Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, the extent to which there are gaps in our current legislation that require filling by this legislation is a substantial question. I, for one, will listen very carefully to what the Minister has to say about this, because it seems to me that it is incumbent on the Government to point out what those gaps and loopholes are, and where those gaps and loopholes are being exploited. If the reality is that we have sufficient legislation in place but it is simply not being rigorously applied, that is no argument at all for new legislation: it is an argument for the current legislation to be properly applied. I am absolutely confident that we have legislation to deal with people who climb up on to motorway gantries and cause 50,000 or 60,000 cars to be blocked from travelling around the M25. With respect, I defy the Government to argue with any persuasive force that we do not have legislation to deal with that.

So far as the point made by the noble Lord on the recent Supreme Court judgment in Ziegler is concerned, that reasoning would of course apply to every clause in this legislation. All that the court was saying was that when individuals are arrested for an offence in circumstances where they are exercising their Article 10 free expression rights, a proportionate examination has to be undertaken by the court as to whether the inconvenience, for example, that they are causing is so minimal that it is overwhelmed by their Article 10 rights to protest and that they should therefore be allowed to do so. Of course that is right and it would apply to every clause in the Bill. If the disruption is significant, it will almost always, in my judgment, overcome any Article 10 defence. But I ask, particularly in respect of the offence of locking on: where are the gaps that the Government say exist that need filling by this clause and subsequent clauses in the Bill?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall open by thanking the noble Lord, Lord Paddick, for setting the scene and the background to this group of amendments. I agree with the way that he set out the history of this group of amendments. I also thank my noble friend Lady Chakrabarti for the way she set out her amendments and commented on the other amendments. I agree with her assessment that the Bill, as drafted, is vague and broad—and that it is vague and broad in a dangerous way. I agree with those central points.

Throughout the Bill, a number of clauses state that it is a defence for a person charged with an offence under the clause to

“prove that they had a reasonable excuse”

for their actions. As we have heard, the JCHR flagged this as a reverse of the burden of proof, so that rather than the prosecution having to prove that a person’s actions were done without a reasonable excuse and so were unlawful, it is for the defendant to prove, after they have been charged, that they had a reasonable excuse for their actions. This is in contrast to an offence such as obstruction of the highway, which we have just heard about, where the prosecution must prove that the defendant did not have lawful authority or excuse for their actions. For the new locking-on offence, the burden of proof would be on the defendant to show that he or she had a reasonable excuse.

Such a reverse burden of proof may be inconsistent not only with Articles 10 and 11 but with the presumption of innocence—a central principle of criminal justice and an aspect of Article 6 of the ECHR and the right to a fair trial. This is because requiring the defendant to prove something, even on the balance of probabilities, may result in a conviction despite there being an element of doubt, and it is hard to see why a reverse burden is necessary or appropriate in this case. The noble Lord, Lord Anderson, gave the example of a bladed article and the reverse burden of proof in that context. It is of course a defence I am very familiar with as a sitting magistrate in London. It is of course right that the court will take its own view on whether the reverse burden of proof is reasonable in these circumstances.

I agree with the point made by my noble friend Lady Chakrabarti that the better situation is that a police officer, when considering whether to charge, at that point takes into account whether there is a reasonable excuse, rather than it being subsequently resolved in a court case—although I also acknowledge the legal point made by the noble Lords, Lord Carlile and Lord Anderson, that it is not always simple to distinguish between the two. Nevertheless, the point is that the police officer should take into account a potential reasonable excuse defence before deciding whether to charge.

To summarise this debate, two noble Lords made points that I thought were particularly resonant. The noble Lord, Lord Carlile, asked whether this was speciality legislation for ever more exotic offences that can be extremely annoying to the general public. As many noble Lords have said in this debate, there is existing legislation to deal with those offences, and there is scepticism that the police are feeling able to use the legislation that is already within their power. The noble Lord, Lord McDonald, challenged the Minister to give examples of the gaps in the existing laws: in fact, he defied the Minister to go ahead and give those examples.

I also want to comment briefly on my noble friend Lady Blower’s speech on Amendment 60, which of course I agreed with. I also agreed with the point made by the noble Lord, Lord Balfe, that in the case of industrial action it should not be a reasonable excuse. The offences should never be charged in the first place. It is the same point, in a sense, that the potential use of a reasonable excuse should be taken into account right at the beginning of the process rather than once you get to a court case.

