Public Order Bill

Lord Ponsonby of Shulbrede Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

At end insert “and do propose the following additional amendment to the words so restored to the Bill—

33C: Clause 20, page 24, line 31, at end insert—
“(d) P’s conduct was frivolous or vexatious, beyond a genuine expression of their right to protest.””

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I appreciate the significant concessions the Government have made on serious disruption prevention orders. I believe that the clause is in a better place than when it was introduced, in part thanks to the efforts across this House; in particular, those of the noble Lord, Lord Anderson.

My amendment to the Minister’s Motion D seeks to make it explicit in the Bill that a magistrates’ court may issue an SDPO only if it reasonably believes that a person’s conduct has been frivolous or vexatious, to the extent that it has gone beyond a genuine expression of their inalienable right to protest. This criterion is in addition to, not instead of, that which requires that a person must have been convicted of two or more protest- related offences or contempt of court over breaches of an injunction. We believe that this is an important safeguard to the flawed clause, which we accept that the other place has voted to keep in the Bill. This change will ensure that the courts, when assessing whether someone’s behaviour warrants a prevention order of this kind, will have to rule explicitly that they have gone further than what can reasonably be interpreted as genuine protest. We hope this will protect those exercising their democratic freedoms in good faith.

I have spoken to colleagues across the House, and I will not seek to test the opinion of the House on my Motion, but I will listen with interest to other noble Lords’ contributions to this very short debate. I beg to move.

[Lord German (LD)]

My Lords, we on these Benches accept that the amendments have been made in the Commons but are still concerned that they do not go far enough. Taking the matter back to the beginning, the bar set on which people can be convicted or the orders can eventually be issued is based on the balance of probabilities. That matter was the source of a great deal of discussion in this House. A bar has been set which is basically non-evidential, because no evidence has to be proven of what has happened. Any amendments which would raise that bar just above a zero threshold are to be commended.

Having made the orders less draconian and brought them in line with the terrorism prevention and investigation measures, the SPDOs are to be imposed on protesters, taking away their rights to freedom of speech and freedom of expression, on the balance of probabilities. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported, in its review of public order policing, that it doubted that these orders are workable, even with a breach of the order occurring. A person attending a protest peacefully, in breach of an SPDO, is unlikely to be treated by the court in the same manner as a potential terrorist. Courts would look at the effect of an order and measure that against the breach of human rights legislation, and, in the end, the effect of an order breaching a person’s human rights could well override the effect of the order.

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, but only if a court was satisfied, on the balance of probabilities, that depriving people of their human rights on the weakest of evidential tests was sufficient. Therefore, there is an expectation that the courts would use a breach of human rights legislation to override the effect of the SPDO.

In seeking to raise the bar from zero—the bar is sitting on the floor, as no evidence is required—these amendments at least provide an evidential activity. They require an officer to have observed the evidence behind the requirement. The requirement in the amendments before us may not be sufficient, but it certainly lifts the bar, in relation to evidence, off the floor. In fact, we need to help police officers. Police officers may be faced with situations without evidence, such as listening to somebody’s hearsay about a protester. Alternatively, they may have it in their mind that possible action will take place if they assume that a protester, who is standing peacefully and undertaking a peaceful activity, could well jump across the road, lie on the ground and stop the traffic. In those cases, they would not have any evidence that the person was about to conduct themselves in a dangerous manner, so it would be effective to introduce provisions for that. This set of amendments could provide for those matters, but, as I have said, in a very limited way.

As the noble Lord will not press his amendment to a vote, it seems to us that the Government have to consider how the courts will deal with these matters when they are placed before them, when we have human rights legislation guaranteeing freedom of speech, freedom to join together with others and freedom of expression. When all those rights are being harmed, what will the courts say and are the Government sufficiently ambitious that they think that their evidence based on these rules will give the human rights opinion any credence whatever?

[Lord Sharpe of Epsom (Con)]

My Lords, again, I am grateful to both noble Lords for their thoughtful and considered contributions to this debate. As I have already detailed, the Government listened carefully to your Lordships’ concerns regarding the serious disruption prevention order measures. Orders will now be applied only where individuals have been convicted of protest-related offences or breaches of protest-related injunctions on at least two occasions.

The noble Lord, Lord German, argued that serious disruption prevention orders contravene the European Convention on Human Rights. They do not. The right to protest is fundamental and despite sensationalist claims such as that, that will not change. These orders will ensure that individuals who deliberately cause serious disruption more than twice will face justice. Articles 10 and 11 of the ECHR set out that everyone has the right to freedom of expression, assembly and association. However, these rights are not absolute and must be balanced with the rights and freedoms of others.

I hope your Lordships will be satisfied that the Government have responded with a very significant offer that addresses the key concerns expressed throughout the passage of this Bill. The Bill will better balance the rights of protesters with the rights of individuals to go about their daily lives free from disruption and address the ever-evolving protest tactics we have seen employed by a selfish minority of protesters. Blocking motorways and slow walking in roads delays our life-saving emergency services, stops people getting to work and drains police resources. The British people are rightly fed up with it and are demanding action from their lawmakers.

It is time for this Bill to become law. I thank the noble Lord for saying that he will withdraw his Motion.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw the Motion.

Motion D1 (as an amendment to Motion D) withdrawn.