Public Order Bill

Lord Hope of Craighead Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I have to say that I am in two minds about the Bill. One must give credit to the Government for trying to find a solution to some of the most pressing public order issues that they face.

Climate change concerns us all, and there are many people who feel so strongly about it that they wish to join demonstrations to protest at what they see as a lack of action to deal with it. That is their right, as Articles 10 and 11 of the European Convention on Human Rights—that is, the right to freedom of assembly and the right to freedom of association and assembly—make clear. But some of the tactics now being used give rise to real concern as to whether what they are doing interferes too much with the rights of others to do as they wish. We have seen how members of the public are reacting to what is being done, which itself is a cause for concern.

The questions are: has the balance shifted too far? On the other hand, are the offences being created too broadly described? Are there sufficient safeguards against violations of the protesters’ convention rights?

Then there is the problem about abortion, which has just been mentioned: the intimidation that those who wish to obtain an abortion in a clinic or other suitable place are likely to face on their way in because of the increasingly vocal gatherings of those who object to the process. Of course, those who object to the process have the right to enjoy their rights under Articles 10 and 11 too, and the right to freedom of expression, but has the balance moved too far in their case, too? Clause 9, based on the concept of buffer zones within which such conduct is prohibited, could offer a solution, but we need to consider carefully whether the detail in Clause 9 is a proportionate response to the undoubted and serious problems that it seeks to address.

My conclusion is that the way the Government are seeking to deal with the issues in the Bill is open to serious objection and in some ways misconceived. The powerful response by the Joint Committee on Human Rights underlines this point. Its conclusion is that the Bill is an unacceptable threat to the fundamental right to engage in peaceful protest; that must surely be taken very seriously. This is not the occasion to go into detail but it is clear that many of the provisions in Part 1 are in need of amendment before they leave this House; and Part 2, about disruption prevention orders, may need to be removed altogether, as the committee argued. This is on the ground that, given the powers that the police already have—that is, the existing laws—these provisions are disproportionate and amount to an unjustified threat to the right to peaceful protest.

The fact is that we live in a country where we are free to do as we like unless it is prohibited by law and where the police, on whom we depend for preserving law and order, do their job largely by consent. These are freedoms that we interfere with at our peril. The Joint Committee has warned that the new stop and search powers in Clauses 10 and 11 risk exposing peaceful protesters and, indeed, other members of the public to intrusive encounters with the police without sufficient justification. Surely, we do not want to disturb the balance any further than we absolutely have to; nor, I think, do the police. Giving them powers that they do not really need and that are almost certainly wider than can reasonably be justified is not the way to go. Here too, getting the balance right when addressing these issues is so important.

I wonder whether it is sensible for the Government to legislate, as they seek to do in Part 1, by singling out locking on and tunnelling for special attention. I recognise the problems, but there is already a huge range of legislation that confers power on the police to control public protests and assemblies: causing criminal damage, obstructing a police officer, obstructing a highway, endangering road users and so on. These existing offences are defined by the purpose or effect of the activity rather than the method by which it is carried out. Directing attention to the method, as Part 1 does, rather than to its purpose or effect, may be good box office but it requires a high degree of precision if it is not to criminalise activities that have nothing to do with the protests.

There is another problem too, which has already been hinted at. We have to accept that the protesters will not go away. If you close off one method of protesting, they will soon find another that is just as—perhaps even more—damaging or disruptive and more difficult to police. The fact that the other method is not expressly proscribed will encourage them to resort to it until it too is proscribed. Surely it is better to concentrate on purpose and effect, as the existing laws do, when defining public order offences.

Well intentioned the Bill may be, but there are many defects in it. I do hope that the Government will listen very carefully in Committee and accept the corrections that will need to be made. As I suggested, it is a question of striking the right balance in the right place. That is what the public interest requires and what, in its present form, the Bill fails to do.

Public Order Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, in moving Amendment 2 in my name I will speak to the other 12 amendments in this group. Amendment 2, supported by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Chakrabarti, is related to the offence of locking on. I remind noble Lords that the Government’s Explanatory Notes suggest that

“Recent changes in the tactics employed by … protesters have highlighted some gaps in … legislation”,


of which this is one. Suffragettes chained themselves to railings, so to suggest that this is a gap in legislation as a result of recent changes in tactics employed by protesters is nonsense. I expect the Minister will challenge such an assertion, but we can debate that when he responds.

This amendment would narrow the offence of locking on where such actions—attaching themselves or someone else to another person, an object or the road, for example, to cause serious disruption—by removing the wider offence of an act that

“is capable of causing, serious disruption”.

Can the Minister explain what “capable of causing” actually means? If someone locks on in a minor side road or at the entrance to a cul-de-sac, causing little or no disruption, but had similar action been taken on a busy major road it would have been capable of causing serious disruption, would they commit an offence in such circumstances? If they block a busy major road at 3 am when there is no traffic, whereas had it been 10 am they would have caused major disruption, does that amount to it being capable of causing serious disruption in another place and time? Amendment 2 seeks to restrict the offence of locking on to incidents where serious disruption is actually caused to probe what “capable of causing” means and how widely the offence would be applied.

Amendment 25 in my name would again remove “is capable of causing” in relation to the offence of tunnelling, for similar reasons. Can the Minister explain what sort of tunnel might be capable of causing serious disruption but does not actually do so? Why, in that case, does it need to be criminalised? Similarly, Amendment 36 in my name, supported by the noble Baronesses, Lady Chakrabarti and Lady Fox of Buckley, seeks to remove “is capable of causing” in relation to the offence of being present in a tunnel. Again, can the Minister explain how someone’s presence in a tunnel might be capable of causing serious disruption without actually doing so?

Amendment 3, in the name of the noble Lord, Lord Coaker, which we support and is signed by my noble friend Lady Ludford, similarly seeks to limit the scope of the offence by removing the reference to causing serious disruption to two or more people and replacing it with

“serious disruption to the life of the community”,

as suggested by the Joint Committee on Human Rights. We support this amendment.

Amendment 4, in my name and supported by the noble Lords, Lord Coaker and Lord Skidelsky, seeks to restrict the offence to cases where there is an intent to cause serious disruption—not merely, as currently drafted in Clause 1(1)(c), being

“reckless as to whether it will have such a consequence”.

Can the Minister give an example of when someone who does not intend to cause serious disruption should be guilty of the offence—in this case, of locking on —when they are simply exercising their right to protest?

Amendment 26, in my name, similarly seeks to narrow the tunnelling offence to cases where there is an intent to cause serious disruption, rather than where someone is merely “reckless” as to whether their tunnel might cause serious disruption. Can the Minister give an example of reckless tunnelling that might fall within the scope of the offence as drafted?

Similarly, Amendment 37, in my name and supported by the noble Baroness, Lady Fox of Buckley, seeks to narrow the definition of the offence of being present in a tunnel to cases where there is an intention to cause serious disruption. Would a journalist who goes to interview protestors in a tunnel be guilty of an offence of being reckless as to whether her presence in the tunnel might cause serious disruption, for example? Can the Minister provide any reassurance?

Amendment 6, in the name of the noble and learned Lord, Lord Hope of Craighead, and Amendment 23, in the name of the noble Baroness, Lady Chakrabarti, supported by the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Boycott, quite rightly attempt to place a definition of serious disruption on the face of the Bill, rather than asking us to sign a blank cheque where such a definition is decided by the Secretary of State subsequently by statutory instrument.

Similarly, in relation to the tunnelling offence and the being present in a tunnel offence, Amendments 27 and 38 in the name of the noble and learned Lord, Lord Hope of Craighead, seek to provide a definition on the face of the Bill of serious disruption in relation to tunnelling.

Amendment 17, in the name of the noble Lord, Lord Coaker, and supported by my noble friend Lady Ludford and the noble Lord, Lord Anderson, seeks to define

“serious disruption to the life of the community”

in Amendment 3.

Finally in this group, Amendment 54, in the names of the noble Lord, Lord Coaker, and my noble friend Lady Ludford, to which we give qualified support—subject to what the noble Lord, Lord Ponsonby of Shulbrede, will say in explaining the amendment—seeks to provide a definition of serious disruption to major transport works, as suggested by the Joint Committee on Human Rights. However, we have concerns over the inclusion of “reckless” in this definition, for reasons I have previously explained.

I think noble Lords will see the complexity of this Bill and the problem we have in trying to cram so many amendments into one group. If the Minister is able to respond to each and every remark I have made, I will be astonished. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, my name is to Amendments 6, 27 and 38, which have been mentioned by the noble Lord, Lord Paddick. They answer a question which was posed by the noble Lord, Lord Skidelsky, who asked if there is a definition of “serious disruption” in the Bill. There is not, and my amendments seek to provide a definition. I am concerned about the meaning of words, which is always crucial in Bills of this kind.

I am a member of the Constitution Committee and in our scrutiny of the Bill we noted that the clauses which use the phrase “serious disruption” create offences which could result in severe penalties. Most of them may be taken summarily before a magistrate, but then they lead on to other things. They could, in due course, lead to a serious disruption prevention order and all that that involves. The committee took the view that a definition should be provided.

We looked at Section 78 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Lord, Lord Carlile, referred, but, in our view, if one has to go down the line of designing a new offence, that definition was not tailored to the offences that we are talking about in the Bill. Therefore, the committee’s recommendation was that the meaning of “serious disruption” should be clarified proportionately in relation to each of the offences where the phrase arises.

