Public Order Bill

Lord Sharpe of Epsom Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the Bill be now read a second time.

Relevant document: 1st Report from the Joint Committee on Human Rights

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

My Lords, the duty of any Government is to protect the safety and interests of the law-abiding majority. This means working to prevent and reduce crime, giving the police the tools they need and ensuring that those who break the law face proportionate consequences of their actions. Fighting crime and keeping communities safe is at the forefront of the Government’s agenda. That is why we have invested £17 billion in policing. It is why we are running a police uplift programme that is well on the way to recruiting 20,000 additional officers, and why we introduced the Police, Crime, Sentencing and Courts Act, which received Royal Assent in April.

While that Act has given the police some of the tools they need better to manage disruptive protests, we were frustrated in our attempts to implement the full suite of measures needed to ensure that the public can go about their daily lives free from serious disruption or harm. The Public Order Bill therefore builds on the Police, Crime, Sentencing and Courts Act to bolster our ability to crack down on disruptive and dangerous tactics of the kind we are seeing deployed all too frequently.

Specifically, the Bill targets acts by a minority of people that cause serious disruption to the hard-working majority, such as those we have seen in recent months that have brought roads to a standstill, blocked emergency services and forced thousands of police officers away from the critical work of protecting their communities. In October alone, the Metropolitan Police made more than 650 arrests in relation to Just Stop Oil activity in London.

When speaking about some of this disruption, Metropolitan Police Commissioner Sir Mark Rowley noted that his force’s response over 11 days of protests had been the equivalent of more than 2,150 officer days. That, I am sure noble Lords agree, is a striking number. It encapsulates why it is so crucial that we act. The police perform a unique role in our society; theirs is undoubtedly a job with many different strands. These include public order, but it cannot be right that so much of their time and resources are taken up by tiresome and disruptive stunts that, far from advancing the protesters’ cause, serve only to infuriate everyone else.

Peaceful protest is a fundamental part of our democracy. We will never agree on everything, which is why vigorous but sensible debate is something we hold so dear. What we cannot and should not accept is a situation in which the lives and livelihoods of decent, law-abiding citizens are impeded by the actions of a selfish and reckless few. The public are fed up with what they see happening day after day, and who can blame them? It is now up to us, as parliamentarians, to act in their best interests and get this crucial Bill on the statute book.

I will now speak to the measures set out in the Bill. First, the Bill introduces a new criminal offence of locking on, accompanied by a further criminal offence of going equipped to lock on, criminalising the tactic of intentionally causing disruption by locking on to busy roads, buildings or scaffolding. Locking on is as risky as it is disruptive, endangering not only the protesters but the police removal teams. I was therefore pleased to hear the leader of the Opposition confirm last week that his party would press ahead with tougher prison sentences for protesters who glue themselves to roads.

Secondly, the Bill introduces a new criminal offence of tunnelling, being present in a tunnel and going equipped to tunnel, making it clear that the protest tactic of building and occupying tunnels in order to disrupt legitimate activity will not be tolerated. HS2 has been targeted on multiple occasions with tunnels that have caused enormous cost to the project, with three removal operations alone costing in excess of £10 million. But it is not just about the costs. Tunnelling is dangerous and reckless, endangering not just those who occupy the tunnels but the responding emergency workers. We cannot wait to act until someone is seriously injured or worse.

Thirdly, the Bill establishes new offences for obstructing major transport works and interfering with key national infrastructure, reflecting the serious impact of such acts and our determination to tackle them. I have already touched on some of the disruption to projects such as HS2. HS2 estimates that sustained protester action has led to additional costs to the project of more than £146 million, an amount projected to rise to £200 million by the end of next year. The offence of obstruction of major transport works therefore ensures that all stages of construction and maintenance will be protected from disruptive action, while the key national infrastructure offence will ensure that our major transport networks, energy and fuel supplies are protected.

The new offences in the Bill are accompanied by an extension of stop and search powers for police to search for and seize articles connected to protest-related offences such as locking on and tunnelling.

[Lord Bellingham (Con)]

I absolutely agree with what the Minister says about the police being given these new powers, which are long overdue, but does he agree that once they have them, it is incredibly important that they use them? There have been examples of the police—not the Met but other forces—adopting a “softly, softly” approach that has encouraged the people who have been locking on and causing disruption.

[Lord Sharpe of Epsom (Con)]

I agree, of course, with my noble friend and I am sure we will come on to that subject in some detail later.

In its report on the policing of protests, His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services concluded that stop and search powers will improve the police’s ability to prevent serious disruption, and we agree. I want to be clear to noble Lords that existing safeguards around the use of stop and search powers, including statutory codes of practice, use of body-worn video to increase accountability and extensive data collection will continue to apply.

Next, the Bill lowers the rank of officer to whom the commissioners of the City of London and Metropolitan police forces can delegate powers to prohibit or set conditions on protests. The rank is being lowered from assistant commissioner to commander. This retains senior level involvement but will allow the most senior officers more time to focus on the challenges that the Metropolitan Police Service faces. It will bring London forces into line with forces across England, Wales and Scotland, whose chief officers can already delegate their powers to the commander-equivalent rank of assistant chief constable. The Bill also extends to the British Transport Police and Ministry of Defence Police existing powers to manage public assemblies in Part II of the Public Order Act 1986.

The Bill contains two other measures, as well as an addition from the other place. First, it establishes a new preventive court order, the serious disruption prevention order, which may be sought either on conviction or following an application by a chief police officer. This is targeted at protesters who are determined to repeatedly inflict disruption. The courts will be able to place conditions on individuals to prevent them engaging in criminal acts of protest and causing serious disruption time and time again. These conditions could include curfews or electronic monitoring but, most importantly, they will be for the courts to decide, not the Government. The threshold for the imposition of these orders is appropriately high and I trust our police and courts to impose them only where necessary.

The second measure provides a Secretary of State with a specific mechanism to apply for an injunction in relation to protest activity that causes, or threatens to cause, serious disruption to key national infrastructure, or to access to essential goods or services. An injunction could also be sought where the protest activity has, or is likely to have, a serious adverse impact on public safety. This does not affect the right of local authorities or private landowners to apply for an injunction but gives a Secretary of State an additional route to act in the public interest where the potential impact is serious and widespread. For example, a Secretary of State could have applied for an injunction on behalf of the various local authorities affected by the recent Just Stop Oil protests that obstructed roads across London.

Finally, on a free vote with cross-party support, an amendment was inserted into the Bill by the other place on Tuesday 18 October. Clause 9 establishes buffer zones around abortion clinics where interference with people accessing or providing abortion services would be an offence. The Government will consider how to implement and deliver this amendment. Noble Lords may have seen a Written Ministerial Statement which I issued last week, in which I indicated that I was presently unable—before introduction—to sign a statement of compatibility with the European Convention on Human Rights. I would particularly welcome your Lordships’ engagement on this clause.

I conclude my opening remarks by saying that there are inevitably differences of opinion, which we will come to consider throughout the course of this debate. But I hope all noble Lords recognise that blocking ambulances, preventing cars carrying sick children from passing, or damaging artworks is completely unacceptable, whatever the cause. That sort of behaviour is not only breathtakingly selfish; it pulls the police away from the people and places that need them the most. This cannot continue. I beg to move.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their contributions throughout this debate. I will endeavour to respond to the points that have been made. For the record, I refute the assertion that this is some sort of battle in the culture war, not least because I am fond of tofu.

The noble Lord, Lord Ponsonby, has just asked for a list of the various Bills. I commit to write on that, and will obviously study Hansard carefully. If I miss the specific questions of any other noble Lord, I will also write on those, but I will endeavour to get to all of them.

A number of noble Lords, including the noble Lords, Lord Coaker, Lord Paddick and Lord Beith, and the noble Baronesses, Lady Chakrabarti, Lady Jones and Lady Blower, have argued that the Bill will have a chilling effect and cause peaceful protesters and bystanders at protests to be criminalised. I respectfully disagree and say that that is not the case. The right to protest peacefully, as my noble friend Lord Sandhurst just noted, is a fundamental part of democracy and that will never change. Protesters can continue to have their voices heard but, as my noble friend Lord Hailsham noted, they will not be allowed to wreak havoc on the lives of others while doing so.

At this point I would like to quote the chief constable for Essex Police, Mr Harrington, who said recently that

“concerns about the climate—however real—cannot justify actions that seriously disrupt and endanger the lives of others”.

I would agree with that, much though I share the concerns of those climate protesters. I think most of the House shares those concerns and the Government, as has been argued on many occasions in this Chamber, are doing a lot of work on the subject.

A number of noble Lords brought up the fact that they believe the Bill to be incompatible with the European Convention on Human Rights. We have been clear that we believe the measures in the Bill are compatible with the ECHR in the main, with the exception of Clause 9; 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.

Several noble Lords, including the right reverend Prelate the Bishop of St Albans, the noble and learned Lord, Lord Hope, the noble Lords, Lord Paddick and Lord McAvoy, and my noble friend Lord Frost have argued that there are existing powers for the police to use and that the Bill is therefore unnecessary. I respectfully say that recent events demonstrate that this is not the case. As helpfully explained by the noble Lord, Lord Hogan-Howe, we have seen instances where the current legal measures are insufficient to prevent serious disruption or to hold disruptive protesters to account, even in cases where disruption has incurred unjustifiable costs of over £10 million.

In response to the point made by the noble Lord, Lord Paddick, about new and evolving tactics by protesters I will this time quote chief constable Chris Noble from the NPCC, who said:

“There have been some very novel … and highly disruptive tactics; that is reflected on the contents page of the Bill”.


He subsequently said that protesters

“are very aware of some of the legal gaps, inadequacies and shortcomings”.—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 5.]

It is worth pointing out that Chris Noble leads at the NPCC on protests.

I turn to the arguments made by noble Lords including the noble Lords, Lord Coaker and Lord Paddick, the noble Baroness, Lady Chakrabarti, and the noble Lords, Lord Beith and Lord Anderson, regarding the stop and search powers contained in the Bill. Stop and search powers will enable the police to proactively tackle highly disruptive protest offences by searching for and seizing items which are made, adapted or intended to be used in connection with protest-related offences, such as glue, chains and locks. Stop and search can also act as a deterrent by preventing offenders carrying items for protest-related offences in the first place, because of the increased chance of being caught.

Concerning the suspicionless powers, we believe these are necessary and reflect the operational reality of policing these protests. In the fast-paced context of a protest, it can be challenging to assert the appropriate level of suspicion needed for a suspicion-led search. In addition, the use of suspicionless stop and search is not inconsistent with the right to engage in peaceful protest, as it would be targeted only at preventing the guerrilla tactics employed by some. HMICFRS has also recognised the need for the police to be granted suspicionless powers to stop and search for articles connected with protest-related offences and, at the Bill’s oral evidence session, HM Inspector Matt Parr reaffirmed his support for these measures.

I also seek to assure noble Lords that existing safeguards for the stop and search powers that are already in place, such as body-worn video and PACE codes of practice, will continue to apply to stop and search powers provided for in the Bill. It is worth pointing out that the Home Office publishes extensive data on the police’s use of stop and search, in the interests of accountability, and will expand this publication to the use of the new powers provided for in this Bill.

I turn to the concerns about the serious disruption prevention orders raised by noble Lords, including the noble Lords, Lord Beith, Lord Coaker, Lord Paddick, Lord Foulkes, Lord Anderson, Lord Hendy and Lord Skidelsky, the noble and learned Lord, Lord Hope, the noble Baroness, Lady Chakrabarti, and my noble friend Lord Frost. Noble Lords have raised particular concerns about the orders made “otherwise than on conviction”. Serious disruption prevention orders are a proportionate way of dealing with those who cause serious disruption and misery to others. I assure the House that they cannot be arbitrarily imposed on innocent individuals.

SDPOs are used only where there is evidence of two or more instances where the individual has been convicted of a protest-related offence, breached a protest-related injunction or committed, caused or contributed to another specified protest-related activity. Importantly, it is for our independent judiciary to decide whether to impose an SDPO. They are to be used only where the courts find clear evidence that an SDPO is absolutely necessary to prevent an individual engaging in prohibited activity. The threshold for the imposition of these orders is therefore appropriately high, and I trust our police and courts to impose them only where necessary.

I turn to the arguments made by the noble Lords, Lord Anderson and Lord Hogan-Howe, regarding the inclusion of a definition of “serious disruption” in the Bill. As noble Lords will be aware, no two protests are ever the same and being too prescriptive risks the ability of the police to respond to fast-evolving protest tactics, while also risking the exploitation of loopholes by those intent on causing as much disruption as possible. The notion that courts and the police interpret terms in English and Welsh law is a principle that we have long relied on to ensure that those who enforce the law are not limited by instances that a definition will not be able to capture. Nevertheless, I recognise that a clear definition could bring benefits and I recognise the strength of feeling expressed on this issue today, so I will reflect further on it. I will write to the noble Lord, Lord Anderson, on his other two questions, if that is acceptable.

Throughout this debate, many views have been expressed by noble Lords regarding the insertion of Clause 9 by the other place. As the Minister there said, Clause 9 is a “blunt instrument”, and the Government believe that it would not be proportionate in its current form. However, I note that the proponent of the clause, the Member for Walthamstow, accepted that it would need to be refined in this place. I therefore stress that this measure will not prevent people expressing their views; it will prevent protesters doing so only near women accessing abortion services.

Furthermore, as noble Lords will be aware, Clause 9 meant that the Government were unable to issue a statement of compatibility with the European Convention on Human Rights upon the Bill’s introduction to this House. However, the Government accept the view of the other place that the existing powers are inadequate to deal with the problem—but we cannot accept Clause 9 in its current form. However, I am happy to say yes on all three of the specific concerns of the noble Baroness, Lady Sugg, about this. I invite interested noble Lords to engage and work with us on this to deliver a workable solution.

As I expected, this has been a lively and thought-provoking debate. This is clearly an issue of significant interest and importance. But the fact is that we have a responsibility to act and update our laws to reflect changing tactics. The Government will not stand by while decent hard-working people have their lives and livelihoods disrupted; we will put the law-abiding majority first. I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[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.

[Lord Foulkes of Cumnock (Lab Co-op)]

It appears from his general introduction that the Minister is going to proceed with this Bill. Surely, in the light of the overwhelming view on both sides of the House that existing legislation is entirely adequate—with one slight hesitation from the noble Lord, Lord Horam—it is a waste of the Minister’s valuable time and this House’s time to proceed with this. Will he now quickly have a rethink and withdraw this Bill?

[Lord Sharpe of Epsom (Con)]

Well, I thank the noble Lord for that, and the answer is, of course, no.

[Lord Foulkes of Cumnock (Lab Co-op)]

That is a very clear answer. I wonder whether the Minister could give, perhaps, a sentence or two of explanation as to why he does not think that it would be a wise move to withdraw this Bill, since all its aspects are already covered by existing legislation.

