Public Order Bill

Lord Paddick Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, with the leave of the Committee, we told the Government Whips that I was going to intervene at this stage.

I wish to put on record the apology I gave in person and in writing to the Minister for suggesting at col. 1345 on 22 November that what he had said about the stop and search powers in the Bill not being exercisable unless an officer is in uniform was not true. I have read the Official Report, and it appears I became somewhat confused—probably after three hours on buffer zones.

The noble Lord, Lord Coaker, expressed concerns about the new offence of obstructing a police officer in the exercise of the new stop and search powers in the Bill, with reference to the Sarah Everard murder and police advice to challenge any officer who detained a lone woman, and whether such advice would amount to an offence under the Bill. In answer, the Minister said the power extends only to police officers in uniform, which I mistakenly took to mean both suspicion-led and suspicionless stop and search powers in the Bill. At that point the Minister was talking about the stop and search power without suspicion, which is restricted to uniformed officers only.

Although I was correct in my assertion that the suspicion-led power could be carried out by officers in plain clothes, the new offence of obstructing an officer applies only when the officer is exercising the proposed new suspicionless power to stop and search, for which he has to be in uniform. Nevertheless, my understanding is that Sarah Everard’s murderer was in police uniform when he detained her, so the concerns that other noble Lords had about a lone woman resisting an officer exercising the new power to stop and search without suspicion, following police advice in the wake of Sarah Everard, remains.

However, I undertook to apologise to the Committee if I had misled noble Lords by suggesting that what the Minister said about officers having to be in uniform to exercise stop and search powers under the Bill was not true. When, in relation to the power the Minister was speaking about at that moment, he said:

“This power only extends to those in uniform”,—[Official Report, 22/11/22; col. 1342.]


it was true. I therefore apologise for unintentionally misleading the Committee.

Amendment 117

Moved by

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[Lord Faulks (Non-Afl)]

My Lords, I have been following this Bill carefully but have not been able to take an active part in it so far. It is difficult not to agree with what the noble Baroness, Lady Boycott, said about the importance of journalism, and I am sure the whole House agrees. I declare an interest as the chairman of the Independent Press Standards Organisation.

Of course, a good and accurate record or recording of what takes place at a demonstration is important for all parties, whether they be demonstrators, the police or the public. What concerns me a bit about the amendment is what it actually does, apart from sending a very important message. That may be enough; I do not know. It seems to me that in fact it would not be lawful for a constable to arrest anybody anyway for observing, recording or reporting a protest, and nor would the exercise of police powers in relation to those matters or indeed any other matter, but I will listen carefully to what the Minister says.

I would also be grateful for some clarification of how this might interrelate to the reasonable excuse defence that exists in various parts of the Bill. I know that there is some uncertainty at the moment about its scope, where it features in terms of the definition of the offence and whether simply saying—understandably, as the noble Lord, Lord Deben, said—that this an incredibly serious cause, ie, climate change, and therefore justifies all the potential offences here. This is a fascinating and important amendment, and I seek clarification in due course from the Minister as to its scope.

[Lord Paddick (LD)]

My Lords, we wholeheartedly support Amendment 117 in the name of the noble Baronesses, Lady Chakrabarti, supported by the noble Baroness, Lady Boycott, and signed by me for the reason so effectively introduced by the noble Baroness, Lady Boycott.

We have seen some very worrying developments. I remember that when I was serving, the police, following criticism, made strenuous efforts to work with journalists, in particular photographers, to ensure that their work was facilitated during protests. A colleague of mine who became chief constable of British Transport Police, Andy Trotter, made great strides in building a good rapport between journalists and the police. Recently, however, there is evidence of disregard for press cards—for example in a briefing from the National Union of Journalists on the arrests of journalists by Hertfordshire Police and other police forces. This seems to be going completely in the opposite direction to the progress made when I was serving.

As others have said, if journalists and photographers are afraid to do their jobs of being at protests and reporting on them, that is very dangerous for our democracy and the right to protest, having a chilling effect, as the noble Baroness, Lady Boycott, put it, on journalism in relation to protests.

As other noble Lords, such as the noble Viscount, Lord Colville of Culross, said, it points to the overly wide offences in the other parts of the Bill, for example,

“being present in a tunnel”.

As the noble Baroness, Lady Boycott, said, journalists have reported from inside these tunnels and could be guilty of those offences. It points not only to the importance of these amendments in protecting journalists but to the overreach of the offences in other parts of the Bill.

As the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Hope of Craighead, said, Amendment 127A is an important extension of the original Amendment 117, extending the protections beyond journalists to legal observers, academics and even innocent members of the public watching what is happening and recording it on their smartphones.

However, other noble Lords have not mentioned that it is also damaging to the police. The noble Baroness, Lady Boycott, talked about a dispute where the police asked journalists to turn off their lights and, under cover of the darkness that ensued, engaged in violence towards the protesters. In the situation the police service now faces of ever-diminishing public trust and confidence in it, stories of the police arresting journalists at protests could easily be hijacked and used by anti-police activists further to undermine public trust and confidence in the police.

