Public Order Bill

Lord Paddick Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

With my amendments in this group—Amendment 1, as well as other amendments applying to other offences—I have taken this defence of “without reasonable excuse” and put it into the main body of the offence. This would allow, initially, a police officer when seeking to arrest and, subsequently, a prosecutor both to be clear in their own minds that there was no “reasonable excuse”. If there were a potential “reasonable excuse”, it should be considered as part of the central element of this offence—for example, if I needed to lock my bicycle, or if I were just walking down the road with someone intimate or my friend and, because we are big chaps, we got in the way of a police officer, but we really had a “reasonable excuse” to be linking arms. This is a very modest but essential amendment, not just to this outrageous offence of “locking on”, which should not even be here, but to other offences in this awful Bill. With that, I beg to move.

[Lord Paddick (LD)]

My Lords, I have added my name to the other amendments in this group. If noble Lords will indulge me, as is usual with the first group of amendments, I will remind them why we have arrived at this point. The Government had already included draconian anti-protest measures in the Police, Crime, Sentencing and Courts Bill—including giving the police power to place restrictions on meetings and marches if they might be too noisy, including one-person protests—when, just before the Conservative Party conference in 2020, Insulate Britain began a series of protests, including dangerously and recklessly blocking motorways. Allowing a sentence of imprisonment for highway obstruction was proposed and agreed by this House, and now many Stop Oil protestors have been either sent to prison or remanded in custody pending trial.

However, the then Home Secretary felt that she had to say something to appease Tory supporters at the Conservative Party conference: that she would introduce even more draconian anti-protest measures. Despite the PCSC Bill having already passed through the Commons, the Government introduced these even more draconian anti-protest measures, those we have before us today, as amendments in Committee of the PCSC Bill in this House. Apart from custodial sentences for highway obstruction, this House rejected all these measures on Report of the PCSC Bill.

Apart from the new stop and search powers, which some police officers and His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services suggested the Government might introduce, but which the Home Office left out of the original PCSC Bill, none of the measures that we are being asked to agree to today in this Bill was requested by the police, none of the measures was supported by HMICFRS, and some that were considered, such as serious disruption prevention orders, were rejected as contrary to human rights, unworkable and likely to be ineffective.

I have Amendments 8, 29, 40, 55 and 60 in this group, which all relate to reasonable excuse. We saw, with the arrest and detention by the police of a journalist who was reporting on recent protests, the potential danger of only allowing a reasonable excuse defence to be deployed once charged, as the Government propose in this Bill. In other legislation, a person does not commit an offence if they have a reasonable excuse, and therefore cannot be lawfully arrested and detained. I might not go as far as the noble Baroness, Lady Chakrabarti, in saying that it should be for the prosecution to prove that the protestor did not have a reasonable excuse. I am reminded of the wording of Section 1 of the Prevention of Crime Act 1953, where

“Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence”.


If the Government are looking for compromise, as they should in the face of the opposition already expressed to these measures in this House in its consideration of the PCSC Bill and in the views expressed on this Bill at Second Reading, maybe this should be an option that they consider.

This is even more important than the offensive weapon example, in that these are basic human rights under Articles 10 and 11 of the European Convention on Human Rights—the rights of expression and assembly. To allow people who are exercising their human rights, who have a reasonable excuse for what they are doing, to be deprived of those rights by being arrested and detained, as the Government propose, but where the reasonable excuse for exercising their rights can only be considered once they have been charged, cannot be right.

In Clause 3(2), for example, the proposed legislation says, in relation to tunnelling,

“It is a defence … to prove that they had a reasonable excuse for creating, or participating in the creation of, the tunnel.”


Clause 3(3) says,

“a person is to be treated as having a reasonable excuse … if the creation of the tunnel was authorised by a person with an interest in land which entitled them to authorise its creation.”

I am sure that the Minister will correct me if I have this wrong but, say a landowner instructs workers to build a tunnel on her land, which she owns, before it is subject to a compulsory purchase order to facilitate a development, in order to disrupt the development, which she objects to, she and her workers can be arrested, detained and charged, and only then can they deploy the reasonable excuse defence that the Government provide for in the Bill. How can that be right?