[Lord Sharpe of Epsom (Con)]

My Lords, it is reasonable to say at this point that we are about to have two days of quite detailed explanation on that, so I am afraid that that is as far as I can go on this.

Returning to the more general points that have been made so far in this debate, particularly as to why the police need these powers, what existing powers they have, and so on and so forth, we will be returning to this in a much later group, and I intend to speak in much more detail on it. From a general point of view, recent protests were clear that they had as their aim the intent of causing as much disruption as possible through the use of what can only be described as guerrilla tactics. These measures give the police the proactive powers necessary to respond to these dangerous and disruptive tactics quickly. We are going to work closely with our partners in the police to ensure that they have the support and resources in place that they need to use these powers.

Again, as my noble friend Lord Horam remarked, too often we have seen protesters acquitted on grounds of technicalities or get penalties that do not reflect the harm that they have caused to others. We want simple, stand-alone offences that ensure that those who cause this level of disruption and misery can be convicted and receive a penalty proportionate to the harm that they have caused. I will return more specifically to the legislation in a later group; I hope that will be acceptable.

To give one example of this type of behaviour, just two Just Stop Oil activists climbed the suspension cables of the Queen Elizabeth II bridge in the early hours of 17 October this year. They caused its closure for more than 36 hours. Once discovered, the Essex Police attended and closed the carriageway so that officers could safely leave their vehicles in an attempt to engage with the activists. It was later advised by National Highways to keep the road closed for the safety of the protesters, road users and responding partners. The closure of the carriageway meant that the entirety of the clockwise traffic from Essex to Kent that usually utilises the QE2 bridge had to be diverted through the east bore of the Dartford Tunnel, halving the usual counter-clockwise Kent-Essex traffic capacity that would normally use all the tunnels at the Dartford crossing. This had a number of knock-on impacts in terms of the emergency services and local communities and businesses. I am sure that we are all familiar with what those were.

The noble Lord, Lord Paddick, raised a hypothetical example of a landowner in respect of a tunnel.

[Lord Paddick (LD)]

Before the Minister continues, can he point to which part of this Bill would be deployed against the two Just Stop Oil activists who climbed on the QE2 bridge?

[Lord Sharpe of Epsom (Con)]

Well, we are about to go into a good deal of discussion about things such as serious disruption, key national infrastructure and so on, which form essential parts of this Bill. I am not a policeman, but I imagine that the police are perfectly capable of utilising those aspects of the Bill.

I come to the hypothetical example of the landowner that the noble Lord raised earlier. It is worth pointing out, in relation to the entire Bill, that the threshold is “serious disruption”. In the case that the noble Lord outlined, that is clearly not the case, so there would be no case.

I move on to the measures in Clauses 1 to 8. As well as the measures we will discuss next week, the police will have the proactive powers necessary to respond quickly to these dangerous and disruptive tactics.

I turn to the specific amendments in the group. Amendments 1, 7, 8, 24, 28, 29, 35, 39, 40, 55 and 59, in the names of the noble Lords, Lord Paddick, Lord Anderson of Ipswich, Lord Skidelsky and Lord Coaker, and the noble Baroness, Lady Chakrabarti, seek to move the burden of proof for a reasonable excuse from the defendant to the prosecution, making it a key element of the offence. We will debate the subjects that the noble Baroness, Lady Blower, raised with regard to trade disputes in the fourth group today, so I will defer specific answers to those questions until the debate on that group.

Whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, so we see it as entirely appropriate that the defendant, who has committed the offence in the first place and has personal knowledge of these facts, is required to prove them. It is also the case that the burden of proof resting on the individual is not a novel concept. There are multiple offences where this is the case, including—as the noble Lord, Lord Anderson, pointed out—the defence of good reason for possessing a bladed article in a public place under Section 139 of the Criminal Justice Act 1988.

The noble Baroness, Lady Chakrabarti, raised the example of linking arms. Of course linking arms itself is not an offence; it is an offence and applicable only if the act

“causes, or is capable of causing, serious disruption to … two or more individuals, or … an organisation”.

Groups of protesters linking arms and obstructing roads or buildings can cause just as much disruption as those who use other equipment to lock on. For example, it is not right that groups of people who glue themselves to roads may fall under this offence but those who link arms and cause just as much disruption do not.

On the question from the noble Lord, Lord Anderson, on why the burden of proof being on the defendant is in the public interest, we have seen people cause so much serious disruption and then continue to burden the prosecution with more and more requirements to prove things. Surely it is right that, where people have caused this kind of disruption, they should demonstrate that they had a reasonable excuse.

With these offences, the prosecution will still need to prove all the elements of the offence to the criminal standard of proof, including that the act

“causes, or is capable of causing, serious disruption”,

as I just explained, and that the defendant intended or was reckless as to serious harm disruption. For those reasons, I respectfully disagree with the amendments.

[Lord Skidelsky (CB)]

Does the Bill define serious disruption?

[Lord Sharpe of Epsom (Con)]

Again, we will come back to that in some detail in the debate on a later group. The amendments have been grouped thematically today so there will be a bit of overlap, for which I apologise. For now, I respectfully disagree with these amendments and ask that they not be pressed.

[Lord Carlile of Berriew (CB)]

Will the Minister at some point explain to us why Section 78 of the Police, Crime, Sentencing and Courts Act 2022, introduced by this Government, does not meet exactly the requirements discussed in this Bill? It is not an ancient Act of Parliament but a new one, and it seems to me to fit the bill proportionately.

[Lord Sharpe of Epsom (Con)]

I commit to doing that in the debate on a later group.

[Lord Paddick (LD)]

Can the Minister address the issue of people being arrested and detained, and being allowed to deploy a reasonable excuse defence only once charged, as opposed to someone not committing an offence if they have a reasonable excuse, which is the normal process with most legislation?

[Lord Sharpe of Epsom (Con)]

My Lords, I think I have gone into reasonable detail on the reasonable excuse situation, so I will rest my comments there for now.

[Lord Paddick (LD)]

I am sorry to disagree with the Minister, but he addressed the issue of whether the burden of proof was on the prosecution or on the defence. He did not address, in any shape or form, police being allowed to arrest and detain people and their being allowed to deploy the reasonable excuse defence only once charged.

[Lord Sharpe of Epsom (Con)]

I will come back to the noble Lord on that.

[Baroness Hamwee (LD)]

If the Minister is going to come back to my noble friend, could he do so in this Chamber? That question is absolutely fundamental to the discussion on the Bill. To have the answer in writing, available in the Library if one goes to look for it, is in our view not adequate.

[Lord Paddick (LD)]

This is Committee, so we are allowed this sort of debate. I want to reinforce what the noble Lord, Lord Carlile, said about Section 78 of the Police, Crime, Sentencing and Courts Act. It says:

“A person commits an offence if … the person … does an act, or … omits to do an act that they are required to do by any enactment or rule of law … the person’s act or omission … obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and … the person intends that their act or omission will have a consequence mentioned in paragraph (b)”.


That covers, completely and perfectly, the people on the gantry of the QEII Bridge. The maximum sentence for that activity is up to 10 years in prison. None of the provisions in this Bill goes anywhere near 10 years in prison. Why do the Government not rely on existing legislation rather than creating all these other offences?

[Lord Sharpe of Epsom (Con)]

My Lords, I think I have already gone into that. As I say, the Bill creates another set of offences designed to deal with evolving protests, but I will come back on the specific point about the PCSC Act.

[Baroness Chakrabarti (Lab)]

My Lords, I am almost speechless. I do not blame the Minister, but those briefing him really need to consider what we have been discussing today; we are talking about the rights and freedoms of people in this country, and it is a very serious issue.

I thank all noble Lords who have participated in this debate on the first group. I particularly thank the noble Lord, Lord Paddick, for, as always, bringing his policing expertise as well as his parliamentary skills to the debate. I also thank him for mentioning Charlotte Lynch, the LBC journalist who was arrested last week beside the M25 with a valid press card and with a microphone that was clearly branded with the name of her broadcaster. She offered her press card to the police, who then slapped handcuffs on her. They took her mobile phone from her and started scrolling to see who she might have been speaking to. Perhaps she had been tipped off about the protest by protesters; that is what journalists do in a free society. She was subjected to a body search and taken to Stevenage police station. She was detained in the police station in a cell with an open toilet and a simple bed for five hours, and was eventually let go without a police interview. Records show that they arrested her for the offence of “conspiracy to cause a public nuisance”. That happened under the existing law.

Now, without addressing concerns about incidents of that kind, and in the wake of what happened to Sarah Everard and all the crises there have been in public trust in policing in this country, the Government are proposing this suite of new offences—yet the Minister has not been able to identify the gap that those offences are supposed to address. That is a matter of considerable concern—a concern which was mentioned by almost every speaker in this debate, with the exception of the noble Lord, Lord Horam, and the Minister himself. The noble Lord, Lord Horam, called for clarity in the law, but I am afraid I was not totally clear which provisions or amendments he was addressing.

The noble Lord, Lord Anderson of Ipswich, gave a master class on issues of burdens of proof and reverse burdens, which are sometimes used in law. However, I remind the Minister that, when they are used in law, it is in relation to very tight offences that are problematic per se, such as carrying a blade or point in a public place. Most members of the public understand that that is not innocent activity; it is incumbent on somebody to explain why they needed to be carrying that knife in the street. That is not the case with carrying a bicycle chain or linking arms with a friend. That is innocent activity per se that is rendered criminal in certain circumstances, and so it is particularly dangerous to flip the burden of proof. Further, on the point made by the noble Lord, Lord Paddick, it is essential that the person should be able to say to the police officer before they are arrested—not seven hours later, in Stevenage police station—that they have a legitimate reason for what they have done. I ask the Minister to think about Charlotte Lynch when he reflects on the powers that he is being asked to justify by others in this Chamber.

--- Later in debate ---

This has been a wide-ranging debate which has gone to the heart of a number of the issues within the Bill. I look forward to the Minister’s response.

[Lord Sharpe of Epsom (Con)]

My Lords, I once again thank your Lordships for all the contributions made in this debate. We turn to a series of amendments which seek to raise the threshold for the corresponding offences. Amendments 2 and 4 target the lock-on offence; Amendments 25 and 26 target the tunnelling offence; Amendments 36 and 37 target the offence of being present in a tunnel; and Amendment 54 targets the offence of obstruction of major transport works.

Before I deal with some of the questions concerning those amendments, I will just say two things. First, on the subject of the suffragettes, I entirely agree with the distinction the noble Baroness, Lady Fox, made between the protesters we see now and the suffragettes. Secondly, while we are slightly off the subject, I will make a few comments about the journalist who was arrested, who has been referred to twice. Clearly, the arrest of journalists lawfully reporting on events should not have happened—I want to make that very clear. I understand that an independent investigation into the arrests has been commissioned by the relevant police force. However, we do not agree that more powers will lead to further arrests of journalists: the issue lies with the training of journalists—a subject to which we will return.

[A noble Lord]

Police.

[Lord Sharpe of Epsom (Con)]

The training of police— I am sorry.

The scope of the offences is drafted as such to ensure that all kinds of behaviour that protestors engage in to cause misery and disruption can be captured. Amendments 2 and 4 would mean the offence would not account for situations where, for example, a person has locked on to a dangerous structure but is removed by the police before maximum disruption can be inflicted. Amendments 25 and 26 would mean the offence would not account for situations where, for example, a person has started creating a tunnel but is removed before maximum disruption can be caused. Amendments 36 and 37 would not account for situations where, for example, a person is present in a tunnel with the intent to cause serious disruption but is removed by the police before the tunnel can reach the designated area where maximum disruption can be inflicted.

Amendment 54, tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Ludford, seeks to add a threshold of causing “significant disruption” to the offence of interfering with key national infrastructure. I am not sure whether the amendment should say “serious” disruption rather than “significant” disruption, as I note that the JCHR’s own explanatory statement stated the former. That would echo the threshold for other offences in the Bill. If Amendment 54 is intended to add a threshold of serious disruption, I would argue that while we assess that it is right for the lock-on offences and certain other protest-related offences to include serious disruption within their scope, we do not see it as necessary here.

As I have stated already, protestors have been able to cause huge damage to major projects such as HS2. While much attention has been focused on how protest activity across HS2 sites causes massive disruption to the project, protestors have also engaged in many more minor disruptive acts, such as disrupting ecological surveys, damaging construction vehicles or blocking access points to construction sites. While some of these acts may not meet the threshold of serious and/or significant disruption, they still have a significant impact on the project and its costs. The Government view such actions as serious and completely unacceptable criminal activity. The offence as drafted seeks to deter individuals from targeting these projects while giving the police powers that are more sufficient in order to respond.

Before I get onto the amendments dealing with serious disruption, I accepted the invitation of the noble Lord, Lord Carlile, to read Section 78, and I will have a go at answering. Because many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, it has been asked why, in light of that, we need to introduce the measures in the Bill. The fact is that we are not solely interested in the process on the M25: the Bill was conceived before Just Stop Oil protesters were dangling off gantries. There are other unjustifiable protests, such as those targeting HS2, which I have just discussed. The criminal offences in the Bill extend to private land; currently, those who lock on or tunnel are only committing aggravated trespass, which carries a relatively low sentence. As it is a broad offence, I am sure that many here in the Chamber today would not welcome the sentences for aggravated trespass being increased. Finally, the pre-emptive measures in the Bill will improve the response to criminal protest. They were in fact conceived following discussion with the Metropolitan Police Service on what would have improved their response to Extinction Rebellion-style protests.

Amendments 3, 6, 17, 23, 27 and 38, all seek to provide a definition of serious disruption. I thank all noble Lords for these amendments, particularly the noble Lord, Lord Anderson—although I note that he is potentially deserting his—for our constructive engagement so far. I also thank the noble and learned Lord, Lord Hope of Craighead, for his thoughtful contribution to this debate.

I assure the House that I absolutely recognise the benefits that a clear definition of serious disruption could bring. However, we have faced some difficulties when trying to define serious disruption. That is because being too prescriptive in our definition risks creating a loophole which would provide those intent on causing as much disruption as possible an opportunity to evade arrest and prosecution. I would also say that, as drafted, some of these amendments offer a narrower definition of serious disruption than the Police, Crime, Sentencing and Courts Act provides for under

“serious disruption to the life of the community.”

None of that is to say that I dismiss the principle of these amendments. There is a balance to be struck between a definition which is too broad and one which is too prescriptive. We will consider these amendments in detail to ensure that they accurately reflect the disruption that the Government seek to target while providing clarity to the police and others, as many noble Lords have mentioned, and we will continue to work with all interested noble Lords on this important matter.