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[Lord Coaker (Lab)]

My Lords, it is a privilege to speak to these important amendments in the name of the noble Baronesses, Lady Boycott and Lady Jones, my noble friend Lady Chakrabarti and the noble Lord, Lord Paddick. The way they spoke to the amendments, particularly the noble Baroness, Lady Boycott, was not only moving but challenging. I want to say something more generally, as other noble Lords have, about what happened to Charlotte Lynch.

Every now and again, something occurs in our society and our democracy which should act as a wake-up call. We all speak here and say that we are proud of our democracy and of our freedoms and traditions. Of course we are. I do not believe that we live in a totalitarian country, but even in a democracy things occur that are totally unacceptable. Such things require the state to act and respond, require Parliament to take action, and require a Minister of the Crown to look at what has happened, listen to what is being said and respond in the way that the noble Baronesses, Lady Boycott and Lady Jones, my noble friend Lady Chakrabarti and the noble Lords, Lord Deben and Lord Paddick, mentioned.

The Minister’s brief will probably say that the amendments are not necessary, that we have ways of dealing with this and that it is an isolated incident that means that no action is required—we can condemn it and say it should not happen, then move on. It is too serious to do that. You cannot do that with certain things that occur. This is not a weakness; it is a strength when a democracy responds in this way. It is a strength when a democracy shines a light on things that have happened. This is not to blame an individual officer or circumstance; it is to say that, for whatever reason, something happened in our democracy—this was about a journalist—and the police operated unacceptably.

That is what the amendments seek to do. They ask the Government, “If these amendments are not the right way of solving the problem, what are you going to do, other than say warm words, to ensure that it will not happen again?” That is what Parliament wants to hear and what all of us here expect from the Government. We do not want a massive condemnation of the country’s police or a massive assertion that every time you go out on a protest, people are arrested. But Charlotte Lynch, as well as the other two that the noble Baroness, Lady Boycott, mentioned, Felgate and Bowles, were reporting on a protest and were arrested. That is astonishing. It is incredible, quite frankly, when you go through the actual events. Despite producing a card, they were arrested, handcuffed, taken away and detained for hours.

That cannot just be explained away. How on earth did it happen? Where was the senior officer? Where was the very senior officer? Where was even somebody saying, “Hang on a minute. What is actually going on?” That happened in our country in 2022. Let me repeat: nobody is saying to the Minister that we live in a totalitarian state, but you cannot have a situation like that occurring without the Government of our country responding in a way that is appropriate and reflects the seriousness of it. That is why the amendments have been put forward. I do not know whether the noble and learned Lord, Lord Hope, is right that Amendment 127A is better because it talks about observing as well and has a broader scope, or whether the Government’s lawyers could come forward with an amendment, but something needs to be done that addresses something that has really occurred.

We talk about other countries where this happens, and ask why they do not do something about it. Actually, we need to look in the mirror and reverse it on to ourselves and say, “Why don’t we do something about it?” I repeat, because it is so important, that the Government’s defence mechanism—and I have been in government and know what happens—will be: “It’s a very serious matter, but, of course, it’s not the normal state of affairs.”. That is absolutely not the point.

I was rereading the briefing we have had from the NUJ, from Amnesty and from other people. It is just words sometimes, because words and principles matter. Principles that underpin out democracy are important, particularly when it comes to the freedom of the press, freedom of expression and freedom of journalists, broadcasters or whoever to go and do their business and report on demonstrations or protests. The Government’s own statement on 3 November said:

“Media freedom is an essential part of a healthy information ecosystem. The free flow of independently generated and evidence based information is the scaffolding for building democracy.”


That says it all.

Warm words matter, but so does policy and so does government reaction. It was a terrible situation that occurred with Charlotte Lynch. There are other examples where that has happened, and I cannot finish without responding to my noble friend Lady Symons. I played all sorts of roles during the miners’ strike. I was in Nottinghamshire as a local councillor representing and, by and large, working alongside miners who were on strike in a community where the vast majority were working. People know—and the noble Lord, Lord Murray, will also know the situation in Nottinghamshire with his background—the important role that journalists and broadcasters of all sorts played, including by my noble friend’s late husband, in reporting that. That is the strength of democracy. It is a crucial series of amendments, and if the Government are not prepared to accept what the noble Baroness, Lady Boycott, has said, what are they going to do about it?

Before I forget—I just got carried away with my own rhetoric—I want to ask one simple but important question. The Hertfordshire police did an inquiry into what happened in respect of Charlotte Lynch. They published five recommendations on 23 November. Given the importance of this, they made all sorts of recommendations about training and guidance. They also said:

“Hertfordshire Constabulary should consider ensuring that all officers engaged with public order activity complete the NUJ package and identified learning is shared.”


That means shared with other forces across the country. That is really important. If something good can come out of what happened to Charlotte Lynch, surely it is an improvement in police practice. It is also about the Government themselves considering whether something needs to be said in this Public Order Bill that strengthens and underpins the right of journalists to go about their business. Sometimes it is action that is needed as well as warm words.

[Lord Paddick (LD)]

Before the Minister responds, I have to say that, while I do not often take issue with the noble Lord, Lord Coaker—normally we are on the same side—I am more concerned than he appears to be about what happened in Hertfordshire. That is because, when somebody is arrested and taken to a police station, a sergeant or a custody officer has to satisfy himself or herself that there are grounds to detain that individual. I cannot believe that the journalist did not say to the custody officer, “I’m a journalist”. Yet a sergeant or above—as a custody officer has to be—authorised the detention of that journalist. That does not sound like officers on the front line getting a bit overenthusiastic and not having the right training; that was a sergeant in a controlled environment who was not at the scene of the protest and who authorised the detention of somebody he or she knew to be a journalist. That sounds more like something systemic than something unusual.