In relation to the obstruction of major transport works, the Bill provides specifically, in Clause 6(2)(b), that if the action

“was done wholly or mainly in contemplation or furtherance of a trade dispute”,

the person has a reasonable excuse, but Clause 6(2) says that

“It is a defence for a person charged with an offence”.


Again, the Minister will correct me if I am wrong, but does that mean that lawful pickets, on a picket line, can be arrested by the police, detained, and charged and can deploy the reasonable excuse defence only once charged? The Minister may say that the police would not arrest those engaged in lawful picketing—even though the proposed legislation would allow it—but, presumably, the Minister also believes that a mainstream journalist, with an accredited press pass, reporting on a protest, would not be arrested and detained for five hours by the police, and would also deny that. Similar arguments apply in relation to Amendment 60 to Clause 7.

We have seen from the arrest of the journalist that the police cannot always be trusted in every circumstance to use their judgment and not use the powers given to them in legislation. If someone has a reasonable excuse for their actions—we will come to a discussion of what amounts to a reasonable excuse in the next group—such as an accredited press card holder reporting on a protest, they should not have a defence once arrested, detained and charged, but the police should not be allowed to arrest and detain them in the first place. That is the desired effect of the amendments in this group and we strongly support them.

[Lord Anderson of Ipswich (CB)]

My Lords, I put my name to Amendments 1 and 7 in the name of the noble Baroness, Lady Chakrabarti, and I support to similar effect Amendment 8 in the name of the noble Lord, Lord Paddick, which coincides with that proposed by the Joint Committee on Human Rights. They relate, of course, to the locking-on offence in Clause 1, which, as the noble Baroness said, is an offence for which the actus reus is extraordinarily broad. You do not have to attach yourself to railings to commit it; it is enough to “attach an object”—any object—

“to another object or to land.”

Nor is there any requirement that serious disruption be caused; it is enough that the act

“is capable of causing, serious disruption”,

a term undefined, at least so far, and that you are “reckless” as to whether it does so.

When I raised this point at Second Reading, the Minister was good enough to say that he would write to me on it, and I thank him for doing so. He makes the point in his letter that the defendant has personal knowledge of the facts, making it reasonable for him to have to establish them. I agree with that: no one, I understand, objects to the evidential burden resting on the defendant, and I apprehend that that is what the noble Lord, Lord Paddick, was just saying, but it is clear from the letter that the Government’s intention is to go further and to place the legal burden on the defendant of proving lawful excuse.

The letter explains that there are times when the evidential and legal burden of proof may legitimately fall on the defendant, notwithstanding the presumption of innocence. One of those times, as the Minister said, is when you are carrying a bladed article in a public place. You may then be expected to prove that you had good reason to avoid conviction under Section 139(4) of the Criminal Justice Act 1988. But as the court said in the relevant case, L v DPP:

“There is a strong interest in bladed articles not being carried in public without good reason”.


The public interest in objects not being attached to other objects is less strong, to put it mildly, particularly against the background of the fundamental right to protest.

As Lord Bingham went on to say in Sheldrake, now the leading case on reverse burdens, security concerns do not absolve the state from its duty to observe basic standards of fairness. There are cases not referred to in the Minister’s letter, such as DPP v Wright, a Hunting Act prosecution, in which it was held to be oppressive, disproportionate, unfair and unnecessary to impose a legal burden on the defendant. Then there is the point well made by the Joint Committee on Human Rights: if the reasonable excuse is an afterthought, rather than an ingredient of the offence, protesters will be liable to be arrested whether they had a reasonable excuse or not. It is undesirable in principle for the possible defence to arise for consideration only after arrest or charge.

The curious thing about this debate, it seems to me, is that it is unlikely to affect the ease of conviction one way or the other. Once it is accepted that a protester may legitimately be asked to bear the evidential burden, then the legal burden, whatever the legal significance of the point, will rarely matter much in practice. The court will take its own view on whether the excuse is reasonable or not and not usually spend much time on the technical issue of burden of proof. Indeed, that was another point made by Lord Justice Pill in the L v DPP case, on which the Government relied in the Minister’s letter to me. In other cases where the Government have overstepped the mark by putting a legal burden on the defendant when they should not have done so, Section 3 of the Human Rights Act has come to their rescue, by enabling the reverse burden to be interpreted as a merely evidential burden that does not get in the way of the presumption of innocence. That emergency cord will not be available to the Government if the courts rule against them on reverse burden after the Bill of Rights has removed Section 3, as appears to be their intention.

