Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Lord Jackson of Peterborough Excerpts

Tuesday 13th June 2023 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I fear I may be ploughing a lonely furrow tonight in supporting the draft regulations, speaking to the regret amendment in the name of the noble Lord, Lord Coaker, and against the fatal amendment in the name of the noble Baroness, Lady Green.

[Noble Lords]

Lady Jones.

[Lord Jackson of Peterborough (Con)]

I beg her pardon —the noble Baroness, Lady Jones of Moulsecoomb. I have in fact read her round robin email and the accompanying legal opinion, and we have discussed these regulations, and of course I have read the report of the Secondary Legislation Scrutiny Committee.

I will not dwell on the process or the constitutional issues as such; the latter were well encapsulated by the noble Lords, Lord Reid and Lord Rooker, respectively. However, I do not agree with the catastrophist rhetoric of the noble Baroness, Lady Jones, on this being somehow a constitutional crisis.

The statutory instrument is quite simple and straightforward, seeking to strike a balance between freedom of speech, freedom of protest and assembly and the rights of the public to go about their daily business unhindered and unmolested. It is also about legal clarity for both the front-line police and the courts. The upsurge of large-scale disruption is not something any Government can ignore, especially as the effectiveness of the police and the public perception of them will be impacted by operational and legal uncertainty. As of last Thursday, as the Minister said, £4.5 million has been spent on diverting local policing priorities—equivalent to over 13,000 shifts—away from theft, burglary, violence against women and girls, knife crime, et cetera, and there have been 86 arrests and the bureaucracy that that involves, mostly for breaching Section 12 of the Public Order Act 1986.

Any Government—every Government—have a responsibility and a duty to protect its citizenry. Let us also remember that the police are currently in a very difficult and unenviable position. Slow walking has an impact not just in a confined geographical area but in a wider community and economic sense, and it has an effect on working people, businesses and public services, emergency services, hospital appointments, funerals, et cetera. At present the police have to balance the rights of protesters to exercise their rights under the Human Rights Act and the European Convention on Human Rights, and the impact of taking time to consider these competing interests. That leaves the police open to charges of partiality, bias, weakness and incompetence. Such a situation obviously gives rise to anger from those most affected by protestors’ selfish exhibitionism, which is often enacted to garner social media coverage, as well as to vigilantism, which of course causes further public order incidents. It is unrealistic not to imagine that such a situation arises not from a single event but from cumulative and repeated events and actions, perhaps over several days, which are more than minor.

I posit that giving the police different, not enhanced, powers to close down demonstrations more expeditiously is in the wider public interest. The regulations do not create more powers but make existing powers clearer and policing more consistent. It is important to remember, as the Minister said earlier, that they also align the threshold of serious disruption with that in the Public Order Act 2023, a definition arising from recent case law, and as such, the Government are right to use the delegated powers in Sections 12 and 14 of the Public Order Act 1986.

Like policing, governance is best undertaken not just by democratic accountability and authority but by consent. Quite evidently, the wider public are demanding that Ministers tackle the problem of deliberate and wilful disruption—actions that do nothing materially to change policy but which also do not persuade sceptical citizens and are in fact punitive and pointless in equal measure.

I do not believe that this statutory instrument is a radical departure that sets a dangerous constitutional precedent. It is certainly not, for instance, a draconian assault on freedom of speech and civil liberties. Comparisons with the Suffragettes, which I think have been used by some members of the Green Party, are of course specious: we have had universal suffrage elections since 1928.

It might be appropriate to turn now to some of the criticisms and observations in the committee’s report—

[Noble Lords]

Oh!

[Lord Jackson of Peterborough (Con)]

—as I wind up.

[A noble Lord]

Hear, hear.

[Lord Jackson of Peterborough (Con)]

On consultation, I think it is unreasonable to expect the Government to undertake a comprehensive consultation process when the imperative is to correct quickly a legal loophole. I do have sympathy with the late tabling of the amendments on Report; I think that is a very fair point to make.

I shall finish with the words of the noble and learned Lord, Lord Hoffman. The noble Lord, Lord Coaker, talked about the importance of conventions. With that in mind, the noble and learned Lord, Lord Hoffman, said in 2006 that

“civil disobedience on conscientious grounds has a long and honourable history in this country … But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint”.

That is what this regulation is about.

[Lord Lisvane (CB)]

My Lords, I make no comment on the merits of the policy that this proposal would introduce; it is the manner in which the Government have proceeded that has caused me, as it has my noble friend Lord Pannick, great concern. The Home Office has behaved in a way for which I can find no kinder word to use than “disreputable”.

For a start, the Explanatory Memorandum—whichever edition we are in now—did not mention the fact that the proposal had been rejected by your Lordships. When the committee quite rightly inquired why that was not mentioned, the reply could have won an Oscar for weasel wording:

“The details that have been included … are those which we … considered relevant to the document”.


When you are caught bang to rights, the proper response is an apology, not an obfuscation. Yet more astonishing —my noble friend Lord Pannick has already referred to this—is that in the section of the Explanatory Notes outlining anything that might be of interest to Parliament or the JCSI, the single word “None” appears.

Then there is the question of consultation. The Home Office ignored the Government’s own consultation principles and consulted on a selective and skewed basis. It brought to mind the Sellar and Yeatman description of the passage in Magna Carta which they alleged said:

“No baron should be tried, except by a special jury of other barons who would understand”.


In this case the Home Office set out to consult a selection of people it knew would support it, not those who might have a different view. A kind description would be that that was “not straightforward”.

Tom Hickman KC, the professor of public law at UCL, who has already been mentioned, pointed out:

“Where a public authority chooses to conduct a consultation process, that consultation must be conducted properly and fairly”.


He pointed to a ruling by the Court of Appeal that a consultation conducted before certain Covid-19 regulations had been unlawful because it had been conducted on an entirely one-sided basis. I do not see how the consultation carried out by the Home Office in this case could be described as proper and fair.

This instrument and the Explanatory Memorandum —again, whichever edition you care to quote—must have been signed off by a Minister. I think we might be told which Minister it was, and which Minister took the view that this was an appropriate way to treat Parliament. I hope the Minister here will be able to tell us. I do not want to see, and I am sure your Lordships do not want to hear, any pabulum about collective responsibility.

As I suggested earlier, I do not take a view about the merits of what this instrument would achieve. My concern is for the way in which Parliament is being treated and for the apparently resentful and sullen way in which the committee’s questions have been answered.

I am sorry—and I do understand what the noble Lord, Lord Coaker, was saying earlier on—that His Majesty’s Opposition do not wish to go further than regretting what is in front of us. Governments shrug off regrets; they make no difference. As the noble and learned Lord, Lord Judge, said in the Queen’s Speech debate last year, if we make no difference, why do we not just go on talking? Incidentally, I should tell your Lordships that, in my recent email conversations with the noble and learned Lord, we have focused on England’s chances in The Ashes, and I know that we all send him our warmest good wishes in his convalescence.

This brings me to the fatal amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb. At this point, it is very important to recall that it is a very easy thing for a Government to withdraw an SI, redraft it, relay it and start the process again. It is also—and, of course, the business managers will balk at this—not that difficult to achieve a change by primary legislation in a relatively short time. As some noble Lords have said, that is actually the right way to proceed. It is not just what you want to achieve: it is the propriety of the means that you use to get there. If noble Lords do not want this sort of thing to happen again, we should vote it down, so if the noble Baroness presses her amendment to a Division, I shall support her.