[Lord Hope of Craighead (CB)]

Is there a prospect of the Minister coming up with definitions in time for Report, to prevent us having to discuss this all over again? It would be a great help if he could come forward with his definitions, if he is going to proceed along this line.

[Lord Sharpe of Epsom (Con)]

I will certainly endeavour to—I can make no promises. I am sorry: the noble Lord, Lord Ponsonby, asked me about recklessness, which I forgot to answer. The definition of reckless is to capture those for whom we cannot prove that they intended to cause disruption but who were clearly happy to cause it. I hope that clarifies the matter to some extent. For now, I ask the noble Lord to withdraw his amendment.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for their contributions to this debate. The noble and learned Lord, Lord Hope of Craighead, made some very important points. He is a member of the Constitution Committee. He said that convictions for these offences could lead to more serious consequences such as serious disruption prevention orders and that some of the conditions that could be imposed under those orders are quite draconian, such as 12 months of electronic tagging. He made the important point that because the offences are very different in nature, there should perhaps be a tailored definition of serious disruption depending on what offence we are talking about.

The noble Lord, Lord Carlile of Berriew, made a very important point about creating ambiguity between the provisions in this Bill and Section 78 of the Police, Crime, Sentencing and Courts Act 2022. The Minister’s attempt to explain why Section 78 could not be relied on does not hold water. He started talking about offences of aggravated trespass and having low sentences, but Section 78 has a far more serious penalty than any of the offences contained in the provisions here, so I do not understand why we need new offences that have serious sentences attached to them when Section 78 can provide much stiffer penalties than any offence in this Bill. That does not seem to make any sense.

The right reverend Prelate the Bishop of Southwell and Nottingham made an important point about places of worship. The noble Lord, Lord Hain, made an important point too. I greatly respect the role that he played in overturning apartheid in South Africa, but I am not sure he can say with confidence that what he did amounted to serious disruption when we do not have a definition of serious disruption in the Bill. The noble Baroness, Lady Fox, supported by the Minister, talked about suffragettes and how they were very different from the protesters at this time, but that was not the point I was making. My point was that suffragettes locked on and the Government are saying that this new offence of locking on is a response to new tactics employed by protesters. Well, that is what the suffragettes did. That is the only point I was trying to make.

As for nothing being done, the police have been arresting stop oil protesters even before they have caused serious disruption. They have been arresting them for conspiracy to cause public nuisance. Whether it is for causing public nuisance under the famous Section 78 or highway obstruction, for which they can now be sent to prison, protesters are being remanded in custody by courts which are not confident that they would not go on to repeat the offences for which they have been arrested. Some of them have been sentenced to prison for highway obstruction. So I do not think it is the case that the police are not doing anything, or that existing legislation cannot be used effectively by the police.

The noble Lord, Lord Anderson, supported the idea of tailored definitions, hence his wavering, if I can put it that way, in terms of his own amendment. The noble Lord, Lord Macdonald of River Glaven, reinforced the point about clarity and predictability. People need to know whether they are going to break the law if they do something, which is why we need these definitions.

The infamous Section 78 of the Police, Crime, Sentencing and Courts Act talks about serious harm, rather than serious disruption, but it is defined in the Act. So, if the Government can define serious harm in that Act, why can they not define serious disruption in this legislation? The noble Baroness, Lady Blower, talked about what the Minister said in the other place about there being a definition of serious disruption under the Public Order Act 1986. I agree with the noble Baroness that it is out of date and dubiously applicable in the circumstances set out in this Bill. Even the noble Lord, Lord Hogan-Howe, talked at Second Reading about the importance of clarity, and police witnesses at Committee stage in the other place said that as much precision as possible is desirable, yet the Minister seems completely ambiguous about whether the Government are going to define serious disruption in the Bill in response to the question asked by the noble and learned Lord. The noble Lord, Lord Ponsonby of Shulbrede, said that the National Police Chiefs’ Council is in favour of the definition of serious disruption to the life of the community put forward by the Joint Committee on Human Rights, so surely there is at least a lead for the Government to follow.

--- Later in debate ---

Many of us believe that the existing law works in many areas where the Government believe there are problems. So far the Minister has been unable to identify where the gaps are that the legislation seeks to fill. There are real concerns across the House about the implications for personal freedom and the ability to protest, and the Government need to come up with clear answers to some of the many questions that have been asked today.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have taken part in this shortish debate. I have already spoken about the damage and disruption that these offences can cause. Narrowing the scope of these offences, as the amendments in this group seek to do, would restrict the ability of the police to stop individuals from causing unjustifiable amounts of disruption and harm.

Before I get on to the amendments, I agree entirely with the noble Lord, Lord Coaker, about the scrutiny that this Bill deserves in this Chamber. I was merely clarifying an earlier point when I referred to its passage through the other place.

Amendment 5 provides a definition for the term “attached” in reference to the locking-on offence. We are fundamentally interested here in the disruption caused. The range of equipment used for locking on is extensive and ever changing. So, aside from bike locks, chains, cable ties and glue, police have also seen sophisticated devices that have been deliberately designed to be difficult and time-consuming to remove. Arm tubes involve protesters putting their arms through pipes containing concrete, steel or other materials that can either be released by the protester at will or require the police to use machinery to cut them free. Sometimes, such devices are designed to inflict harm on anyone who tries to remove them, placing the police in harm’s way. These devices are constantly evolving and designed to waste as much police time as possible. Given this, equipment that could be used in the course of, or in connection with, a locking-on offence is in scope. This could include locks and chains and large objects used to lock on, such as the bamboo structures that have featured in many protests. Specific equipment is not listed in the legislation as protesters can easily create new methods of locking on. Instead, referring to the act of locking on, and the serious disruption it causes, ensures this clause will remain relevant going forward.

Amendments 18, 19, 20, 48, 49, 51, 52, 53, 73, 74, 75, 76 and 77 seek to remove those acts which are taken “in connection” with these offences. I recognise the sentiment behind these amendments, but it is our view that it is vital that the full range of disruptive tactics that can be, and frequently are, deployed are captured to ensure our major transport works are protected.

With respect to the tunnelling offence, removing “in connection” would mean that those who carry items that are not strictly necessary for the construction or occupation of a tunnel are not in scope of this offence. The aim of the tunnellers is to cause disruption by delaying their removal for as long as possible. To achieve that, they will often create obstructions that will include, for example, coils of wire mesh and even nooses attached to the tunnel’s door to tie around their own necks. Items to make these are not themselves necessary for the commission of the other tunnelling offences, but I am certain that many in the House would agree that anyone carrying these items for these purposes should be in scope of the offence.

To use the obstruction of major transport works as an example, as I have already said, while many noble Lords will be familiar with the larger-scale protester action, many will be less familiar with the more minor acts of disruption that can start before construction even begins. Whether that is disrupting ecological surveys, removing or interfering with apparatus that is needed for construction, or blocking access to construction sites, all have a significant impact and can cause significant delays and additional costs to these works. For that reason, the scope of the offence is drafted as such to ensure all highly disruptive action are included in the scope.

Amendment 65, tabled by the noble Lords, Lord Coaker and Lord Paddick, and the noble Baroness, Lady Fox, seeks to narrow the scope of the offence of interfering with key national infrastructure to include only those who interfere to a “significant” extent rather than “any extent”. Again, I understand the core sentiment behind this amendment, but I would like to remind noble Lords that the types of infrastructure regarded as key national infrastructure are those that this Government have identified as playing a vital role for the nation. This is also the infrastructure that is being targeted by protest groups who are intent on causing disruption of any kind. As such, it is important that key national infrastructure is protected using the existing threshold of the Bill.

In a similar vein, Amendments 66 and 67 seek to narrow the scope of what it means to prevent the use of, or operation of, key national infrastructure, so that it only refers to instances where significant delay is caused for the use or operation of the targeted infrastructure. As I have touched on already, there are many circumstances beyond significant delay that should be captured within this offence. For example, should protesters successfully reduce the output of oil from an oil terminal but not delay its delivery, we could still see heating switched off as supplies dry up. We therefore see it as wholly necessary that the full range of disruptive behaviours and acts are captured.

Amendment 68 and 78, tabled by the noble Baroness, Lady Chakrabarti, would replace “newspaper printing infrastructure” with the term “communications” in the list of key national infrastructure on the face of the Bill. The list of key national infrastructure is based on sites that protesters have or are likely to target through their current tactics. Therefore, we do not believe it is necessary to add “communications”, as defined by the noble Baroness, into the list of key national infrastructure at present. However, as the noble Baroness will know—and we will definitely come to consider this in group six—the Bill does contain a delegated power that will allow us to amend this list as tactics and infrastructure evolve.

Amendments 70, 71, 72 and 79 seek to narrow the scope of the interference with key national infrastructure offence by altering the definitions provided for in Clause 8, including by removing B roads from the list of infrastructure in scope or by narrowing the definition of “printing presses”. The scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8. Some B roads are lifelines for small towns and villages, and we see it as entirely right they should be included. Printing presses have been included to protect the distribution of print media and news. There are many publications which serve that purpose which are not newspapers.

Finally, I would probe noble Lords on what they deem as “essential” and “inessential” elements of infrastructure. Many elements that some deem inessential, such as signs along railways and roads, provide important information to train and car drivers and may be necessary to ensure the high standards of safety we expect in this country.

For those reasons, I disagree with these amendments and ask that they be withdrawn.

[Lord Beith (LD)]

Can the Minister help the Committee by saying how he would answer this question, and if he has asked himself this question? If he were one of the people carrying something that a constable challenged him for—maybe the padlock that I talked about earlier that a young couple were going to put on a bridge, or maybe a packet of cable ties—what would his answer be to the constable who challenged him? Does he think it would result in him not being charged?

[Lord Sharpe of Epsom (Con)]

My Lords, these things are judged on a case-by-case basis. It would depend entirely on where I was, what I was doing and also the intention as described in Clause 2 of the Bill.

[Lord Harris of Haringey (Lab)]

My Lords, I listened with great interest to the Minister’s reply to the Committee’s discussion on this. Could he explain why, rather than trying to define all these activities—this happening, that happening and this piece of equipment and so on—has he not sought to do it in terms of intent, and a requirement that before an offence is committed intent to cause disruption is demonstrated?

[Lord Sharpe of Epsom (Con)]

That is captured. As I say,

“A person commits an offence if they have an object with them in a place other than a dwelling with the intention that it may be used in the course of or in connection with the commission by any person of an offence under section 1”.

[Lord Coaker (Lab)]

On this issue of intent, Clause 6 creates a criminal offence of obstructing “major transport works” but the Constitution Committee notes that unlike Clause 1, 3, 4 and 7, intent or recklessness are not required for an act to constitute an offence under Clause. Can the Minister explain why?

[Lord Sharpe of Epsom (Con)]

Not at this point, I will have to write to the noble Lord.

[Lord Paddick (LD)]

Bearing in mind the number of amendments, I worked out that the Minister spent 17 seconds per amendment in his response. I gave the example of a mobile phone that ended up on railway tracks interrupting national infrastructure and whether that was within the scope of the Bill. Does the Minister feel that his response has been comprehensive enough, on the very detailed questions he’s been asked?

[Lord Sharpe of Epsom (Con)]

My Lords, I am afraid I do.

[Baroness Jones of Moulsecoomb (GP)]

I thank all noble Lords who have contributed to this debate. I have really enjoyed it and I think we are expecting some better answers in the future. The Minister said something about probing us on what we thought, but it is our job to probe him about what this legislation means. So far, it is not coming out very well.

Personally, I hope it gets thrown in the rubbish bin because, quite honestly, we are spending an awful lot of time and energy debating it when we know it is awful. It is not as if we can see a glimmer of hope that it might solve some problems. The Minister talked about the damage and disruption that these protesters are doing. In fact, the Government have done more damage and disruption to our social fabric than XR, Insulate Britain or Just Stop Oil could ever do. They have had 12 years and made the most horrendous mess.

Getting back to the Bill, the Minister did not answer my question about “attach”. I still do not know what “attach” means. I am happy to wait and hear a longer answer, if he has one, on another occasion.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

It is not good legislation, even by the Government’s standards. Even if you think the Public Order Bill is a fantastic piece of new legislation that will solve the problems we face, it is not tight enough in definition or objective. That is unacceptable. On Report, a number of amendments will be made—I think they will be passed—and the Bill will, quite rightly, be sent back to the House of Commons to ask Members to think again. Of course, the House of Commons has a constitutional right to pass its Bill, but we have a constitutional right to tell it when it is wrong and to try to put right some of the inadequacies in the Bill as it stands.

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

My Lords, once again, I thank all noble Lords for their contributions to the debate this evening. It has been a very lively and thoughtful discussion generally. I look forward—I think—to continuing to discuss these important issues next week. I first reassure the noble Baroness, Lady Chakrabarti, that I do not think she is rude. I may not agree, but I think the position she is coming from is highly principled. I also say to the noble Lord, Lord Coaker, that I do not think we have failed when it comes to definitions. We have committed to take that matter away and it is ongoing work.

The amendments in this final group take issue with the some of the offences listed in Clauses 1 to 8. Clause 1 is a key part of the Government’s plan to protect the public from the dangerous and disruptive protest tactic of locking on. Recent protests have seen selfish individuals seek to cause maximum disruption by locking themselves to roads, buildings, objects and other people. This has seen traffic disrupted, public transport delayed and the transport of fuel from terminals grind to a halt—to name just a few examples. Such tactics cause misery to the public, with people unable to access their place of work or their schools, or to attend vital hospital appointments.

I turn next to Clause 2, which is inextricably linked to Clause 1. During fast-moving protest situations, the police must be able to take necessary proactive action to prevent lock-ons occurring. Along with the associated stop and search powers, which the Committee will scrutinise later, this new offence will allow the police to prevent lock-ons before they occur and deter others from considering doing so.

Lastly, Clause 5, along with Clauses 3 and 4, is designed to make clear that the protest tactic of building tunnels to disrupt legitimate activity will not be tolerated. I am afraid there is a degree of repetition here, but projects such as HS2 have been targeted on multiple occasions by tunnels which have contributed to an enormous cost of £146 million to the project. Aside from the cost, these tactics are enormously reckless, putting not just protesters themselves at risk but those called upon to remove them and repair the damage inflicted.

There is one further amendment in this group: Amendment 69, in the name of the noble Baroness, Lady Chakrabarti, which seeks to remove the delegated power for the Secretary of State to amend, add or remove the list of infrastructure in the legal definition of “key national infrastructure”. Throughout the debate, we have heard about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power that will allow us to respond effectively to emerging threats. But I reassure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.

Before concluding tonight’s debate, I will respond to speeches made by many noble Lords, but specifically the noble Lords, Lord Paddick, Lord Coaker and Lord Carlile of Berriew, and the noble Baroness, Lady Chakrabarti, about the necessity of the powers taken in the Bill. I have spoken about the three key general differences between the Bill and existing public order offences and legislation. First, it is about sentencing lengths; secondly, it is about offences that take place on private land; and, thirdly, it is about introducing more pre-emptive powers, providing the police with the ability to stop serious disruption before it happens.

