act that domestic courts here give effect to the European convention and interpret legislation, where they can, as compatible with the convention.

[Lord Faulks (Non-Afl)]

Of course, this is an amendment, so the Government will not have given the certification of compliance with the European convention. Were the Minister to accept the amendment and it to become part of the Bill, the Government could then certify that it did comply with the European convention and it would be unnecessary to put that particular provision in. But, as an amendment, it is making clear that that particular provision takes into account that there are convention rights and, notwithstanding those convention rights, the amendment is to have the effect that it does.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, that is a complicated justification of the inclusion of that subsection in the amendment. I just about understand what the noble Lord, Lord Faulks, is saying there. But were his amendment to be accepted, it would raise difficulties about the compliance or cohesion of that amendment with the European Convention on Human Rights. I leave the point there. It is for the Minister to deal with it. If he says he can accept the amendment, subject to later adjustment to take out that subsection, so be it.