Public Order Bill

Lord Paddick Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

Does the noble Lord understand that prosecutors, in authorising and not authorising charges, have discretion in whether to prosecute a case? No prosecutor I have met would ever prosecute a case on the facts the noble Lord has just set out.

[Lord Paddick (LD)]

Is the noble Lord also aware that one of the amendments tabled by the noble Baroness, Lady Sugg, addresses exactly this issue, making somebody voluntarily accompanying a person to a clinic exempt from this clause?

[Lord McCrea of Magherafelt and Cookstown (DUP)]

The noble Lord, Lord Beith, did say that it went some way in this regard, but that it did not deal with all the issues that he and I expressed concern about.

It has been bandied about in this debate for quite some time that the other place voted by a large majority for this legislation. According to certain interpretations, that could be correct. Like the noble Lord, Lord Cormack, and the noble Viscount, Lord Hailsham, who spoke recently, I was in the other place, for 25 years. There are 650 Members of the Commons. Of those, 297 voted for this legislation—46%—while 110 voted against and 243 abstained, meaning that 54% of the other place did not vote for this clause. So often in this debate it has been said that there was a vast majority in the other place and that we must submit to its will, yet 54% did not vote for this clause. It is good to be factual on percentages and numbers in the other place.

It is a fundamental and widely accepted principle of sentencing that the punishment must fit the crime—that is, if you feel that freedom of expression and peaceful protest are a crime, which I do not. However, the fines envisaged in Clause 9(4) are grossly disproportionate to the types of protest activities that often occur outside abortion clinics. A six-month prison sentence for a first offence, which could be the result of a volunteer offering support to a pregnant woman, surely strikes most people as neither reasonable nor proportionate, and nor does a two-year sentence for someone who offends multiple times.

The Government reviewed this in 2018. People have dismissed the review as if it does not matter today, but mind you, if it had said something different, they would be happy to mention it. It found that the vast majority of these activities are passive in nature; that they involve everyday lawful activities such as silent prayer and handing out leaflets offering help and support to women who may not want an abortion, but who may feel they have no other choice; and that they occur outside a small number of abortion clinics. Inside this buffer zone, to stand in silent prayer could get you six months’ imprisonment. What country are we living in? This is not China, and it is not Iran. It is the United Kingdom. I have heard the Prime Minister and previous Prime Ministers, and Ministers in this House, say at the Dispatch Box that the most persecuted people in the world today are Christians. But to express your Christian opinion, even in silent prayer to God, can be regarded as an offence inside a buffer zone and you could find yourself in prison.

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[Baroness Barker (LD)]

The answer is that the situation has moved on, so what was an answer before the existence of PSPOs is no longer relevant.

I have said enough. I think we all know where we are on this and the positions we came from. I would like to work with those Members who want to, and with the Minister, to make sure that we get to where the vast majority of us, and of the public, want to be: women being able access a service legally and safely, and 150 metres down the road you can be as extreme in your opposition as you like.

[Lord Paddick (LD)]

We on these Benches accept that many people have strong views both on abortion and on this clause, on both sides of the argument, as reflected in our debate. I want to say two things at the outset. First, my understanding is that organisations that provide abortion services, such as the British Pregnancy Advisory Service, talk through the options available in the case of an unwanted pregnancy, including continuing with the pregnancy and arranging adoption or fostering, becoming a parent and ending the pregnancy with an abortion. The second is that it must be one of the most difficult, life-changing decisions anyone has to make.

To be subjected to one-sided opinions by well-meaning, passionate but in some cases fixated individuals at such a vulnerable moment cannot be right, whether outside or inside an abortion clinic. As the noble Baroness, Lady Bennett of Manor Castle, said, this is about targeting an individual seeking medical services. Many noble Lords have talked about free speech. There is a difference between offering advice and support, and forcing advice and support on those who do not want it. By all means, campaign, demonstrate and provide advice, help and support on the internet, for example, but not when someone is on their way to an abortion clinic.

What is said inside an abortion clinic is regulated and controlled; what is said outside by campaigners against abortion is not. There is a series of amendments in the name of the noble Baroness, Fox of Buckley, supported the noble Baroness, Lady Hoey. Amendment 80 brings us back to the debate we had last week about “reasonable excuse”. I am very grateful to the noble and learned Lord, Lord Hope of Craighead, for that debate and for his contribution today.

This brings us back to the potential argument that the more important the issue, the greater the excuse to break the law. Last week, we debated whether anything could be more important than saving the planet from catastrophic climate change and therefore, there could be a “reasonable excuse” to do anything, however unlawful, if saving the planet was the intention. I am sure there are some who feel that nothing is more important, as they see it, than “saving the life of an unborn child”, so any means justify the ends. Such an amendment would render buffer zones ineffective.