It would be appropriate to acknowledge at this point that some of the commentary from the police is a little contradictory. Chief Constable Chris Noble, the National Police Chiefs’ Council lead on protests, said:

“There have been some very novel—without giving them any credit—and highly disruptive tactics; that is reflected on the contents page of the Bill. If we look across the breadth of protest organisations and groups, we see that they are very aware of some of the legal gaps, inadequacies and shortcomings; that is very clear from their engagement with police, as well as their tactics.”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 5.]


Of course we work with the police, and we will obviously continue to do so.

I will try to address some of the key existing offences that have been mentioned and talk about how the Bill differs and builds on these important offences. I turn first to Sections 12, 14 and 14ZA of the Public Order Act 1986, as amended by the Police, Crime, Sentencing and Courts Act 2022, which allows the police to place necessary and proportionate conditions on public assemblies and processions to prevent certain harms occurring—namely, serious disruption to the life of the community. These powers are for the safe management of large protests where many people assemble or march. They do not provide the police with the means to tackle non-violent direct action of the sort that Just Stop Oil engages in.

I turn now to public nuisance and obstruction of the highway offences. We are pleased to have put the public nuisance offence on to a statutory footing, and noble Lords are quite right that it can be used to deal with some of the highly disruptive protests that we have seen recently. As the noble Lord, Lord Coaker, indicated, both these and other criminal offences are currently being used to arrest and charge Just Stop Oil protesters.

But we have to remember that there are offences that can cause serious disruption but do not meet the threshold for the public nuisance offence, which is extremely high. At the moment, such protesters manage to find loopholes to get acquitted or are subject to low penalties. These new offences are therefore essential to give the police the powers that they need to deal with these offenders. Although many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, these offences do not necessarily apply to tactics such as those that have targeted HS2 Ltd. Therefore, new criminal offences covering tunnelling and locking on are necessary.

I turn to the offence of aggravated trespass, which criminalises intentionally obstructing, disrupting or intimidating others carrying out lawful activities on private land. The maximum penalty is three months’ imprisonment or a £2,500 fine, or both. This broad offence captures many activities that trespassers, protesters or others may engage in. The maximum penalty is not proportionate to the seriousness of some of the tactics used by protesters, which can put lives at risk. This is a broad offence that covers many non-protest behaviours, and it would not be appropriate to increase the maximum sentence for it. Therefore, new criminal offences that apply to private land are needed: locking-on, tunnelling and infrastructure-related offences.

I turn to stop and search. Section 1 of the Police and Criminal Evidence Act 1984 allows a constable to search individuals whom they reasonably believe are carrying something that could be used to commit specific criminal offences, including criminal damage. Furthermore, the police can search individuals after having arrested them. For example, after arresting Just Stop Oil protesters for conspiracy to commit public nuisance, the police searched their car and seized items suspected to be used in the course of the offence.

Finally, the noble Lord, Lord Paddick, queried the necessity of the measures given that HS2—which has experienced significant protest action at huge cost, as we have discussed many times—was able to secure a nationwide injunction. We agree that injunctions can be helpful for preventing the types of serious disruption we have seen, which is why we have introduced our own measure which provides a specific mechanism for a Secretary of State to seek an injunction against protest activity where it is in the public interest to do so. However, this is only one piece of the puzzle and we have seen from the M25 protests that injunctions do not necessarily stop people breaking the law.

I have tried to set out how the measures in the Bill will bolster the police powers to respond more effectively to disruptive and dangerous protests, to protect our key national infrastructure and major transport works from interference, and to better balance the rights of protesters with the right of the general public to go about their lives free from serious disruption and harm. For those reasons, I respectfully ask noble Lords not to press their amendments.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords for sticking it out and will try to be brief, given the hour. I am also particularly grateful to the Minister for reminding me that I did not speak to my Amendment 69, which, as he rightly said, would remove the ability to change the criminal offence of interfering with national infrastructure by adding further infrastructure. I stand by my concern that this kind of thing should not be done by way of secondary legislation, because it has such a profound effect on the rights and freedoms of people in this country to dissent peacefully. It would be very easy to abuse that power and it is not appropriate for secondary legislation. We will no doubt return to issues of powers of that kind at a later stage.

Once more, I must thank the noble Lord, Lord Carlile of Berriew, for pointing out what the courts are having to grapple with: a burgeoning statute book with more and more offences, which police forces must deal with too. This menu of potential powers and offences just gets bigger by the year. The idea that, every time there is an innovative or novel protest, something must be done and there will be a new offering of legislation is not a coherent way to operate the rule of law in a constitutional democracy. Lots of dangers will come from this.

I take the point about the police service not speaking as one on any of these issues, and maybe it should not. I was particularly grateful to the noble Lord, Lord Paddick, for pointing out, as a former police officer, that there is quite a strength of police opinion and scepticism about the powers in the Bill. I was also grateful to him for reminding me that the offence of going equipped for locking on is, in a way, even worse than the offence of locking on. Locking on is incredibly broad, as I think the Minister accepted in some of his earlier responses. Yes, linking arms is sometimes terribly disruptive too, but going equipped for locking on is a proper thought crime and one of the reasons I am particularly concerned about that offence. It is a thought crime that is supportive of a crime that is, in itself, incredibly broad and will, theoretically, capture some activities that some people think are just natural to humans and innocent.

I was grateful to the noble Baroness, Lady Hamwee, for addressing a very important process point. I totally understand the need for Ministers to write to noble Lords later, particularly in answer to the Questions we have each day. However, writing later should not be a central tactic of defending and promoting a Bill that has been some time in gestation. I was grateful to the Minister and his colleagues for coming up with a little more about the existing statute book in the latter part of this evening, but that will require a lot more examination. I know that noble Lords in Committee will be reading Hansard very carefully tomorrow and there will be more to discuss about that.

Ultimately, there are some protesters who, rightly or wrongly, care so much about the climate catastrophe, race equality, Brexit or whichever other issue that they are prepared to go to prison. There are some in that category for whom there is no new offence that will prevent their actions. So be it; that is life.

What I am concerned about, with the ever expanding public order statute book, are the people who are not in that category and who will get caught up in this kind of thing, as happened last week to the journalist who was detained for, in total, about seven hours, with five in a police cell, just for reporting on the protests. When you keep adding to police powers, adding to the public order statute book and catching more and more innocent activity, more injustice will follow. It will not be about catching the people who we all agree are going too far sometimes—and who are prepared to go too far for their cause; that is their conscience. There will be more and more innocent bystanders—journalists, people from racial minorities—who get caught up in this very broad blank cheque that noble Lords and Ministers are proposing to hand to the police. The police are from us; they are a part of our community and are imperfect as we are. It is not fair to hand this blank cheque to them and, when it goes wrong, to blame them. We have that on our conscience if we pass these powers.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Lord Paddick (LD)]

No pressure.

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

My Lords, I thank the noble Lord, Lord Ponsonby, for his closing words; as the noble Lord, Lord Paddick, said, “No pressure”. I thank all noble Lords for their impassioned contributions to what has obviously been a very substantive debate.

Clause 9 seeks to establish buffer zones outside abortion clinics in England and Wales to ensure that persons accessing or providing abortion services are free from harassment or intimidation. As the Committee will be aware, this clause was inserted into the Bill on the basis of a free vote in the other place. I will not get involved in second-guessing the motivations of those who voted, but the result was 297 votes in favour to 110 votes against. As I have said before, and I am very happy to say again, the Government respect the will of the House of Commons.

It is obviously clear—today’s debate makes it even clearer—that there are very strong views on both sides of the argument. Many noble Lords want the clause to become law, and many want to alter or to delay it. Amendments 80 to 97—tabled by the noble Baronesses, Lady Hoey, Lady Fox, Lady Watkins, Lady Barker and Lady Hamwee, my noble friend Lady Sugg, the noble Lords, Lord Ponsonby and Lord Beith, and the right reverend Prelate the Bishop of St Albans—all seek to make an array of changes to Clause 9, be that by raising the threshold for the new offence or by seeking to clarify the clause in some way.

Amendments 98 and 99 tabled by the noble Lord, Lord Farmer, seek to introduce buffer zones pending the outcome of

“a consultation … to determine if there has been significant change in”

protests “outside abortion clinics since” the Government’s last review. Amendments 87 to 93 look to ensure that only activities relating to abortion services within a buffer zone constitute an offence, while Amendments 88, 96 and 97 seek to ensure that activities within private dwellings and places of worship are exempt. Amendments 80 to 82 seek to provide a person within a buffer zone with the opportunity to defend their actions and

“to strengthen the burden of proof required to establish an offence.”

As I said before, I thank all noble Lords for their interest and ideas to amend the existing clause in its current form, particularly their well-intentioned attempts to tighten what was described in the other place by the Minister as a “blunt instrument”. It remains the Government’s view, based on legal advice, that this amendment does not meet our obligations under the European Convention on Human Rights and would require a Section 19(1)(b) statement to be provided. That said, after having been brief, I am now even more keen to meet noble Lords in the coming days, and I encourage them to meet me so that we may discuss the next steps for the clause. For now, I invite noble Lords not to press their amendments.

[Baroness Sugg (Con)]

Does my noble friend the Minister agree that the clause as inserted by the other place calls for universal zones around all clinics in England and Wales?

[Lord Sharpe of Epsom (Con)]

I say again to my noble friend—I have said it before, and I am happy to say it again—that the Government respect the will of the House of Commons.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank all Members of the Committee for a wide range of speeches, ensuring that we have covered a lot of ground on this important issue. Contributions have been thoughtful, sometimes tetchy but largely civil; it is important to have these arguments out. I listened to what everybody said, and one thing I noted was that all speakers on all sides have condemned the harassment and intimidation of any woman going into a clinic or a hospital for an abortion. It is important that we note that we have that in common, because sometimes it can be presented as though people who are against Clause 9 are indifferent to the intimidation or harassment of women. Everybody has said that it is wrong; this is a question of how you deal with it.

The dispute is also about exactly what happens outside clinics. We have heard the clash of narratives in the contributions that I referred to, which makes the call for a new review from the noble Lord, Lord Farmer, all the more appealing. Indeed, the noble Baroness, Lady Sugg, herself suggested—backed up by the reply to me from the noble Baroness, Lady Barker—that the situation has got a lot worse since 2018, and particularly very recently. That is disputed by people so, for the clause to have legitimacy, maybe we need a public discussion to get the evidence—that would be important.

--- Later in debate ---

I suggest to noble Lords and to those who read these remarks that suspicionless stop and search for protest-related offences is a step too far in a democracy. It undermines protest and, to be frank, I will be very surprised if the Government are able to say anything to stop us bringing this back on Report and saying to a wider audience that suspicionless stop and search for protest-related offences is a step too far, and we are against it.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their contributions to this debate. In answer to the question from the noble Baroness, Lady Jones, about the duration of the previous debate, we are of course a self-regulating House.

We believe that stop and search is a vital tool to crack down on crime and protect communities. The Bill extends both suspicion-led and suspicionless stop and search powers, enabling the police to proactively tackle highly disruptive protest offences by searching for and seizing items which are made, adapted or intended to be used in connection with protest-related offences, such as glue, chains and locks. The powers can also act as a deterrent by preventing offenders carrying items for protest-related offences in the first place because of the increased chance of being caught.

The suspicion-led powers in Clause 10 will help the police manage disruptive protests more effectively, as police officers will have the power to stop and search anyone they reasonably suspect is carrying items that could be used for locking-on, obstruction of major transport works, interference with key infrastructure, public nuisance, obstruction of the highway and the tunnelling offences.

The suspicionless powers in Clause 11 build on the Government’s plan to give the police the powers they need to prevent serious disruption at protests from happening in the first place. In high-pressure, fast-paced protest environments, it is not always possible for officers to form reasonable suspicion that individuals may be about to commit an offence. That is where suspicionless powers are important, and reflect the operational reality of policing.

The noble Lord, Lord Coaker, asked about the wording in Clause 10(g). Of course,

“intentionally or recklessly causing public nuisance”

are legally well-understood terms which are found in much other legislation.

The suspicionless stop and search power will be usable only if certain conditions are met, and in cases where a police officer of or above the rank of inspector authorises its use in a specified locality for a specified period. This power uses a similar framework to that found in Section 60 of the Criminal Justice and Public Order Act 1994 to ensure consistency in police powers and safeguards. The rank of inspector aligns with existing stop and search powers to ensure consistency.

In answer to the earlier question of the noble Lord, Lord Coaker, a Section 60 order cannot be extended beyond 48 hours. PACE Code A is also clear that a suspicionless stop and search should be reasonable and no bigger than needed.

In terms of the size of the area that designations would cover, as I said earlier, our intention is to mirror the approach used in Section 60. The geographical extent of a Section 60 order depends on the situation that led to the order being authorised, so it is for the authorising officer to determine. PACE Code A states that the authorising officer should specify a fixed location for the boundary of the search area, whether that is a street name or a divisional boundary, and not make the area wider than is necessary for the purpose of preventing these suspected offences.

[Lord Coaker (Lab)]

Will the Minister reflect on his remarks about a specified locality and his analogy with Section 60? That deals with terrorism. Suspicionless stop and search may well encompass a huge area, as this Parliament has accepted on the basis that a terrorist may travel hundreds of miles to target people. This is about protest and protesters. Is the Minister saying that the Government see that as analogous? I find that difficult to comprehend.

[Lord Sharpe of Epsom (Con)]

The fact is that the search area should not be wider than necessary for the purposes of preventing the potential offences. I do not believe it is analogous to terrorism, but that is quite clear.

The noble Lord also asked how the geographical extent of a no reasonable suspicion stop and search order is communicated. It is for police forces to determine how and whether to communicate the geographical extent of such an order under Section 60, and this will be the case for the new suspicionless powers in the Bill. But although forces are no longer required to communicate whether a Section 60 order is in place, many continue to do so where they judge it to be operationally feasible, to help deter criminals and enhance community trust and confidence. It is very common for forces to use their social media channels or websites to communicate the extent of a Section 60 order.

The noble Lord also asked about officers in plain clothes. This power only extends to those in uniform. 

--- Later in debate ---

[Baroness Blower (Lab)]

I invite the Minister to comment on the remarks that I and the noble Lord, Lord Beith, made at Second Reading, which my noble friend Lord Coaker referenced.

If a police officer attempts to stop and search a woman who clearly knows that she is not carrying anything unreasonable, given what the police themselves said about how single women walking alone at night might respond to this, there is every chance that a suspicionless stop and search could result in the woman—young or old—obstructing a police officer in the course of his or her duty. I did not hear the Minister respond to that. It is a very significant concern. It would be a concern anyway but it is an aggravated one, given what the Metropolitan Police and other authorities have said in the light of what we know only too well happened previously.

