Public Order Bill

Lord Hogan-Howe Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Hogan-Howe (CB)]

My Lords, I broadly support the position of having stop and search with cause, although I know that some would not agree with that, but the Government have to think carefully about without-cause stop and search.

First, the point that the noble Lord, Lord Deben, made is intuitively a good one. Why would somebody stop? There is already a Section 60 power to stop and search without cause. It is a power to be used, for example, in a public park where a large amount of violence has already occurred, and an officer declares that there should be without-cause stop and search. The idea is to deter people from congregating in that place so that therefore they do not carry weapons or attend that place. It was put there for a limited time and for a limited geography. I will come back to why I think it still has problems, but there can be a justification for it. We used to have Section 44 of the Terrorism Act to protect places—particularly places such as this place —against people who might go there to attack them. That was why we had it—and Parliament has agreed to both those powers, and one is still extant.

The next point that I wanted to pick up was, on the definition, which the noble Lord, Lord Paddick, mentioned, about whether something may be intended or adapted, that power also exists already in the definition of an offensive weapon. He made a good challenge, that therefore any ordinary object could be declared by an officer as helping with a protest—but I do not support that. We have had offensive weapon legislation since the 1950s, when people used to fight in the street with weapons, and the police have managed to make that definition work. If you carry a lock knife, it is clearly an offensive weapon; it is something that has been adapted to hurt people and that is the intention, that is something used to injure. But you can also have something with you that is intended for that purpose, even if it has an innocent explanation. So it is possible to make that work.

It is logical that you have a power with cause. If you decide that it is illegal to lock on or to tunnel, surely it has to be sensible to give the police a power to search for items that might do that. You could argue that, if it is going to be a big thing such as a spade to tunnel, you probably would not need to search too much—but you might need to search a vehicle or a place. The power to search is probably a logical consequence of deciding that some acts are going to be illegal.

However, I think that stop and search without cause has caused real problems. We still have it to some extent—and I speak as someone who has supported stop and search. When I was commissioner of the Met, when I took over in 2011—and people have acknowledged this—we drastically reduced stop and search, yet we reduced crime and arrested more people. The Section 60 stop and search, which I have already mentioned, we reduced by 90%, because it was causing more problems than it solved, in my view. Yet we still managed to arrest more people. The problem was that the Met had implemented throughout London, almost, so there were almost contiguous areas of Section 60, which is exactly what has been done around Section 44. The Section 44 counterterrorism legislation was intended to protect certain places, such as Parliament, but the Met put it in place throughout London.

The final thing that I wanted to come back to is that, particularly in London, stop and search without cause has such a bad reputation that it is probably not wise to extend it. One reason for that is that you now have many grandfathers and grandmothers who were affected by it in the 1960s, when it was called “sus”. In the 1980s and 1990s it was called Section 44, and now it is called Section 60. So I worry that the history of it in London may cause problems.

I go back to my first point: with with-cause stop and search, a logical consequence of causing certain things to be illegal is that it leads to a search for the items that might prove that that person either has that intent or intends to carry out certain acts. I speak as someone who has drastically reduced, not increased, stop and search. Particularly in the context of London, I caution the Government about extending without-cause stop and search.

[Lord Hope of Craighead (CB)]

My Lords, the Constitution Committee looked at the Bill with some care and was concerned about two provisions in Clause 11, not just one. The first was Clause 11(7), reference to which has already been made, but it was also concerned about the width of Clause 11(1)(b), which refers to persons who happen to be carrying prohibited objects in an area where the police suspect that these offences may be concerned. The point is that somebody may be carrying something within the area for a completely unrelated reason: they might just happen to be carrying a tool which could be thought to be adapted for tunnelling but was not intended for that purpose at all. The problem with this part of the clause is that it makes no reference at all to the reason why the person was carrying the object. The Constitution Committee thought that that was really stretching the matter too far. I have no problems with Clause 10, but there are these two problems with Clause 11.