I approach this issue in a spirit not so much of crusading zeal as of some bafflement that the Government would take such a legally risky course for so little practical advantage. I suggest that the orthodox approach to these offences is also the fairer approach for members of the public, and the safer approach for police, prosecutors and the Government. The prosecution should simply have to prove its case in the normal way.

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[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.

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[Lord Sharpe of Epsom (Con)]

My Lords, it is reasonable to say at this point that we are about to have two days of quite detailed explanation on that, so I am afraid that that is as far as I can go on this.

Returning to the more general points that have been made so far in this debate, particularly as to why the police need these powers, what existing powers they have, and so on and so forth, we will be returning to this in a much later group, and I intend to speak in much more detail on it. From a general point of view, recent protests were clear that they had as their aim the intent of causing as much disruption as possible through the use of what can only be described as guerrilla tactics. These measures give the police the proactive powers necessary to respond to these dangerous and disruptive tactics quickly. We are going to work closely with our partners in the police to ensure that they have the support and resources in place that they need to use these powers.

Again, as my noble friend Lord Horam remarked, too often we have seen protesters acquitted on grounds of technicalities or get penalties that do not reflect the harm that they have caused to others. We want simple, stand-alone offences that ensure that those who cause this level of disruption and misery can be convicted and receive a penalty proportionate to the harm that they have caused. I will return more specifically to the legislation in a later group; I hope that will be acceptable.

To give one example of this type of behaviour, just two Just Stop Oil activists climbed the suspension cables of the Queen Elizabeth II bridge in the early hours of 17 October this year. They caused its closure for more than 36 hours. Once discovered, the Essex Police attended and closed the carriageway so that officers could safely leave their vehicles in an attempt to engage with the activists. It was later advised by National Highways to keep the road closed for the safety of the protesters, road users and responding partners. The closure of the carriageway meant that the entirety of the clockwise traffic from Essex to Kent that usually utilises the QE2 bridge had to be diverted through the east bore of the Dartford Tunnel, halving the usual counter-clockwise Kent-Essex traffic capacity that would normally use all the tunnels at the Dartford crossing. This had a number of knock-on impacts in terms of the emergency services and local communities and businesses. I am sure that we are all familiar with what those were.

The noble Lord, Lord Paddick, raised a hypothetical example of a landowner in respect of a tunnel.

[Lord Paddick (LD)]

Before the Minister continues, can he point to which part of this Bill would be deployed against the two Just Stop Oil activists who climbed on the QE2 bridge?

[Lord Sharpe of Epsom (Con)]

Well, we are about to go into a good deal of discussion about things such as serious disruption, key national infrastructure and so on, which form essential parts of this Bill. I am not a policeman, but I imagine that the police are perfectly capable of utilising those aspects of the Bill.

I come to the hypothetical example of the landowner that the noble Lord raised earlier. It is worth pointing out, in relation to the entire Bill, that the threshold is “serious disruption”. In the case that the noble Lord outlined, that is clearly not the case, so there would be no case.

I move on to the measures in Clauses 1 to 8. As well as the measures we will discuss next week, the police will have the proactive powers necessary to respond quickly to these dangerous and disruptive tactics.

I turn to the specific amendments in the group. Amendments 1, 7, 8, 24, 28, 29, 35, 39, 40, 55 and 59, in the names of the noble Lords, Lord Paddick, Lord Anderson of Ipswich, Lord Skidelsky and Lord Coaker, and the noble Baroness, Lady Chakrabarti, seek to move the burden of proof for a reasonable excuse from the defendant to the prosecution, making it a key element of the offence. We will debate the subjects that the noble Baroness, Lady Blower, raised with regard to trade disputes in the fourth group today, so I will defer specific answers to those questions until the debate on that group.

Whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, so we see it as entirely appropriate that the defendant, who has committed the offence in the first place and has personal knowledge of these facts, is required to prove them. It is also the case that the burden of proof resting on the individual is not a novel concept. There are multiple offences where this is the case, including—as the noble Lord, Lord Anderson, pointed out—the defence of good reason for possessing a bladed article in a public place under Section 139 of the Criminal Justice Act 1988.