Amendments 81 and 86 lead potentially to the whack-a-mole scenario—or, as my noble friend Lady Hamwee more eloquently put it, the displacement of protests from one clinic to another—whereby those wanting to get those wanting an abortion to change their minds at the last minute would travel around the country until every local authority had a buffer zone around every clinic. Either there is a right to abortion without last-minute interference, or there is not. I am not clear from the wording of Amendment 86 whether it would amount to a maximum of a two-year buffer zone, or simply the expensive and bureaucratic process of having to renew the buffer zone every year.

Amendment 82 introduces the concept of “intentionally or recklessly” interfering, which no doubt would result in endless arguments about whether the offering of advice, or whatever form the interaction takes, amounted to interference or not. Amendment 89, also supported by the right reverend Prelate the Bishop of St Albans, would allow “silent witness” by those who persistently, continuously or repeatedly picket abortion clinics. That sounds to me like quite intimidating behaviour, even if it is silent prayer. We cannot support these amendments. Either the Committee supports this clause or it does not; creating uncertainty about whether the interaction is reasonable, which clinics have a buffer zone or what amounts to interference is unhelpful.

On Amendment 94, I can understand why the noble Baroness, Lady Fox of Buckley, has drawn a parallel with Part 3 of the Police, Crime, Sentencing and Courts Act 2022 and public space protection orders, but the latter refers to things like banning the drinking of alcohol in a local park—otherwise innocuous activities that are causing a particular problem in a specific area. This measure is about interfering with a person’s right to choose to access abortion services. They are very similar in terms of protecting public space, but very different in terms of the kind of activity they are trying to prevent.

We support Amendments 80A, 82A, and 82B in the names of the noble Baronesses, Lady Sugg and Lady Watkins of Tavistock, and my noble friend Lady Barker, which would bring the phrase “buffer zones” into line with similar legislation in other jurisdictions. We support the amendments in the name of the noble Baroness, Lady Sugg, supported by the noble Lord, Lord Ponsonby of Shulbrede, and my noble friend Lady Barker.

On Amendment 84, if we are going to have buffer zones, they need to be around every place where abortion services are provided. Amendments 87 and 91 helpfully clarify that the proposed offences apply only in relation to abortion services. Amendments 95, 96 and 97 also usefully exempt anyone invited to go along to the clinic with the person seeking abortion services, and anything said or done when all parties are in someone’s home or a place of worship.

We also support the clarification provided by Amendment 93A in the name of my noble friend Lady Hamwee, supported by my noble friend Lady Barker and the noble Baroness, Lady Sugg: that an “abortion clinic” should include places where advice and counselling related to abortions is provided.

[Baroness O'Loan (CB)]

Is the noble Lord saying that we should have buffer zones outside every location at which somebody can get, for example, the medical intervention for abortion, such as Boots the chemist, or every facility offering counselling?

[Lord Paddick (LD)]

My noble friend’s amendment is a probing amendment for the House to consider what sort of premises might be included in buffer zones to ensure that places where women go to get advice are included. The noble Baroness makes an important point, but this is a probing amendment so that the House can consider between Committee and Report whether an amendment in line with the wording that my noble friend has provided is right.

I understand the intention behind Amendment 85 in the name of my noble friend Lord Beith and supported by the right reverend Prelate the Bishop of St Albans, but I think it is now covered by Amendment 96. If someone decides to go into a place of worship on their way to an abortion clinic, that is their decision.

Similarly, I understand the intention behind my noble friend’s Amendments 88 and 90, supported by the right reverend Prelate and the noble Baronesses, Lady Fox of Buckley and Lady Hoey: they want to protect free speech. But freedom of speech is a qualified right, and this restriction of it applies only in this very specific and limited scenario in relation to abortion services and clinics. I am not a lawyer, but my understanding is that the European Convention on Human Rights contains qualified rights, as the noble Viscount said. If a country believes that restrictions need to be placed on a qualified right because there is a justification for it, it is open for it to do so—that is exactly what we are considering here. Whether something is clearly contrary to European Convention on Human Rights, as my noble friend suggested, will be for the courts to decide. I understand—not least following discussions with the Minister and officials—that there is an expectation that, if Clause 9 were passed in its original form, it may be subject to legal challenge. But that is the proper place for a decision to be made on whether the qualified right should be restricted by this clause.

There are other places and other times when those opposed to abortion can make their views known and can seek to influence others. If freedom of speech is to be protected at all times and in all places, why are only noble Lords allowed to speak in this debate? Advise and persuade someone not to have an abortion all you like—for example, by talking to the providers of abortion services to ensure that they include “pro-life” choices in clinics—but do not do so when someone has decided to go to an abortion clinic and is about to enter.