[Lord Sharpe of Epsom (Con)]

Obviously, I understand where the noble Baroness is coming from, but asking an officer for proof of identity is not in and of itself an obstructive thing to do. That is very clear.

[Baroness Blower (Lab)]

If I might just press the point: of course, if the young woman has the presence of mind to simply ask for proof of identity, that may very well not be obstruction, but she may be frightened by this and seek to move away or to respond in some other way, but not to assault the police officer. I just see that there is a danger in this situation, and I am not hearing anything that I could tell women who are asking me about what we are doing in the Public Order Bill so that they do not need to have any concern about suspicionless stop and search. We heard before about it being perfectly reasonable to respond in such a way that you can categorically assure yourself that a person is a police officer. Frankly, I have never seen a police identity badge, so I do not know what they look like. The previous Metropolitan Police Commissioner talked about flagging down buses if you are not happy about what is going on. I want to press the Minister on this point, because although I absolutely accept that asking to see a badge is not necessarily chargeable with obstruction, other things could befall.

--- Later in debate ---

[Lord Paddick (LD)]

Before the Minister responds, he may also wish to think very carefully about what he said about these powers not being exercisable by officers in plain clothes. I am prepared to apologise to the Committee for misleading it when I say that these powers alter Section 1 of PACE, which has nothing in it about an officer having to be in uniform to exercise powers of stop and search. So what the Minister said about these powers not being exercisable unless the officer is uniformed is not true.

[Lord Sharpe of Epsom (Con)]

If I am incorrect I will most certainly correct my statement. That was the information that I was given. If it is incorrect in any way, I will of course come back and apologise. It was inadvertent if that is the case.

I think we are getting slightly off topic, but I say to the noble Baroness that the Minister certainly appreciates that women and girls can feel very vulnerable, particularly at night, and I understand the level of hassle. However, a road where one is likely to be alone is not likely to be subject to the Section 60 power, so we are in the realms of the hypothetical to some extent. I accept and understand the concerns that have been raised, but I reiterate that it is everyone’s right to ask a police officer for identification, and I believe that under the suspicionless basis the officer has to be wearing uniform, but I will confirm that later with the Committee, certainly if I am incorrect. I do not have an answer for the noble Baroness, Lady Jones, so I will have to write to her.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords who have participated in this debate. The noble Baroness, Lady Jones of Moulsecoomb, questioned the area in which suspicionless stop and search could be operated. Marches that occur in central London traditionally start at Marble Arch, go down Park Lane and sometimes through Oxford Street and Regent Street. The number of people who could be subject to suspicionless stop and search as the result of that sort of demonstration is mind boggling.

In his real-world experience as adviser to the police on these issues, the right reverend Prelate the Bishop of Manchester talked about these powers being invariably used disproportionately. The Minister has said nothing to reassure the Committee that the powers will not be used disproportionately, with the damage that will be caused to the reputation, trust and confidence in the police.

The noble Lord, Lord Coaker, made the valid point that the powers can be used against children. Public nuisance is such a wide offence. I also raised the offence of being present in a tunnel. How can someone go equipped to be present in a tunnel? There was no answer about that.

Before this, there were two elements to suspicionless stop and search. The Minister talked about Section 60 of the Criminal Justice and Public Order Act, which is to do with serious violence. The other was Section 44 of the Terrorism Act, which the Conservative Government repealed because it was being used disproportionately. The Government withdrew suspicionless stop and search in relation to terrorism because they considered that its impact on trust and confidence in the police was disproportionately negative. It does not exist any more in relation to terrorism, but this Government want to introduce it in relation to people exercising their lawful right to protest.

The Minister made no reference to what HMIC said was likely to be a chilling effect on people exercising their human rights under Articles 9, 10 and 11. There was not a word about this, even though HMICFRS raised it. There was nothing about the disproportionate impact on minority communities. Minority communities and young people are more likely to be engaged in protest because they do not feel that the parliamentary process represents their views. As the noble Lord, Lord Coaker, said, we will return to these issues on Report. I am sure we will vote on them.

[Lord Sharpe of Epsom (Con)]

My Lords, I should like to clarify my remarks about uniforms. Section 60—which is what I was talking about—applies only to officers in uniform. Section 1 powers can apply to all officers.

[Lord Paddick (LD)]

Can the Minister clarify whether these powers—not Section 60 powers—to stop and search people in relation to protests can be exercised by officers in plain clothes?

[Lord Sharpe of Epsom (Con)]

As I think I explained, we are basing these powers on Section 60.

[Lord Coaker (Lab)]

Is the Minister telling this Chamber that a plain clothes officer in the middle of Lambeth, Manchester, Newcastle or Cardiff can stop a car without suspicion, without anybody knowing that there is a suspicionless stop and search operation going on?

[Lord Sharpe of Epsom (Con)]

Our intention is to mirror the approach used in Section 60. I said that very clearly earlier. I have already explained its geographical extent.

[Lord Paddick (LD)]

Can the Minister point to the part of the Bill that says that suspicionless stop and search powers are restricted to officers in uniform?

[Lord Sharpe of Epsom (Con)]

I am afraid I cannot.

[Lord Coaker (Lab)]

This is extremely serious. It is exactly the point that the noble Lord, Lord Paddick, is making and what we are trying to clarify. When can a non-uniformed officer use these powers and when can they not?

[Lord Sharpe of Epsom (Con)]

I apologise to the noble Lords, but I have nothing more to say on the subject. I have tried to explain how this relates to the Section 60 powers. Our intention, I say again, was to mirror that approach.

[Baroness Blower (Lab)]

This is of very great significance; not just to me, not just to women, but to everyone who is trying to understand the Government’s intention with this legislation and in what position people will find themselves. Does the Minister not agree that, if it is the Government’s intention that only uniformed police officers may exercise these powers—frankly, I do not think that they should do so either—then that should be made explicit in the Bill, as there is clearly the possibility of ambiguity?

[Lord Sharpe of Epsom (Con)]

I am grateful to my noble friend for pointing out that Clause 11(6) says:

“This section confers on any constable in uniform power … to stop any person and search them or anything carried by them for a prohibited object.”

Clause 10 agreed.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Coaker (Lab)]

I will respond to the noble Lord. If I, in any way, gave the impression that I underestimated the significance or seriousness of what happened to Charlotte Lynch, that was certainly not my intention. I hope that most noble Lords can see the vehemence with which I support doing something about what happened to Charlotte Lynch and using that—if that is the right way of putting it—as a way of ensuring that the Government respond in a way that protects journalistic freedom across our country, whatever the circumstances.

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

My Lords, before I begin responding to the debate, I start by thanking the noble Lord, Lord Paddick, for his most gracious apology, which I am obviously very happy to accept. I also acknowledge that the debate in question was long, free-ranging and somewhat tortuous.

I thank all noble Lords for their contributions on Amendments 117 and 127A. I completely agree with much of the sentiment that has been expressed when speaking to the amendments, tabled by the noble Baroness, Lady Chakrabarti, and to which the noble Baronesses, Lady Boycott and Lady Jones, and the noble Lord, Lord Paddick, have added their names. As I made clear during the debate on the first day in Committee, I share the concerns about the recent arrest of journalists reporting on the Just Stop Oil protests on the M25. The Government are absolutely clear that the role of members of the press must be respected. It is vital that journalists can do their job freely and without restriction, so I agree completely with the noble Baroness, Lady Boycott, and my noble friend Lord Deben, that it is a vital part of our democracy that journalists must be able to report without fear or favour.

On the specific case of the arrest and detention of the journalists at Just Stop Oil’s M25 protest, I was pleased to see the independent review into the arrest and detention of the journalists that concluded on 23 November. The statement issued by Hertfordshire Constabulary confirmed that the arrests were not justified and that, going forward, changes in training and command would be made. It acknowledged that it was the wake-up call to which the noble Lord, Lord Coaker, referred. The review has proposed a series of recommendations which Hertfordshire Police has confirmed it is acting on. They include:

“A further review to ensure that any Public Order Public Safety officers and commanders who have not yet carried out the College of Policing National Union of Journalists awareness training are identified and do so within 30 days; Directions to ensure that all commanders have immediate access to co-located mentors”,


to the policemen who are logging activity,

“and public order public safety tactical advisors throughout operations”

and:

“An immediate operational assessment of the number and experience of the Constabulary’s cadre of Public Order Public Safety commanders.”


I hope that the noble Baroness was somewhat reassured by that statement and the confirmation from the constabulary that it clearly got it wrong in that case, as well as the mitigations in place to ensure that it does not happen again.

In answer to the noble Lords, Lord Faulks and Lord Coaker, the police make mistakes. We agree that it was wrong, but we do not legislate for instances where it was clearly a false arrest and, therefore, unlawful.

More widely, I seek to assure noble Lords that the police cannot exercise their powers in any circumstance unless they have reasonable grounds to do so. It is highly unlikely that simply recording a protest creates sufficient grounds for the use of powers. The College of Policing’s initial learning curriculum includes a package of content on dealing effectively with the media in a policing context. In addition, the authorised professional practice for public order contains asection on the interaction of the police with members of the media, including the recognition of press identification.

Both the noble Baronesses, Lady Fox and Lady Boycott, referenced SDPOs, to which we will return later. The noble Baroness, Lady Boycott, specifically asked whether attending two or more events might give cause to one. The answer is no, because they would not be causing or contributing to serious disruption. However, as I said, that is a debate to which we will return.

Therefore, I support the sentiment behind the noble Baroness’s amendment, but I do not think that it is necessary and respectfully ask her to withdraw it.

[Baroness Chakrabarti (Lab)]

Before the Minister sits down, and with my real thanks for the sentiment that he expressed, does he concede that public order powers in general are cast in broad terms? Charlotte Lynch was arrested for the offence of conspiracy to cause a public nuisance—a fairly broad concept—and a number of broad police powers and offences in the Bill are triggered by an undefined concept of serious disruption.

Does the Minister also concede that senior voices in policing have said that journalists who give the oxygen of publicity to protests are part of the problem? By giving publicity, they are feeding the fuel of serious disruption. I know that the Minister disagrees with that proposition but, given that there has been so much performative legislation, and that there is apparently disagreement in the policing world about what is and is not feeding a serious disruption, why would the Government not take this modest step to ensure that no one should be arrested for the primary purpose of preventing their reporting of protest?

As a point of clarification, the difference between Amendments 117 and 127A is not the class of people they cover; it is the class of activity that is being reported on. Amendment 127A is an improvement on my poorer drafting of Amendment 117 because it refers to reporting protests themselves and not just the policing.

[Lord Sharpe of Epsom (Con)]

I agree with the noble Baroness that I do not agree with the proposition she just outlined from senior police officers. Having said that, I have not read those particular comments and cannot comment on the specifics. I go back to what I was saying earlier: it is not lawful to detain journalists simply there monitoring protests; it is against the law. The police made mistakes in these cases. As I said earlier, we agree it was completely wrong.

[Lord Deben (Con)]

Before my noble friend sits down, the fact is that what he says is true, but something has happened and therefore we have to react to it. For the Government to say that it is not necessary to do this does not mean that they need not to do it, if noble Lords see what I mean. It does not help for the Government to say that it is all okay because it was illegal. It happened and we know that it has happened on several occasions. It is also true that there appears to be among sections of the police a feeling that journalists make things worse rather than do their job. In those circumstances it is no skin off the Government’s nose just to say, “Right, we will put this in and that will make people feel happier and it will make us able to say to foreigners, ‘Look, we actually got this in the law. Not generally, but particularly, because it happened. Why don’t you do the same thing?’”

I do not understand this Government not taking easy steps that do not harm anybody. Just do it and do not constantly say, “Oh well, it’s all right.” It is not and we should do it.

[Lord Sharpe of Epsom (Con)]

I have to say to my noble friend: I hope I was not giving the impression that I was saying that it was all right, because it was not. I have acknowledged that it was wrong and the police made mistakes in this particular case. But, to go back to the point I made in response to the noble Lord, Lord Coaker, we do not legislate for instances where it was clearly a false arrest and therefore unlawful.

[Lord Paddick (LD)]

Will the Minister confirm that neither in his remarks nor apparently from what he said was the response of Hertfordshire police, was there any reference to the unauthorised detention of the journalist at the police station? The first thing that would have happened at the police station is that the journalist would have been asked to turn out their pockets, including their press pass, and yet they were still detained for five hours. What do Hertfordshire police and the Government say about a sergeant not at the scene of the protest authorising the detention?

[Lord Sharpe of Epsom (Con)]

Obviously, I defer to the noble Lord’s expertise on matters custodial, but—I am flying solo a little bit here—I imagine that, whatever the erroneous reasons given for the arrest, the custodial sergeant or whoever was in that position felt that some investigation was required.

[Lord Coaker (Lab)]

Does the noble Lord not realise how disappointing his response is in many ways? As the noble Lord, Lord Deben, just said, what happened in Hertfordshire was a real challenge to us to respond to something which seems to threaten journalistic freedom to report on protests. All of us are saying that, for the Government to turn round and say, “Don’t worry: it was a rare occurrence and it won’t happen again—no need to worry” with a shrug of the shoulders is just not the sort of response that one would hope to get from the Government. As I said, I do not believe we live in a totalitarian state, but every now and again a challenge emerges which threatens to undermine aspects of our democracy, and in this case it is journalistic and broadcasting freedom.

I think that we, certainly I, would expect the Government to reflect on what the movers of the amendment said and on some of the many moving speeches, including from my noble friend Lady Symons, and whether there is a need for the Government to act in order to protect one of the cherished freedoms that we have. I think that is what people in this Chamber—if I read again what the noble Lord, Lord Deben, said; the noble Baroness, Lady Boycott, made the point through her amendment; and I have tried to do it through the words that I have said—are expecting from the Minister, rather than simply, “Well, it was just one of those things that happened and it won’t happen again.”

[Baroness Jones of Moulsecoomb (GP)]

Very briefly, what concerns me about this—well, lots of things concern me—is that the police, including the custody sergeant, should have known it was an illegal arrest, but they must have thought they could get away with it. That really irks me. It is the thought that the police were so high-handed, and that is why it has to be explicit so that they cannot in any sense claim ignorance of the law.

[Lord Sharpe of Epsom (Con)]

My Lords, in answer to the noble Lord, Lord Coaker, I am getting a strong sense of how disappointing I am being, but it is also very fair to say that I have been completely unequivocal in sharing completely his concerns about the protection of our democracy and institutions. As I said earlier, it is a vital part of democracy, and I would expect and also demand, that protests are reported on fairly and freely. Of course I am sorry that the noble Baroness is irked, but I cannot second-guess what the police were thinking and I will not stray into that territory.