Although the amendments focus on particular detailed provisions in this Bill, I think a challenge has been laid down to the Minister to give examples and to say why this is necessary when we have a plethora of laws which are being used. The demonstrators on the M25 have moved on partly because of the sentences that have been given to them, so what is the necessity of pursuing this legislation?

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

My Lords, I thank all noble Lords who have spoken in this debate, to which I have listened carefully. Before I turn to the specific amendments in the group, I shall start by setting out the case for Clauses 1 to 8 and why I disagree with the general thrust of many of the amendments that we are going to discuss today that seek to make these offences less effective.

Before I do that, I shall go on to a couple of general points. The noble Lord, Lord Paddick, said that this House had already rejected these measures, but one of the main criticisms that noble Lords made during the passage of the Police, Crime, Sentencing and Courts Bill was that the measures had not been debated in the House of Commons. The elected House has now had an opportunity to scrutinise this legislation and vote on the Government’s proposals and has supported its move into the House of Lords.

A number of noble Lords mentioned compatibility with the ECHR. I reaffirm that it is the Government’s view that the measures in this Bill are compatible with the ECHR, namely the rights to freedom of expression, assembly and association. However, these rights are not absolute. They do not extend to wreaking havoc on the lives of others. Of course, however, as with all existing public order powers, the police will absolutely need to act compatibly with the human rights of protesters when using those powers.

--- Later in debate ---

[Baroness Blower (Lab)]

My Lords, my noble friend Lady Chakrabarti is unable to be in her place for this group, which affords me the opportunity to speak to Amendment 23, which would include in the Bill a definition of “serious disruption”—a single definition, in contradistinction to the ideas proposed by the noble and learned Lord, Lord Hope.

Much turns on this phrase; it appears a grand total of 132 times, acting as a core component to several new and extremely broad criminal offences. As things stand, the consequence of “causing or contributing to” serious disruption of varying kinds could result in a prison sentence, unlimited fines or a variety of conditions imposed through what many are calling protest banning orders, including GPS ankle tagging, bans on internet usage, prohibitions on associating with certain people and, again, imprisonment—yet, as we all now know, nowhere in the Bill is “serious disruption” defined.

The former Minister, Kit Malthouse MP, claimed at Second Reading in the other place that

“the phrase ‘serious disruption to the community’ has been in use in the law since 1986 and is therefore a well-defined term in the courts, which of course is where the test would be applied under the legislation.”—[Official Report, Commons, 23/5/22; col. 106.]

I am afraid that I do not think that explanation suffices. The test to which the former Minister refers is that set out in the Public Order Act 1986, which is now almost four decades old. It relates to the imposition of conditions on public procession, assemblies and one-person protests. This Bill is very much wider, and that framework does not necessarily neatly map on to what is before the House today.

I add that it is surprising that the Government should be content to allow legal uncertainty and let the courts, through lengthy and expensive litigation, rather than through Parliament, set the parameters of what actions they wish to criminalise. The lack of a definition of serious disruption in the Bill is an obvious and, in my view, critical deficiency and one which Members on all sides of this House and those in the other place have identified on several occasions.

The Joint Committee on Human Rights remarked in its report:

“It is unclear who or what would need to be seriously disrupted, what level of disruption is needed before it becomes serious and how these questions are meant to be determined by protesters and police officers on the ground—or even the courts.”


At Second Reading, the noble Lord, Lord Anderson, made apt reference to both the Joint Committee report and the evidence to the other place from West Midlands Police, who called for

“as much precision … as possible”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 58.]

in defining serious disruption. The noble Lord, Lord Hogan-Howe, who has much experience of police operations in response to protests through his time as Metropolitan Police Commissioner echoed this call for clarity. In another place, Sir Charles Walker condemned the overall thrust of the Bill, no doubt worsened by this vague and all-encompassing term, calling it “unconservative”.

Therefore, it was heartening to hear at Second Reading the Minister recognise the House’s “strength of feeling” on this issue and that

“a clear definition could bring benefits”.—[Official Report, 1/11/22; col. 204.]

This amendment would deliver such benefits, giving legal certainty and precision to what are otherwise vague and, frankly, highly draconian offences. It does so by clarifying that before the Bill’s offences are engaged, significant harm must be caused to persons, property or, per the Public Order Act 1986, the life of the community. It sets the bar at an appropriately high level, stating that “significant harm” must be

“more than mere inconvenience, irritation or annoyance”.

The example of people joining arms to walk down the street has already been given, so I will not repeat that. Under the amendment’s proposed definition, these ordinary everyday behaviours would be rendered safe from undue criminalisation. The definition also requires that significant harm must be

“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence, provided for under this Act.”

