Lord Paddick
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Tuesday 7th February 2023
(1 year, 10 months ago)
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Lord Paddick
Lord Paddick (LD)
My Lords, I rise to move Amendment 46 in my name and to speak to Amendment 47, to which I have added my name. Amendment 46 would remove Clause 10 from the Bill; I am grateful for the support of the noble Baronesses, Lady Chakrabarti and Lady Meacher, and the right reverend Prelate the Bishop of Manchester, who have signed this amendment. Amendment 47 in the name of the noble Lord, Lord Coaker, to which I have added my name, would remove Clause 11 from the Bill. These clauses give the police new powers to stop and search for an article made, adapted or intended
“for use in the course of, or in connection with”
protest-related offences, such as highway obstruction, causing a public nuisance and offences under the Bill —Clause 10 based on suspicion and Clause 11 without suspicion—if a police officer of or above the rank of inspector authorises it in a particular place for a specified period. This can be done if the officer “reasonably believes” that people in the area are carrying prohibited objects.
These are a significant expansion of police powers at a time when confidence in the police is waning and on a day when another police officer has been given multiple life sentences for, among other things, abusing his authority. There is potentially an endless list of objects that could be made, adapted, or intended
“for use in the course of or in connection with”
protest offences. Coupled with the power to stop and search without suspicion, this could result in many innocent people being stopped, searched and potentially arrested for being in possession of commonplace objects. If a protest takes place in central London, for example, shoppers in Regent Street and Oxford Street could potentially be stopped, searched and arrested for possessing household objects that they had just bought in John Lewis.
Stop and search is a highly intrusive and potentially damaging tool if misused by the police. The fact that you are seven times more likely to be stopped and searched by the police if you are black than if you are white where the police require reasonable suspicion, and 14 times more likely where the police do not require reasonable suspicion, presents a prima facie case that the police are misusing these powers.
As a commander in the Metropolitan Police Service in July 2000, I presented a paper to my senior colleagues entitled “It is Time to Face the Realities of Stop and Search”. It attempted to demolish established explanations, provide an analysis of why in reality disproportionality was happening and set out steps that needed to be taken to ensure that stop and search was more accurately targeted. That was almost 23 years ago, at a time when disproportionality in stop and search with suspicion was running at eight times; it is now seven times.
A Joint Committee on Human Rights report of November 2020 stated that 25% of black voters in Great Britain were not registered to vote compared with an average of 17% across the population. Even more black people are likely to be excluded as a result of the new requirement to produce photographic identification at polling stations before you can vote. Black people are therefore likely to have less confidence in the electoral process, making protest more important to them as a way of making their voices heard. The same report cites the fact that 85% of black people are not confident that they would be treated the same as a white person by the police.
Put the two things together, and add the seven to 14 times disproportionality in stop and search, and you create a situation where the powers in Clauses 10 and 11 are likely to have a significant chilling effect on black and other visible minority people’s participation in protest. Not only is that reprehensible in itself but it is likely to increase the chance of serious violence as significant numbers conclude that violent protest is the only alternative means that they have of getting their views taken into account.
The only difference between Clauses 10 and 11 is the degree to which black and other visible-minority people will be deterred from participating in legitimate, peaceful protest. As the JCHR highlights, stop and search without suspicion has been available in the past only to combat terrorism—but was subsequently repealed because of police misuse—and serious violence. The JCHR said:
“It is surprising and concerning that the bill would introduce similar powers to deal not with serious offences punishable with very lengthy prison terms, but with the possibility of non-violent offences relating to protest, most of which cover conduct that is not even currently criminal.”
Even the Police Federation has concerns. Commenting on serious violence prevention orders, another expansion of stop and search without suspicion, a representative said:
“I imagine we would be deeply concerned about moving away from a form of stop and search that is not rooted in ‘Reasonable Grounds’. We could easily make a case that this leaves officers vulnerable to complaint, ‘post stop’, in an area which is already supercharged as an issue in many communities. Reasonable Grounds has a firm legal basis, is tried and tested, and therefore affords reassurance to our colleagues engaged in these stops.”
A previous Home Secretary asked HMICFRS to do a report on policing protests, page 109 of which says:
“Arguing against the proposal for a new stop and search power … another officer stated that ‘a little inconvenience is more acceptable than a police state’. We agree with this sentiment.”
Neither of these clauses should be part of the Bill. Depending on the support from other parts of the House, I may wish to test the opinion of the House on Amendment 46.