In regard to locking on, I seek to say that “serious disruption” means

“a prolonged disruption of access to places where the individuals or the organisation live or carry on business or to which for urgent reasons they wish to travel”—

a hospital appointment, for example—

“or a significant delay in the delivery of time sensitive products or essential goods and services.”

So I have tried to design something that is very specific to the locking-on offence described in Clause 1.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The training of police— I am sorry.

The scope of the offences is drafted as such to ensure that all kinds of behaviour that protestors engage in to cause misery and disruption can be captured. Amendments 2 and 4 would mean the offence would not account for situations where, for example, a person has locked on to a dangerous structure but is removed by the police before maximum disruption can be inflicted. Amendments 25 and 26 would mean the offence would not account for situations where, for example, a person has started creating a tunnel but is removed before maximum disruption can be caused. Amendments 36 and 37 would not account for situations where, for example, a person is present in a tunnel with the intent to cause serious disruption but is removed by the police before the tunnel can reach the designated area where maximum disruption can be inflicted.

Amendment 54, tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Ludford, seeks to add a threshold of causing “significant disruption” to the offence of interfering with key national infrastructure. I am not sure whether the amendment should say “serious” disruption rather than “significant” disruption, as I note that the JCHR’s own explanatory statement stated the former. That would echo the threshold for other offences in the Bill. If Amendment 54 is intended to add a threshold of serious disruption, I would argue that while we assess that it is right for the lock-on offences and certain other protest-related offences to include serious disruption within their scope, we do not see it as necessary here.

As I have stated already, protestors have been able to cause huge damage to major projects such as HS2. While much attention has been focused on how protest activity across HS2 sites causes massive disruption to the project, protestors have also engaged in many more minor disruptive acts, such as disrupting ecological surveys, damaging construction vehicles or blocking access points to construction sites. While some of these acts may not meet the threshold of serious and/or significant disruption, they still have a significant impact on the project and its costs. The Government view such actions as serious and completely unacceptable criminal activity. The offence as drafted seeks to deter individuals from targeting these projects while giving the police powers that are more sufficient in order to respond.

Before I get onto the amendments dealing with serious disruption, I accepted the invitation of the noble Lord, Lord Carlile, to read Section 78, and I will have a go at answering. Because many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, it has been asked why, in light of that, we need to introduce the measures in the Bill. The fact is that we are not solely interested in the process on the M25: the Bill was conceived before Just Stop Oil protesters were dangling off gantries. There are other unjustifiable protests, such as those targeting HS2, which I have just discussed. The criminal offences in the Bill extend to private land; currently, those who lock on or tunnel are only committing aggravated trespass, which carries a relatively low sentence. As it is a broad offence, I am sure that many here in the Chamber today would not welcome the sentences for aggravated trespass being increased. Finally, the pre-emptive measures in the Bill will improve the response to criminal protest. They were in fact conceived following discussion with the Metropolitan Police Service on what would have improved their response to Extinction Rebellion-style protests.

Amendments 3, 6, 17, 23, 27 and 38, all seek to provide a definition of serious disruption. I thank all noble Lords for these amendments, particularly the noble Lord, Lord Anderson—although I note that he is potentially deserting his—for our constructive engagement so far. I also thank the noble and learned Lord, Lord Hope of Craighead, for his thoughtful contribution to this debate.

I assure the House that I absolutely recognise the benefits that a clear definition of serious disruption could bring. However, we have faced some difficulties when trying to define serious disruption. That is because being too prescriptive in our definition risks creating a loophole which would provide those intent on causing as much disruption as possible an opportunity to evade arrest and prosecution. I would also say that, as drafted, some of these amendments offer a narrower definition of serious disruption than the Police, Crime, Sentencing and Courts Act provides for under

“serious disruption to the life of the community.”

None of that is to say that I dismiss the principle of these amendments. There is a balance to be struck between a definition which is too broad and one which is too prescriptive. We will consider these amendments in detail to ensure that they accurately reflect the disruption that the Government seek to target while providing clarity to the police and others, as many noble Lords have mentioned, and we will continue to work with all interested noble Lords on this important matter.

[Lord Hope of Craighead (CB)]

Is there a prospect of the Minister coming up with definitions in time for Report, to prevent us having to discuss this all over again? It would be a great help if he could come forward with his definitions, if he is going to proceed along this line.

[Lord Sharpe of Epsom (Con)]

I will certainly endeavour to—I can make no promises. I am sorry: the noble Lord, Lord Ponsonby, asked me about recklessness, which I forgot to answer. The definition of reckless is to capture those for whom we cannot prove that they intended to cause disruption but who were clearly happy to cause it. I hope that clarifies the matter to some extent. For now, I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

Again, I will just talk to my two amendments. The noble and learned Lord, Lord Hope, and I are probing the Government from both ends with our amendments. I am probing on the basis that the offences are so broadly drawn that they require equally broad defences to protect innocent people from being criminalised. I imagine that the noble and learned Lord is being rather more forgiving on the drafting of the offence, and therefore trying to ensure that it works by not making the defences overly lenient. I am happy to be corrected, but both perspectives can be true. That is why the drafting is so bad. These issues will not just detain us here—she says, bitterly—but will create hours, days and weeks of legal arguments in the courts, which is very much to be avoided.

There is an opportunity in this legislation which I might explore later: that fossil fuel companies and other environmentally destructive actors could be prosecuted and convicted for locking on. For example, if a fracking company attaches a drilling rig to land, that potentially causes serious disruption to two or more individuals. It could leak or cause earthquakes; it could contribute to climate change, or two people might have wanted to walk through that field but now there is a rig in the way. Local people could be seriously inconvenienced by having to protest against the fracking rig, rather than pursuing their hobbies such as birdwatching.

The Government probably do not mean to criminalise fracking and other oil and gas extraction, but this is a logical consequence of such broadly drafted offences. I rather suspect that people such as those at Greenpeace or the Good Law Project might enjoy some time in court with private prosecutions of that kind. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to my Amendments 11, 30, 34, 41, 57 and 63. That may seem a bit of a mouthful but they are all in exactly the same terms. They refer to the reasonable excuse defence in Clauses 1, 3, 4, 6 and 7. Perhaps I should preface my remarks, particularly in the light of the comments made by the noble Baroness, Lady Jones of Moulsecoomb, by saying that I very much subscribe to the view that these measures are not needed at all. These are laws we do not need and they may cause confusion, but I have to take the Bill as it is. I am making my remarks with reference to the Bill as we find it, not as I would like it to be.

The Constitution Committee examined the phrase “reasonable excuse” and its implications, and said that it is

“constitutionally unsatisfactory to leave to the courts the task of determining what might be a ‘reasonable excuse’ without Parliament indicating what it intends the defence to cover”.

There are two points in particular: first, it invites argument over whether certain, but not other, political motivations might constitute an excuse—how serious they are and their consequences, and so forth; secondly, and perhaps even more important, is whether the defence of reasonable excuse should be available at all in cases where serious disruption has been caused. This is exactly the other side of the argument that the noble Baroness put forward a moment ago. The committee’s recommendation was that unless a precise definition of reasonable excuse is provided, the defence should be removed from Clauses 1, 3, 4 and 7 altogether.

The point is really this: if the wording remains in the Bill as it is, it opens the door to arguments that bodies such as Extinction Rebellion and Just Stop Oil use to justify their actions. I recall the lady who was sitting up on a gantry when she was interviewed on television. With tears in her eyes, she said, “I know I’m causing terrible disruption to many people”—you could see all the cars stuck behind the police cordon—“but I’ve got no alternative. Look at the serious disruption that climate change is giving rise to; that’s my case. We’ve got to do something about it, so I don’t mind how much disruption I cause to however many people because I’ve got to get that message across.” The problem with the reasonable excuse defence is that it opens up that kind of argument.

The committee’s recommendation was, as I say, that unless a precise definition is provided it should be removed. My amendments propose that the question

“is to be determined with reference to the immediate interests or intentions of the individual, not any public interest which that person may seek to invoke”.

The immediate interest point would cover the case of the journalist Charlotte Lynch, who was arrested by the police. In her position, she could obviously say that as a journalist she was doing her job. That would undoubtedly be a reasonable excuse if she was having to defend a charge in this situation, and one could think of many other examples, so the opening words of my amendment are designed to deal with people of that kind. But they are intended to meet the very point on which the noble Baroness, Lady Jones, focused on so clearly: the position of protesters who are protesting because of climate change, for example, or other big public interests that people feel it necessary to protest about.

There are various problems with leaving the words as they are. The offences described in Clauses 1 and 6 are to be tried summarily before magistrates. I am conscious that the noble Lord, Lord Ponsonby, is here with his experience but I suggest that leaving it to magistrates to decide whether a particular public interest excuse is reasonable, without any guidance from Parliament, is not satisfactory. There is a risk of inconsistent decisions between one bench of magistrates and another but there is another problem, too. These arguments, if they are to be raised in a magistrates’ court, may take up a great deal of time. I have heard at second hand of a case where one of these issues was raised in a magistrates’ court and it took hours and hours as people deployed their arguments. The magistrates’ courts are not equipped for that kind of interference in their ordinary business, so one has to have regard to the consequences of leaving it to them to decide issues of this kind. That important factor needs to be borne in mind.