[Baroness Boycott (CB)]

My Lords, I thank the Minister for his reply to all the wonderful speeches, and I thank many noble Lords for speaking tonight in support of the amendment that the noble Baronesses, Lady Chakrabarti and Lady Jones, and the noble Lord, Lord Paddick, and I put forward.

What I want to say very much reflects what the noble Lord, Lord Coaker, was saying. I would call this the Government’s “bad apple” defence, which at the moment gets deployed all over the shop, whether we are talking about a single police officer who accosts a young woman at night with bad consequences or about a single police station in Hertfordshire. This is not about a bad apple; as the noble Lord, Lord Paddick, said, this is about a systemic situation, and as the noble Lord, Lord Deben, said, this has happened and it is now happening a lot more.

I suspect, although I am quite happy for your Lordships to disagree with me, that this is a lot to do with the climate and the feeling of people in a desperate situation who do not know what else to do. They end up gluing themselves to the road and they are seen as something extreme. That does not matter: it is still a protest, however annoying and nuisance making it is, and we can all debate that—but it is another debate. This is about the right to protest and the right of journalists to go to that protest and report on it. Journalists report on what human beings do. They report on people, what motivates them and what they care about, and what people are prepared to glue themselves to a road for or to padlock themselves to, or to climb Nelson’s column or whatever it happens to be.

The noble and learned Lord, Lord Hope, made the point about monitoring things across the world. We send journalists to monitor whether African countries are having free elections. How can we stand here and say that that is a good idea if, at the same time, someone reporting on a climate protest is chucked in jail? She was in a cell with a tin bucket as a lavatory for five hours. We are not talking about a quick slap on the wrist and “I’ll write you a letter later and send you a 30 quid fine”. This was a serious thing and it happened. We are therefore obliged to do something about it.

I come back to the “bad apple” defence. It is used by this Government over and over. They cannot use it in this instance and hope to hold their heads up high, or for people in this House to let them get away with it—we will not. I, the noble Baroness, Lady Chakrabarti, and others will bring this back on Report. We will work on the amendment, but it will fundamentally be the same. I am very grateful to all noble Lords who supported it. I beg leave to withdraw the amendment.

--- Later in debate ---

As the noble and learned Lord, Lord Thomas of Cwmgiedd, has said, there are better ways of approaching this—established ways of dealing with it—such as the example he gave of search warrants to ensure that we maintain the political independence of both the police and the Crown Prosecution Service, which will be the two main agencies involved in deciding whether unconvicted people should be made the subject of SDPOs, as we will get on to in the next group.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for the amendments in this group. I turn first to Amendment 126, which would require the College of Policing to publish guidance consolidating the public order authorised professional practice and NPCC and college operational advice for public order policing. The Government would be required to lay the consolidated guidance before Parliament and the guidance would need to be reviewed annually and updated when appropriate.

The noble Lord’s explanatory statement clarifies that this builds on a recommendation from His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to the College of Policing. For the benefit of the House, when giving oral evidence to the Public Bill Committee, His Majesty’s Inspector Matt Parr has said of policing’s response to the report that it was

“the most professional and thorough response”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 55.]

he had seen to a report that he had done.

The college has drafted a new public order public safety authorised professional practice that is in the final stages prior to consultation, which precedes publication. A draft version will be published for consultation by public order practitioners by the end of December and the college plans to publish the final version in early 2023.

To provide further reassurances to all those present who have shown interest in public order guidance, noble Lords will perhaps allow me to detail some of the work that the college has undertaken beyond the authorised professional practice to improve public order training.

On guidance, the college publishes regular bulletins, including on changes to processes, legislation and new training products. Its summary guide to the Police, Crime, Sentencing and Courts Act has been circulated to all forces and widely shared with officers involved in policing public order and protest. This guidance reiterates the need for a balanced approach with a reminder of the recent HMICFRS conclusion that

“the police do not strike the right balance on every occasion. The balance may tip too readily in favour of protesters when – as is often the case – the police do not accurately assess the level of disruption caused, or likely to be caused, by a protest.”

In April, the college drafted the National Police Chiefs’ Council’s Protest Operational Advice Document, which reiterated the need for a rapid response to disruptive disorder. The document aims: first, to support consistency of decision-making and engagement with stakeholders; secondly, to signpost guidance, legislation, key legal decisions, policies and practice which may assist in the policing of protest, thereby promoting public safety, preventing or reducing crime, disorder and/or terrorism to support overall public safety; and, thirdly, to assist decision-makers in achieving outcomes which support the exercise by peaceful protestors of their rights under Articles 8, 9, 10 and 11, while striking the appropriate balance between those rights and the rights of others affected by protest. This is being reviewed by the college, which aims to publish the revised version in February 2023.

On training, over the last six months the college has rolled out significant changes to protestor removal training. This used to be a very niche skill with very few people trained to a high level, but this meant the response was slow. The college has since developed new, quicker training for simpler lock-ons, which has meant a substantial improvement in the speed of the police response to these. I could go on, but I think I have made the point. The college is a professional organisation that is proactive in response to protests to ensure that officers are trained to the highest possible standards. It does not need a legislative stick to make them do so. That is why the Government do not support this amendment.

I thank the noble Lord, Lord Coaker, for specifying that Amendment 144 is a probing amendment to query the demand for, and the capacity of, specialist protest officers across police forces. I presume by “specialist protest officers” the noble Lord is referring to both public order trained officers and officers trained in the removal of protesters who lock on. For the benefit of the House, it is worth clarifying that, for the most part, protests are non-violent and are managed effectively by general patrol officers. When there is a risk of violence, officers with additional specialist public order training are deployed.

On specialist public order trained officers, the NPCC has set a national requirement of 297 police support units across England and Wales, alongside 75 in London. A police support unit consists of one inspector, three sergeants and 18 constables as well as three drivers. On level 3, which is basic public order training, the NPCC has set a requirement for 234 basic deployment units.

On the question from the noble Lord, Lord Coaker, on specialist officers, the NPCC has identified a national requirement for 108 officers trained in debonding protestors, 189 officers trained to remove protestors and another 189 who are trained to remove protestors from complex environments such as height. The noble Lord also asked about non-specialist officers. They are deployed to respond to peaceful protests and all have level 3 public order training.

The noble Lord, Lord Paddick, asked me about specials. Peaceful protests would seem to me to be well within the abilities of volunteer police officers—indeed, I have seen it in my own service overseas. He also mentioned cuts. I am afraid I am going to disappoint him by saying that we are well on the way to the 20,000 police uplift that was promised. I will also of course say that the nature of protests has changed and, therefore, so has the nature of policing, as reflected in much of this Bill.

[Lord Paddick (LD)]

I am sorry to interrupt the Minister and am grateful to him for giving way. I have seen evidence that special constables are being trained to level 2 and being issued with specialist equipment, so I am not talking about special constables trained to level 3, as the noble Lord suggested.

The noble Lord gave a whole series of numbers. The National Police Chiefs’ Council has decided that there should be specified numbers of level 3 and level 2-trained units of one, three and 18—one inspector, three sergeants and 18 constables—as the requirement nationally. To what extent have police services fulfilled those requirements? The indication that the Minister gave was that that is the target that the National Police Chiefs’ Council has given, but to what extent have police forces been able to fulfil that target?

[Lord Sharpe of Epsom (Con)]

I am afraid that I do not know the answer. I will write to the noble Lord with the detail. Regarding the specials, as long as they are trained, surely that is the point.

Chief officers are responsible for demonstrating that they can appropriately mobilise to a variety of public order policing operations at a force, regional and national level in accordance with the national mobilisation plan. The College of Policing sets consistent standards across England and Wales to ensure consistency across forces, allowing officers from different forces to operate in tandem when deployed to other force areas.

The required capacity for public order capabilities is informed by the assessment of threats, harm and risk from the National Police Coordination Centre, as agreed by the National Police Chiefs’ Council. Officials and Ministers in the Home Office regularly probe the National Police Coordination Centre on its confidence that forces can respond to disorder. At present, it assesses that forces are able to meet current protest demands. Forces have been able to use public order resources to respond to incidents including the awful disorder in Leicester in August and September, as well as Just Stop Oil’s recent disruptive campaign on the M25.

Amendment 142A seeks to ensure that statutory guidance issued under Clause 30 is subject to the affirmative scrutiny procedure, rather than the negative procedure, as the Bill currently allows. This follows a recommendation from the Delegated Powers and Regulatory Reform Committee, as explained by the noble Lord, Lord Rooker, and the noble Baroness, Lady Meacher. I thank the committee for its consideration of the Bill. I hope, but am afraid I doubt, that noble Lords will forgive me for echoing the arguments made in the Government’s response here. SDPOs do not represent a new concept. Successive Governments, dating back at least to 1998 and the creation of anti-social behaviour orders in the Crime and Disorder Act, have legislated for civil preventive orders of this kind, which can impose restrictions on liberty, backed by criminal sanctions. Many of these preventive order regimes include similar provision to that in Clause 30 for the Secretary of State to issue guidance which was not subject to the draft affirmative scrutiny procedure. Guidance issued for serious violence reduction orders is subject to the negative scrutiny procedure. Having said that, I listened very carefully to the speech by the noble Lord, Lord Rooker, and I will write to him with an attempt to unravel some of the discrepancies that he mentioned.

We therefore see it as entirely appropriate that the guidance is subject to the negative scrutiny procedure and respectfully encourage noble Lords not to press their amendments.

[Lord Coaker (Lab)]

My Lords, the last remark the Minister made, about writing to my noble friend Lord Rooker, was useful. Reflecting in the letter on the comments by the noble and learned Lord, Lord Thomas, might be helpful as well.

I will focus on my own amendment. I thank all noble Lords who contributed on it. The reason for it was the need for co-ordinated and updated guidance. I am grateful to the Minister for saying that the updated guidance will come at the beginning of 2023.

You can see why there is a need for clarification. An article in the Daily Telegraph just yesterday, quoting the chief constable of Greater Manchester, Stephen Watson, said:

“criticism of officers by the public for being too slow to clear the protesters was ‘not an unreasonable judgment’.”

He went on to say:

“The public has seen us reacting too slowly, less assertively than they would have liked.”


That is the second-most senior police officer in the country saying that the police should have acted more quickly with respect to the protesters. He goes on—and I am not a trained police officer, just reflecting on what the chief constable said in a national paper:

“I think fundamentally, if people obstruct the highway they should be moved from the highway very quickly. The so-called five stage process of resolution can be worked through”


quickly. He goes on, and here is the point that the guidance needs to clarify. Is the chief constable of Greater Manchester right, or are the other officers? The article says that his argument is that

“officers spent too much time building a ‘copper-bottomed’ case for prosecuting people for offences such as public nuisance rather than arresting them for the lesser crime of obstruction.”

I do not know whether that is right or wrong, but somewhere along the line there needs to be clarification through the guidance package, which we hope will come at the beginning of 2023. It should say that, to deal with protests quickly and robustly but according to the law, these are the options available in coming to any decision. The chief constable of Greater Manchester is clearly saying that the police could have done better by using the lesser offence of obstruction. Is he right or wrong? The guidance may be able to sort that out for us. I beg leave to withdraw the amendment.

--- Later in debate ---

[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.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I thank noble Lords who have spoken in this debate. I will make a couple of brief comments in support of the amendments. The noble Lord, Lord Paddick, forcefully made the arguments for Amendment 150, and I will not repeat them. I also support my noble friend Lady Chakrabarti’s amendments —she also made the arguments.

I will add one thing to the amendments of my noble friend Lady Chakrabarti and the right reverend Prelate the Bishop of Manchester—obviously spoken to by the right reverend Prelate the Bishop of Chelmsford. Amendment 147 talks about the “vetting, recruitment and discipline” of specialist officers. It is especially important that these amendments have been tabled. I know that the Government will be as worried, concerned and appalled as the rest of us in the week where we have seen the resignation of Michael Lockwood as the director-general of the Independent Office for Police Conduct due to a criminal inquiry. My noble friend Lady Chakrabarti made a point about vetting. I have no idea what the process or procedure was when Mr Lockwood got the post, but one wonders about the vetting that took place, and this raises the question yet again. We will not have a big debate about all this, but I think that what my noble friend Lady Chakrabarti’s amendments get at is that, if we are to restore public confidence, we have to address some of these issues. Unfortunately, at the moment, we seem to have one thing after another which undermines the valuable work that so many of our officers do.

I will raise one other point about commencement. The noble Lord, Lord Carlile, raised the issue of Section 78 of the Police, Crime, Sentencing and Courts Act 2022. Talking about the commencement of the Bill, he was worried about Section 78’s definition of

“Intentionally or recklessly causing public nuisance”


and how it related to the provisions in Bill. Before the commencement of the Act, as it will be, some clarification of how it relates to Section 78 of the Police, Crime, Sentencing and Courts Act 2022 would be helpful for our police forces as they interpret the law.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, for tabling their amendments; I absolutely understand the sentiment behind them. It is obviously important that the measures passed in the Bill are continually subject to inspection, reporting and scrutiny by the relevant bodies, such as HMICFRS. However, I remind noble Lords that the use of police powers is already carefully scrutinised by public bodies such as HMICFRS and the Independent Office for Police Conduct. The noble Lord, Lord Coaker, will forgive me for not referring to the ongoing case against the departing chief.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

What I hope I said is that our expectation is that the provisions in the Bill will improve the ability of the police to “remove and deter protesters”, thereby alleviating some pressure on the police.

[Baroness Chakrabarti (Lab)]

That is very helpful. I agree with the Minister that police officers—we have a fine one in this Committee—and police forces should not be treated with a broad brush, but, and noble Lords will perhaps forgive me if I say it, nor should peaceful protesters. Hence, the question raised by the noble Lord, Lord Paddick, and hence the bulk of criticism of this entire draft legislation in this Committee. It is an unhappy privilege to be perhaps the last speaker in this Committee; I think I was the first. I am grateful to the Minister for his fortitude and courtesy. He wants to rise again.

[Lord Sharpe of Epsom (Con)]

I just want to clarify that I mean criminal protesters.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister but, of course, if the Government are able to keep expanding the definition of criminality, that does not give much cause for comfort about protecting peaceful dissent. I am none the less grateful to the Minister for his fortitude and courtesy throughout this three-session Committee. I hope that he and his colleagues will understand that what he has heard over these days and hours is very serious cross-party concern about these measures, reflected in vast sections of the country. I have no doubt that, after a good break and, I hope, a happy Christmas of reflection, colleagues will be back and some of these matters will definitely be put to the vote. With that, I beg leave to withdraw the amendment.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Davies of Gower (Con)]

My Lords, I just gently remind the House of the rules of debate on Report, which say:

“On Report, no Lords Member may speak more than once to an amendment, except: the mover of the amendment”.