Similar arguments apply to Amendment 92 in the name of the noble Baroness, Lady Fox of Buckley, supported by the noble Baroness, Lady Hoey. Amendments 98 and 99, in the name of the noble Lord, Lord Farmer, and supported by the right reverend Prelate the Bishop of St Albans, helpfully point out the Home Office review conducted in 2018, which many noble Lords have quoted. It concluded that buffer zones would be disproportionate, which is at least helpful in understanding the Government’s reluctance to support this clause, as it might be portrayed as yet another U-turn. The then Home Secretary explained his decision in a Statement about the 2018 review, which a number of noble Lords have selectively quoted from. He actually said:

“The review gathered upsetting examples of harassment and the damaging impact this behaviour has had on individuals. This behaviour can leave patients distressed and has caused some to rebook their appointments and not follow medical advice in order to avoid the protestors. In some of these cases, protest activities can involve handing out model foetuses, displaying graphic images, following people, blocking their paths and even assaulting them. However, what is clear from the evidence we gathered is that these activities are not the norm, and predominantly, anti-abortion activities are more passive in nature. The main activities reported to us that take place during protests include praying, displaying banners and handing out leaflets. There were relatively few reports of the more aggressive activities described above. Nevertheless, I recognise that all anti-abortion activities can have an adverse effect, and I would like to extend my sympathies to those going through this extremely difficult and personal process … Through the review, we also found that anti-abortion demonstrations take place outside a small number of abortion facilities. In 2017, there were 363 hospitals and clinics in England and Wales that carried out abortions. Through the review, we found that 36 hospitals and clinics have experienced anti-abortion demonstrations … Having considered the evidence of the review, I have therefore reached the conclusion that introducing national buffer zones would not be a proportionate response, considering the experiences of the majority of hospitals and clinics, and considering that the majority of activities are more passive in nature.”—[Official Report, Commons, 13/9/18; col. 37WS.]


Even if “passive activities” is not a contradiction in terms, passive activity can leave patients distressed and cause some to rebook their appointments and not to follow medical advice in order to avoid protesters.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a wide-ranging debate that has re-run a lot of the points from Second Reading. I added my name to all the amendments in the name of the noble Baroness, Lady Sugg, who ably introduced that group, which I of course agree with. She opened her speech by talking about the large majority in the other place, which we have heard about, but she made the additional point that each political party had a majority in favour of passing the amendment. She then went on to talk about the argument regarding a “reasonable excuse”, and she did not think that there could be an argument for harassing women seeking a legal service.

We also heard some figures, which the noble Lord, Lord Paddick, has repeated, about there being only five PSPOs currently operating in the country but about 50 targeted clinics where there are regular protests. This creates a patchwork of provision, which a number of noble Lords have spoken about. So tactics have evolved, and there has been an increase in protests.

I want to mention one particular Conservative Minister, Victoria Atkins, who I always think is very perceptive and who has been an active defendant on domestic abuse issues in her previous roles in the Ministry of Justice. She supports this legislation. That has particular significance for me.

I also refer to my noble friend Lady Thornton, who made a central point: the amendments from the noble Baroness, Lady Sugg, try to address in a reasonable way the points raised at Second Reading—that was the spirit in which she put forward that suite of amendments. The vast majority of noble Lords who have spoken against them have not addressed any of the points that she made when she introduced them. I accept that the noble Lord, Lord Beith, is an exception to that, but the vast majority of other speakers did not acknowledge her points.

I turn briefly to the speech by the noble Baroness, Lady Watkins, in which she made the particularly telling point that many of the women going to seek an abortion may have been subject to coercive sex. For that reason, they may be particularly vulnerable to intimidation as they are going to get advice on whether and how to progress with an abortion. This was a perceptive comment, especially as it came from a nurse; it is something I recognise from the courts in London in which I sit as a magistrate. I also acknowledge her point that she wants a good resolution of these issues rather than a fast resolution.

The noble Viscount, Lord Hailsham, gave an absolutely excellent speech; I agreed with every word he said, which is quite unusual from these Benches. Nevertheless, he made a very good point about demonstrators, whom he comes across in other contexts where he would not dream of trying to limit their ability to protest. However, here we are of course talking about an individual, often in a vulnerable state, trying to access a legal service, and that changes the argument about whether demonstrators should be allowed to influence them. As the noble Baroness, Lady Bennett, said, Clause 9 does not prevent anybody protesting against abortion; it only prevents them protesting against abortion within

“150 metres … of an abortion clinic”.