[Lord Beith (LD)]

Could the noble and learned Lord explain whether he thinks that phrasing the clause in this way dispenses with the proportionality issue, which was so important in the Supreme Court judgment in the Colston statue case?

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord because I am coming on to deal with exactly that. Indeed, it leads me into the next paragraph in my notes. I am just making the point that one has to consider the practical consequences for prosecutors and the police of leaving this expression as wide as it is and without qualification of some kind. Of course, I am pointing to a particular qualification that needs to be made.

The Supreme Court, in a well-known case called Ziegler in 2021, held that protesters had been rightly acquitted of obstructing a highway when protesting about an armament fair. That is not an easy judgment to read or understand, not helped by the fact that there were two dissents in a court of five, but it has been thought to support the view that invoking the public interest defence in that context is acceptable. However, a series of decisions in the Court of Appeal have narrowed the window that Ziegler left open. The point is that we are dealing now, in the offences that we are considering in the Bill, with offences that require proof of serious disruption. The Court of Appeal’s point is that that changes the balance between what is proportionate and what is not, which is at the heart of this issue. The proof of serious disruption was not a necessary element of the offence of obstructing the highway considered in Ziegler, but it is important to notice that in our offences it is a vital and essential element.

The Colston case was the subject of the most recent Court of Appeal decision, which is Attorney-General’s reference no. 1 of 2022. The court was asked to rule on what principles judges should apply when determining whether the convention rights are engaged by a potential conviction for acts of damage during a protest, and when the issue of proportionality should be withdrawn from the jury. The court held that the convention did not provide protection to those who cause criminal damage during a protest that is violent, not peaceful. That was the Colston case.

However, it went on to say that a conviction for causing significant damage to property, even if inflicted in a way that could be called peaceful, could not be held to be disproportionate either. The prosecution in the Colston case was correct, both because the toppling of the statue in that case was violent and, as a separate issue, because the damage to the statue was significant. The words “serious disruption”, which appear in these offences, seem to fall into the same category. In other words, a person who engages in criminal conduct that causes serious disruption cannot take advantage of this defence.

It has been pointed out that a case raising this issue is expected to be heard by the Supreme Court before Christmas. I think there are problems with that. The judgment is not likely to be given until well into next year because the court takes a considerable time to consider all the issues. I think one would be fortunate if the judgment were out before the early summer. This is a problem that needs to be solved now, and I will come back to the question of the magistrates’ court and the problems that could arise there.

I stress again that the offences we are dealing with here all require proof of serious disruption. That is why the reasonable grounds defence should be removed altogether or qualified in the way I am suggesting, to confine it to circumstances that affect the position of the individual on the ground at the time he or she is causing the disruption. That qualification would be welcome, and undoubtedly useful, in many cases. Without it, I suggest that the whole defence be removed.

[Lord Judge (CB)]

My Lords, I am very sorry that I was not able to speak at Second Reading. I shall be very brief. I share the various arguments presented to the Committee about the vagueness of this legislation and the ineptitude of the drafting that leaves so many criminal offences so vaguely described. I support the basic premise of the noble and learned Lord, Lord Hope. We are about to legislate in a situation where there is a decision of the Supreme Court, with two dissenting judgments out of five; further decisions of the Court of Appeal are rowing back from the majority decision in Ziegler; we have the Colston decision, which will have to be reconciled with Ziegler; and we know that the Supreme Court is looking at the issue again.

What on earth are we supposed to do when we have the opportunity to make it clear what the answer is to these problems, revealed by the number of cases to which I have referred? We have the opportunity, and we should take it. We really should not just say, “You carry on sorting it out”. How many more times does the issue have to be examined in higher courts? If the issues are being examined in magistrates’ courts, there will inevitably be references to cases stated and so on. If we do not accept the amendment of the noble and learned Lord, Lord Hope, or at least the thrust behind it, we are sending a slightly chaotic situation back to the courts when we could clear it up.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, this is an interesting group of amendments. I will come to the amendments of the noble and learned Lord, Lord Hope, but I will deal with my Amendment 42 first, because it deals with an important specific ask of the Government. I will then come on to the more general point about the reasonable excuse defence.

My Amendment 42, for which I am grateful for the support of the noble Lord, Lord Paddick, would insert a defence for a person who is present in a tunnel or is undertaking acts

“wholly or mainly in contemplation or furtherance of a trade dispute.”

The amendment probes situations where all or part of a person’s workplace is within a tunnel, such as the London Underground.

Currently, other clauses, such as Clause 6 on obstruction of transport works, include a reasonable excuse defence for people causing disruption as part of a trade dispute, and I think we all welcome the Government’s inclusion of that. But have they considered whether that defence needs to be replicated for the new offence of being present in a tunnel? What is covered in the definition of a “tunnel” under the Bill? Does it include the London Underground or the Channel Tunnel, for example? Under the Bill, the definition of a “tunnel” is simply

“an excavation that extends beneath land”.

So some clarification of that would be helpful, and I would be grateful for answers on my Amendment 42.

Aside from that amendment, we have had an interesting, almost philosophical, debate. The noble and learned Lord, Lord Hope, is right to say that you cannot just leave this to others to debate. There is a very real debate here: how far is protest justified by people who say, “My reasonable excuse is that there’s such a climate emergency and, if only people realised it, they would realise that we’re the people who are being sensible and reasonable”? This is a very difficult debate and discussion, but the noble and learned Lord, Lord Hope, has challenged Parliament to have it. The Government may need to think about this and come back on Report with something that seeks to explore the whole issue.

This example is not the same, for obvious reasons, but the Chartists would have been regarded in their time as unreasonable extremists. Many of the suffragettes were imprisoned and force-fed. You can say that this is different and we are in a different time, but you see the point that the noble and learned Lord, Lord Hope, is getting at: what is a reasonable protest, and how far should someone go? In other words, where is the balance in a protest that will inevitably cause some disruption? I have been on protests and demonstrations that have caused disruption. But where is the balance and where do you draw the line? We never debate or discuss this—

[Lord Hope of Craighead (CB)]

The crucial point that I was trying to make is that we are dealing here with serious disruption. I have been trying to get a definition of what that really means. These two points meet: you have to identify what you mean by “serious disruption”, and you reach a point where the proportionality tips against the person who is causing the disruption. That is what we need to get at and why the language in the Bill needs to be more precise to enable that to be determined.

[Lord Coaker (Lab)]

I could not agree more; the issue of proportionality is exactly right. But this is difficult. I have been on demonstrations that caused serious disruption that we regarded as perfectly reasonable, but I am not sure that everybody else would have thought they were perfectly reasonable.

So I support what the noble and learned Lord’s amendments seek to do, which is to get the Government to justify where they think that line should be and say—I am not a lawyer, but I often hear the lawyers here say this—that it should not be left to the courts to determine and try to guess what the Government’s view was and what Parliament was seeking to do. It is Parliament’s responsibility to try to define and clarify what the law seeks to achieve. The courts then interpret that, which is right in a democracy. But we abrogate our responsibility if we do not even seek to discuss this.

The noble and learned Lord, Lord Hope, is exactly right, but my question to him is: where does it tip? One person’s view of what is proportionate may be regarded by someone else as weak and not strong or determined enough to challenge the system. The system might need more challenge, not less, to bring about the change that is needed.

So the debate is necessary, but quite where that takes us and how you put forward an amendment, other than the interesting amendment of the noble and learned Lord, Lord Hope, is really important, as is how the Government respond to it. This important point should not be lost. It is almost a philosophical debate, but its practical implications for protest in our society are immense.

Speaking as an individual, I would put up with some disruption because I recognise the need for people to protest. When I drive into London and sometimes cannot get into Parliament, I remind myself that I have done similar things to people in other circumstances—

Public Order Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I am acutely aware of the time and, having spoken extensively in favour of Clause 9 at Second Reading, I rise briefly to express the Green group’s support for the amendment in the names of the noble Baroness, Lady Sugg, and the noble Baroness, Lady Hamwee, who made an important point. I will also speak in opposition to the other amendments in this group and address some points in the debate that I think may have been perhaps rather pointedly aimed in our direction.

There has been some discussion about how other elements of the Bill are aiming to restrict protest and this is seen to be restricting protest, but there is something profoundly different here. There is nothing in Clause 9 that stops people who are opposed to abortion or the provision of abortion services protesting on the high street, outside Parliament or on the M25. They could choose to do that; there is nothing in Clause 9 that would stop that happening. That is calling for system change, that is directed at our politics, at the way our society and our law work, but there is a profoundly different situation where protest is directed at an individual person, a patient who is seeking healthcare or advice about healthcare, to discourage them from receiving that healthcare. One point that has not been raised tonight, that I think really should be, is the fact that there is a risk if someone is driven away by this protest, they then seek to access irregular services, which are now broadly available on the internet, at potentially great cost to their health and well-being.

The noble Baroness, Lady Fox, said that this is a catch-all amendment in that it is seeking to have broad coverage across the country. That is the alternative, as the noble Baroness, Lady Sugg, said, to having a postcode lottery, where some people whose councils can afford to take action have protection and other people, often in poorer areas of the country where councils do not have the money, do not have protection.