The noble Baroness, Lady Chakrabarti, raised the example of linking arms. Of course linking arms itself is not an offence; it is an offence and applicable only if the act

“causes, or is capable of causing, serious disruption to … two or more individuals, or … an organisation”.

Groups of protesters linking arms and obstructing roads or buildings can cause just as much disruption as those who use other equipment to lock on. For example, it is not right that groups of people who glue themselves to roads may fall under this offence but those who link arms and cause just as much disruption do not.

On the question from the noble Lord, Lord Anderson, on why the burden of proof being on the defendant is in the public interest, we have seen people cause so much serious disruption and then continue to burden the prosecution with more and more requirements to prove things. Surely it is right that, where people have caused this kind of disruption, they should demonstrate that they had a reasonable excuse.

With these offences, the prosecution will still need to prove all the elements of the offence to the criminal standard of proof, including that the act

“causes, or is capable of causing, serious disruption”,

as I just explained, and that the defendant intended or was reckless as to serious harm disruption. For those reasons, I respectfully disagree with the amendments.

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[Lord Sharpe of Epsom (Con)]

I commit to doing that in the debate on a later group.

[Lord Paddick (LD)]

Can the Minister address the issue of people being arrested and detained, and being allowed to deploy a reasonable excuse defence only once charged, as opposed to someone not committing an offence if they have a reasonable excuse, which is the normal process with most legislation?

[Lord Sharpe of Epsom (Con)]

My Lords, I think I have gone into reasonable detail on the reasonable excuse situation, so I will rest my comments there for now.

[Lord Paddick (LD)]

I am sorry to disagree with the Minister, but he addressed the issue of whether the burden of proof was on the prosecution or on the defence. He did not address, in any shape or form, police being allowed to arrest and detain people and their being allowed to deploy the reasonable excuse defence only once charged.

[Lord Sharpe of Epsom (Con)]

I will come back to the noble Lord on that.

[Baroness Hamwee (LD)]

If the Minister is going to come back to my noble friend, could he do so in this Chamber? That question is absolutely fundamental to the discussion on the Bill. To have the answer in writing, available in the Library if one goes to look for it, is in our view not adequate.

[Lord Paddick (LD)]

This is Committee, so we are allowed this sort of debate. I want to reinforce what the noble Lord, Lord Carlile, said about Section 78 of the Police, Crime, Sentencing and Courts Act. It says:

“A person commits an offence if … the person … does an act, or … omits to do an act that they are required to do by any enactment or rule of law … the person’s act or omission … obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and … the person intends that their act or omission will have a consequence mentioned in paragraph (b)”.


That covers, completely and perfectly, the people on the gantry of the QEII Bridge. The maximum sentence for that activity is up to 10 years in prison. None of the provisions in this Bill goes anywhere near 10 years in prison. Why do the Government not rely on existing legislation rather than creating all these other offences?

[Lord Sharpe of Epsom (Con)]

My Lords, I think I have already gone into that. As I say, the Bill creates another set of offences designed to deal with evolving protests, but I will come back on the specific point about the PCSC Act.

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Moved by

[Lord Paddick]

2: Clause 1, page 1, line 10, leave out “, or is capable of causing,”
Member's explanatory statement
This would limit the offence to an act that causes serious disruption.

[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.

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[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.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for their contributions to this debate. The noble and learned Lord, Lord Hope of Craighead, made some very important points. He is a member of the Constitution Committee. He said that convictions for these offences could lead to more serious consequences such as serious disruption prevention orders and that some of the conditions that could be imposed under those orders are quite draconian, such as 12 months of electronic tagging. He made the important point that because the offences are very different in nature, there should perhaps be a tailored definition of serious disruption depending on what offence we are talking about.

The noble Lord, Lord Carlile of Berriew, made a very important point about creating ambiguity between the provisions in this Bill and Section 78 of the Police, Crime, Sentencing and Courts Act 2022. The Minister’s attempt to explain why Section 78 could not be relied on does not hold water. He started talking about offences of aggravated trespass and having low sentences, but Section 78 has a far more serious penalty than any of the offences contained in the provisions here, so I do not understand why we need new offences that have serious sentences attached to them when Section 78 can provide much stiffer penalties than any offence in this Bill. That does not seem to make any sense.