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[Lord Garnier (Con)]

My Lords, I could not put a cigarette paper between the arguments of the two previous speakers and those I would like to make. If we are not careful, we will move to preventing the media from creating fair and accurate reports of our courts and even of this place. I do not believe I am exaggerating in linking the two sets of arguments and I very much support this amendment.

[Lord Hogan-Howe (CB)]

My Lords, I do not support the amendment, and I do this at some danger, because one of my roommates in the Lords is proposing it. I do not support it for a reason of principle and a reason of practice. First, on the reason of principle, I quite agree that a journalist should not be arrested for doing their job: it is very obvious that this should not happen. However, if I understand it correctly, the only reason a journalist might be challenged about their behaviour is if they are doing an act contrary to the Bill—in other words, they are locking on or they are protesting in a way that is illegal. That is the behaviour that is being challenged.

Secondly, whether or not you accept that argument for journalists, I do not understand how you define these other people in a way that the police will understand, particularly in a protest. An observer, somebody who is monitoring: how are the police to know who these people are? I guess that as soon as a protester is challenged, they might decide that they are a monitor, an observer or any of the groups that might be protected.

I understand the principle behind it. None of us wants to stop people holding the police to account, but that is not really the problem. Even if you accept that journalists should be protected in this way, I do not understand how you define the group in a way that allows the police properly to do their job without asking people how they fall into this category—they are not registered anywhere. Journalists complain that many people now claim to be journalists but are merely reporting online. Is that group included in this definition as well?

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I disagree very strongly with the noble Lord, because I think he is wrong. Once you give the police the idea that it is okay to arrest a journalist, why would we expect them to understand—you cannot deny that the police quite often misuse the law because they do not understand it—that they can do so only if they are gluing their hands or something like that? In any case, what journalist would do that? I cannot think that they would want to.

[Lord Hogan-Howe (CB)]

Mistakes are made; people are arrested wrongly. The police find acute problem-solving solutions when everyone else talks about “in six months’ time”. Someone has to make a decision; sometimes they make the wrong one—they happen to be human beings—and that is a problem. There is no general defence of being a journalist to any criminal offence. There is protection of legally privileged material, including journalistic material, and the Police and Criminal Evidence Act provides quite proper protection for that. However, that is not the same as providing a general defence for criminal behaviour to a journalist. In my view, that is what this proposes.

[Baroness Jones of Moulsecoomb (GP)]

I speak as the mother of a journalist, so I have a vested interest here, but journalists do not go along to protests to join them but to watch and report on them. The Hertfordshire police and crime commissioner, David Lloyd, with whom I had the displeasure of sharing a panel the day after this all happened, said that protesters should not have the oxygen of publicity. That was his attitude: “Freedom of the press is fine, but not for protesters.” That is utterly unreasonable, as are the noble Lord’s comments. I support this very strongly. I do not see why anyone here would have a problem with it, except the Government. What are they frightened of? What do they think journalists will report that would look so bad for them? Obviously, almost anything.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, if anything illustrates why this amendment is needed, it is the last few exchanges. A number of noble Lords are already suspicious that people reporting on a demonstration are really malevolently pretending to be doing so. The noble Lord, Lord Hogan-Howe, said that the police have said to him that people will pretend to be reporting and asked how they would know. That is the difficulty. If the police start off suspicious that journalists are really just people pretending to be journalists to get away with locking on and being disruptive, we have a problem.

What this amendment will do, and it is important to do so, is to state that it is a legitimate pursuit to be reporting on a demonstration, whatever your opinion of the demonstration. I have heard people say that all the people reporting on a demonstration who are not officially working for the BBC or LBC are actually demonstrators, but there are people who are opposed to, for example, Just Stop Oil who are reporting on it because they are trying to get support against the demonstrators. That is what is ironic. The point is that they are reporting. In a democracy, we need to know about such things. One of the great things about technology is that you can sometimes see it and know about it because somebody is there reporting on it or filming it.

We should stick by the principle of journalistic freedom. Those people who say people pretend to be journalists to get off scot free show how the Bill is already poisoning the well and making anybody associated with a demonstration in any capacity seem dodgy. What is dodgy is making that conclusion.