[Lord Coaker (Lab)]

I will respond to the noble Lord. If I, in any way, gave the impression that I underestimated the significance or seriousness of what happened to Charlotte Lynch, that was certainly not my intention. I hope that most noble Lords can see the vehemence with which I support doing something about what happened to Charlotte Lynch and using that—if that is the right way of putting it—as a way of ensuring that the Government respond in a way that protects journalistic freedom across our country, whatever the circumstances.

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[Lord Sharpe of Epsom (Con)]

I have to say to my noble friend: I hope I was not giving the impression that I was saying that it was all right, because it was not. I have acknowledged that it was wrong and the police made mistakes in this particular case. But, to go back to the point I made in response to the noble Lord, Lord Coaker, we do not legislate for instances where it was clearly a false arrest and therefore unlawful.

[Lord Paddick (LD)]

Will the Minister confirm that neither in his remarks nor apparently from what he said was the response of Hertfordshire police, was there any reference to the unauthorised detention of the journalist at the police station? The first thing that would have happened at the police station is that the journalist would have been asked to turn out their pockets, including their press pass, and yet they were still detained for five hours. What do Hertfordshire police and the Government say about a sergeant not at the scene of the protest authorising the detention?

[Lord Sharpe of Epsom (Con)]

Obviously, I defer to the noble Lord’s expertise on matters custodial, but—I am flying solo a little bit here—I imagine that, whatever the erroneous reasons given for the arrest, the custodial sergeant or whoever was in that position felt that some investigation was required.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was very excited when I saw this grouping: I thought that I had got my own group to myself. However, I am afraid that others have butted in. I am very grateful for that, obviously.

The noble and learned Lord accused me of trying to waste a lot of time on this—he is not listening—but I promise I will not. My aim here is to highlight the fact that, when we pass all these things in a Bill, is it sometimes very easy to miss their cumulative effect. For me, there is a slippery slope of anti-protest laws under this Government. It will not play very well with the public, or with them when they are out of government.

Each Bill that we pass diminishes our rights, little by little. We tend to see each of these measures in isolation because that is how we deal with them, so it is easy to lose track of the cumulative effect of the Government’s anti-protest agenda. I really hope that the opposition Front Benches can join me in committing to repeal these anti-protest laws when we finally get this Government out of power. I have merely highlighted the parts of the Bill that are the most egregious from the Police, Crime, Sentencing and Courts Act 2022, and I am pointing out that they should not have been in there and we really ought to have struck them out.

[Lord Paddick (LD)]

My Lords, it is difficult to argue with the point made by the noble Baroness, Lady Jones of Moulsecoomb: if the Government, as they have, bring back those parts of the Police, Crime, Sentencing and Courts Bill that they want to reinstate, why can she not ask this House to remove those parts of Police, Crime, Sentencing and Courts Act 2022 that she does not want retained? The noble Lord, Lord Coaker, has adopted a less provocative approach in his probing amendment, Amendment 127, to establish how often the new noise trigger powers have been used by the police in relation to protests outside buildings—with or without double glazing.

We on these Benches vehemently oppose the provisions in the Police, Crime, Sentencing and Courts Act that the noble Baroness wishes to repeal, although we subsequently and reluctantly accepted the usefulness of Section 80. But that was then, and this is now. I believe that the Committee should perhaps operate on the basis of appeals in criminal trials and ask this: what new evidence is there to persuade Parliament that we should now reverse the decisions that it made a year ago?

[Lord Coaker (Lab)]

Before I forget, I thank the noble Lord, Lord Paddick, for signing Amendment 127, which deals specifically with noise. I have a lot of sympathy with much of what the noble Baroness, Lady Jones of Moulsecoomb, has said about many of the powers, but I will concentrate specifically on noise, so may disappoint her.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, I wish to make one or two brief observations in respect of the way these amendments tie together. The amendment in the name of the noble Lord, Lord Coaker, which I support, sees a good precedent in what Parliament sometimes does, which is to pass successive pieces of legislation without having in mind all the complexities of the earlier legislation. We saw this most clearly in my experience in relation to search warrants of premises, and I will come back to that in a moment. There is a huge advantage in having up-to-date guidance, and the best people to produce it are those who have practical experience—namely, the police institutions—so I warmly welcome that.

But its importance goes to Clause 30, because the question I ask myself is: why is Clause 30 there? Why can it not be dealt with in two other ways? One is the use of guidance given by independent police to other police, to get uniformity; and secondly, do not forget these are applications to a court, so can we not do what we did in relation to search warrants? That is, to provide in detailed form, through the Criminal Procedure Rule Committee, working closely with the police and other organisations, the information that needs to be put before a court to make the decision on the order. Now, if the Home Secretary feels that there are areas that you need to specify—for example, about the kind of person who should be asked to supervise or do something—why can the detail of what is required, the kinds of considerations, not be put properly and openly through an independent process of rules and forms? This worked for search warrants.

