Public Order Bill

Lord Rooker Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

I hope the Minister realises that that is a helpful series of questions, which seeks to build on the inspectorate’s report on what should be happening to improve the policing of protest in our country. I look forward to the Minister’s response.

[Lord Rooker (Lab)]

My Lords, for the avoidance of doubt, I say to the Minister that I will not be deviating into policy regarding the Bill. I am going to stick to the 17th and 19th reports of the Delegated Powers and Regulatory Reform Committee. I have served on this fascinating committee since January and I want to test how deeply the Government consider the reports from the committee.

Memory tells me that when I came into the House—it was around 20 years ago; I was Home Office Minister in 2001—being new to the House and the department, I was advised that, in the main though not exclusively, the Government tended to accept the advice of the Delegated Powers Committee. I am not complaining; on this, it is the Government’s choice, but the way they have gone about it is what I want to test.

It is only Clause 30. In the history of this Bill, earlier this year a similar power was in a previous Bill. The 13th Report of Session 2021–22 raised the same points about the power in Clause 30. The report drew this to the attention of the House, repeating the concerns expressed in an earlier report.

Clause 30 is on the power to issue guidance. It gives the courts a very broad discretion to impose on a person—but I will not go over all the detail of that. In its 17th report, at paragraph 10, the committee said:

“As we stated in our 13th Report … we consider that the SDPO”—


the serious disruption prevention order regime—

“places considerable power in the hands of the police—first, any decision of a court as to whether to make an SDPO—and as to the restrictions to be imposed under one—is likely to be heavily influenced by what the police say about whether the conditions for making one are met … second, SDPOs can be applied in a broad range of circumstances: they are not limited to the prevention of criminal conduct but can be imposed for such vague, and rather open-ended, purposes as preventing people from ‘contributing to’ the carrying out by others of activities that ‘are likely to result in’ serious disruption to as few as two people”.

The report went on to say:

“Clause 30 allows the Secretary of State to issue guidance to chief officers of police and chief constables in relation to SDPOs, including, in particular, on—the exercise of their functions in relation to SDPOs; identifying persons in respect of whom it may be appropriate for applications for SDPOs to be made; and providing assistance to prosecutors in connection with applications for SDPOs.”


That is the Secretary of State issuing guidance on what appear to be quite detailed operational functions of the police.

Paragraph 12 of the report said:

“A chief officer of police or a chief constable ‘must have regard to’ such guidance.”


The guidance is not subject to any consultation requirement at all. The Government stated, in a memorandum they supplied with the Bill, that the guidance should be subject to parliamentary procedures only in exceptional circumstances. In other words, Parliament is not really bothered about this. It said the guidance in question merits this,

“given the extensive parliamentary and public debate about the appropriate balance between the rights of protesters to exercise their freedom of speech and assembly”.

The report said this was unchanged from the view expressed by the Government in the memorandum accompanying the power to which the committee drew the attention of the House in its 13th report. The whole point about this is whether the affirmative procedure might or might not be appropriate—which the committee drew to the attention of the House—so that Parliament at least has a role.

Paragraph 17 of the report said that

“we considered that guidance issued by the Secretary of State on the exercise of police functions in relation to serious violence reduction orders should be subject to the affirmative procedure because the exercise of those functions could prove to be highly controversial. We indicated that such scrutiny would benefit the police by whom the functions would be exercised”.

In the second part of paragraph 17, the committee said that

“we considered that proposed revisions to an existing code of practice on the exercise of statutory stop and search powers were sufficiently significant to merit affirmative procedure scrutiny. We noted that the Act governing that code gives Ministers a choice as to whether to make revisions by affirmative procedure regulations”.

At the end of the day, the committee concluded that Clause 30 contains an extreme example of a power to issue guidance on the exercise of statutory functions. It allows the Secretary of State to influence the exercise, by the police, of functions that could prove highly controversial, including identifying persons against whom the courts may make serious disruption prevention orders. The committee then said:

“Accordingly, we consider that guidance under clause 30 is sufficiently significant to merit affirmative procedure scrutiny.”


The point is that, when the Government published the Bill and the delegated powers memorandum, they gave examples of previous cases where such scrutiny was not required. Commenting on the 16 examples, paragraph 20 of the 17th report says

“of the ‘examples’ given … 10 are not comparable as they do not require anyone to ‘have regard to’ the guidance; … a further 2 concern guidance that has a much narrower focus (as to ‘the effect’ of statutory provisions); … another relates to functions (exercisable by a constable) that appear to be much more limited; … 4 concern guidance to which a requirement to consult applies; and … the most recent one we reported to the House. In addition, the ‘examples’ relate to … the prevention of harm that is much more specific”.

So the examples set out in the delegated powers memorandum, published by the Government and given as part of their reason for it, did not apply; the Delegated Powers Committee made it clear that they were not relevant. To be honest, I never expected to be speaking on or tabling amendments to this Bill, because it drifts along, as it were, but the great thing about the delay is that I have the opportunity. Last week, we had the Government’s response to the 17th report, which we published in the 19th report on 5 December—a few days ago.

I do not have the letter with me, and I do not know which Minister signed the response to the Delegated Powers Committee, but I can remember my 52 weeks’ experience at the Home Office like it was yesterday. I had a private office of seven, and my day job was immigration, nationality and asylum. My other job was coming here and doing police, prisons and everything else—of course, we had the 9/11 legislation. I have to say that I cannot conceive of anybody in my then private office suggesting that I ever sign a letter such as that which has become the Government’s response to the 17th report.

The reason is this: in response to our conclusion, the Government said:

“The Government does not agree that clause 30 contains ‘an extreme example of a power to issue guidance’.”


They went on to talk about provisions in other Bills, including domestic abuse protection notices and domestic abuse protection orders, and said:

“As the table below shows, the Committee took a similar position in relation to previous Bills providing for very similar statutory guidance. Given this, we remain of the view that the negative procedure is appropriate in this case.”


My initial reaction to that was, “Blimey, they’ve come up with some new examples of where we got it wrong”. But they did not, because the table of examples supplied by the Government—table 1 in the 19th report of the Delegated Powers Committee—is exactly a repeat of what they said in the delegated powers memorandum. Every single example is repeated, one after the other, which the 17th report said was not relevant.

My question is: did the Minister who signed the letter on the Government’s response realise that the examples they were giving to the committee in justification were the exact same examples—no new ones—that had been given in the delegated powers memorandum, which the 17th report listed in the main as not relevant? How can this happen? Did anybody read the 17th report?

No committee is more important than another, but this House has the Delegated Powers Committee, and the other place does not. It is a very important issue as Ministers accrue powers. In this case, they want the power to give guidance to chief constables on controversial matters without any parliamentary scrutiny or consultation whatever. Therefore, it is just one clause in the Bill that the Delegated Powers Committee drew attention to.