Public Order Bill

Lord Horam Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Horam (Con)]

My Lords, I shall follow up on precisely the point that the noble Lord, Lord Carlile, has just made about whether we are wasting our time on something which we should not really be discussing because the offence is already there. As a non-lawyer, I tread with some trepidation in this area, as the Committee will understand, but I would like to have clarified the extent to which the law to deal with this problem already exists. This has concerned me.

I took part at Second Reading and I was very interested in the comments made by the noble Lord, Lord Hogan-Howe, who has operational experience in dealing with problems similar to this, if not this particular problem. No doubt there were similar efforts of a similar kind before this business of locking on to block roads. In his remarks, he said that until recently,

“obstructing the highway has always been a simple offence—an absolute offence. No intent required”.

That had been the position, apparently. However, I gather from his speech that subsequently the Court of Appeal was overruled by the Supreme Court, which said that, if a protest is obstructive, the circumstances of that protest should be taken into account. The noble Lord also said:

“Crucially, it means that protesting in a way that obstructs road users is not automatically a criminal offence.”—[Official Report, 1/11/22; col. 174.]


Therefore, as a lay man, it seems to me that some doubt has been bought into the question of whether an ordinary police officer, acting as he thinks sensible, has the right to stop someone obstructing the highway, even if he thinks the cause is just. There seems to be some doubt, so I hope that when he comes to wind up my noble friend can clear this up. If there is no doubt here, why are we discussing all this? If there is some doubt, there is every reason to have the Bill and this clause. It seems to me that in that situation we need clarity.

[Lord Carlile of Berriew (CB)]

If I am to be corrected, I am, but may I just offer a view? It is an offence to wilfully obstruct the highway. Of course, if you obstruct it because a person in your car is having a heart attack and needs attention, there will probably be a reasonable excuse for the obstruction and that is a defence. However, it is a summary offence to obstruct the highway, punishable by imprisonment.

[Lord Paddick (LD)]

Before the noble Lord continues, I ask him to point to the provisions in this Bill that make up for the problem relating to highway obstruction that the noble Lord, Lord Hogan-Howe, identified. Having read this in detail, my understanding is that nothing in the Bill addresses the noble Lord’s concern. Therefore, the question remains: why are we discussing this?

[Lord Horam (Con)]

The Bill addresses this point, but we could spend for ever on that. None the less, I understand that the Bill is designed to bring clarity to the issue of whether a police officer is within his rights to deal with an obstruction, for whatever cause that obstruction may occur. To answer the point made by the noble Lord, Lord Carlile; clearly, in the situation he outlined, the police officer would exercise his common sense and would not arrest the person in question. Therefore, it seems to me that, if we seek clarity, the more we add bits and pieces to the legislation that put down reasons why people may have a right to protest—for some reason which they bring forward—we simply fudge the whole issue and deduct from the clarity that we need. At the end of the day, people really do want this clarified: they want to know what the rights and duties of the police officer are, and that they are accordingly following those thoroughly.

[Lord Macdonald of River Glaven (CB)]

My Lords, the extent to which there are gaps in our current legislation that require filling by this legislation is a substantial question. I, for one, will listen very carefully to what the Minister has to say about this, because it seems to me that it is incumbent on the Government to point out what those gaps and loopholes are, and where those gaps and loopholes are being exploited. If the reality is that we have sufficient legislation in place but it is simply not being rigorously applied, that is no argument at all for new legislation: it is an argument for the current legislation to be properly applied. I am absolutely confident that we have legislation to deal with people who climb up on to motorway gantries and cause 50,000 or 60,000 cars to be blocked from travelling around the M25. With respect, I defy the Government to argue with any persuasive force that we do not have legislation to deal with that.

So far as the point made by the noble Lord on the recent Supreme Court judgment in Ziegler is concerned, that reasoning would of course apply to every clause in this legislation. All that the court was saying was that when individuals are arrested for an offence in circumstances where they are exercising their Article 10 free expression rights, a proportionate examination has to be undertaken by the court as to whether the inconvenience, for example, that they are causing is so minimal that it is overwhelmed by their Article 10 rights to protest and that they should therefore be allowed to do so. Of course that is right and it would apply to every clause in the Bill. If the disruption is significant, it will almost always, in my judgment, overcome any Article 10 defence. But I ask, particularly in respect of the offence of locking on: where are the gaps that the Government say exist that need filling by this clause and subsequent clauses in the Bill?