Baroness Jones of Moulsecoomb (GP)
My Lords, this House is wonderful. Your Lordships have heard from a former police officer exactly what the police think of this and how they will handle, or possibly mishandle, it; we are shortly to hear from a lawyer who has experienced court cases about this sort of thing; and here your Lordships have the inveterate protester who has been arrested at a protest—a peaceful one—and it was extremely unpleasant.
Basically, Clauses 10 and 11 could fundamentally change the relationship between police and protesters. At the moment, you can take my word for it, that relationship is usually quite good until the police are told to move in and arrest us or whatever. Most of the time it consists of natural talking, with us explaining what we are there for and them saying what they had for breakfast and that sort of thing. It is not as disastrous a relationship at the moment as it will be if these clauses pass.
Clauses 10 and 11 will definitely be able to change that relationship for the worse. The police will be able to physically stop and search protesters with or without suspicion. I do not know how awful that sounds to noble Lords, but we feel that we are in a democracy. We are not in Iran or Russia; we are meant to be in a democracy where the police are not allowed to do things like that.
The Greens will vote against these as unjust laws, and I very much hope that the majority of noble Lords will follow suit. We all have a very vaunted idea of what Britain, our freedoms and democracy are all about. Here we are seeing a retraction of that and a diminution of our freedoms. I do not see how anyone can vote for that, even the Government Front Bench over there. I very much hope that this measure comes to a vote, and I will definitely vote against.
Lord Paddick (LD)
My Lords, I thank all noble Lords who have spoken from all sides of the House and of the debate, from former police officers to the noble Baroness, Lady Jones, who was arrested at a protest.
The noble Lord, Lord Wolfson of Tredegar, made a great play on John Lewis. I emphasised in my speech that I was talking about everyday household objects, some of which may be purchased from John Lewis. The red herring was the noble Lord’s emphasis on John Lewis, rather than my emphasis on everyday objects and so forth.
The noble Lord, Lord Deben, asked what stop and search without suspicion was and what an officer would do. I accept that an inspector or above has to authorise officers to go ahead and stop and search without suspicion. The power means that police officers who are so authorised can stop and search whoever they like and do not have to justify what they are doing.
I should not waste noble Lords’ time dividing the House on an amendment that Labour will not support, and a vote that we therefore cannot win, however passionately I and other noble Lords feel about Clause 10. Therefore, I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar (Con)
My Lords, I may be labouring under a misapprehension, but surely there is a critical difference between this country and China. As I understand it, the proposed new clause would prevent a constable exercising a police power for the principal purpose of preventing someone observing or reporting on a protest. If we do not pass this amendment, that act—that is, arresting somebody for the principal purpose of preventing reporting on a protest—would still be unlawful: it would be an abuse of police powers to do that. The difference is that here we are being asked to pass legislation to make illegal that which is already unlawful. That is the concern I have with it. When I was a Minister, I was frequently told, “You should add this clause and that clause to send a signal”, and I kept saying, “The statute book is not a form of semaphore.” My problem with this clause is nothing to do with the content of it; I just have a problem with passing legislation to make unlawful that which is already unlawful.
Lord Paddick (LD)
My Lords, there cannot be any legitimate objection to journalists, legal observers, academics or even members of the public who want to observe and report on protests or on the police’s use of their powers related to protests. We have seen in incident after incident how video footage of police action, whether from officers’ own body-worn video or that taken by concerned members of the public, has provided important evidence in holding both protesters and police officers to account for their actions. The need for this amendment is amply evidenced by the arrest and detention of the accredited and documented broadcast journalist, Charlotte Lynch, while reporting on a Just Stop Oil protest. It is all very well for noble Lords to say, “Well, if somebody was arrested in the way that Charlotte Lynch was arrested, it was unlawful”, but the fact is that Charlotte Lynch was taken out of the game for five hours and detained in a police cell, where she could not observe what was going on. We need upfront protection for journalists and observers, and not to rely on a defence that they can put after they have been handcuffed, arrested, and put in a police cell even though they are in possession of a police-accredited press pass. We support this amendment and will vote for it if the noble Baroness divides the House.