We have seen the police exercise existing powers inappropriately and disproportionately—I will not go into the case of Charlotte Lynch yet again, but it is one such.

This amendment is designed to prevent the future misuse of any new offences and powers created. Its benefits are threefold, giving guidance to the police in exercising their powers; safety to the public, who should be free to enjoy their right to protest free from prosecution; and clarity to the courts when they must interpret the law.

The criminal law acts as a powerful and coercive tool by which dividing lines are set between conduct Parliament has deemed acceptable or unacceptable. As the former senior Law Lord and eminent jurist, Lord Bingham, posited in the 2003 case, R v H and the Secretary of State for the Home Department, its purpose is

“to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society”.

Clear definitions are therefore indispensable, for without them, how is the public expected to understand what is proscribed, from what they are being deterred or what Parliament has concluded is sufficiently damaging to the interests of society?

I strongly believe that the Bill should be voted down in its entirety. It represents a dangerous and authoritarian boost to the state’s power to curtail the vital right to protest peacefully. However, this amendment’s definition would go some way to remedying one of the Bill’s many critical flaws. I therefore commend it to the House.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak to the amendments in my name and the name of my noble friend Lord Coaker. This debate has been about the threshold for committing an offence, the meaning of the phrase “serious disruption”, which is not defined in the Bill, and the need for the intent of an offence for an offence to be committed. The key overarching issue is the drafting of good law and not broad, poorly defined offences and powers which the police then have to try to navigate.

I turn first to Amendment 3, as drafted and recommended by the JCHR. It would change that threshold to causing serious disruption to the life of the community. This is supported by the National Police Chiefs’ Council, which in its written evidence stated

“In addition, we believe using the definition of ‘serious disruption to the community’ may be preferable to ‘two or more people, or an organisation’, as the former is more widely understood and will allow more effective application consistent with human rights legislation.”


In the Commons Committee stage, the Minister, Kit Malthouse, referenced disruption to the life of the community as the threshold for the offence of locking on. He said that some behaviour

“would not necessarily cause serious disruption to the life of the community, and would therefore not necessarily constitute an offence under the Bill.”—[Official Report, Commons, Public Order Bill Committee, 14/6/22; col. 93.]

So it seems that the Minister already agrees that there may be a more appropriate threshold.

Moving on to Amendment 17, this is a JCHR recommendation that goes hand-in-hand with Amendment 3 to provide a definition of serious disruption to the life of the community in the Bill. I recognise that the noble Lord, Lord Anderson, has jumped ship and is supporting the noble and learned Lord, Lord Hope. I reserve my judgment; I may do the same at a later stage but, for the moment, I will press ahead with Amendment 17. It is one option, as drafted by the JCHR. It replicates the definition eventually added by the Government to the PCSC Act but, as we have heard, this group contains multiple possibilities for how the necessary level of disruption could be appropriately and clearly defined.

Turning again to the evidence submitted by the National Police Chiefs’ Council, it has requested clarity to allow it to respond operationally, saying:

“Within public order legislation ‘serious disorder, serious damage to property and serious disruption to the life of the community or intimidation of others’ is a key phrase. The elements of serious disorder, serious damage and intimidation are accepted and clear. However, the term ‘serious disruption’ has been subject to much discussion and debate. Within any new legislation we would welcome clarity or guidance about the threshold and interpretation of this to allow operational commanders to best apply their operational responses.”


This amendment is about clarity, as well as passing laws that can be easily understood by both the public and the police.

Amendment 23, spoken to very powerfully by my noble friends Lady Blower and Lord Hain, would provide a definition of serious disruption as actions

“causing significant harm to persons, property or the life of the community.”

It specifies that serious harm must mean

“more than mere inconvenience, irritation or annoyance”

and be action

“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence”

provided here. I support that amendment as well.

Amendment 54 is again a JCHR recommendation. It adds, first, a threshold of causing serious disruption, and secondly, a requirement that there was an intent to cause serious disruption to the offence of obstructing major transport works. The JCHR said that

“there is no requirement that the offending conduct could be capable of causing significant disruption and there is no requirement that these actions be carried out with any particular intention of causing obstruction or disruption. This means that inadvertent actions could result in arrest or even a criminal penalty.”

Across this group of amendments, the question of intent is integral to the debates that we have been having. The question of whether it is intended or reckless is really key to these debates. Can the Minister say something more about what recklessness covers? It is a phrase that is used in many other aspects of law, but how will the police be expected to prove that a person has been acting recklessly or not?