We ought to bear in mind the experience of ASBOs. It is not the time at this hour of night to go back to that rather unhappy chapter, but trying to supplement un-thought-through legislation of this kind with guidance is not the way forward; there are better mechanisms.

It seems to me, when one looks at Clause 30, one asks oneself, “What is it for?” In Clause 30(2)(c), the guidance is about

“providing assistance to prosecutors in connection with applications for serious disruption prevention orders.”

Is the intention that somehow the Home Office believes that the police do not help prosecutors? What guidance do they need? These are independent people and their independence should not be called into question. In most countries, the independence of the prosecution service, as in our country, is critical, and so is the independence of the police.

I do not want to go into the constitutional points under Clause 30, because I entirely agree with what has been said. I think one ought to look at this from a practical experience point of view to say that the clause is completely unnecessary. It should be possible to deal with the practical consequences of these orders in a way that takes into account experience. This is a criticism of the way in which the modern Civil Service is structured. There are probably few people in the Home Office who remember what I have just gone through. I thought a few grey hairs might remind people that there is a better way forward than this constitutional aberration, constituted by Clause 30.

[Lord Paddick (LD)]

My Lords, we support Amendments 126 and 144 in the name of the noble Lord, Lord Coaker. As recommended by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, consolidated public order guidance should be published, to include minimum training standards, clear information on relevant law and operational best practice. We must ensure that existing law and practice are used effectively and that police can then be held to account against that consolidated guidance.

The noble Lord, Lord Coaker, talked about ensuring that the police had excellent training. I go back again to my own experience: the Metropolitan Police were world leaders in public order policing and the training was extensive and excellent. Other forces used to come to the Metropolitan Police and engage in training with it and in that way good practice was shared.

Does the Minister know what the impact of cuts to police budgets has been on the quality and amount of training in public order policing—the involvement of other forces in training with the Metropolitan Police, for example? My understanding is that special constables, who are part-time volunteers, are now being trained as public order officers. This is a very difficult, sometimes dangerous, skilled area of policing. One would question whether part-time volunteers are the right officers to be used in that sort of situation, requiring knowledge of public order legislation that is getting longer and more complex as we go on.

What has been the impact of the police cuts on the number of public order trained officers? Before the Minister stands up and talks about the uplift in the number of officers, I point out that across 16 constabularies, the number of police officers over the last 12 months has gone down rather than up and the Metropolitan Police has given notice to the Government that it will not reach its target of the uplift of an additional 30,000 officers.

HMICFRS talks in its public order report about the lack of regular officers volunteering to be public order officers because it involves increased weekend working—which is not popular—an increased risk of complaints, and the increased risk of being verbally and physically abused. What steps are the Government taking to mitigate these factors, which are working against having highly trained, highly skilled public order officers in sufficient numbers to be able to handle protests?

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for the amendments in this group. I turn first to Amendment 126, which would require the College of Policing to publish guidance consolidating the public order authorised professional practice and NPCC and college operational advice for public order policing. The Government would be required to lay the consolidated guidance before Parliament and the guidance would need to be reviewed annually and updated when appropriate.

The noble Lord’s explanatory statement clarifies that this builds on a recommendation from His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to the College of Policing. For the benefit of the House, when giving oral evidence to the Public Bill Committee, His Majesty’s Inspector Matt Parr has said of policing’s response to the report that it was

“the most professional and thorough response”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 55.]

he had seen to a report that he had done.

The college has drafted a new public order public safety authorised professional practice that is in the final stages prior to consultation, which precedes publication. A draft version will be published for consultation by public order practitioners by the end of December and the college plans to publish the final version in early 2023.

To provide further reassurances to all those present who have shown interest in public order guidance, noble Lords will perhaps allow me to detail some of the work that the college has undertaken beyond the authorised professional practice to improve public order training.

On guidance, the college publishes regular bulletins, including on changes to processes, legislation and new training products. Its summary guide to the Police, Crime, Sentencing and Courts Act has been circulated to all forces and widely shared with officers involved in policing public order and protest. This guidance reiterates the need for a balanced approach with a reminder of the recent HMICFRS conclusion that

“the police do not strike the right balance on every occasion. The balance may tip too readily in favour of protesters when – as is often the case – the police do not accurately assess the level of disruption caused, or likely to be caused, by a protest.”

In April, the college drafted the National Police Chiefs’ Council’s Protest Operational Advice Document, which reiterated the need for a rapid response to disruptive disorder. The document aims: first, to support consistency of decision-making and engagement with stakeholders; secondly, to signpost guidance, legislation, key legal decisions, policies and practice which may assist in the policing of protest, thereby promoting public safety, preventing or reducing crime, disorder and/or terrorism to support overall public safety; and, thirdly, to assist decision-makers in achieving outcomes which support the exercise by peaceful protestors of their rights under Articles 8, 9, 10 and 11, while striking the appropriate balance between those rights and the rights of others affected by protest. This is being reviewed by the college, which aims to publish the revised version in February 2023.

On training, over the last six months the college has rolled out significant changes to protestor removal training. This used to be a very niche skill with very few people trained to a high level, but this meant the response was slow. The college has since developed new, quicker training for simpler lock-ons, which has meant a substantial improvement in the speed of the police response to these. I could go on, but I think I have made the point. The college is a professional organisation that is proactive in response to protests to ensure that officers are trained to the highest possible standards. It does not need a legislative stick to make them do so. That is why the Government do not support this amendment.