[Lord Hogan-Howe (CB)]

May I respond to the noble Baroness, because I think she misrepresented what I said? I think I said that the officer would be intervening because of criminal behaviour, not because someone was a journalist or was suspected of being one. That would be the reason. There may be cases where an officer has intervened because they thought someone was a journalist and they did not want it to be recorded. I am not saying that has never happened; that would be wrong. There is no doubt about that. My point was only that the only reason for an officer to intervene should be—in principle, from the law—because the person is committing a criminal offence. That is what the Bill is all about: defining what is criminal and what is not. Therefore, I do not think it is fair to represent what I said as picking on someone because they are a journalist.

[Baroness Chakrabarti (Lab)]

I wonder if I could help the noble Lord, Lord Hogan-Howe, because he has not, with respect, read the amendment—or at least not very carefully. To be clear, there would be nothing to prevent the arrest of a journalist, filmmaker, legal observer or anybody else if the officer suspected the commission of a criminal offence, including offences in the Bill that I disagree with. The protection is only against the use of police powers for the primary purpose of preventing the reporting. That is a judgment that is left to the officer, but what he cannot do is to say, “You’re a reporter. You’re giving protesters the oxygen of publicity, and I’m gonna arrest you.” That is the protection given here to people such as Charlotte Lynch, who could not possibly have been reasonably suspected of locking on or committing any other criminal offence. Such people could be suspected only of what they were actually doing: their job as reporters in a free society.

[Lord Hogan-Howe (CB)]

And how is an officer to know?

[Lord Davies of Gower (Con)]

My Lords, I remind noble Lords that this is Report stage and they have one opportunity to speak.

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[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who have spoken in this short but vital debate. Once more to respond to the noble Lord, Lord Hogan-Howe, who I am not sure has read the amendment—

[Lord Hogan-Howe (CB)]

I have.

[Baroness Chakrabarti (Lab)]

This amendment is not about preventing the arrest of anybody, journalist or otherwise, who is reasonably suspected of committing a criminal offence, including offences in this Bill. There is no definitional problem, because what is defined is the purpose of the arrest, not the identity of the person. This is important because even after Charlotte Lynch’s arrest, a Conservative police and crime commissioner took to the airwaves to say, “You are giving the oxygen of publicity to protesters.” In other words, “You are complicit in this kind of disruptive action by reporting it.”

If a senior Conservative police and crime commissioner took that view, it is perhaps understandable that some hard-working, hard-pressed police officers in difficult times might take the same view. The offence for which Miss Lynch was arrested was the very open-textured “conspiracy to cause a public nuisance”. Therefore, if a journalist has been tipped off that there is to be a demonstration that may or may not turn out to be disruptive and they go to do their job of reporting, some police officers, it would seem, and others may believe that in some sense to be complicity in causing or conspiracy to cause a public nuisance.

I also want to thank the Minister and his Bill team for meeting me just yesterday—although of course the Home Office press office had already told various media outlets that the Home Office was doubling down on this amendment. At that meeting, I asked the Minister and his colleagues to explain the basis for Ms Lynch’s arrest being unlawful. By the way, many other journalists have recently been arrested; what was the basis for these being unlawful arrests? I got the answer that noble Lords just got from the Minister.

What is said to be unlawful about Ms Lynch’s arrest is not that she is a journalist, but that individual officers were taking direction from their superiors and not exercising their own judgment. That is a technical and very important matter, but it is not the issue at stake here. I asked the Bill team and the Minister: where is the authority, the legal provision, in primary or even secondary legislation, that says that journalists should not be arrested, for example for conspiracy to cause a public nuisance, just for reporting on something that itself may be a public nuisance? There was no authority and no provision offered. So vague assertions about PACE codes that do not even deal with my specific point are really not going to cut it—not on something as important as free reporting in a free society.

I have moved this amendment and I seek to test the opinion of your Lordships’ House.