The noble Lord, Lord Farmer, was concerned about intimate pressure. Let us look at where pressure for an abortion comes from. The noble Baroness, Lady O’Loan referred to mothers who fear not being able to pay for a baby. It is not just fear; the practical reality is that the greatest pressure for abortion in this country comes from an inadequate benefits system. I note that the right reverend Prelate the Bishop of Durham, has been prominent in campaigning for the end to the two-child limit. I will join him and anyone else who wishes to campaign against this inadequate system.

I have one final point which I think has not been addressed. The noble Lord, Lord Cormack, questioned necessity. A number of noble Lords asked what has changed since 2018. What has changed is this. A huge amount of what we see in the UK has been imported from the United States of America. We have seen an extremely well-funded and emboldened movement coming from the US to the UK. The noble Lord, Lord Cormack, referred to his experience as a constituency MP. That was some time ago. Since then, and certainly since 2018, the levels of funding and pressure have changed. A movement started in the US is aiming to act around the world. I do not say that your Lordships’ House should stand up against this movement if it seeks to campaign to change the law in the UK—personally, I want to see full decriminalisation of abortion. I accept their right to campaign against the law and the system, but I will not accept their right to target individual patients seeking healthcare.

[Lord Hope of Craighead (CB)]

My Lords, I do not want to prolong this debate, which has been extremely interesting and very rewarding in many ways. I want to make one or two short points, both relating to amendments in the name of the noble Baroness, Lady Fox of Buckley. I agree with one and disagree with the other.

In Amendment 89, the noble Baroness asks the Committee to take out paragraph (b),

“persistently, continuously or repeatedly occupies”.

I have some problems with this paragraph because I am not sure to what the word “occupies” refers. The grammar of this paragraph needs to be looked at very carefully. Unless the territory being referred to as being occupied is clear, this phrase is extremely broad. That is why I support all the amendment proposed by the noble Baronesses, Lady Sugg, Lady Barker and Lady Watkins of Tavistock. These are in line with the Constitution Committee’s report, which said that the phraseology of this clause should be looked at carefully to ensure that it is not any wider than it needs to be. Paragraph (b) should be looked at again because the word “occupies” raises questions which need to be carefully looked at and properly defined.

Amendment 80 in the name of the noble Baroness, Lady Fox, asks us to insert the words “without reasonable excuse”. In a previous debate, I expressed quite a few views on the use of the words “reasonable excuse”. We need to take a decision about this ourselves. The trouble with putting this in as a defence is that it would be passed to the police on the spot to decide whether or not trying to express one’s opinion or what motivates the individual to say or do what they are doing is a reasonable excuse. That is the problem. We need to take a decision and not leave it to the police or the courts.

The Court of Appeal—I beg the pardon of the noble Baroness—has been doing its best to soften the Ziegler case, which we discussed last time, to make it clear that there are certain offences, of which the Colston case is one, where damage is done or the activity is sufficiently serious that make it impossible to sustain a reasonable excuse defence. This is probably one of these cases. With great respect to the noble Baroness, these particular words should not go in. Otherwise, we are just creating more problems than we are trying to solve.

[Baroness Fox of Buckley (Non-Afl)]

The query about “reasonable excuse” has come up before. It has been suggested that free speech would be used as a “reasonable excuse”. I will try to clarify what I was trying to explain, and perhaps the noble Lord will come back at me. There are many ways in which you could be found to be breaching the criminal law—it is so broad. The noble Lord, Lord Beith, illustrated the variety of things you might be doing that might mean you inadvertently broke the law. I wanted there to be some excuse, such as “I am accompanying someone and having an argument with them”. There are problems with the wording of the clause, and I would be more than happy to be advised how to tighten up my amendment so as to not use this phrase or look as if I am giving the police too much power.

[Lord Hope of Craighead (CB)]

The noble Baroness is wrestling with the same problem I had in dealing with “reasonable excuse” in relation to locking on. There seemed to be cases where people might have had a genuine reason for locking on because it is so widely defined.

One might say that the “reasonable excuse” defence would be suitable if it were sufficiently qualified so that it did not provide the police and the courts with the problem of having to decide whether or not the pro-life argument was a reasonable excuse. If one looked at the offences, one would say that this kind of argument would not stand up to what this legislation is all about. There are other instances where one might find that there was an excuse for what was done which was quite detached from what this clause is really driving at. If the noble Baroness could find a way of expressing this, I should be delighted. That is what I was trying to do in the earlier debate.

I hope I have made my position clear. As it stands, this would not be acceptable. I think that paragraph (b) raises a very interesting point of definition.

[Lord Hogan-Howe (CB)]

My Lords, I rise briefly to support Clause 9. During this debate, I found myself challenged by our preference for not regarding this as a surrogate for talking about whether people are for or against abortion. At times I have noticed that there seems to be a link between those who oppose this clause and those who oppose abortion. This will not always been the case, but noble Lords who have spoken have often mentioned it. My heart finds it hard to contemplate abortion, but my head says that it is probably reasonably pragmatic in our society, and we have to accept it.

The reason for this clause seems to be the inconsistent application of police discretion around the country. The resources of each institution affected by the protests mean that they cannot always approach a civil injunction or remedy. As the noble Baroness, Lady Sugg, mentioned, it ends up being a lottery as to whether or not women in different parts of the country are protected. This is not good for anyone.

I support Clause 9 and I will reject the review, not because reflection is inherently a bad thing, as the noble Lord, Lord Cormack, said, but because I take this to be a wrecking amendment rather than something which is intended to develop the proposal. If I am wrong, that is my error, but that is how I felt the argument was being developed.

The basic proposal is about stopping interfering with women as they go to an abortion clinic. I do not understand the argument about needing to offer them advice at the point at which they approach a clinic. If the point is to offer advice on whether there are alternatives or whether they should even be contemplating abortion, this must be the least efficient process that anybody has ever devised. There has to be a better method than standing in the street, potentially shouting—we have seen examples of this—to engage with a woman at the point at which she is very vulnerable, just before she is potentially going to receive treatment, to try to persuade her not to do it. There has to be a better way. If this is the only way in which any protester can think to engage, they are in error. It is not a reasonable approach. It causes the majority of people to think that carrying out this type of protest in this way should be stopped.

People have described it as a conversation. I do not accept that. It is not a conversation—it sounds like a one-way monologue; it usually sounds like intimidation and, certainly, like bullying. For me, it is something that should certainly not be tolerated in a just society. I cannot support that.

There have been examples offered of where the police have intervened when people were merely praying; I think the noble Lord, Lord McCrea, mentioned this. I would be surprised if a police officer did that but, if there are examples, we ought to examine them. Let us get to the bottom of it. That would have required a member of the public to complain and then for the officer to attend. I do not think they would just have turned up of their own volition to intervene in an event around an abortion clinic that someone had not complained about in the first place. I would like to understand more about that, but I do not think this clause is designed to stop people praying. It might be designed to stop people congregating together in such a way that it intimidates people at what may be their most vulnerable time.

The argument about this being an absolute prohibition of protest in just one very small part of the country is a fair argument. I think all of us would say that, if that is going to happen, it should be in a very small part —and perhaps no part—of the country. It is an absolute argument. I could have accepted that, but my reasons for not doing so in this case, and why I believe Clause 9 is a reasonable approach, is that the harassment that is being suffered is gender-specific. Only one half of society will generally be affected by this type of influence or advice: the women of our society. It is also time-specific; it is a point at which women need this advice and at a time when they are in most peril, either personally, by conscience, or physically, and that seems to me to be a time when we should give them most support. Finally, it is at a place about which they have no discretion; they have no discretion about where they will seek support. They have to go to a hospital or a clinic. These places are identified and the women become vulnerable because they are identified as they approach them.

I would generally support an absolute prohibition of stopping protest—but in these places, at these times, for the women of our society, I support this clause. It deserves our support in protecting the women who need it.

[Baroness Barker (LD)]

My Lords, I made an extensive speech at Second Reading so I shall confine myself to just a few points of reflection on the debate today. First, the rest of the Bill is about protest; this is about the harassment of people seeking a legal health service to which they are entitled, as the right reverend Prelate the Bishop of Manchester reminded us. There are those of us who believe that women have the right to access those services freely and safely. Our amendments try to ensure that this whole clause addresses just that and, indeed, narrows it down. There are those who do not believe that such a service should exist or that people should be able to access it. They have very much exaggerated what this clause is about and its potential implementation. The noble Baroness, Lady Fox of Buckley, said in her introduction that all the evidence is that this activity does not stop access. I have no knowledge of any such evidence, and she did not give us any, but I have to ask: if it is not effective, why do people continue to do it, day after day?

A number of noble Lords rested their cases on the 2018 review. The amendments tabled by the noble Baroness, Lady Sugg, and myself have been informed by the providers of services and the thousands of women who attend those services and report to us that the current system of local PSPOs is not working, and they are continuing to suffer harassment as a result. So we need to be quite clear about the motivation behind the amendments but also their effect.

The noble Baroness, Lady Eaton, was one of the many people who gave a passionate defence of free speech. She said you cannot pick and choose. I say to her that, uniquely among all healthcare services, abortion services are targeted specifically. That is why we have to seek remedies, which we would not otherwise wish to do. The reason we are doing this is that, over the last two years, influenced by America, and influenced and funded by the same organisations that overturned Roe v Wade, there has been a change and an escalation.