The right reverend Prelate the Bishop of Southwell and Nottingham made an important point about places of worship. The noble Lord, Lord Hain, made an important point too. I greatly respect the role that he played in overturning apartheid in South Africa, but I am not sure he can say with confidence that what he did amounted to serious disruption when we do not have a definition of serious disruption in the Bill. The noble Baroness, Lady Fox, supported by the Minister, talked about suffragettes and how they were very different from the protesters at this time, but that was not the point I was making. My point was that suffragettes locked on and the Government are saying that this new offence of locking on is a response to new tactics employed by protesters. Well, that is what the suffragettes did. That is the only point I was trying to make.

As for nothing being done, the police have been arresting stop oil protesters even before they have caused serious disruption. They have been arresting them for conspiracy to cause public nuisance. Whether it is for causing public nuisance under the famous Section 78 or highway obstruction, for which they can now be sent to prison, protesters are being remanded in custody by courts which are not confident that they would not go on to repeat the offences for which they have been arrested. Some of them have been sentenced to prison for highway obstruction. So I do not think it is the case that the police are not doing anything, or that existing legislation cannot be used effectively by the police.

The noble Lord, Lord Anderson, supported the idea of tailored definitions, hence his wavering, if I can put it that way, in terms of his own amendment. The noble Lord, Lord Macdonald of River Glaven, reinforced the point about clarity and predictability. People need to know whether they are going to break the law if they do something, which is why we need these definitions.

The infamous Section 78 of the Police, Crime, Sentencing and Courts Act talks about serious harm, rather than serious disruption, but it is defined in the Act. So, if the Government can define serious harm in that Act, why can they not define serious disruption in this legislation? The noble Baroness, Lady Blower, talked about what the Minister said in the other place about there being a definition of serious disruption under the Public Order Act 1986. I agree with the noble Baroness that it is out of date and dubiously applicable in the circumstances set out in this Bill. Even the noble Lord, Lord Hogan-Howe, talked at Second Reading about the importance of clarity, and police witnesses at Committee stage in the other place said that as much precision as possible is desirable, yet the Minister seems completely ambiguous about whether the Government are going to define serious disruption in the Bill in response to the question asked by the noble and learned Lord. The noble Lord, Lord Ponsonby of Shulbrede, said that the National Police Chiefs’ Council is in favour of the definition of serious disruption to the life of the community put forward by the Joint Committee on Human Rights, so surely there is at least a lead for the Government to follow.

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[Lord Beith (LD)]

My Lords, the noble Baroness has raised the absurdity of the locking-on offence and the problems that will arise, which are addressed by some of the amendments in this group.

I want to introduce the Minister to an issue he may not be familiar with—perhaps it does not happen in his part of the country. Quite a lot of young couples go about carrying padlocks. Why do they do that? It might not be immediately apparent to a constable that they are wishing to pledge their lifelong devotion to each other. They go to a place such as the High Level Bridge in Newcastle, and they attach the padlock to the bridge; they then throw the key into the water. Explaining that that is what you are about to do might be pretty difficult when your average police constable says that you are carrying a padlock, obviously intending to lock on to somewhere. But they do not lock on to anything—except perhaps each other, and they might be caught by that, as the noble Baroness just pointed out. That is simply one example.

Another obvious example which has been raised by noble Lords before is that of bicycle padlocks. People have to carry them whenever they are going to use their bicycle. Again, these are pretty obvious cases for the locking-on offence as the Government have conceived it.

These are things that just happen in ordinary life. When you compound the offence created in the Bill with the offence of obstruction of a constable, you can see really difficult situations arising, where citizens with no intention of creating serious disruption are nevertheless caught because they are carrying such things in the vicinity of somewhere where serious disruption might be about to arise, or might be known to be about to arise.

I really think that the Government have got to clean up this Bill if they want to proceed with it, and remove from it things that drag ordinary citizens into conflict with the criminal law when they have no criminal intent at all—and do not need to have for the purpose of some of these offences—and are not involved in serious protest. Serious protest is itself, of course, an often justifiable activity, as the courts have demonstrated in some recent cases. Quite apart from the problems faced by those who want to engage in legitimate protest, we should not be passing legislation that simply confuses ordinary citizens as to what they are allowed to do.