I will now pick up the point made by the noble and learned Lord, Lord Hope, on the argument regarding reasonable excuse. As he said, we have had a debate about reasonable excuse in other contexts—for example, in relation to the protests by Extinction Rebellion and the other protest groups which would use that argument for the types of protest they undertake. My understanding of his argument is that basically it is for Parliament itself to take a decision on this sort of thing, rather than pushing these decisions down to courts, judges and magistrates. That was a powerful argument against Amendment 80.

The other speech which resonated with me was that of the noble Lord, Lord Hogan-Howe, which I am sure came from absolute front-line experience. He said that we are not talking about a discussion on abortion occurring as people—women, of course—try to receive these services; rather, it is a monologue and bullying which is meant to be intimidatory. He was absolutely right in pointing that out.

In conclusion, I will say something that is so obvious that nobody seems to have said it in this debate: the Government agree with, and accepted, Clause 9. I accept that there are debates about the wording, the compliance with the ECHR and all the rest, but clearly the Government believe that the situation has moved on since the 2018 review. They clearly believe that there is an advance in the tactics and the money deployed to intimidate women as they are trying to access these legal services. If the Government believe that, we should pay attention. It is not often from this Dispatch Box that I say that we need to listen to the Government because they have clearly taken a decision, but the response by the Minister will perhaps be the most important speech that we will hear in today’s debate.

[Lord Paddick (LD)]

No pressure.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for his closing words; as the noble Lord, Lord Paddick, said, “No pressure”. I thank all noble Lords for their impassioned contributions to what has obviously been a very substantive debate.

Clause 9 seeks to establish buffer zones outside abortion clinics in England and Wales to ensure that persons accessing or providing abortion services are free from harassment or intimidation. As the Committee will be aware, this clause was inserted into the Bill on the basis of a free vote in the other place. I will not get involved in second-guessing the motivations of those who voted, but the result was 297 votes in favour to 110 votes against. As I have said before, and I am very happy to say again, the Government respect the will of the House of Commons.

It is obviously clear—today’s debate makes it even clearer—that there are very strong views on both sides of the argument. Many noble Lords want the clause to become law, and many want to alter or to delay it. Amendments 80 to 97—tabled by the noble Baronesses, Lady Hoey, Lady Fox, Lady Watkins, Lady Barker and Lady Hamwee, my noble friend Lady Sugg, the noble Lords, Lord Ponsonby and Lord Beith, and the right reverend Prelate the Bishop of St Albans—all seek to make an array of changes to Clause 9, be that by raising the threshold for the new offence or by seeking to clarify the clause in some way.

Amendments 98 and 99 tabled by the noble Lord, Lord Farmer, seek to introduce buffer zones pending the outcome of

“a consultation … to determine if there has been significant change in”

protests “outside abortion clinics since” the Government’s last review. Amendments 87 to 93 look to ensure that only activities relating to abortion services within a buffer zone constitute an offence, while Amendments 88, 96 and 97 seek to ensure that activities within private dwellings and places of worship are exempt. Amendments 80 to 82 seek to provide a person within a buffer zone with the opportunity to defend their actions and

“to strengthen the burden of proof required to establish an offence.”

As I said before, I thank all noble Lords for their interest and ideas to amend the existing clause in its current form, particularly their well-intentioned attempts to tighten what was described in the other place by the Minister as a “blunt instrument”. It remains the Government’s view, based on legal advice, that this amendment does not meet our obligations under the European Convention on Human Rights and would require a Section 19(1)(b) statement to be provided. That said, after having been brief, I am now even more keen to meet noble Lords in the coming days, and I encourage them to meet me so that we may discuss the next steps for the clause. For now, I invite noble Lords not to press their amendments.

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Debate on whether Clause 10 should stand part of the Bill.

[Lord Paddick (LD)]

My Lords, I intend to oppose the question that Clauses 10 and 11 stand part of the Bill, and I shall speak to the other amendments in this group. It is not particularly helpful to have a clause stand part notice beginning a group rather than an amendment, but there we are.

This group of amendments relates to the new police powers of stop and search in relation to protest. Noble Lords will know the intrusive nature of being stopped and searched by the police, but I respectfully suggest that the full impact on a totally innocent member of the public being detained and searched by a police officer on the street, in full view of passers-by, can only be imagined by those of us who have never been subject to such an experience.

Imagine, then, being black. During a round-table discussion held by the Home Affairs Committee, a black child said that

“we know the police treat Black people differently… it means that we do not feel safe ever.”

Black people are seven times more likely to be stopped and searched than white people, if the stop and search is allegedly based on suspicion. However, according to the latest Home Office data, black people are 14 times more likely to be stopped and searched under powers that require no suspicion.