I listened carefully to a number of noble Lords who made emotive comments suggesting that we wish to “criminalise prayer”. In the case of a single person in silent prayer, no, we do not; in the case of a church where every member turns up, week in week out, to stand directly in the path of women trying to access a service with the avowed intent of frustrating their access, yes we do.

One amendment that nobody has talked about at all is our Amendment 87, which talks about the definition of interference. I urge noble Lords to go back and look at that. I include the noble and learned Lord, Lord Hope of Craighead, because, when he objects to the phrase about “persistently and repeatedly” occupying something, that again comes from the experience of clinic staff and users. People come day by day to undertake their activities in the doorway of a clinic.

[Lord Hope of Craighead (CB)]

I am not objecting to the idea behind that clause; all I am saying is that the wording seems to me a bit defective because the word “occupies” does not have a target. I am sure that it could be better expressed; if it were better expressed, I would be content.

[Baroness Barker (LD)]

I very much welcome the noble and learned Lord’s help in trying to find a suitable wording for what we are seeking to do. I want to inform your Lordships’ House of what is happening: there are individual acts that, one by one, may not be intimidating but, put together in a pattern with a deliberate aim, they are.

I say to the noble Lord, Lord Balfe, that I am glad he was there with my colleague David Steel in 1967, but we are in a very different place now. Back in 1967, clinics were not having to deal with harassment as they are now.

Public Order Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, if I had to choose between the two amendments, I would choose Amendment 127A. It is quite important to understand why it is the better version. It is because, as the noble Baroness, Lady Chakrabarti, said, it not only covers the way the police exercise their powers, which is the main target of Amendment 117, but extends to people who are observing the protest itself. That is a very important and significant extension. The way the protest is proceeding is all part of the background against which the other part of the amendment has to be judged, so the broadening in Amendment 127A is rather important.

Another point worth noting is that neither of these amendments uses the word “journalist” in the main text. That is important too: protection is extended to allow other people, for whatever reason, to carry out the exercises referred to. To narrow this down to journalists, which neither amendment seeks to do, would be a mistake. It has to broadened out in the way that both do.

As I have said, however, my main reason for intervening was to explain why I would choose Amendment 127A if I had to choose between the two amendments.

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a series producer making a television series on Ukraine.

I was very moved by the speech of my noble friend Lady Boycott and the dedication to journalism that she has shown. I support both Amendment 117 and Amendment 127A. As a television journalist who has reported on protests across the country and the world, I have experienced protesters being suspicious of journalists for fear that their footage would be used by the police to identify and arrest people at a later date. As a result, I have been attacked by protesters and my cameramen have had their cameras grabbed and attempts made to take the tapes or cards.

In many of these cases, particularly in this country, the police have been there to protect us journalists and allow us to do our work reporting on demonstrations, so I am appalled and surprised to hear from my noble friend Lady Boycott that, in recent years, the police in this country have been arresting journalists for doing their job: filming protests. I thought that ECHR Article 10 on the right to freedom of speech would be incentive enough for the police to leave them alone, but clearly not.

This amendment therefore seems necessary to protect journalists going about their business, reporting on protests and the disruptions that they may cause. The problem is that the powers in Clause 2 on locking on seem to be so broadly drawn. It is one thing to arrest people for locking on, but to arrest someone for carrying an object

“with the intention that it may be used”

in connection with that offence seems to give the police power that cannot be right in a democracy. I fear that the words will give them leeway to stop a journalist who is carrying a camera to film the lock-on. Surely even the threat of this happening cannot be allowed. It will have a chilling effect on free speech.

I understand that the police want to be able to arrest protesters who are locking on and filming themselves while doing it, but the wording in this amendment, that

“A constable may not exercise any police power for the principal purpose of preventing … reporting”,


may be an important protection for camera people and journalists covering protests. It protects bona fide journalists.

Clause 11, allowing

“stop and search without suspicion”

in an area near a protest seems to stand against everything I thought Conservatives represented. I always thought it was a driving force behind Conservatism that they wanted to take the state off the backs of individuals. This clause does the opposite. When I talk to people about the possibility of their being stopped without suspicion just because they unwittingly wandered near to a protest, they are aghast. When this possibility is extended to journalists being stopped for going about their business, the threat against free speech posed by this Bill is compounded.

The Government are usually eager to protect journalists and journalism. I suggest to the Minister that, by accepting this amendment he will be striking an important blow for freedom of speech, which is so sorely missing in much of the Bill.

Public Order Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is a pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, and a daunting privilege, as always, to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood. My views on the necessity and desirability of this proposed anti-terror-style legislation are no secret. But whether noble Lords are for or against this Bill—whether they are for or against its new offences, including thought crimes, stop and search powers, including without suspicion, and banning orders, including without conviction—all noble Lords must agree that the concept of “serious disruption” has been used throughout the Bill as a justification and trigger for interferences with personal liberty.

So, “serious disruption” should be defined. However, His Majesty’s Government resisted any definition at all, all the way through the Commons stages of the Bill and in this House, until this late stage, notwithstanding attempts by some of us on this side to provide a single overarching definition very early on, in Committee, and despite even senior police requests for clarity. What a way to legislate, bearing in mind that we are here at all only because of late amendments to last year’s bus—sorry, Bill—the police et cetera Bill, which would have had this whole Bill dropped into it, again at a very late stage.

Just over a week ago, via a Sunday afternoon No. 10 press release—because No. 10 press officers never rest on Sundays—and with no amendment even attached to that press release, we learnt that there was to be some sort of definition so that

“police will not need to wait for disruption to take place”.

The government amendments and signatures to amendments from other noble Lords were not published until about 24 hours later, so there was a whole media round of debate the next morning—this was before the conviction of Police Constable Carrick—concerning unpublished amendments. I hope that the Minister will tell us when he first knew about this new approach of having a definition, and why it was heralded by press release rather than discussion in your Lordships’ House.

As for the substance of the issue, government amendments are confusingly piecemeal and set the bar too low before a number of intrusive police powers and vague criminal offences kick in: “more than minor” hindrance is not serious disruption. More than minor is not serious enough. They cannot be serious.

I face more than minor hindrance in congested London traffic every day or even when walking through the doors and corridors of your Lordships’ House at busy times. The definition of civil nuisance at English common law involves “substantial interference” with the use and enjoyment of my property. Should it really be harder to sue my neighbour for polluting my private land than it will be under the Government’s proposal to have my neighbour arrested for protesting against pollution in the public square? Obviously not—or at least, not in a country that prides itself on both civil liberty and people’s ability to rub along together and even disagree well.

Instead, the single overarching and more rigorous Amendment 1 defines “serious disruption” as

“causing significant harm to persons, organisations or the life of the community”.

That is the overarching definition, and it includes “significant delay” in the delivery of goods and “prolonged disruption” of access to services, as set out in the Public Order Act 1986. To help the noble Lord, Lord Pannick, the concept of prolonged disruption is already in the 1986 Act as amended by last year’s bus, the police et cetera Act, so that is not a novel concept. We are really talking about significant harm instead of more than minor hindrance. I urge all noble Lords, whether they are for or against the Bill in principle, to vote for that.

[Lord Hope of Craighead (CB)]

I would like to speak next because my amendments have been mentioned and it is probably best that I explain what they are. I stress that the amendments under discussion are not my amendments: they are Amendments 5, 14 and 24 in this group, which substantially repeat amendments I tabled in Committee. There is a certain amount of revision of the words but essentially, I am making the same point as I did in Committee. They seek to give effect to a recommendation by the Constitution Committee, of which I am a member. I am grateful to the noble Lord, Lord Faulks, who, as I speak, is still a member of that committee, for adding his name to the amendments.

The committee noted that the three clauses concerning locking on, tunnelling and being present in a tunnel—the offences that are the target of my amendments—use the term “serious disruption” to describe the nature of the conduct that the Bill seeks to criminalise. The committee noted that this could result in severe penalties, such as providing the basis for a serious disruption prevention order, and took the view that a definition should be provided. On that issue, I think there is a wide measure of agreement across the House—perhaps with the exception of the noble Lord, Lord Paddick—that a definition is needed because of the nature of these offences and the consequences that follow from them.

[Lord Paddick (LD)]

I would like to clarify that I wholeheartedly support Amendment 1, which is a definition of “serious disruption”.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

So there is agreement that a definition is needed because of the nature of the crime and the consequences that follow from it. The committee noted that a definition was given in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Baroness, Lady Chakrabarti, has referred. Those sections deal with the imposition of conditions on public processions and public assemblies. The amendment in the name of the noble Lord, Lord Coaker, seeks to adopt the same definition for the purposes of the Bill.