[Lord Paddick (LD)]

My Lords, on Amendment 5, in the name of the noble Baroness, Lady Jones of Moulsecoomb, we agree that there needs to be far more clarity as far as the offence of locking on is concerned.

On Amendment 18, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, to which I have added my name, we agree that the scope of going equipped for a locking-on offence should be limited to where the person intends to use the object for locking on, rather than including an object that may be used for locking on. There is a real danger of innocent people carrying innocuous objects being drawn into this offence, as my noble friend Lord Beith has just illustrated.

If we look at a similar offence in Section 25 of the Theft Act 1968, “Going equipped for stealing, etc.”, we see that the wording is:

“A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat.”


There is no mention of any article that may be used in the course of or in connection with the substantive offence. Can the Minister explain why there is a difference in this case from the Theft Act’s “going equipped” and these “going equipped” offences?

Amendment 19 in my name, supported by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Fox of Buckley, probes what “in connection with” means; in this case, “in connection with” locking on. Can the Minister give an example of where an object can be used in connection with locking on but is not used to actually lock on? Similarly, Amendment 48 in my name, supported by the noble Baroness, Lady Fox of Buckley, seeks to establish what “in connection with” means in relation to offences of going equipped to tunnel. Can the Minister give an example where an object can be used in connection with tunnelling but is not used to actually construct, or even to be present in, a tunnel?

Amendment 20, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, and signed by me, includes the question around the term “in connection with” but extends to whether it should also include items for use by someone else, through the term “by any person”. This is the substance of my Amendment 21, signed by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Fox of Buckley, which would replace “any person” with “them.”

As in the Theft Act example, surely it makes no difference if the person carrying a pair of handcuffs with the intention of committing an offence of locking on is the person who is actually going to chain themselves to the railings. If the thief and his mate go looking to break into cars, but the person carrying the crowbar is not the thief who is actually going to use it, the thief’s mate is still guilty of the offence of going equipped to steal. Why then is it necessary to include “by any person” in this offence when it is not present in the offence under Section 25 of the Theft Act 1968?

Similarly, Amendment 49 in my name, supported by the noble Baroness, Lady Fox of Buckley, seeks to understand why “any person” is included in the offence of going equipped for tunnelling when there appears to be no need for this widening of the offence.

Amendments 51 and 52 in my name, and supported by noble Lord, Lord Coaker, seek to understand what would be caught within the offence of obstructing major transport works by including Clause 6(1)(a)(iii), which includes obstructing someone

“taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works”.

This seems to be extraordinarily wide, to the extent that it is almost impossible to understand what would or would not come within the remit of the offence. For example, if a construction worker working on a major transport works is prevented from filling her car with petrol the day before she is due at work—a car she uses to get to work—is that caught within the remit of this offence? Where is the line drawn? Can the Minister give a clear understanding of what is included in the offence, and if not, how does he expect protestors to know whether they are going to be committing an offence?

Amendment 53 in my name, and supported by the noble Lord, Lord Coaker, seeks to probe why Clause 6(1)(b) is necessary. It refers to interference with apparatus, for example. Can the Minister explain how interfering, moving or removing apparatus relating to the construction or maintenance of any major transport works would not amount to obstructing the construction or maintenance, an offence under Clause 6(1)(a)? If it did not amount to obstructing the construction or maintenance, why should it be a criminal offence?

Amendment 65, in the name of the noble Lord, Lord Coaker, supported by the noble Baroness, Lady Fox of Buckley, and signed by me, seeks to narrow the scope of the criminalisation of interference with the use or operation of key national infrastructure to cases where the use or operation of the infrastructure is prevented to “a significant” extent, rather than to “any extent”. In other parts of the Bill, reference is made to serious disruption, so why is there no such caveat in this part of the Bill? Would teenagers involved in horseplay, for example, where one throws the other’s mobile phone on to the train tracks, resulting in staff temporarily halting trains so that the phone can be retrieved, be guilty of an offence under this section as drafted?

Amendments 66 and 67 in my name are intended to probe what Clause 7(5) means. It states that

“infrastructure is prevented from being used or operated for any of its intended purposes … where its use or operation for any of those purposes is significantly delayed.”