I thank the noble Lord, Lord Coaker, for specifying that Amendment 144 is a probing amendment to query the demand for, and the capacity of, specialist protest officers across police forces. I presume by “specialist protest officers” the noble Lord is referring to both public order trained officers and officers trained in the removal of protesters who lock on. For the benefit of the House, it is worth clarifying that, for the most part, protests are non-violent and are managed effectively by general patrol officers. When there is a risk of violence, officers with additional specialist public order training are deployed.

On specialist public order trained officers, the NPCC has set a national requirement of 297 police support units across England and Wales, alongside 75 in London. A police support unit consists of one inspector, three sergeants and 18 constables as well as three drivers. On level 3, which is basic public order training, the NPCC has set a requirement for 234 basic deployment units.

On the question from the noble Lord, Lord Coaker, on specialist officers, the NPCC has identified a national requirement for 108 officers trained in debonding protestors, 189 officers trained to remove protestors and another 189 who are trained to remove protestors from complex environments such as height. The noble Lord also asked about non-specialist officers. They are deployed to respond to peaceful protests and all have level 3 public order training.

The noble Lord, Lord Paddick, asked me about specials. Peaceful protests would seem to me to be well within the abilities of volunteer police officers—indeed, I have seen it in my own service overseas. He also mentioned cuts. I am afraid I am going to disappoint him by saying that we are well on the way to the 20,000 police uplift that was promised. I will also of course say that the nature of protests has changed and, therefore, so has the nature of policing, as reflected in much of this Bill.

[Lord Paddick (LD)]

I am sorry to interrupt the Minister and am grateful to him for giving way. I have seen evidence that special constables are being trained to level 2 and being issued with specialist equipment, so I am not talking about special constables trained to level 3, as the noble Lord suggested.

The noble Lord gave a whole series of numbers. The National Police Chiefs’ Council has decided that there should be specified numbers of level 3 and level 2-trained units of one, three and 18—one inspector, three sergeants and 18 constables—as the requirement nationally. To what extent have police services fulfilled those requirements? The indication that the Minister gave was that that is the target that the National Police Chiefs’ Council has given, but to what extent have police forces been able to fulfil that target?

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not know the answer. I will write to the noble Lord with the detail. Regarding the specials, as long as they are trained, surely that is the point.

Chief officers are responsible for demonstrating that they can appropriately mobilise to a variety of public order policing operations at a force, regional and national level in accordance with the national mobilisation plan. The College of Policing sets consistent standards across England and Wales to ensure consistency across forces, allowing officers from different forces to operate in tandem when deployed to other force areas.

The required capacity for public order capabilities is informed by the assessment of threats, harm and risk from the National Police Coordination Centre, as agreed by the National Police Chiefs’ Council. Officials and Ministers in the Home Office regularly probe the National Police Coordination Centre on its confidence that forces can respond to disorder. At present, it assesses that forces are able to meet current protest demands. Forces have been able to use public order resources to respond to incidents including the awful disorder in Leicester in August and September, as well as Just Stop Oil’s recent disruptive campaign on the M25.

Amendment 142A seeks to ensure that statutory guidance issued under Clause 30 is subject to the affirmative scrutiny procedure, rather than the negative procedure, as the Bill currently allows. This follows a recommendation from the Delegated Powers and Regulatory Reform Committee, as explained by the noble Lord, Lord Rooker, and the noble Baroness, Lady Meacher. I thank the committee for its consideration of the Bill. I hope, but am afraid I doubt, that noble Lords will forgive me for echoing the arguments made in the Government’s response here. SDPOs do not represent a new concept. Successive Governments, dating back at least to 1998 and the creation of anti-social behaviour orders in the Crime and Disorder Act, have legislated for civil preventive orders of this kind, which can impose restrictions on liberty, backed by criminal sanctions. Many of these preventive order regimes include similar provision to that in Clause 30 for the Secretary of State to issue guidance which was not subject to the draft affirmative scrutiny procedure. Guidance issued for serious violence reduction orders is subject to the negative scrutiny procedure. Having said that, I listened very carefully to the speech by the noble Lord, Lord Rooker, and I will write to him with an attempt to unravel some of the discrepancies that he mentioned.

We therefore see it as entirely appropriate that the guidance is subject to the negative scrutiny procedure and respectfully encourage noble Lords not to press their amendments.

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Moved by

[Lord Paddick]

128: Clause 19, page 22, line 8, leave out “on the balance of probabilities” and insert “beyond reasonable doubt”
Member's explanatory statement
This amendment raises the burden of proof for imposing a serious disruption prevention order to the criminal standard.

[Lord Paddick (LD)]

My Lords, Amendment 128 is in my name, supported by the noble Lord, Lord Skidelsky, the noble Baroness, Lady Fox of Buckley, and the right reverend Prelate the Bishop of St Albans. I will also speak to Amendments 129, 130, 133 to 136, and 139 to 142 in my name and to the other amendments in the group; and I will oppose Clauses 19 and 20 standing part of the Bill.