[Baroness Chakrabarti (Lab)]

I am sorry to be a hindrance to the noble and learned Lord, although I hope no more than a minor hindrance. The concept of “prolonged disruption” is a tiny part of the definition, but my noble friend Lord Coaker’s Amendment 1 does not replicate the definition in Section 73 of the 1986 Act. The new overarching principle that we would introduce with Amendment 1 is

“significant harm to persons, organisations or the life of the community”,

and that is not in the 1986 Act. It is not the provision that is limited in that Act to processions or indeed assemblies.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Baroness and accept her correction. Of course the catalogue that follows is very much the catalogue that we see in the 2022 Act, and it was that which took our attention in the committee. Our view was that the definition is not suitable for use in the Bill because of locking on and, especially, tunnelling. The committee said that the definition should be tailored to the very different defences with which we are concerned in the Bill, and recommended that the meaning of the phrase should be clarified in a proportionate way—for a reason that I will come back to, because the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that point—in relation to each offence. That is what my amendments seek to do. I suggest that they are more in keeping with what the Constitution Committee was contemplating than the amendment by the noble Lord, Lord Coaker.

I have tried to provide definitions that are tailored to each of those three offences and are short, simple, proportionate and easy to understand. After all, this is a situation where guidance is needed for use by all those to whom the offences are addressed. That audience includes members of the public who wish to exercise their freedom to protest; the police, who have to deal with these activities; and the magistrates, before whom most of any prosecutions under these clauses will be tried.

At the end of my speech in Committee, my aim was to invite the Minister and his Bill team to recognise the importance of the issue and, if my amendments were not acceptable, to come up with a more suitable but just as effective form of words. As noble Lords can imagine, as we so often issue invitations of that kind and those words were uttered more in hope than expectation, it was rather to my surprise that on this occasion my hope was realised when the Bill team began to take an interest in what I was seeking to do. I am grateful to them and to the Ministers in the other place and in this House for the discussions that then followed, which helped me to improve and finalise my wording. I cannot claim that I have found an absolutely perfect solution, but I think what I have done is achieve the best that can be done. Certainly, it is very much better than the alternative that is before your Lordships.

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[Lord Hope of Craighead (CB)]

These are the words we are dealing with. “Significant” is the word in the Amendment 1 and it is defining “serious disruption”, but we are trying to find words that define what we mean by “serious disruption” in the case of these three offences, which is my point. I come back to the point that the important word is “more”, because I am trying to establish the threshold at which it is right that the police should intervene. The problem with “significant”, of course, is that can mean different things to different people in different contexts.

[Baroness Chakrabarti (Lab)]

I think the difference between us is that the noble and learned Lord is suggesting that there is a binary: there is “minor” and there is “significant”, and therefore anything “more than minor” must be “significant” or—forget “significant”—“serious”. To understand the intention behind our amendment, one needs to think about “significant harm”—“harm” as in damage. Harm and damage, and significant harm and damage, are well understood in the law, as he knows. As for his concerns about the long list, it is a replication of provisions previously in the 1986 Act for assemblies and processions. To reiterate, it is a non-exhaustive list of examples. The crucial part of our definition is “significant harm”. I think an ordinary person on the street would understand “significant harm” as more serious a minor hindrance or one iota more than a minor hindrance.

[Lord Hope of Craighead (CB)]

I was looking to identify the threshold at which one reaches the point where, on my approach, one moves beyond a minor disturbance to something that becomes significant. That is why I use “more” for the point at which, I suggest, given these particular offences, it is right that the police should then intervene. I asked the question: once one reaches that point, in the case of the tunnelling, why should that go on and on? People are arguing about whether we have reached the stage where the harm is caused is significant without the further guidance of being directed to the point at which it becomes significant.

The problem with the words that the noble Baroness is addressing to me is that they can mean a range of things within the compass of the word “significant”. I am trying to direct attention to the particular offences and consequences that follow from the activities being carried on. That is why I suggest that “more” is the most important and significant part of my formula.

As for locking on, the other of the three offences, I do not have a long catalogue of things that may be affected. There is always a risk that something might be missed out, so I have tried to capture what is put at risk by the omnibus words “their daily activities”. But here again, the threshold that I am seeking to identify is to be found in the words

“more than a minor degree”,

for the reasons that I have explained. Again, the question is: why should the police wait any longer once that threshold is reached?

I come back to the point about proportionality that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned, and the reasonable excuse point. Proportionality is very important and the threshold has to be put into the right place, because we need to consider at what point the interference with the convention rights of freedom of expression and freedom of assembly and association becomes disproportionate.

In its judgment in the recent Northern Ireland abortion services case, delivered last December, the Supreme Court said in paragraph 34:

“It is possible for a general legislative measure in itself to ensure that its application in individual circumstances will meet the requirements of proportionality … without any need for the evaluation of the circumstances in the individual case”.


In other words, there is then no issue for a jury to consider or a magistrate to address his or her mind to; it will have been sufficiently addressed if the issue identified in the legislation is in the right place.

As to whether that is so, some guidance can be found in a decision of the Grand Chamber of the Strasbourg court in a Lithuanian case called Kudrevičius in 2015. That case was about a demonstration by farmers, of which a number have happened in recent years. They had gathered in a number of groups to block the traffic on a number of public highways. The court said that in that case the disruption of traffic that resulted could not

“be described as a side-effect of a meeting … in a public place, but rather as the result of intentional action by the farmers”—

in other words, they were intending to disrupt the highway—and that

“physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities”

of others, the court said,

“is not at the core of”

the right to freedom of assembly. That in itself, however, was not enough to remove their participation entirely from the scope of the protection.

That is the background for what the court then decided. It said that “Contracting States”, which included ourselves,

“enjoy a wide margin of appreciation in their … taking measures to restrict such conduct”

and that the farmers’ intention—a serious disruption of the highways to a more significant extent

“than that caused by the normal exercise of the right of peaceful assembly in a public place”—

was enough to enable the Court to conclude that the criminal sanction which was imposed there was not disproportionate. That is an example of a case which went across the border from being a side-effect of what was happening to something that was a deliberate obstruction of traffic, which is what locking on is all about, and a deliberate interruption of, let us say, the HS2 development, which is what the tunnelling is all about.

My approach also has the support of a decision by the Divisional Court in March last year in a case called Cuciurean. That case was about tunnelling. It affected only a small part of the HS2 project, it lasted for only two and a half days and the cost of removal was less than £200,000. However, the prosecution for aggravated trespass was upheld as not amounting to a disproportionate interference with the protester’s rights. I am sorry to weary your Lordships with those references, but, having looked at those and other case law, I believe that the position I have adopted in these amendments strikes the correct balance for the proportionate treatment of the rights we are talking about.

Of course, I hope that the noble Lord, Lord Coaker, will not press his amendment—although I have no doubt he will feel he should—because I believe it is not fit for purpose. It is not right to introduce a general definition of that kind, which is perhaps all right for one of three offences but is completely out of place for the other two. It is not good legislation. We try in this House to improve legislation. With the greatest respect to the noble Lord, I do not think his amendment improves it. On the contrary, I suggest that my amendments do improve it and, when the time comes, if I have the opportunity to do so, I will seek to test the opinion of the House.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I admire the noble and learned Lord, Lord Hope, for trying to convince us. I support and have signed Amendment 1. I cannot argue the law—I cannot argue how many angels dance on the head of a pin—but I can question the politics. My concern about the politics of the whole Bill is that the Government are seeking to be “regressive” and “repressive”—these words have been used. This is nasty legislation.

You have to ask: is it appropriate for a few dozen protesters? Is this heavy-handed legislation appropriate for that number of people who occasionally disrupt our lives? I would argue that it is not. It is almost as if this legislation is perhaps designed instead to prevent millions of people protesting, because the Government know they have lost the confidence of the public in Britain. In a recent poll, two-thirds of people thought that the Government were corrupt. That suggests that any legislation this Government try to bring in is possibly not very well designed for the majority of people in Britain. They are giving very heavy powers to the police when we have already seen that the public do not trust the police, and they are giving more powers to Ministers—and we do not trust Ministers.

It is very heavy legislation. I am worried that the Government are actually bringing legislation for when there are general strikes and hundreds of thousands of people on the streets protesting about the collapsing and soon-to-be privatised health system or the fact that everybody’s pay is getting squeezed apart from the pay of the bankers and the wealthy. I worry that they are bringing in these laws for far more people that just the protesters. Quite honestly, who would not agree with Insulate Britain? It is the smartest thing we can possibly do if we are worried about our energy crisis. So it seems that the Government are not really focused on the protests we have had so far; they are focusing on protests we might have in the future.

We are going to vote very soon on whether to declare a protest illegal if it disrupts somebody. The whole point of protest is that it disrupts life to some point, so that you notice and start debating it and it gets reported in the newspapers. It is incredibly important, in a sense, that protest is disruptive. I heard the noble and learned Lord, Lord Hope, say that Amendment 1 was not suitable, but I have taken advice from lawyers and I think it is entirely suitable, so I will be voting for it. My big concern in this House is that we have a Government who are simply out of control. They talk about protesters being out of control, but it is the Government who are out of control.

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[Lord Hogan-Howe (CB)]

My final point is that although I cannot support the amendment of the noble Lord, Lord Coaker, for the reasons I have explained, I support the amendment of the noble and learned Lord, Lord Hope. However, the challenge made by the noble Lord, Lord Paddick, is that “minor” sounds intuitively contentious when referring to something serious, and it is an unusual bar by which to define something. The noble and learned Lord I think acknowledged that there may be more work to do on that.

[Lord Hope of Craighead (CB)]

I did stress that the word “more” is important. I agree that the word “minor” raises issues, but the “more” point is crucial to an understanding of my formula.