That makes sense, and that would be the effect of Amendments 66 and 67. Can the Minister explain how adding “The cases in which” at the beginning of that subsection and “include” in the middle of the subsection extend the offence beyond the specific example of significant delay? What else would count as preventing its use or operation?

We support Amendments 69 and 78 in the name of the noble Baroness, Lady Chakrabarti, to probe whether “broadcasting and telecommunication services”, as well as “newspaper printing infrastructure”, should be included in the definition of “key national infrastructure”.

We also support Amendment 70 from the noble Lord, Lord Coaker, which I have signed, to narrow the definition of “road transport infrastructure” to A roads rather than both A and B roads, as recommended by the Joint Committee on Human Rights. Highway obstruction is already an offence for which a custodial sentence can be given, and the enhanced penalties for this offence should be limited to key roads such as motorways and A roads.

We support Amendments 71 and 72 in the name of the noble Lord, Lord Coaker, which I have also signed, recommended by the JCHR, to probe the extent of “rail infrastructure” and “air transport infrastructure”. Does “rail infrastructure” include, for example, the Romney, Hythe and Dymchurch railway, a narrow-gauge steam service used solely for tourism purposes? Does “air transport infrastructure” include small, private airfields or airstrips with little or no air traffic? In what way are they part of “key national infrastructure”?

We also support Amendments 73 to 76 in the name of the noble Lord, Lord Coaker, which I have signed, to probe what facilities would be considered as being used “in connection with” infrastructure, in relation to

“harbour infrastructure … downstream oil infrastructure … downstream gas infrastructure … onshore oil and gas exploration and production infrastructure … onshore electricity generation infrastructure”.

Finally in this group, my Amendment 79 seeks to probe whether all periodicals and magazines should be included in the definition of “newspaper”. Noble Lords will be able to think of several disreputable or trivial titles that should not be considered part of “key national infrastructure”.

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[Lord Sharpe of Epsom (Con)]

Not at this point, I will have to write to the noble Lord.

[Lord Paddick (LD)]

Bearing in mind the number of amendments, I worked out that the Minister spent 17 seconds per amendment in his response. I gave the example of a mobile phone that ended up on railway tracks interrupting national infrastructure and whether that was within the scope of the Bill. Does the Minister feel that his response has been comprehensive enough, on the very detailed questions he’s been asked?

[Lord Sharpe of Epsom (Con)]

My Lords, I am afraid I do.

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[Lord Paddick (LD)]

My Lords, I hesitate, as a non- lawyer, or even as someone who has never been a judge or magistrate, to enter this debate. I have amendments 34, 56 and 62 in this group.

Amendment 34 seeks to ensure that only those people present in tunnels created under Clause 3 are criminalised—in other words, illegal tunnels, or tunnels dug by protesters—rather than those present in tunnels such as the London Underground tunnels. The drafting of the offence appears to capture people causing serious disruption in the London Underground tunnels, which I am sure was not the intention. In meetings with Ministers before today’s debate, there was an undertaking to recognise that and address it. I would be grateful to hear from the Minister what conclusions the Government have come to, bearing in mind that they have been given prior notice.

Amendments 56 and 62 reflect the recommendations from the Joint Committee on Human Rights that particular regard must be had to the right to peaceful protest under Articles 10 and 11 of the European Convention on Human Rights when deciding whether someone has a reasonable excuse for their actions that would otherwise be an offence of obstructing major transport works and interference with the use or operation of key national infrastructure.

On the other amendments, I admire the ingenuity of the noble Baroness, Lady Jones of Moulsecoomb, in her Amendment 9. I shall leave it at that.

With regard to the noble and learned Lord, Lord Hope of Craighead, the reasonable excuse defence is clearly very difficult. One can understand and sympathise with Extinction Rebellion or the Just Stop Oil people who say, “You’re destroying the planet by giving out more licences for oil and gas exploration”. What more reasonable excuse could you think of for causing this sort of disruption? My only concern is that the Government will take the noble and learned Lord’s first option of doing away with the reasonable excuse defence altogether in these offences, rather than adopting the approach that the noble and learned Lord has suggested.