In relation to tackling knife crime, prohibited objects are limited and obvious, and the consequences of carrying such weapons can be fatal. In relation to these new powers and related offences, the prohibited objects can be almost anything, and the consequences of carrying them can be completely innocuous. What exactly is an item

“made or adapted for use in the course of or in connection with”

highway obstruction, or

“intended by the person having it with them for such use by them or by some other person,”

or an item

“for use in the course of or in connection with”

causing a public nuisance, or

“being present in a tunnel”?

I do not need nor intend to come up with ever more ludicrous suggestions as to what completely innocent objects might be caught up in such an offence. Even if there were noble Lords without much of an imagination, they would still be able to do that for themselves. The noble Baroness, Lady Jones of Moulsecoomb, has a few suggestions in her Amendment 101. I do not know about Amendment 101—this is Room 101.

The Government say that these powers are needed in order to prevent these types of offences, but in recent weeks the police have made arrests prior to offences being committed under existing legislation, based on intelligence and targeted at specific individuals. These powers are disproportionate to the outcomes they seek to achieve. Even if stop and search to combat knife crime were effective in reducing crime, which Home Office research shows, at least above a certain level, it is not, the argument that saving young people’s lives justifies the damage to trust and confidence in the police in some communities caused by badly targeted stop and search does not hold water in relation to peaceful protest. The number of instances where an arrest follows a without-suspicion stop and search is four in every 100, by the way.

Secondly, the right to freedom of expression, assembly and association—the right to protest—is likely to be impacted by such powers, disproportionately affecting those who feel disfranchised and for whom peaceful protest is an important safety valve: not just black and minority ethnic people but, per the letter noble Lords will have received from the Body Shop, young people, who disproportionately take part in protests because they feel that the democratic process does not represent their views.

If you fear the police, not least because of your lived experience, supported by the data which demonstrates that you are likely to be targeted by the police for stop and search—seven or 14 times more likely depending on whether suspicion is required—if you are black, you are likely to be dissuaded from exercising your human right to protest. It is not just me or the usual suspect NGOs saying this; His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services set out in its report on public order policing

“the potential ‘chilling effect’ on freedom of assembly and expression in terms of discouraging people from attending protests where they may be stopped and searched … Such powers could have a disproportionate impact on people from black, Asian or other minority groups.”

I am not claiming that some offences of highway obstruction, locking on, public nuisance, tunnelling, being present in a tunnel or any of the other offences in this Bill might not be prevented by these stop and search powers. I am arguing that, whether with suspicion, which is bad enough, or without suspicion, which is outrageous, to give the police these powers is disproportionate in terms of the harm that is likely to be caused compared with the benefit that is likely to result.

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[Baroness Hayman of Ullock (Lab)]

This is so important. I do not think the Minister or the Government appreciate how vulnerable women can feel walking, particularly in the dark or on their own, and it gets dark very early in the winter. This is really serious. I also do not think they realise how much young women, particularly if they are attractive, can get hassled. If you have been hassled a lot, you can snap because you are sick and tired of it. I really do not think this has been thought through.

[Lord Paddick (LD)]

Before the Minister responds, he may also wish to think very carefully about what he said about these powers not being exercisable by officers in plain clothes. I am prepared to apologise to the Committee for misleading it when I say that these powers alter Section 1 of PACE, which has nothing in it about an officer having to be in uniform to exercise powers of stop and search. So what the Minister said about these powers not being exercisable unless the officer is uniformed is not true.

[Lord Sharpe of Epsom (Con)]

If I am incorrect I will most certainly correct my statement. That was the information that I was given. If it is incorrect in any way, I will of course come back and apologise. It was inadvertent if that is the case.

I think we are getting slightly off topic, but I say to the noble Baroness that the Minister certainly appreciates that women and girls can feel very vulnerable, particularly at night, and I understand the level of hassle. However, a road where one is likely to be alone is not likely to be subject to the Section 60 power, so we are in the realms of the hypothetical to some extent. I accept and understand the concerns that have been raised, but I reiterate that it is everyone’s right to ask a police officer for identification, and I believe that under the suspicionless basis the officer has to be wearing uniform, but I will confirm that later with the Committee, certainly if I am incorrect. I do not have an answer for the noble Baroness, Lady Jones, so I will have to write to her.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords who have participated in this debate. The noble Baroness, Lady Jones of Moulsecoomb, questioned the area in which suspicionless stop and search could be operated. Marches that occur in central London traditionally start at Marble Arch, go down Park Lane and sometimes through Oxford Street and Regent Street. The number of people who could be subject to suspicionless stop and search as the result of that sort of demonstration is mind boggling.