[Lord Hogan-Howe (CB)]

I accept that point and I would of course never tangle with a lawyer. However, I am just saying that at an intuitive level, even describing something as “more than minor” may be a concern and there may be a different form of words. In fact, I thought that noble Lords might have been able to group around the form of words the noble and learned Lord used in his speech, be it “significant” or “major”, as was suggested. It may be that we broadly agree that “serious disruption” is not okay. That is why we are struggling to find the exact definition in the amendments.

Finally, we should not leave the police with too many problems in terms of intent, recklessness or reasonable excuse. If we have a simple definition of an offence but then have to worry about intent or recklessness, the situation will, I suspect, become almost impossible and we will be back to where we started. That would be a concern.

Public Order Bill

Lord Hope of Craighead 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.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I support Amendments 46 and 47. I say a very loud, “Hear, hear” to the impassioned intervention of the noble Baroness, Lady Meacher, which was spot on. I want to answer the question of the noble Lord, Lord Deben—on behalf of the Government, noble Lords will all be surprised to know. I thought I would quote what the Home Office Minister said the last time we dealt with this. The noble Baroness, Lady Williams, explained why these new powers were necessary:

“it is not always possible for the police to form suspicions that certain individuals have particular items with them.”—[Official Report, 24/11/22; col. 978.]

That is true, but if that is the basis on which we are legislating—that it is not always possible to know if someone has suspicious items on them—then even though you do not know what the suspicions are, it will be all right to stop and search them. This seems to me to bring arbitrariness into the law in a way that can only be dangerous and will not make any logical sense to anybody outside this House.

Think of the consequences of some of this. The Government keep telling us that this is not about stopping the right to protest, and I will take them at face value on that. But let us consider someone who is not doing anything suspicious or carrying anything suspicious, but who is going on a demonstration. The police have the right to stop them, which means that what is suspicious is that they are going on a demonstration: it implies that. Going on a demonstration is pre-emptively seen as something dodgy, and I therefore become sceptical when the Government assure me that this will not have a chilling effect on people going on demonstrations.

I draw attention to a clause that has not been mentioned in these amendments but is related: Clause 14, which we will not need if we vote down Clauses 10 and 11. It contains a new offence of obstructing a police officer in a police-related suspicionless stop and search—for which, by the way, you can go to prison for 51 weeks or get a substantial fine. This clause indicates why Clause 10 and even Clause 11 are so dangerous: they will destroy any feasible community relations with the police.

The noble Baroness, Lady Chakrabarti, referred to the fact that many women might well be nervous if they are approached for a suspicionless stop and search. In all the briefings we have received, people have drawn attention to what happened, tragically, to Sarah Everard. If the police say they have no suspicions but they are stopping and searching you, you might say, as a woman, “Excuse me, I am not having that; I don’t want that to happen.” In fact, a lot of advice was given to young women that they should not just take it on face value if a police officer approaches them and says he wants to interfere with them in some way. But I want to use a more everyday example.

During lockdown, two care workers I know were walking home from work and sat down on a bench in a park to have a coffee. They worked together in a bubble, giving intimate care to people in the care home they worked in throughout the pandemic. They were approached by a number of police officers, who asked them if they lived in the same home. When they said no, the police officers said they were breaking their bubble—if noble Lords can remember those mad days, that is what it was like. They said, rather jokingly, “We’re taking people to the toilet and working intimately with them day in, day out.” The police officers became quite aggressive, threatening to arrest them and all sorts of things. We know those stories from lockdown. The reason I share this story is that the woman who told it to me had never been in trouble with the police before. She had never been approached by the police in that way; she is a law-abiding citizen who would, generally speaking, support the kind of law and order measures being brought in by this Government. However, because this police officer treated her as though she was behaving suspiciously for having her coffee on a bench, having done a long 12-hour shift in a care home, she said that she will never trust the police again. She argued back and they threatened to arrest her.

I fear that, if we give arbitrary powers to the police to use suspicionless stop and search, this Government might unintentionally and inadvertently build a new movement of people who do not trust the police and are not suspicionless but suspicious, with good reason in this instance, that the police are stopping them arbitrarily and that we are no longer a free society. We should all vote against Clauses 10 and 11 and, through that, destroy Clause 14 as well.

--- Later in debate ---

[Baroness Boycott (CB)]

I shall be brief, because I know that time is of the essence. I begin by reading a very short extract from a news report for 28 November 2022—a couple of months ago:

“The BBC said Chinese police had assaulted one of its journalists covering a protest in the commercial hub of Shanghai and detained him for several hours, drawing criticism from Britain’s government, which described his detention as ‘shocking’ … ‘The BBC is extremely concerned about the treatment of our journalist Ed Lawrence, who was arrested and handcuffed while covering the protests in Shanghai,’ the British public service broadcaster said in a statement late on Sunday.”


I shall substitute a few words here to make the point. I substitute “Charlotte Lynch” for “Ed Lawrence”, “the M25 in Hertfordshire” for “Shanghai”, and LBC for the BBC—and another world. Charlotte, like Ed Lawrence was handcuffed for doing her job. She was held in a cell with a bucket for a toilet for five hours; she was fingerprinted and her DNA was taken, and she was not allowed to speak to anyone. Her arrest took place just two weeks before Ed Lawrence’s. Is this the kind of world we want to live in?

As many noble Lords know, I have been a journalist and a newspaper editor. I have sent people to cover wars and protests, and I believe fundamentally in the right of anyone in the world, especially in our country, to protest about things they believe in. You protest only when you cannot get anywhere with anything else, when letters to MPs, to the local council and the newspaper have been explored and you take to the streets. But just as this is a fundamental right, so is it more than just a fundamental right—it is a duty— of journalists to report on demonstrations, because demonstrations are where we see where society is fracturing and where people really care. I cannot believe, as a former newspaper editor, that I would now have to think that it might be more dangerous to send a journalist to Trafalgar Square than to Tahrir Square. I urge noble Lords to vote for this amendment.

[Lord Hope of Craighead (CB)]

My Lords, it is hard to overemphasise the importance of this amendment. It is firmly rooted in Article 10 of the European Convention on Human Rights, which provides that:

“Everyone has the right to freedom of expression. This right shall include freedom to … receive … information and ideas without interference by public authority”.


The word “everyone” which begins that article is extremely important because it applies the rights to everybody, whoever they may be. It may be suggested that the point being made by the amendment is so obvious that it is unnecessary, but I simply do not believe that. In the highly charged atmosphere of the kind of public protest we are contemplating in these proceedings, it is too big a risk to leave this without having it stated in the Bill and made part of our law. It should not be necessary, but I believe it is necessary, and it is firmly rooted, as I say, in Article 10 and those very important words. I support this amendment.

[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.

--- Later in debate ---

[Viscount Hailsham (Con)]

Yes, but I do not think the noble Baroness has focused on the point that a lot of demonstrators would represent themselves as journalists to avoid the prescriptive provisions of the Bill. That is what the noble Lord, Lord Hogan-Howe, was talking about, and he is wholly right.

[Lord Hope of Craighead (CB)]

I thank the noble Viscount for giving way. The word “journalist” is not in the amendment—just “a person”, who is defined as “observing or otherwise reporting”. That is what it says, and it is very clear.

[Viscount Hailsham (Con)]

I appreciate that. I did not realise that the noble and learned Lord was intervening—I apologise for not sitting down at once. The point is surely that we are dealing with the need to protect journalists. The risk is that any demonstrator involved will say that they are a journalist or otherwise fall within the protection of this proposed new clause. That is what worries me.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, as the noble Lord, Lord Anderson, said, I support all but one of his amendments. The one I do not support is very minor and, out of an abundance of caution, I decided not to put my name to it. A particular point I wish to draw attention to arises from his Amendments 56 and 60, which deal with the trigger events for the pronouncement of these orders. The noble Lord seeks to take out the third, fourth and fifth trigger events. He is absolutely right to want to do so because of the breadth of the expression, and of a particular point that I will come to.

The third trigger event concerns carrying out

“activities related to a protest that resulted in, or were likely to result in, serious disruption”.

That phrase describes a protest, but the word “activities” is so wide that it raises real questions about the certainty of this provision. The same point arises in respect to the fifth trigger event.

The fourth trigger event contains quite an extraordinary proposition, which is that the person

“caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction”.

An offence is defined in statute. Everyone is presumed to know the law, so it is fair enough to mention the “offence” in that particular trigger event, but injunctions are directed to individuals; they are not publicised in the same way as offences. A person might have absolutely no idea that the other person in question was in breach of an injunction, of which he had no notice whatever. That is absolutely objectionable. On any view, the fourth trigger event should be deleted from both these clauses, but for broader reasons and those given by the noble Lord, Lord Anderson, which I need not elaborate on, I support his amendments.

[Viscount Hailsham (Con)]

My Lords, I will make three brief comments about these amendments. First, regarding the trigger points, I entirely agree with Amendments 56 and 60 from the noble Lord, Lord Anderson, which the noble and learned Lord spoke to. The reference to an injunction is particularly worrying because, for the reason the noble and learned Lord mentioned, members of the public would not be aware of it. In any event, what are or could be contemplated in the third, fourth and fifth trigger events are acts that are very remote from the mischief the Bill contemplates. Therefore, I very much hope that the amendments are put to the House, and I shall support them if they are.

