Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I declare a historical if not a current interest as a Home Office lawyer from January 1996 until the autumn of 2001. I was occasionally and habitually a happy and unhappy inhabitant of the Box.

I agree with—I think—every speech so far in this significant debate. I would go further than some in saying that I was always against this blurring of civil and criminal process from the beginning when, I am sorry to say, Labour did it. I was against ASBOs, CRASBOs, control orders, TPIMs, football banning orders and all the rest, because they were always about lessening criminal due process. That is always the intention when you blur civil and criminal process by way of these quasi-injunctive orders. Whether it is minor nuisance or suspicion of being associated with terrorists, whatever the gravity of the threat, you will catch behaviour without proper criminal due process and then prosecute people for the breach.

Although we do not always agree, I must commend the noble Lord, Lord Anderson of Ipswich, in particular on a devastating critique of this use of copy and paste in my former department. Computers are wonderful things—until they are not. I will not labour the point, save to quote the right honourable Member for Haltemprice and Howden, who has done his best on this Bill in the other place along with Sir Charles Walker, from the Times this morning:

“Serious disruption prevention orders, or SDPOs”—


protest banning orders—

“can be given to anyone who has on two previous occasions ‘carried out activities related to a protest’ that ‘resulted in or were likely to result in serious disruption’”—

which is not defined—

“or even ‘caused or contributed to the carrying out by any other person’ of such activities. This is drafted so broadly so as to potentially include sharing a post on social media or handing out a leaflet encouraging people to go to a protest—even if you did not go on to attend that protest. Those issued with an SDPO can face harsh restrictions on their liberty, including … GPS tracking and being banned from going on demonstrations, associating with certain people”,

et cetera—and the orders are renewable indefinitely, as we have heard.

I am sorry if I have made noble friends feel uncomfortable. Do not think about these measures as they would be employed today. Think about how they could be used on the statute book by another Government, not of your friends and not of your choosing, in 20 years’ time. That is why, in a terrible Bill, Clauses 19 and 20 should not stand part.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by echoing what the noble Lord, Lord Paddick, said: all the arguments in all the amendments could become redundant if we support not putting Clauses 19 and 20 in the Bill. The strength of feeling demonstrated through this short debate leads me to believe that that may well be what we vote on when we come to Report.

I forget whether it was my noble friend Lady Chakrabarti or the noble Lord, Lord Skidelsky, who referred to this as copy-and-paste legislation. I think it was the noble Lord, Lord Skidelsky, who gave the analogy of chicken coops being moved around to replicate these civil injunctions. But perhaps the most powerful speech we have heard was from the noble Lord, Lord Anderson, who gave six examples of SDPOs being tougher than TPIMs, which really caused me to sit back and reflect on the meat of what we are dealing with here today.

My noble friend Lady Chakrabarti said she has always been against what she called quasi-injunctive orders—civil orders—going all the way back to ASBOs. This caused me to reflect, as a magistrate, on which of those orders I deal with when I sit in courts. I deal with some of them: football banning orders, knife crime prevention orders and domestic violence protection orders—I think most noble Lords who have taken part in this debate think DVPOs are an appropriate use of civil orders. But, of course, the list goes on. That is really the point my noble friend makes: there are a growing number of these civil orders that, if breached, result in criminal convictions.

To repeat what I said, here we are meeting a very extreme situation in which people planning to get involved in protest or to help people do so can potentially be criminalised for that activity. The nature of the potential offence being committed is different.

The noble Lord, Lord Paddick, went through in detail, for which I thank him, the nature of the injunctions in Clauses 19 and 20, so I will not go through all that again, but I will make one point that he did not make. We are concerned that there does not seem to be any requirement for the person involved to have knowledge that the protest activities were going to cause serious disruption. That lack of a requirement of knowledge is a source of concern for us.

In the debate on the previous group, my noble friend Lord Rooker and the noble Baroness, Lady Meacher, spoke about the comments of the Delegated Powers and Regulatory Reform Committee, and my noble friend quoted from them. The noble Lord, Lord Beith, spoke about the Secretary of State issuing guidance to chief police officers and how that could go down a road whose potential political implications, in a sense, I prefer not to think about.

I will quote briefly from other committees which have reflected on this legislation. First, the Joint Committee on Human Rights has said:

“Serious Disruption Prevention Orders represent a disproportionate response to the disruption caused by protest. They are likely to result in interference with legitimate peaceful exercise of Article 10 and 11 rights. The police already have powers to impose conditions on protests and to arrest those who breach them. Other provisions of this Bill, if passed, will provide the police with even greater powers to restrict or prevent disruptive protest.”


Another committee, the Constitution Committee, said:

“The purposes for which a Serious Disruption Prevention Order can be issued are broad. They can be issued not only to prevent a person committing a protest-related offence but also to prevent a person from carrying out activities related to a protest. Such a protest need cause, or be likely to cause, serious disruption to only two people. This gives the orders a pre-emptive or preventative role. Furthermore, ‘protest-related’ offence is not adequately defined in this part of the Bill nor … is ‘serious disruption’. This undermines legal certainty. We recommend that the meaning of ‘protest-related offence’ is clarified more precisely.”


The Minister has a big job on his hands to try to convince any Member of this Committee that he is on the right track. The amendments in my name—the clause stand part amendments—are the quickest way to put this part of the Bill out of its misery.