Serious disruption prevention orders are modelled on the orders given to terrorists and knife carriers, with similar draconian provisions, yet these are to be imposed on peaceful protestors, some of whom will never have been convicted of a criminal offence and some of whom will have never even attended a protest. These orders will effectively prohibit British citizens from exercising their human rights of free expression and assembly. They include the possibility of electronic tagging and restricting people’s use of the internet.

Liberty gives an example, which, in my own words is of someone who could be subjected to an SDPO, who has never been convicted of an offence, who attended two protests in the last five years and who, at those protests, based on inadmissible hearsay and on the balance of probabilities, contributed towards someone else doing something that was likely to result in serious disruption. The purpose of the order would be to prevent the person subject to the SDPO from contributing towards another person doing something that was likely to result in serious disruption at some point in the future.

HMICFRS says of serious disruption prevention orders:

“Such orders would neither be compatible with human rights legislation nor create an effective deterrent. All things considered, legislation creating protest banning orders would be legally very problematic because, however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order”.


In the same report, senior police officers are quoted as saying that SDPOs would

“unnecessarily curtail people’s democratic right to protest”;

that such orders would be a “massive civil liberty infringement”; and that,

“the proposal is a severe restriction on a person’s rights to protest and in reality, is unworkable.”

That is the police’s view. They added that it appeared unlikely that the measure would work as hoped, because a court was unlikely to impose a high penalty on someone who breached such an order if the person was peacefully protesting, to which HMICFRS said:

“We agree with this view and that shared by many senior police officers.”


It is what we would expect in Russia or Iran, not in the United Kingdom.

These orders can also be imposed on those convicted of public order offences, and although we impose their imposition on anyone, it cannot be right that a person can be convicted of a criminal offence of breaching a serious disruption prevention order and sentenced potentially to a term of imprisonment, on the basis of an order imposed on the balance of probabilities, potentially based on evidence such as hearsay that would not be admissible in a criminal trial. I have rehearsed these arguments time and again in relation to similar orders in the past.

The origins of this type of order are to be found in anti-social behaviour orders—ASBOs—another order imposed on the balance of probabilities but with criminal sanctions for a breach, which Parliament decided was unfair and unreasonable, and so replaced with an entirely civil-based, non-criminal approach. In the case of knife crime prevention orders, the Government used the argument that the police had advised them that knife carriers would not take the orders seriously if no criminal sanctions were attached to them. Even if noble Lords had some sympathy with that approach in relation to the potentially fatal consequences of knife crime, surely serious disruption prevention orders are far closer to ASBOs than to knife crime.

The noble Baroness, Lady Fox of Buckley, and the right reverend Prelate the Bishop of St Albans have added their names to my Amendments 128, 129 and 130; and the noble Lord, Lord Skidelsky, has also added his name to my Amendment 128. The amendments require a court to be satisfied “beyond reasonable doubt” —the criminal standard of proof—before imposing a serious disruption prevention order, rather than depending on the civil standard of “on the balance of probabilities”.

We support Amendment 131 in the name of the noble Lord, Lord Hendy, which states that participation in a lawful trade dispute should not result in the imposition of a SDPO. I can see what the noble Baroness, Lady Jones of Moulsecoomb, is doing with her Amendment 132, and, if she were here, I would have looked forward to her explanation of it to the Committee.

Although electronic tagging is limited to 12 months, serious disruption prevention orders can be imposed for up to two years—but they can also be renewed indefinitely. That means that someone who has never been convicted of an offence can be prohibited from being in or entering a particular area indefinitely, prohibited from being with particular people indefinitely, prohibited from engaging in particular activities indefinitely, and prohibited from using the internet for particular purposes indefinitely. Can the Minister explain how that provision would be enforced, if they could use the internet for some purposes and not others? My Amendments 133, 135, 136, 137, 138, 139, 140, 141 and 142 would prevent serious disruption prevention orders being renewed, effectively placing a maximum limit of two years on their imposition.

Someone who breaches a serious disruption prevention order can be sentenced to a maximum of 51 weeks in prison and an unlimited fine. My Amendment 134 questions whether an unlimited fine is appropriate for such an offence, for the reasons I have argued in previous groups.

Most of those amendments should be redundant, because I urge all noble Lords on all sides of the House to join me and the noble Lords, Lord Ponsonby of Shulbrede and Lord Anderson of Ipswich, and the noble Baroness, Lady Chakrabarti, in opposing the proposition that Clauses 19 and 20 stand part of the Bill. I beg to move Amendment 128.

[Lord Skidelsky (CB)]

My Lords, I enthusiastically support the amendment moved by the noble Lord, Lord Paddick.

I agree with the noble Lord, Lord Coaker, that we are not living in a totalitarian state, but George Orwell also warned of the slide from democracy to despotism: it becomes invisible so that, in the end, you cross a border without really knowing that your freedom has been taken away because you do not want to do anything that might lead to anyone wanting to take it away. We have not got there yet. Nevertheless, it seems that we are discussing areas of legislation in which we find, as the noble Lord, Lord Paddick, said, blocks of words being transferred mindlessly from one set of offences to another set of offences, rather like prefabricated hen houses. One has to guard against that, because the offences are of very different gravity and one must not use the same language when talking of one rather than the other.