In his real-world experience as adviser to the police on these issues, the right reverend Prelate the Bishop of Manchester talked about these powers being invariably used disproportionately. The Minister has said nothing to reassure the Committee that the powers will not be used disproportionately, with the damage that will be caused to the reputation, trust and confidence in the police.

The noble Lord, Lord Coaker, made the valid point that the powers can be used against children. Public nuisance is such a wide offence. I also raised the offence of being present in a tunnel. How can someone go equipped to be present in a tunnel? There was no answer about that.

Before this, there were two elements to suspicionless stop and search. The Minister talked about Section 60 of the Criminal Justice and Public Order Act, which is to do with serious violence. The other was Section 44 of the Terrorism Act, which the Conservative Government repealed because it was being used disproportionately. The Government withdrew suspicionless stop and search in relation to terrorism because they considered that its impact on trust and confidence in the police was disproportionately negative. It does not exist any more in relation to terrorism, but this Government want to introduce it in relation to people exercising their lawful right to protest.

The Minister made no reference to what HMIC said was likely to be a chilling effect on people exercising their human rights under Articles 9, 10 and 11. There was not a word about this, even though HMICFRS raised it. There was nothing about the disproportionate impact on minority communities. Minority communities and young people are more likely to be engaged in protest because they do not feel that the parliamentary process represents their views. As the noble Lord, Lord Coaker, said, we will return to these issues on Report. I am sure we will vote on them.

[Lord Sharpe of Epsom (Con)]

My Lords, I should like to clarify my remarks about uniforms. Section 60—which is what I was talking about—applies only to officers in uniform. Section 1 powers can apply to all officers.

[Lord Paddick (LD)]

Can the Minister clarify whether these powers—not Section 60 powers—to stop and search people in relation to protests can be exercised by officers in plain clothes?

[Lord Sharpe of Epsom (Con)]

As I think I explained, we are basing these powers on Section 60.

[Lord Sharpe of Epsom (Con)]

Our intention is to mirror the approach used in Section 60. I said that very clearly earlier. I have already explained its geographical extent.

[Lord Paddick (LD)]

Can the Minister point to the part of the Bill that says that suspicionless stop and search powers are restricted to officers in uniform?

[Lord Sharpe of Epsom (Con)]

I am afraid I cannot.

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[Lord Beith (LD)]

My Lords, the Government are stretching credulity if they say this creates no new powers; it creates new powers for the British Transport Police and Ministry of Defence Police. It is mostly on the British Transport Police that I want to concentrate.

This police force is not locally accountable. It is the police force of the operators of the railway system. It has its own structures and is essentially a nationally organised force with certain centres of activity. There are many cases where police support is needed, and we certainly see this in Berwick. The local police have to come on the scene some time before British Transport Police can come from 70 miles away to take part in whatever problem there may be. We have to be a bit careful about so readily extending powers to a very different kind of police force, which does not have the chain of local accountability that our civil police forces have.

If anyone thinks that the arrangements are all very smooth and there is not a problem in relations between local police and British Transport Police, they should read the proceedings of the Manchester Arena inquiry. They will discover some pretty uncomfortable things about how co-ordination between British Transport Police and other agencies is meant to work but does not always work in practice. I was slightly surprised that Scottish Ministers decided they wanted to extend the powers included here, but it is with the approval—if the case is in Scotland, it is not to the Secretary of State—of Scottish Ministers.

I will take the Minister back to an incident in the 1960s which he is too young to remember. It shows that these are not new problems requiring drastic new powers. A railway line called the Waverley route between Edinburgh and Carlisle was closed. Before it managed to get itself closed—it has since been partially reopened—people in the village of Newcastleton between Hawick and Carlisle protested vigorously. One night, when the night sleeper was heading towards Carlisle, the minister of the local kirk and some of his congregation and others gathered on the crossing and stopped the train. On the train at the time was Lord Steel of Aikwood, then the young MP for the Borders area. This incident was handled by the police quite smoothly and locally, without any involvement of the British Transport Police—I doubt very much that they ever got there.

Local police are used to dealing with these situations. I fear from the provisions we have now that, given the nature and scope of this Bill, someone proposing to have either a group of people in a station protesting against imminent cuts to the service, or a single protestor in the station building by the ticket office saying “Your service is going to be halved from next week—join me in a protest”, will find themselves subject to the powers of the Public Order Act. There will be an unnecessary level of police involvement by the British Transport Police. Without the powers here, they would be able to deal with it in the normal way, as the local police would. We are in some danger if we get the British Transport Police into the state of mind that they are policing protest. It is really not what they are good at and not what they are supposed to be good at.