Lord Berkeley of Knighton (CB)
My Lords, there is something to be said for semaphore in the wider sense. That is, one of the problems that I think many noble Lords have had with the Bill is that it is sending a signal, as the noble Lord, Lord Patten, just suggested, against freedom of expression. Certainly, we need clarity in making law—I have changed my mind on two amendments today thanks to the interventions of the noble and learned Lord, Lord Hope. However, I will not change my mind on this one, because I think back to those women who were dragged around at the protest after Sarah Everard’s murder and who themselves filmed what was going on, to the disgust of the whole nation. Sometimes semaphore is very important. We are looking not just at the fine lines of the law today but at the message we are sending to the population: that we are a free society and that we want a free press. I will support the amendment.
Viscount Hailsham (Con)
My Lords, I will make three brief comments about these amendments. First, regarding the trigger points, I entirely agree with Amendments 56 and 60 from the noble Lord, Lord Anderson, which the noble and learned Lord spoke to. The reference to an injunction is particularly worrying because, for the reason the noble and learned Lord mentioned, members of the public would not be aware of it. In any event, what are or could be contemplated in the third, fourth and fifth trigger events are acts that are very remote from the mischief the Bill contemplates. Therefore, I very much hope that the amendments are put to the House, and I shall support them if they are.
Secondly, your Lordships need to keep in mind that the test of necessity, which is dealt with in Clause 20(1)(d), is quite a high bar. I deal with it in interim orders made by the regulatory panels, which are fully aware that “necessity” is different from “desirability” and requires quite a high threshold.
My last point is a query to the Minister, if he would be so kind. It is a very long time since I dealt with complaints before magistrates’ courts, so I apologise for not really being familiar with the procedure. In any view, these SDPOs are very serious. Does the complaint, which presumably has to be made both by the court and to the person named, specify the concerns felt by the senior police officer? Does it specify the relief being sought in the order itself? I assume that these are inter partes hearings, not ex parte. Does the person against whom the order is sought have the opportunity to make representations, give evidence, be represented and object to the relief being sought? This is ignorance on my part, but I fancy that quite a lot of your Lordships would like to know the procedure being invoked.
Lord Paddick (LD)
My Lords, as we have heard, most of the amendments in this group seek to restrict the proposed provisions in serious disruption prevention orders so that they are more in line with terrorism prevention and investigation measures. TPIMs are primarily designed for instances where the case against someone who is believed to be a serious threat to society—a suspected terrorist—is based on intelligence rather than evidence that could be given in open court. They are supposed to be a temporary measure while attempts are made to secure the evidence necessary to convict the person of a criminal offence. SDPOs as originally drafted were potentially limitless banning orders preventing people from involvement in protests, even if they had never physically been present at a protest before and, in the case of Clause 20, had never been convicted of a criminal offence.
As the noble and learned Lord, Lord Brown of Eaton- under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights if a court was satisfied on the balance of probabilities—depriving people of their human rights on the weakest of evidential tests. Even in the case of Clause 19, on serious disruption prevention orders on conviction, where the court is convinced beyond reasonable doubt that a criminal offence has been committed, the court needs to be satisfied only on the balance of probabilities that the offence was protest related. It then has to be satisfied—again, only on the balance of probabilities—of a second involvement in a protest. For example, if someone had contributed to crowdfunding to pay for coaches to take protesters to London and, in the end, there were not enough protesters and the coaches never went, but serious disruption was likely to have resulted if they had and the coaches had been full of protesters, on the balance of probabilities the court could impose an SDPO.
That many of the amendments in this group attempt to weaken SDPOs, making them merely outrageous rather than totally unacceptable, is no reason to support them—perhaps with the exception of Amendment 56, which seeks to limit those who would be made subject to an SDPO and which, frankly, goes nowhere near far enough. The House should not make legislation less bad when it has an opportunity to oppose it in its entirety. The noble Lord, Lord Anderson, expressed his support for that by signing Amendment 59.
As His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported in its review of public order policing, the police’s view was that courts would be reluctant to deprive individuals of their right to protest by granting protest banning orders in the first place, and even more reluctant to impose any significant penalty should someone breach an order by peacefully participating in a future protest. If they caused serious disruption, they would be convicted of a substantive public order offence. As a result, SDPOs were seen as unworkable and having no real deterrent effect.
We support the amendments in the name of the noble Lord, Lord Ponsonby of Shulbrede—to leave out Clauses 19 and 20—which have been signed by me, the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Chakrabarti. We cannot support depriving anyone of their human rights on an evidential test of the balance of probabilities, especially when the police believe that the courts would be unlikely to impose SDPOs or a deterrent penalty for any breach. We will support the noble Lord when, we hope, he divides the House on Amendments 59 and 63.