Intervening repeatedly on other Members is not really in keeping with the rules of debate on Report.

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

My Lords, at Second Reading and in Committee there was much discussion on the meaning of “serious disruption”, and many noble Lords spoke to the need to provide a clear definition in the Bill. I thank all noble Lords who have participated in what has been a fascinating debate. At Second Reading, I agreed with many of the comments made by your Lordships and committed to take the matter away. What we are debating today is the matter of thresholds, as all noble Lords who spoke noted. The debate is not about whether these measures ban protests: quite simply, they do not, and I thank the noble Lord, Lord Coaker, for his comments emphasising that fact. We are trying to ascertain the point to which protesters can disrupt the lives of the general public. This Government’s position is clear: we are on the side of the public.

I thank the noble Lord, Lord Coaker, for tabling his amendment, which provides a definition of “serious disruption” for offences in the Bill. I agree with the purpose of his amendment but do not believe that the threshold is appropriate. The Government want to protect the rights of the public to go about their daily lives without let or hindrance. I do not believe that his amendment supports this aim; therefore, I cannot support it. I make no secret of what the Government are trying to do. We are listening to the public, who are fed up with seeing, day after day, protesters blocking roads: they make children late for school; they make people miss hospital appointments; and they make small businesses struggle. Any change in law must address this, and I do not believe that the noble’s Lord’s proposed threshold does.

In this vein, I turn to the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, which also provide a definition of “serious disruption”, but for the specific offences of locking on, tunnelling and causing disruption by being present in a tunnel. His amendments follow the judgment handed down by the Court of Appeal following the Colston statue case. The court found that the right to protest does not extend to acts of criminal damage that are violent or where the damage is to more than a minor or trivial degree:

“We cannot conceive that the Convention could be used to protect from prosecution and conviction those who damage private property to any degree than is other than trivial.”


We agree with the judiciary and believe that this threshold should be consistent across the statute book. Although the court concerned itself with the matter of damage to private property, the same principles apply to obstructing the public from enjoying their right to go about their business without hindrance. That is why the Government support the noble and learned Lord’s amendments; I am very pleased we were able to surprise him in that regard. They provide a threshold for “serious disruption” that is rooted in case law. I thank him for tabling this amendment and, indeed, for explaining it in such a detailed and precise way. It provides both clarity to the law and a threshold that addresses the public’s frustration with disruptive protests.

I will now speak to government Amendments 48 and 49. The Commissioner of the Metropolitan Police Service has asked for further legislative clarity on police powers to manage public processions and assemblies. These powers are conferred by Section 12 of the Public Order Act 1986 for processions and Section 14 for assemblies. They allow the police to place reasonable and necessary conditions on protests to prevent specific harms from occurring. One of these harms is

“serious disruption to the life of the community”.

These two amendments provide clarity to this phrase for both Sections 12 and 14. The noble Lord, Lord Paddick, was quite right in anticipating that I would be quoting Sir Mark Rowley, who said:

“I welcome the Government’s proposal to introduce a legal definition of ‘serious disruption’ and ‘reasonable excuse’. In practical terms, Parliament providing such clarity will create a clearer line for police to enforce when protests impact upon others who simply wish to go about their lawful business.”


These amendments, supported by the police, prioritise the rights of the law-abiding majority. First, they carry over the noble and learned Lord’s definition of “serious disruption”. Secondly, they define the meaning of “community”. Thirdly, the police may consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly. In answer to the comments of the noble Lord, Lord Paddick, that these are too complicated, I say that the Home Office will work closely with the NPCC and the College of Policing to ensure that appropriate guidance and training are developed. Mirroring the definition of the noble and learned Lord, Lord Hope, will provide consistency across the statute book. As I have said, this is welcomed by the police. I point out that the definition specifies that the disruption is caused by physical means only.

The noble Lord, Lord Coaker, raised in the Policy Exchange paper the use of “minor” in the definition. These amendments protect the daily activities of the public; it is clear that the public are fed up with the disruption caused by protesters, and that is what these amendments address. Many protests that do not disrupt the lives of others occur on a regular basis. The noble Lord, Lord Hogan-Howe, made a very good point: that we should not allow the protesters themselves to determine the scale of disruption. Many protesters are able to express themselves and place pressure for change without blocking roads.

Currently the term “community” is undefined. The police should be able to use their powers to protect anyone who is detrimentally impacted by serious disruption from protests, not just those who live, work or access amenities where the protest occurs. The police must consider the absolute disruption caused to the public, as opposed to the disruption relative to what is typical for an area. The measure will give officers the confidence that they can use to respond to disruptive protests, even in areas routinely subject to spontaneous disruption such as traffic jams. To prioritise the rights of the public, the amendment allows the police to consider the cumulative impact of protests and separate protests. It is wrong that the public must repeatedly put up with disruptive protests, in part because each time there is a new protest, the police must consider the level of disruption afresh and in isolation from what has previously happened and what may be planned. If multiple protests cumulatively ruin the daily activities of a community, they must be considered collectively. Following from this, if the police are to manage the collective impact of protests, they must be able to apply the conditions on separate but connected protests. For example, a large protest campaign made up of multiple small protests that disrupt a large area should be subject to blanket conditions. Allowing the police to consider the cumulative impact of protests by requiring them to manage each individually complicates the operational response unnecessarily. Collectively, these measures will allow the police to protect the public from the disruptive minority who use tactics such as blocking roads and slow walks. The public are clear that they want the police to protect them from these tactics. In turn, the police have asked for clarity and law to confidently and quickly take action and make arrests where appropriate. The Government have listened to both, and I hope this House does the same and supports the amendment.

I will speak collectively to the amendments tabled by the noble Lord, Lord Paddick. These measures do two things to the locking-on and tunnelling offences. First, they lower the threshold of the offence so that acts capable of causing serious disruption are not in scope. Secondly, they alter the mens rea so that only intentional acts, and not reckless ones, are in scope of the offence. It is clear that the public do not want to see police officers sit by while criminal protesters disrupt their lives; lowering the threshold would mean that the police will have to do so. Why should an officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause serious disruption to the public? As for the mens rea, as I have said already, the Government are concerned with the disruption caused to the public. It does not matter whether it is caused recklessly or intentionally; what matters is the impact it has on people’s daily lives. For all these reasons, I encourage all noble Lords to support the amendments in the name of the noble and learned Lord, Lord Hope, and those by the Government and reject the others.

[Baroness Butler-Sloss (CB)]

Can the Minister deal with the issue of “be capable of causing” as opposed to actual disruption?

[Lord Sharpe of Epsom (Con)]

I did deal with that when I was talking a little about the tunnelling and locking-on offences. Why should the officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause, or be capable of causing, serious disruption to the public? Certainly in terms of tunnelling, I think that is very clear.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

21: Clause 4, page 3, line 28, after “a” insert “relevant”
Member's explanatory statement
This amendment and the amendments in the name of Lord Sharpe of Epsom at page 4, line 14 and page 4, line 15 provide that the offence in Clause 4 may be committed only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

29: Clause 4, page 4, line 14, at end insert—
“(5A) In this section “relevant tunnel” means a tunnel that was created for the purposes of, or in connection with, a protest (and it does not matter whether an offence has been committed under section 3 in relation to the creation of the tunnel).”Member's explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 3, line 28.

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

30: Clause 4, page 4, leave out line 15 and insert “References in this section to the creation of an excavation include—”
Member's explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 3, line 28.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a wide-ranging and fascinating debate, and some would say that this may be the House of Lords at its best.

I shall first address the amendments moved by the noble Baroness, Lady Morrissey. She has come late to the party, and I have to say that I think that her amendments have suffered for that reason. Her amendments have not been tested against the Human Rights Act in any way; we do not know what the House of Commons would think about them, and we do not know what the Supreme Court would think about them. Of course, that is in contrast to Amendment 45, where we have a good view of the House of Commons’ likely view, as well as that of the Supreme Court, and as far as we know it is HRA compliant. So I think the noble Baroness has difficulties with her amendments.

The noble Lord, Lord Farmer, spoke to his Amendment 44 and spoke about the lack of use of public space protection orders. I thought that we heard very effectively from the noble Lord, Lord Hogan-Howe, about how public space protection orders had not in practice been put to any great use. In fact, the noble and learned Lord, Lord Etherton, in his speech also explained why they were not suitable for protecting individuals, as opposed to the rights of groups. But I have to say that I think that the noble Lord, Lord Farmer, betrayed himself at the end of his speech when he spoke about the lack of evidence of public disorder, which he prayed in aid for having a review. I have to say that I am not thinking about public order —I am thinking about the individual women who are going to get these services and are being intimidated through cruel protest, in many ways.

I turn to the amendment from the noble Baroness, Lady Sugg, to which I also have my name. I pay tribute to her for all the work that she has done on this matter; I know that she has been in constant discussion with Members of the other place and the Government, and this really is as good a chance as we have to get something on the statute books in good time. As I say, I pay tribute to her. I am also pleased that the noble Lord, Lord Beith, has welcomed these efforts.

One of the most influential speeches was from the noble Lord, Lord Hogan-Howe, who talked about the practicalities of policing a 150-metre zone and local authorities being reluctant to put in place public space protection orders. He also talked about the ingenuity of protesters potentially being able to get around the amendment of the noble Baroness, Lady Morrisey. That was perhaps one of the most influential contributions this evening. I hope that the noble Baroness tests the opinion of the House and I look forward to the Minister’s response.

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

My Lords, I echo other noble Lords who said that this has been a wide-ranging and fascinating debate. As has been referenced and as noble Lords will be aware, through a free vote in the other place, Clause 9, which establishes buffer zones outside abortion clinics in England and Wales, was added to the Bill by 297 votes to 110. I said during the Second Reading of the Bill and in Committee that the Government will respect the will of the House of Commons.

At the time of introducing this Bill in the House of Lords, I signed a Section 19(1)(b) statement under the Human Rights Act 1998. This was because, at the time, we believed it was more likely than not that Clause 9 would be found to be incompatible with the European Convention on Human Rights. We have considered this again following the Supreme Court’s judgment in relation to the Abortion Services (Safe Access Zones) Bill in Northern Ireland. We now believe that Clause 9 is more likely than not to be compatible with the convention. However, we must be clear that while we can draw some parallels between Clause 9 and the Bill in Northern Ireland in relation to the balance of rights, they are not directly comparable. In particular, the threat levels from protests are different in Northern Ireland and the Northern Ireland Bill does not cover private property. It is also worth noting that the legislation in Northern Ireland is not yet in force. There have been no prosecutions, so it is difficult to make any assessment regarding enforceability of the Bill in Northern Ireland.

Clause 9 was described at the time in the other place as a “blunt instrument”, as others have noted. There is always a balance to be struck between the rights of protesters and the rights of others to go about their daily business free from harassment and disruption, as we have heard debated in relation to many of the other clauses of this Bill. People’s rights to gather, express their views and practise their religious beliefs are protected under Articles 9, 10 and 11 of the European Convention on Human Rights. People’s rights to privacy in accessing healthcare services are protected under Article 8. All these rights are qualified, and it can be appropriate to infringe on them sometimes—for example, to protect other rights or prevent crime.

The Government committed to work with noble Lords across both sides of this debate to make Clause 9 clearer and more enforceable. I thank those noble Lords who took the time to meet me and discuss this issue, and I can assure them that all views were taken into careful consideration and constructive conversations were had on all sides.

The Government have decided to step back and will take a neutral stance during this debate. I committed, as I said earlier, at this Dispatch Box to respect the will of the House of Commons, and I think the best way to do that is to allow the House of Lords to express its will. This clause will undoubtedly be tested in the courts. But this evening, we are offering a free vote to noble Lords on the Government Benches—although I cannot speak for the other Benches—so that noble Lords can vote with their conscience on where the balance of rights should lie.

The Government believe that all the amendments on the Order Paper today would more likely than not be found to be compatible with the European Convention on Human Rights. With that, it is now for the House to decide which amendment, if any, they wish to support.

[Baroness Morrissey (Con)]

Given that, even if my amendments were passed, the whole clause would be overturned by a majority of support for either Amendment 44 or Amendment 45, I will save a few minutes of your Lordships’ time and beg leave to withdraw the amendment.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Coaker (Lab)]

I thank my noble friend Lord Anderson for that important point.

My example is that around Parliament Square, we have a designated area. Your Lordships, passing through it, can be stopped. I think that the noble Lord, Lord Hogan-Howe, has often mentioned that sometimes you have no idea that you are in such an area. I know that all your Lordships would co-operate—we have clarified that it must be an officer in uniform, so we would all stand there. However, if it was tourists who could not speak English, then good luck with that. It may be a young student with no idea that they are being stopped. That would happen. It is in the Bill that it is an offence to resist, and so it goes on. It is a complete overreaction and a disproportionate proposal that the Government are making.

To bring it home, let us think of it on Parliament Square. That is not some obscure place in the back end of London somewhere, or Manchester or wherever. Let us bring it right to our doorstep. When somebody says, “Who made it happen?”, the answer will be that Parliament made it happen, unless it is stripped out of the Bill. Unless it is changed or taken out, it is us.

We have heard from numerous noble Lords today objection after objection to the Bill. I have many objections to it. However, if you hone it down, there cannot be many more pernicious examples than Clause 11. Stopping and searching without suspicion for protests—honestly. Good luck to the Minister in justifying it. I know that his brief will give him all sorts of good arguments but at the bottom, it is a baseless piece of proposed legislation that seriously undermines the right to protest. It will have a chilling effect on many people who are simply protesting in the way that they have always done. I will divide the House when it comes to Amendment 47 and ask your Lordships to stand against Clause 11, to send it back to the other place and say that the Government must think again. It is a disproportionate reaction to a problem which they may perceive and it should be thrown out of the Bill.

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

My Lords, the amendment tabled by the noble Lord, Lord Paddick, seeks to remove the suspicion-led stop and search measure from the Bill, while that tabled by the noble Lord, Lord Coaker, seeks to remove the suspicionless stop and search measure. I understand the strength of feeling expressed by all noble Lords today when speaking to these amendments, but I do not support the removal of these provisions.

Stop and search is a vital tool used to crack down on crime and to protect communities. It is entirely appropriate that these measures are extended to tackle highly disruptive protest offences. The extension of stop and search powers will enable the police to proactively tackle highly disruptive protest offences by searching for and seizing prohibited items which are made, adapted or intended to be used in connection with protest-related offences, such as glue, chains and locks. We know that stop and search has a strong deterrent effect. These measures can prevent offenders from carrying items for protest-related offences in the first place because of the increased chance of getting caught. This was highlighted in the HMICFRS report on the policing of protests, where it was noted that suspicionless search powers can act as a deterrent when circumstances justify use of these powers. I hope that noble Lords will forgive me for repeating this, and there is a difference of opinion with the noble Lord, Lord Paddick, but as I explained in Committee, His Majesty’s Inspector, Matt Parr, from HMICFRS reaffirmed his support for the suspicionless measure at the Bill’s evidence session in June.