Part 2 introduces the serious disruption prevention order, described by Liberty as a protest banning order, which gives police the power to ban a person who has not been convicted of any offence for up to two years from attending any protest, together with extraordinary powers of surveillance, including electronic surveillance. Now I am against prevention orders on the whole, because they tread the path of stopping the liberties of people who have not been convicted of any offence. That is the road down which they lead, so I am suspicious of that in principle.

Here, we have a penalty which can be imposed on a civil standard of proof, meaning that the conditions needed for being given an SDPO need to be proved only on a balance of probability. That compounds the offence. The Government are not only taking powers to inflict extraordinary penalties on someone who has not been convicted of anything, they are also claiming the power to do that on a balance of probabilities, rather than on having reasonable suspicion. That is what this amendment wants to remove and there are subsequent amendments to which the same logic applies. We need to put in a requirement of reasonable doubt into the whole series of these preventive disruption orders.

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The noble Lord, Lord Anderson, very eloquently asked the Government how we can justify SDPOs when they impose tighter restrictions and have less oversight than terrorism prevention and investigation measures. SDPOs would improve the police’s ability to take a proactive approach to policing protest by preventing prolific protesters who are hell-bent on causing chaos time and time again doing so in the first place. Having said that, the Government thank the noble Lord for his comparison of SDPOs with TPIMs. Without wishing to—or committing to—own up to anything, we will reflect on his views. I would also like to reassure the noble and learned Lord, Lord Thomas, that that does mean a proper think. For the reasons I have outlined, I ask all noble Lords not to press their amendments.

[Lord Paddick (LD)]

My Lords, I am grateful to all noble Lords for their contributions to this debate. As many noble Lords have said, this is about restricting the human rights and civil liberties of unconvicted people on the basis of the balance of probabilities. The noble Lord, Lord Anderson of Ipswich, described the “breathtakingly broad” provisions, more draconian than those imposed on terrorists, that the Government propose to impose on peaceful protesters.

I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood—of course it is the standard of proof, not the burden of proof—and to the right reverend Prelate the Bishop of Chelmsford, for pointing that these orders will be imposed on activities in relation to a protest. As the noble Baroness, Lady Blower, described on behalf of the noble Lord, Lord Hendy, not only would lawful picketing be included but somebody who organised or chipped in to pay for coaches to bus people down to London to take part in a protest would be covered by these provisions.

The noble and learned Lord, Lord Thomas of Cwmgiedd, hit the nail on the head: quite clearly, there has not been enough thinking. I cannot believe that we have got to Committee in the House of Lords, having gone all the way through the process in the House of Commons, before a Minister agreed to start thinking about the consequences of these provisions. In defence of the Home Office and its officials, we should remember that Home Secretary Priti Patel was facing a potentially hostile Conservative Party conference in the wake of Insulate Britain protests and demanded an immediate, draconian response. That is how we have come to copying and pasting terrorist legislation and applying it to peaceful protesters without a second thought.

I agree with the noble Lord, Lord Ponsonby of Shulbrede, that we should support civil orders to protect victims of domestic violence, for example, but with civil sanctions. That is why anti-social behaviour orders are now anti-social behaviour injunctions, with civil penalties, which can include contempt of court and imprisonment. We are not talking about soft options here.

I could not believe the description of the sort of person on whom the Government think these orders are designed to be imposed. It was the most outrageous and extraordinary description of people going around telling young people all sorts of things. I have never heard or experienced anything like it in my life. If it is true, I am glad that the Government will now think about what has been said as a result of noble Lords in this Committee, whom the House has the utmost respect for and will listen very intently to when we come, as we inevitably will, to vote that these clauses do not stand part of the Bill. The Government need to do some long and hard thinking about these clauses because, with the support that we have seen across the House for these provisions to be taken out of the Bill, we will carry the House if the Government do not see sense on these measures. In the meantime, I beg leave to withdraw my amendment.

Amendment 128 withdrawn.

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[Lord Paddick (LD)]

My Lords, we support Amendment 143 in the name of the noble Lord, Lord Coaker, to which I have added my name. We on these Benches believe that the prison service is overwhelmed. As a result, prisoners have no real opportunity for rehabilitation, and this can lead to a revolving door of offending, conviction and imprisonment. Liberal Democrats want to reduce the number of people unnecessarily in prison by introducing a presumption against short prison sentences and including the use of tough community sentences and restorative justice where appropriate. We want to transform prisons into places of rehabilitation and recovery by improving the provision of training, education and work opportunities.

That cannot be done against a background of an ever-increasing prison population. In particular, custodial sentences should be restricted to the most serious types of offending that place public safety at risk. We believe that peacefully exercising basic human rights of freedom of expression and assembly are not included in the types of offending warranting a custodial sentence in most cases. That it is why it is important to review sentencing for public order and protest-related offences to ensure that the right balance is struck between the right to protest and the disruption such protests may cause. If the balance is wrong, it is an indication of a repressive regime that seeks to stifle the democratic right of citizens in a free society to gather and express their concerns about the way the Government and Parliament are operating. We therefore support the proposed review.