[Lord Sharpe of Epsom (Con)]

My Lords, there are notices to oppose within this group, so it may help if I start by addressing serious disruption prevention orders as a whole, before turning to amendments to the clause. SDPOs will target protestors who are determined to repeatedly inflict disruption on the public or those who simply wish to go about their daily lives. Our experience at recent protests has shown that many police are encountering the same individuals, who are determined repeatedly to inflict disruption on the public.

It cannot be right that a small group of individuals repeatedly trample on the rights of the public without let or hindrance. Yes, many are arrested, but after paying small fines or serving short or suspended sentences, they are free to reoffend. This measure would, following the consideration and permission of the courts, allow for proportionate and necessary restriction or requirements to be placed on individuals to prevent them causing harm.

Additionally, in some cases, individuals choose to not get their hands dirty. They go around the country speaking to young people who are determined to make the world a better place—not to encourage them to study and seek out a career to better the planet, or even to enter politics to enact change; instead, they encourage them to commit criminal offences, alienate the public from their cause and jeopardise their opportunity for a career that will actually make a difference. Why should these individuals, who contribute to serious disruption, be permitted to behave as they do without consequence?

This is why SDPOs are needed, as drafted. They will provide an alternative, non-custodial route to prevent those who have a track record of trampling on the rights of others from doing so. The threshold for the imposition of these orders is appropriately high and I trust our courts to impose them only where necessary.

The noble Lord, Lord Paddick, asked about the HMICFRS conclusion. The report from the policing inspectorate considered only orders which would always ban an individual from protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption. Depending on the individual circumstances, this may mean that the court will not consider it necessary to stop individuals attending protests.

Amendments 128, 129 and 130 would raise the evidential threshold for SDPOs to the criminal standard. I am sure that many who support these amendments also support the civil courts approving injunctions against protesters. These are made on the civil burden of proof against large numbers of people, including “persons unknown”. SDPOs are made against single known individuals.

A number of noble Lords asked why SDPOs can be granted using a civil standard of proof, including the noble Lords, Lord Paddick and Lord Skidelsky, the noble and learned Lord, Lord Brown, and the right reverend Prelate the Bishop of Chelmsford, among others. The use of the civil standard of proof is not a novel concept for preventive orders. Football banning orders, for example, use the same standard of proof to help prevent violence or disorder at or in connection with any regulated football matches. By using a civil standard of proof, courts will be allowed, following due consideration, to place prohibitions or requirements they consider necessary to prevent an individual causing disruption.

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Moved by

[Lord Ponsonby of Shulbrede]

143: After Clause 34, insert the following new Clause—
“Review of sentencing for protest-related offences(1) Within three months of the day on which this Act is passed, the Secretary of State must publish a review into sentencing for public order and protest-related offences.(2) “Public order and protest-related offences” include, but are not restricted to, offences for protest-related activity under—(a) the Criminal Damage Act 1971;(b) the Highways Act 1980;(c) the Public Order Act 1986; (d) the Criminal Justice and Public Order Act 1994;(e) the Police, Crime, Sentencing and Courts Act 2022; andoffences charged following breach of an injunction against protest-related activity, granted under the Protection from Harassment Act 1997.(3) The review must include—(a) the average sentence given where a person commits a public order or protest-related offence, and(b) the proportion of cases in which the maximum available sentence is given for a public order or protest-related offence.(4) The Secretary of State must lay a copy of the review before each House of Parliament.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this amendment is in the name of my noble friend Lord Coaker and the noble Lord, Lord Paddick. It would require the Secretary of State to publish a review into sentencing for protest-related offences within three months of the Act passing. The review must include the average sentence given for any protest-related or public order offence, and the proportion of cases in which the maximum available sentence is given. This will be a quick introduction to the amendment and a series of questions to the Minister.

First, what work has been done to look at current sentencing practice for public order offences before this whole tranche of possible new sentences is introduced? Hundreds, if not thousands, of Just Stop Oil and other protesters have now been arrested and given sentences. Do the Government have any view on the longer-term outcomes of those arrests and sentences? What is the average sentence or fine given for the activity which is already considered unlawful? How often has an existing available maximum sentence been used? What assessment have Ministers made of the impact of the Bill on the number of cases which need court time and how will this be managed, given the extensive backlogs in the existing criminal justice and court system?

The amendment covers a variety of legislation in which relevant powers can already be found, including the Criminal Damage Act 1971, the Highways Act 1980, the Public Order Act 1986, the Criminal Justice and Public Order Act 1994, the Police, Crime, Sentencing and Courts Act 2022, and offences charged following breach of an injunction against protest-related activity, granted under the Protection from Harassment Act 1997. The point is that we have layers and layers of new and old laws on our statute book, and we are yet to be convinced that these additional powers are necessary. It is for the Government to show how much the existing powers are being used and whether there is a real case for adding new powers through this Bill. I beg to move.

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[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.

[Lord Ponsonby of Shulbrede (Lab)]

Well, the Minister did not make any attempt to answer any of the questions I asked. I do not know whether he would undertake to guide me to some government documents that may answer those questions. I think that may be useful, to see whether we might come back to this matter at a later stage.

[Lord Davies of Gower (Con)]

My Lords, in respect of the specific questions, which are more or less covered by the Sentencing Council for England and Wales, I think we will commit to write to the noble Lord, Lord Ponsonby.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw the amendment.

Amendment 143 withdrawn.