[Lord Paddick (LD)]

My Lords, I support the comments of my noble friend. The only observation I was going to make about the powers being given to the British Transport Police is that it is primarily funded by the rail industry and whoever pays the piper calls the tune. Can the Minister confirm that the BTP is accountable to the British Transport Police Authority, the members of which are appointed by the Secretary of State for Transport? What does the Minister believe to be the consequences, for example, for protests at railway stations, of such funding and accountability mechanisms?

[Lord Coaker (Lab)]

My Lords, Clause 16 covers the British Transport Police in England and Wales. It is reasonable that, as the Minister explained, the government amendments also cover the BTP in Scotland, since that has been requested by the Scottish Government. We disagree with the premise of the Bill, as was visible in many of the groups, not least the last one, but we understand recognising the specific roles that the MoD and British Transport Police play as part of the wider policing family. Can the Minister confirm—this is part of what the noble Lords, Lord Paddick and Lord Beith, said—that the use of their powers is strictly limited to the areas under their jurisdiction?

Prior to today’s debate, I asked the Minister why the Civil Nuclear Constabulary was not referenced in the clause. Helpfully, he responded. I received a letter that said:

“we have not seen assemblies outside civil nuclear establishments and … the public do not have access to this land, so any assembly outside them … falls under the jurisdiction”

of the usual territorial force. I take that to mean that it is not included because no need has been identified for it to have these powers, which is welcome. It would be handy if the Government had applied that logic elsewhere in the Bill.

Does the Bill allow the Government to extend these powers to the Civil Nuclear Constabulary, should they wish to do so? In other words, we have just seen the Government announce and give the go-ahead to the building of Sizewell C, and the Civil Nuclear Constabulary would presumably be involved in and around that sort of site. Would the Government have to come back to Parliament to get primary legislation through in order to give the Civil Nuclear Constabulary similar powers to those in the Bill? Is some secondary legislation tucked away that would allow them to do that, without us being able to properly scrutinise that to determine whether we believe the Civil Nuclear Constabulary should have these protest-related powers?

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Moved by

[Lord Paddick]

110: Clause 17, page 19, line 26, leave out “reasonably believes” and insert “has reasonable grounds for suspecting”
Member's explanatory statement
This amendment is intended to raise the threshold for the Secretary of State to bring civil proceedings.

[Lord Paddick (LD)]

My Lords, in moving Amendment 110 in my name, I will speak also to my Amendments 111 to 113 and 116 and the other amendments in this group. These amendments are about a power to be given to the Secretary of State to bring civil proceedings to curtail or prevent protest, including potentially with a power of arrest attached, if the Home Secretary “reasonably believes” that activities are causing or likely to cause disruption to the use or operation of any key national infrastructure or have a seriously adverse effect on public safety in England and Wales.

Amendments 110 to 112 in my name would increase the evidential test to

“has reasonable grounds for suspecting”

to ensure that the Secretary of State has to set out before the court the exact evidential grounds for her application. In meetings with the Minister and officials on the Bill, it was explained that protests could affect a number of different operators or local authorities and that it would be in the public interest to have an overarching injunction in such cases.

The HS2 nationwide injunction seems to prove that such an overarching injunction is available to those concerned without the intervention of the Secretary of State but, in any event, Amendment 113 is designed to ensure that the power is used if, and only if, it is not reasonable or practical for a party directly impacted by the activity to bring civil proceedings, and to ensure that the Secretary of State does not use the power where any party directly impacted does not consider such proceedings to be necessary. My Amendment 116 is designed to ensure that a power of arrest cannot be attached to an injunction simply on the basis that the conduct is merely

“capable of causing nuisance or annoyance”.

This is in Clause 18(2)(a), which the amendment removes from the Bill.

We wholeheartedly support the additional checks and balances proposed by the noble Baroness, Lady Chakrabarti, in her Amendments 114 and 115. I beg to move Amendment 110.

[Baroness Chakrabarti (Lab)]

My Lords, during Second Reading a number of noble Lords, including those who do not share my views of the Bill more generally, expressed significant scepticism about the new Clause 17 provision for the Home Secretary to bring civil proceedings against protesters, instead of being brought by directly affected oil, gas or transport companies, and so on. I share these concerns at the politicisation of both policing and civil disputes, and therefore oppose Clause 17 standing part of this Public Order Bill.