Secondly, your Lordships need to keep in mind that the test of necessity, which is dealt with in Clause 20(1)(d), is quite a high bar. I deal with it in interim orders made by the regulatory panels, which are fully aware that “necessity” is different from “desirability” and requires quite a high threshold.

My last point is a query to the Minister, if he would be so kind. It is a very long time since I dealt with complaints before magistrates’ courts, so I apologise for not really being familiar with the procedure. In any view, these SDPOs are very serious. Does the complaint, which presumably has to be made both by the court and to the person named, specify the concerns felt by the senior police officer? Does it specify the relief being sought in the order itself? I assume that these are inter partes hearings, not ex parte. Does the person against whom the order is sought have the opportunity to make representations, give evidence, be represented and object to the relief being sought? This is ignorance on my part, but I fancy that quite a lot of your Lordships would like to know the procedure being invoked.

Public Order Bill

Lord Hope of Craighead Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, the Minister said that the noble and learned Lord, Lord Hope, proposed his amendment for “more than minor” and that was why the Government reintroduced it in the Commons and were supporting it again. Of course, that was lost when it was debated in your Lordships’ House and the Government have inserted “more than minor”—admittedly, with some flowers and curtains around it. I keep saying to noble Lords that it goes to the heart of the debate as to the threshold we wish to set where we start to undermine the right to protest. I still contend that the Government’s “more than minor” threshold is too low. Hence my Motion A1 would insert in subsection (1)(a) “significant” instead of “more than a minor”; in subsection (1)(b), it would leave out

“delay that is more than minor”

and insert “significant delay”, and in subsection (1)(d), it would leave out

“disruption that is more than minor”

and insert “significant disruption”. The point of that is, of course, to raise the threshold.

First, because I think it is important for noble Lords to understand, I want an assurance from the Minister that whatever we decide will be respected by the Government. To refer back to the Police, Crime, Sentencing and Courts Act 2022, Sections 73 and 74 define public nuisance and impose conditions on public processions, public assemblies and various sorts of activities, including defining what activity may result in serious disruption. Tucked away in those sections is the power for the Government to change any of that by regulation. I want a categorical assurance from the Minister that, were the Government to lose the amendments before us today, and they may win, and the Bill went back to the other place, or if the amendments that could not be reinserted in the Commons because they had been introduced in the Public Order Bill only in the Lords—namely, what we called the “slow walking” clause and the “reasonable excuse” amendments—were lost, the Government will not seek to overturn the expressed will of this Chamber and, I hope, eventually the will of the other place by using Sections 73 and 74 of that Act, which they could do. I would appreciate that.

The debate today centres on thresholds. At what level should we restrict the right to protest, above the laws that we already have? We already have a number of laws that restrict the right to protest and allow us to deal with protests as they occur. Indeed, many chief constables, including the chief constable of Manchester, have asked why we do not use the existing legislation. Notwithstanding that, the Government have panicked and come forward with the Bill to try to deal with what they perceive as a problem.

To make this real, I spent Sunday afternoon looking at various protests that have taken place around the country that, I contend, with a “more than minor” threshold would under the Bill be something that the police could arrest people for and stop. I ask everybody in this Chamber whether that is what people want, because I contend that it is what the “more than minor” threshold will mean, rather than the “significant” threshold that I am seeking to replace it with.

Let me quickly go through some of these protests that made the headlines, which would be illegal under the Bill. The first is “Protest in Oxford blocks major road in both directions”. I suggest that, before a court, that may not be significant but is more than minor. Next we have a “No HS2” protest. Some people may have more sympathy with that, but lots of protests have taken place with respect to that. “No nuclear power station” protests have taken place in Suffolk. Are they covered by the Bill? They come under “more than minor”, and I contest that offences would be committed under the Bill. East Sussex residents protested outside the housing department at the treatment of a road and blocked access. That is an offence under the Bill, and certainly above the “more than minor” threshold. Next is “Furious parents block road to protest poor enforcement of school street in north London”. I contend that that is an offence under the Bill. In the case of “Wellingborough: Protesters halt tree-felling plans”, they blocked the diggers and the cutters, which is not allowed under the Bill and is certainly more than minor. Two more are angry mothers blocking drivers over school drop-offs and unhappy Trowbridge residents turning out to block tree cutting. Under the Bill, some of these protests would be illegal and the police could potentially have the capacity to arrest.

We also saw the massive protests that took place last July when summer holidays were affected. Thousands of lorry drivers across the country blocked the M4, the M5, the M32 and the A38 in protest at the cost of fuel. My contention is that under the Bill that is more than minor and those protesting against the cost of fuel would be liable to arrest more than they are now. If you are blocking five or six motorways, that is certainly more than minor. What else did I find? Farmers blocked roads in protests; tractors were used in response to falling milk prices. That would not be allowed under the Bill. Blocking a major road is certainly more than minor. There is example after example showing that the Bill puts at risk the rights of people to protest. It puts at risk one of the democratic traditions of our country.

I do not hold with the idea that the Minister seeks to ban protests. That is ridiculous: I have never said that. What I have said is that the Bill unnecessarily restricts the right to protest and unnecessarily causes uncertainty about what is allowed or not. Lowering the threshold would mean that activity that is currently allowable in some of the examples I have given would not be. That is because of the phrase “more than minor”.

I am sure that many noble Lords will wish to comment on that, but all I ask is for noble Lords to reflect that if a tractor turns up, a mother turns up or a group links arms, before anything has happened it could be illegal under the Bill—this is the point made by the noble and learned Baroness, Lady Butler-Sloss. It does not even have to have caused disruption; it simply has to be capable of causing disruption. You can turn up with five tractors and park in a car park, and if the police think you are going to do something, even if you have not done anything, they could stop it because it is capable of causing disruption.

The Government will say, “Of course, this is ridiculous —an overreaction. Stupid nonsense. Why on earth is that going to happen? Our police will not act in that way. Ridiculous. People will be shaking their heads in disbelief that anybody could posit that anything like this would happen in our country.” All I say is: why would you pass legislation that creates the potential and the risk for it to happen?

It is not the way to legislate. Existing laws are appropriate and satisfactory and could be used. They are not being used as effectively as they could be. The Government’s answer to Just Stop Oil, Extinction Rebellion and all that is to seek to pass a totally disproportionate piece of legislation. Through my Motion I am trying to mitigate the impact and effects of that. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, since the noble Lord was kind enough to mention my name, I should perhaps briefly explain the thinking behind the form of words the Government have introduced to this debate.

Before I do, I remind your Lordships of what the noble Lord, Lord Coaker, said at Third Reading—words that are worth listening to again. He said that

“the debates here and the changes made reflect a genuine attempt to address where the line should be drawn between the right to protest and the right of others to go about their daily lives.”—[Official Report, 21/2/23; cols. 1560-61.]

Those are valuable words and were worth saying again because they encapsulate exactly the dispute between us, which has been conducted with a great level of courtesy, certainly on the other side of the House and, I hope, on my side too, in trying to find a solution to the problem.

The words I chose were designed specifically to deal with the two groups of offences in the Bill, locking on and tunnelling. Those offences differ from the other kinds of protest activities. The noble Lord, Lord Coaker, has reminded us of a lot of examples of these. The whole purpose of those conducting these activities is to disrupt. That is their method of making their views known. That is quite different from people who assemble with flags, shouting, singing and so on, or who walk in a procession as their method of making their views known. If you make your views known by disrupting, the position is that you cross a line.

That line was identified by the Court of Appeal in the Colston case. It used the words “minor or trivial”. If that kind of activity goes beyond what is minor or trivial, you lose the protection of proportionality available under the European Convention on Human Rights—you have moved to something different—because the activity you are conducting is deliberate and the consequences of what you have done in the exercise of that deliberate decision are properly described as more than minor.

I was looking for a definition of the threshold because I took the view, rightly or wrongly, that when you are dealing with those categories of offences, there is a point—at a fairly early stage, as the Court of Appeal is indicating—where it should be available to the police to stop the activity. Tunnelling, for example, is designed to inflict economic harm on the body that is conducting the railway. We are talking about HS2, which has parliamentary backing. To inflict economic harm should not be allowed to continue for any longer than a minor interference.

Locking on is the same thing. Once it reaches a stage of going beyond minor, the sooner the police are free to take the necessary action, the better. It is their judgment, but the point of my amendment was to identify a threshold. The problem with “significant”, which is a perfectly respectable word for describing a state of affairs, is that it does not define a threshold. It defines a state of affairs. The police need a threshold to be clearly identified, which my words were designed to do.

The problem, and it is part of our debate with each other, is that in legislation we cannot use algorithms or numbers. We are driven to use adjectives, which are quite malleable creatures. They have a shade of meaning, and some people have different views as to what words such as “significant” mean. I would say that once you move beyond “minor” you have reached something that is significant.

That is the point: it is a state of affairs that you have reached, whereas my wording is to identify exactly the stage at which the threshold is crossed. As I said last time, “more” is absolutely crucial. I can well understand that “minor” excites fear and alarms but, with great respect, I do not think that is really justified. “Minor” has to be given full weight. In my submission, it achieves the object that I was trying to achieve and which I think that the Government have now accepted. It is the difference between a state of affairs and a threshold. In the end, that is the crucial point.