[Lord Davies of Gower (Con)]

My Lords, I thank the noble Lords, Lord Coaker and Lord Paddick, for tabling this amendment. I empathise with the importance of understanding sentencing for criminal offences. However, the Government do not feel that it is necessary to accept this amendment. There are already adequate mechanisms in place to scrutinise sentencing. The Sentencing Council for England and Wales exists to promote greater transparency and consistency in sentencing. It issues guidance on sentencing and is responsible for monitoring sentencing. Its objectives are to promote a clear, fair and consistent approach to sentencing, to produce analysis and research on sentencing and to work to improve public confidence in sentencing.

As a result of the delegation of these functions, it is felt that the Government are not best placed to undertake such a review. I therefore respectfully ask that the amendment be withdrawn.

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[Baroness Chakrabarti (Lab)]

My Lords, I congratulate those still here. We end, of course, with commencement, because that is the tradition. In moving Amendment 146 I will speak also to my Amendments 147 and 149. I also support Amendment 148 from the noble Lord, Lord Paddick, and Amendment 150 from the noble Lord, Lord Paddick, and my noble friend. We are dealing with the tension between ever more police powers on the one hand and the lack of equivalence in resources, training and vetting for policing on the other hand. This tension has been more and more exposed in graphic terms in recent months and years.

We began this evening with the eloquent speech from the noble Baroness, Lady Boycott, who spoke powerfully about incidents of abuse of police power in relation to journalists. We were assured, I think sincerely, by the Minister that it was far from the intention of the Government that those things happened. The Government apparently agreed with me that those were wrongful arrests, yet they have happened more than once. There are some in the police community who hold the view that this is a legitimate thing to do to prevent serious disruption, which is undefined in statute. So, with the amendments, we are seeking to ensure that there is some check on the new blank cheque that we are putting on the statute book, in addition to blank cheques that have already been put there by broad concepts such as conspiracy to cause a public nuisance, et cetera. That is what we are trying to get at.

Amendment 146 prevents the commencement of most provisions of the Bill until there has been

“a report by His Majesty’s Chief Inspectorate of Constabulary and Fire Services on improvements to the vetting, recruitment and discipline of specialist protest police officers”.

In another group, the Minister said, “If they’re trained, they’re trained”. So this is about ensuring that that is the case before additional power is granted. Amendment 147 is consequential to that.

Amendment 149 is crucial at a time when more than one police force is in special measures. It provides that provisions should

“not be brought into force for any area in which the police service is under special measures, the engage phase of monitoring, or other unusual scrutiny … by His Majesty’s Chief Inspectorate of Constabulary and Fire Services.”

That seems to be a perfectly reasonably check on the new powers and a perfectly reasonable request to make of Ministers, so I beg to move.

[Lord Paddick (LD)]

My Lords, I have tabled Amendments 148 and 150 in this group, and will speak also to Amendments 146, 147 and 149.

My amendments would mean that the new offences in the Bill—the delegation of functions and serious disruption prevention order provisions—could not come into force until the Government have laid before Parliament a report assessing the current capability of police services to use the provisions in those sections. Most of the 10 police forces inspected by HMICFRS said that the limiting factor in the effective policing of protests was a lack of properly trained and equipped police officers, not gaps in legislation. If that is already the limiting factor, what assessment have the Government made of the additional strain that the new provisions will have on already-stretched police officer numbers? What is the point of new legislation if the police do not have the resources to use it effectively—or, indeed, to use existing legislation effectively?

I can understand the principle behind Amendments 146, 147 and 149 tabled by the noble Baroness, Lady Chakrabarti; the right reverend Prelate the Bishop of Manchester has added his name to Amendments 146 and 147. Were it to be within the scope of the Bill, I too would support a moratorium on giving the police any further powers unless and until Parliament had a chance to consider a report by HMICFRS into the vetting, recruitment and discipline of all police officers, not just public order officers—particularly in forces that are subject to the “engage phase” of scrutiny by HMICFRS, commonly understood to be “special measures”. With so many forces requiring intensive scrutiny and intervention by HMICFRS, and public confidence in the police being so low, the police should not be given further powers until HMICFRS has reassured the public that they can have confidence in the police use of existing powers, let alone new ones.

[The Lord Bishop of Chelmsford]

My Lords, I add my support to Amendments 146 and 147, to which my right reverend friend the Bishop of Manchester added his name—I know he regrets that he is unable to be here today. I thank the noble Baroness, Lady Chakrabarti, for bringing these important amendments forward. Throughout the debate on the Bill, it has been clear that there are many justified and genuine concerns about provisions and the expansion of police powers laid out in it. I believe that it is therefore appropriate that further reflection should take place, and these amendments would provide for exactly that opportunity, requiring parliamentary debate of an HMCI report concerning improvements to the vetting, recruitment and discipline of protest police officers. In recent years, we have arguably seen an accelerated decrease in trust in the police, and it is critical that any expansion of powers such as those set out in the Bill does not occur without regard for the real implications of such measures.

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It is our conviction that these measures should come into force as soon as is reasonably practicable. For that reason, I respectfully ask that the amendment be withdrawn.

[Lord Paddick (LD)]

Can the Minister clarify what I thought I heard—noble Lords know what I am like with making mistakes about what a Minister actually said and what I heard. Did he say that the provisions in the legislation are designed to “deter protesters” and therefore relieve pressure on the police? Can he just clarify what he meant by that?