In the case of the journalist who was arrested, the alternative suggestion in the noble and learned Lord’s detailed amendments would clearly be something that she could use in her defence. I hesitate to say what would happen to her if there were no reasonable excuse for these offences. As the noble and learned Lord said—and with no disrespect to the noble Lord who is a serving magistrate—these are very difficult decisions. If the Court of Appeal and the Supreme Court disagree, and if you have two judges even on the Supreme Court dissenting, how can a Bench of lay magistrates grapple with these difficult issues around reasonable excuse? So there certainly needs to be clarification and clarity around reasonable excuse, and I hope that the Minister can help us with these issues.

[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—

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[Lord Murray of Blidworth (Con)]

Certainly, and I thank the noble Baroness for her question. It is important that we have clarity because this is clearly a very important point. In the Bill, the pursuit of lawful and legitimate industrial action constitutes a lawful exercise of that right and is not criminalised. However, that provision in the Bill does not read across, if you like, to all the other offences, and in particular is not found in any tunnelling offence. That is the point where I differ from the speech the noble Lord, Lord Coaker, gave moments ago. The reason for that—

[Lord Paddick (LD)]

I am very grateful to the Minister for giving way. He just said that, in other parts of the Bill, somebody engaged in a trade dispute is not criminalised by the offences contained in this Bill. However, we had a discussion in the Minister’s absence about the fact that it was a reasonable excuse defence once charged. In other words, somebody engaged in a trade dispute could be arrested, detained and charged by the police, which I would describe as being treated as a criminal, and it is only at the point after a charge and an appearance at a court that this defence is available. I guess that the Minister is technically right, in that somebody is not criminalised until they are convicted by a court, but we are really arguing semantics here. So the way that the Minister expressed himself—saying that, effectively, somebody involved in a trade dispute would not be in danger from the provisions of the Bill—is not actually accurate.

[Lord Murray of Blidworth (Con)]

In Clause 7, “Interference with use or operation of key national infrastructure”, one can see that, in subsection (2), “a defence” is provided

“for a person charged with an offence under subsection (1) to prove that … (b) the act mentioned in paragraph (a) of that subsection was done wholly or mainly in contemplation or furtherance of a trade dispute.”

I am sure the noble Lord can see how the protection for the right to be involved in a trade dispute is protected by that drafting—and that is certainly the clear intention of the Government.

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[Lord Murray of Blidworth (Con)]

I hear what the noble and learned Lord says, and I will certainly ask them.

I think that I had reached Amendment 61. It similarly seeks to strengthen the defences available. As I have said already, whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, and we see it as entirely appropriate that the defendant, who committed the offence in the first place and has personal knowledge of those facts, is required to prove them.

I turn lastly to Amendments 56 and 62, which seek to make it an explicit requirement for the police and courts to pay regard to Articles 10 and 11 of the ECHR when determining whether someone has a reasonable excuse for the offences of obstructing major transport works and interference with key national infrastructure. Although I understand the sentiment behind the amendment from the noble Lord, Lord Paddick, I do not see it as being necessary. It is of course right that the courts and other public bodies are already obliged to act compatibly with the ECHR by reason of the provisions of Sections 6 and 7 of the Human Rights Act 1998. Therefore, there is already legislative protection for the consideration of such rights, and it is not necessary to repeat that in this Bill.

[Lord Paddick (LD)]

Can I just seek clarification on what the Minister said earlier about tunnels not constructed by protesters and people causing serious disruption in those tunnels? My understanding is that the Minister is saying, “Don’t worry, trust the police.” I know that that is what the legislation says about someone causing serious disruption in a London Underground tunnel, maybe London Underground workers operating a picket line in a tunnel constructed by London Underground: “Don’t worry about it, the police are reasonable people; they wouldn’t use the law in that way and, at the end of the day, the courts wouldn’t convict.” However, as the journalist who was trying to report on a protest found—the case that the Minister started his remarks with—we are still faced with the possibility of being arrested and detained for five hours by the police and of the police being unreasonable; that is by their own admission now. It seems an onerous experience for a completely innocent person to go through that, and to have to rely on the fact that, at the end of the day, the courts will not convict them, when they have been completely innocent from the start.

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for his intervention. The short answer is that these cases are always going to be fact-specific. If there was a serious disruption in a London Underground tunnel, I suspect that there would potentially be many offences being committed other than those under this Bill. As my noble friend Lord Sharpe has already said, this situation will be considered and we will come back to the noble Lord. I invite the noble Baroness to withdraw her amendment.