Not only is it constitutionally dubious for a politician to be standing in the shoes of the police in relation to the criminal law, or of affected companies in relation to the civil law; it also raises questions about this use of considerable sums of taxpayers’ money in expensive litigation that could and should be brought by those who profit from fossil fuel or other carbon-intensive development, and no doubt factor legal fees into their budgeting. The lack of transparency required by the new Clause 17 also brings a risk of corruption, in the event that the relevant firms should choose to donate to or otherwise “promote” a Home Secretary amenable to seeking civil legal proceedings on their behalf.

It should be noted that under Clause 17(5), the Secretary of State must only

“consult such persons (if any) as the Secretary of State considers appropriate, having regard to any persons who may also bring civil proceedings in relation to those activities.”

No transparency in the Secretary of State’s discussions, or non-discussions, with these “persons”—namely, large companies—or consideration of why they should not finance their own legal proceedings, is required. Never has the word “must”, in a provision supposedly creating a duty upon a Secretary of State to consult, constituted such a toothless tiger or illusory protection from the potential abuse of public money and political power.

In addition to supporting the amendments proposed by the noble Lord, Lord Paddick, I propose Amendments 114 and 115, which would create safeguards against corruption and abuse. They require the Secretary of State to publish the reasons for any decision not to consult; the results of any consultation; any representations made to the Secretary of State as to a proposed exercise of the new power; an assessment of why other parties should not finance their own proceedings; and assessments of why any proceedings have been brought by the Secretary of State at public expense, rather than by private companies themselves. Such publication will occur both each time an exercise of the power is considered, and annually on an aggregate basis.

Clause 17 is both unnecessary and undesirable. If it really must stand part, so must the vital safeguards previously referred to, but also those in Amendments 114 and 115, which I commend.

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[Lord Murray of Blidworth (Con)]

I thank both noble Baronesses for their interventions. Turning to the question about transparency, we will certainly engage on that, and I appreciate it. It is always important that government actions are transparent. It is clearly an important public principle, and on that we agree.

As to corruption, in this context, it is really not a terribly likely hypothetical scenario. I say that because, if one were an ignoble baron seeking to pursue an injunction to preclude some sort of serious disruption, it is unlikely that the cost of pursuing an injunction would be sufficiently high to warrant seeking the assistance of the Secretary of State in bringing that injunction. It would be more likely that such costs would be borne by the company or person themselves, given the urgency and the much larger costs incurred by the disruption occurring. While I accept that there is a hypothetical concern, therefore, I find it unlikely in reality that such an envisioned scenario would eventuate.

I thank the noble Lord, Lord Paddick, for tabling Amendment 116. Let me start by saying that I, again, recognise the sentiment in this amendment. It is important that the Government intervene only in matters that are serious and proportionate to the public interest. However, I wish to remind noble Lords that causing nuisance or annoyance to the public can have a far-reaching impact when it occurs on a widespread scale. The recent protests targeting the M25 have shown just that. Furthermore, while a Secretary of State may apply for the power of arrest to be attached to an injunction, it is for the courts to decide whether or not this is an appropriate measure.

Finally, I turn to Amendment 145, tabled by the noble Lord, Lord Coaker. Again, I understand and have considered the need for scrutiny and transparency, as I touched on earlier, and therefore I entirely understand the logic of the tabling of that amendment. None the less, it is the Government’s view that while a review is not needed to ensure that activity relating to these provisions is necessary, it is important that transparency is carefully considered, and I will ensure that that is done.

There are already several clear provisions in the Bill that serve to ensure that the use of these powers by a Secretary of State will be subject to scrutiny and safeguards. As has already been noted, of course, in Clause 17(5) there is a requirement for consultation as may be appropriate ahead of initiating civil proceedings. Moreover, as we have already touched on, civil proceedings can be issued in the interest of the public only when it is considered expedient to do so in the judgment of the judiciary hearing the claim. As I have already committed to the noble Baroness, Lady Chakrabarti, I will nevertheless consider what further clarity could be provided on the circumstances in which a Secretary of State might seek to initiate such proceedings. I therefore invite the noble Lord to withdraw his amendment.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for their contributions to this debate. If I can try and get the sense of the House, we on this side feel that this is constitutionally dubious, potentially providing opportunities for corruption, and that it is a very serious step to allow the Secretary of State to apply for an injunction to prevent a protest. On the government side, the Minister thinks it is reasonable if lots of people are affected—different organisations, private and public—and that it would be expedient for the Secretary of State to represent all parties and apply for an injunction on their behalf. Therefore, there is a clear difference of opinion as to whether we are satisfied that there are sufficient safeguards, as opposed to the Minister being satisfied that is the case. As the Minister reflects on what the noble Baroness, Lady Chakrabarti, said, we too will reflect on what the Minister has said, and we will no doubt return to this on Report. In the meantime, I beg leave to withdraw Amendment 110.

Amendment 110 withdrawn.