It is vital that the police are given the powers that they need to reflect the operational reality of policing. In the fast-paced context of a protest, it can be challenging to assert the appropriate level of suspicion needed for a suspicion-led search, which is why the Bill includes the suspicionless provision. The suspicionless power will be usable only if certain conditions are met and in cases where, as we have heard, a police officer of or above the rank of inspector authorises its use in a specified locality for a specified period. This power uses a similar framework to that found within Section 60 of the Criminal Justice and Public Order Act 1994 to ensure consistency in police powers and safeguards.

When this House considered the suspicionless power during Committee, much discussion focused on the execution of the search, so I thought it might help to set that out in detail here. As I noted above, this power uses a similar framework to that found in Section 60 of the Criminal Justice and Public Order Act 1994. An authorisation for a Section 60 suspicionless order may be given only by an officer of the rank of inspector or above and can be in place for a maximum of 24 hours. The Section 60 order can be extended for a further 24 hours, to a maximum of 48 hours, by an officer of or above the rank of superintendent, but it cannot be in place for more than 48 hours. It is for the authorising officer to determine the geographical area of the order, which will depend on the situation that led to the order being authorised.

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Moved by

[Lord Sharpe of Epsom]

48: Before Clause 15, insert the following new Clause—
“Imposing conditions on public processions: serious disruption(1) Section 12 of the Public Order Act 1986 (imposing conditions on public processions) is amended as follows.(2) After subsection (2) insert—“(2ZA) In considering for the purposes of subsection (1)(a) whether a public procession in England and Wales may result in serious disruption to the life of the community, the senior police officer may have regard to the cumulative disruption to the life of the community resulting from—(a) the procession,(b) any public procession in England and Wales within subsection (2ZB), and(c) any public assembly in England and Wales within subsection (2ZE).(2ZB) A public procession (“Procession A”) is within this subsection if it was held, is being held or is intended to be held in the same area as the area in which the procession mentioned in subsection (2ZA)(a) (“Procession B”) is being held or is intended to be held.(2ZC) In subsection (2ZB) “area” means such area as the senior police officer considers appropriate, having regard to the nature and extent of the disruption that may result from Procession A and Procession B. (2ZD) For the purposes of subsection (2ZB), it does not matter whether or not— (a) Procession A and Procession B are organised by the same person,(b) any of the same persons take part in Procession A and Procession B,(c) Procession A and Procession B are held or are intended to be held at the same time, or(d) directions are given under subsection (1) in relation to Procession A.(2ZE) A public assembly is within this subsection if it was held, is being held or is intended to be held in the same area as the area in which the procession mentioned in subsection (2ZA)(a) is being held or is intended to be held.(2ZF) In subsection (2ZE) “area” means such area as the senior police officer considers appropriate, having regard to the nature and extent of the disruption that may result from the assembly and the procession.(2ZG) For the purposes of subsection (2ZE) it does not matter whether or not—(a) the assembly and the procession are organised by the same person,(b) any of the same persons take part in the assembly and the procession,(c) the assembly and the procession are held or are intended to be held at the same time, or(d) directions are given under section 14(1A) (imposing conditions on public assemblies) in relation to the assembly.(2ZH) In considering for the purposes of subsection (1)(a) whether a public procession in England and Wales may result in serious disruption to the life of the community—(a) all disruption to the life of the community—(i) that may result from the procession, or(ii) that may occur regardless of whether the procession is held (including in particular normal traffic congestion),is to be taken into account, and(b) “the community” means any group of persons that may be affected by the procession, and it does not matter whether or not all or any of those persons live or work in the vicinity of the procession.”(3) In subsection (2A) (examples of serious disruption)—(a) before paragraph (a) insert—“(za) it may, by way of physical obstruction, result in the prevention of, or a hindrance that is more than minor to, the carrying out of daily activities (including in particular the making of a journey),”,(b) in paragraph (a), for “a significant delay to” substitute “the prevention of, or a delay that is more than minor to,”, and(c) in paragraph (b), for “a prolonged disruption” substitute “the prevention, or a disruption that is more than minor,”.(4) After subsection (3) insert—“(3A) Subsection (3B) applies where—(a) a public procession is being held or is intended to be held in England and Wales,(b) it appears to the senior police officer that there is a connection between the procession and—(i) one or more other public processions that are being held or that are intended to be held in England and Wales, or(ii) one or more public assemblies that are being held or that are intended to be held in England and Wales, (c) the senior police officer reasonably believes that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession mentioned in paragraph (a), and(d) the senior police officer reasonably believes—(i) in relation to a procession mentioned in paragraph (b)(i), that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession, or(ii) in relation to an assembly mentioned in paragraph (b)(ii), that one of the conditions in section 14(1)(a) to (b) is met in relation to the assembly.(3B) The senior police officer may—(a) give directions under subsection (1) in relation to—(i) the procession mentioned in subsection (3A)(a), and(ii) any procession mentioned in subsection (3A)(b)(i) in relation to which the condition in subsection (3A)(d)(i) is met, and(b) give directions under section 14(1A) in relation to any assembly mentioned in subsection (3A)(b)(ii) in relation to which the condition in subsection (3A)(d)(ii) is met.(3C) Directions given in accordance with subsection (3B) may impose the same or different conditions in relation to different processions and assemblies.(3D) In subsections (3A) and (3B) “the senior police officer” means—(a) where the public procession mentioned in subsection (3A)(a) is being held, the police officer responsible for managing the police response to the procession, and(b) where the public procession mentioned in subsection (3A)(a) is intended to be held, the chief officer of police.(3E) A direction given by a chief officer of police by virtue of subsection (3D)(b) must be given in writing.””Member’s explanatory statement
This new Clause amends section 12 of the Public Order Act 1986 (imposing conditions on public processions) to make provision about when a public procession in England and Wales may result in serious disruption to the life of the community. The amendments also allow for conditions to be imposed in relation to connected processions and assemblies.

[Lord Sharpe of Epsom (Con)]

My Lords, we now turn back to government Amendments 48 to 51, which relate to the definition of serious disruption within Sections 12 and 14 of the Public Order Act 1986 and the reasonable excuse defence with regard to the offences of wilful obstruction of the highway and public nuisance. These were debated by the House last week, so I intend to keep this brief.

Your Lordships will recall the compelling speeches made by the noble and learned Lord, Lord Hope, in defence of the amendments he had tabled. I am sure I speak for many in expressing regret that his amendments were so narrowly defeated. The Government’s amendments follow the noble and learned Lord’s by proposing many of the same amendments for other aspects of public order legislation.

In summary, government Amendments 48 and 49 alter the definition of serious disruption in Sections 12 and 14 of the Public Order Act 1986. They do this by, first, carrying over the definition of “serious disruption” suggested by the noble and learned Lord, Lord Hope. Secondly, they define the meaning of “community”. Thirdly, they will enable the police to consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Fifthly and finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly.

Government Amendments 50 and 51 are similarly inspired by the reasonable excuse amendments from the noble and learned Lord, Lord Hope. Amendment 50 carves protest out of the offence of public nuisance, while Amendment 51 carves protest out of the lawful excuse of the offence of wilfully obstructing the highway. However, recognising that the offence is a low-level one, we do not carve it out in its entirety. Instead, the amendment removes protest from the reasonable excuse only where more than serious disruption is caused.

The Government’s amendments represent sensible, pragmatic changes that not only respond to a request from the Commissioner of the Metropolitan Police Service for further legislative clarity on the police’s powers to manage public processions and assemblies but bring aspects of public order legislation into line with recent case law. I would therefore like to test the opinion of the House.

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Moved by

[Lord Sharpe of Epsom]

50: After Clause 16, insert the following new Clause—
“Wilful obstruction of highwayIn section 137 of the Highways Act 1980 (penalty for wilful obstruction), after subsection (1) insert—“(1ZA) Subsection (1ZB) applies where—(a) a person wilfully obstructs the free passage along a highway, and(b) the obstruction causes or is capable of causing serious disruption to two or more individuals or an organisation.(1ZB) The fact that the person wilfully obstructed the free passage along the highway as part of or in furtherance of a protest on an issue of current debate does not constitute a lawful excuse for the purposes of subsection (1).(1ZC) For the purposes of subsection (1ZA) an obstruction causes “serious disruption” if it prevents, or would hinder to more than a minor degree, the individuals or the organisation from carrying out their daily activities.””Member's explanatory statement
This new Clause amends section 137 of the Highways Act 1980 (penalty for wilful obstruction of the highway) to provide that where a person wilfully obstructs the free passage along a highway and that obstruction causes or is capable of causing serious disruption, the fact that they did so as part of or in furtherance of a protest on an issue of current debate does not constitute a lawful excuse.

[Lord Sharpe of Epsom (Con)]

I beg to move.

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[Lord Coaker (Lab)]

My Lords, we support the amendment moved by my noble friend Lady Chakrabarti and if she divides the House, we will support her in the Division Lobbies. As the noble Lord, Lord Cormack, said, a free press is the hallmark of a democratic society; we should remind ourselves of that. In doing so, I reflect again on the really important point made by my noble friend. The amendment is not concerned with the police using their powers proportionately, where appropriate, if criminal behaviour is taking place. It states:

“A constable may not exercise any police power for the principal purpose of preventing a person from observing or otherwise reporting on a protest”.


It is not saying that there is carte blanche for anybody who is observing to do anything they want around a protest, to exploit it for their own reasons and to conduct criminal activity, or that it would prevent the police doing anything about that; far from it. It seeks to allow reporters and others to observe and report to the wider public, to different sections of the country and beyond, who may not even be there or understand what the protest is about. That is important, and this must be an unfettered, protected power. That is why we support the amendment, which is extremely important, among the many other extremely important amendments we are discussing today.

[Lord Sharpe of Epsom (Con)]

My Lords, I apologise for my slightly tardy arrival.

Amendment 54, tabled by the noble Baronesses, Lady Chakrabarti and Lady Boycott, and the noble Lord, Lord Paddick, seeks to establish a specific safeguard for journalists and bystanders during protests. It follows the wrongful arrest and detention of the LBC journalist Charlotte Lynch in November. May I reassure the House that it is not okay? I agree with the noble Baroness, Lady Jones, that it is absolutely not okay to arrest a journalist who is doing their job.

I thank the noble Baroness, Lady Chakrabarti, for tabling this amendment, and agree with the need for journalists and innocent bystanders to be adequately safeguarded during protests. The Government are clear that the role of members of the press must be respected. It is vital that journalists be able to do their job freely and without restriction. I agree with the noble Baroness, Lady Fox, the noble Lord, Lord Coaker, and my noble friend Lord Cormack that a free press is the hallmark of a civilised society.

The police can exercise their powers only in circumstances where they have reasonable grounds to do so. Hertfordshire Constabulary has accepted that its wrongful arrests of journalists on the M25 were unlawful. Noble Lords will be aware that an independent review was conducted into Hertfordshire Constabulary’s arrest of journalists during the M25 protests. With your Lordships’ indulgence, I will go into a little of the detail on that. Cambridgeshire Constabulary’s report specifies that:

“The power of arrest is principally governed by PACE 1984 and to be lawful, the arrest must be necessary by reference to statutory powers set out within PACE 1984. Code G provides additional rules and guidance on the use of the power of arrest. Of particular relevance to this operation, it is important to observe the judgement laid out following O’Hara v Chief Constable of Royal Ulster Constabulary 1996—an officer cannot exercise the power of arrest based on instruction from a superior officer. In order to satisfy the requirements under section 24 of PACE 1984, the superior officer must convey sufficient information in order for the arresting officer to develop reasonable grounds.”


I went into that in some detail because Section 24 —“Arrest without warrant: constables”—is very clear. A constable may arrest without warrant

“anyone who is about to commit an offence; anyone who is in the act of committing an offence; anyone whom he has reasonable grounds for suspecting to be about to commit an offence; anyone whom he has reasonable grounds for suspecting to be committing an offence. If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.”

Under those criteria, I struggle to see how the primary purpose of being a journalist, which the noble Baroness, Lady Chakrabarti, referred to, and reporting on a protest, would ever constitute reasonable grounds.

Going back to the Cambridge case, the constabulary also specified that code G of PACE 1984 gives some separate guidance on necessity criteria:

“The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person.”


It is very clear. We are all protected by those rules and that includes journalists. The review revealed that the issue was one of training and proposed several recommendations to fix this, including ensuring that all public safety officers and commanders carry out the College of Policing and National Union of Journalists awareness training. The constabulary has promptly implemented these recommendations. This is not an issue of law but one of training and guidance, which is already being addressed.

[Lord Garnier (Con)]

My Lords, PACE is nearly 40 years old. Is not the training completed?

[Lord Sharpe of Epsom (Con)]

My noble and learned friend makes a very fair point, but the College of Policing and the National Union of Journalists awareness training is a little more recent than the 40 year-old PACE codes.

The College of Policing’s initial learning curriculum includes a package of content on effectively dealing with the media in a policing context. In addition, the authorised professional practice for public order contains a section on the interaction of the police with members of the media. This includes the recognition of press identification. It should also be noted that it is entirely legitimate for a police officer to inquire why an individual may be recording at the scene of a criminal offence if they deem it appropriate. We do not want to suggest that this is unlawful.

In light of those factors, while I completely understand the direction and purpose of the amendment, we do not support it because we do not deem it to be necessary. These defences are already covered in law.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who have spoken in this short but vital debate. Once more to respond to the noble Lord, Lord Hogan-Howe, who I am not sure has read the amendment—

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, to be clear at the outset, we will support Amendment 56 in the name of the noble Lord, Lord Anderson, and I will not divide the House on Amendment 59. I shall speak to Amendment 63, which is tabled in my name and has cross-party and Cross-Bench support.

I welcome the positive move that the Government have made on SDPOs, particularly removing electronic monitoring and limiting an SDPO’s renewal to only once to take into account some of the concerns raised in this House and the other place. Despite this, it remains my view that it is necessary to pursue the wholesale removal of Clause 20. It is simply not proportionate, necessary, Human Rights Act-compliant or good value for money to introduce a power to allow serious disruption prevention orders to be given without a conviction being made.

This is not just my view. The Joint Committee on Human Rights agrees that Clause 20 would interfere

“with legitimate peaceful exercise of Article 10 and 11 rights”

and that:

“The police already have powers to impose conditions on protests and to arrest those who breach them.”


Amnesty International also agrees, saying that Clause 20 is “wholly disproportionate”, restricting

“the exercise of a fundamental right of peaceful assembly based on past conduct and there is no requirement that the past conduct be of a serious nature.”

The Metropolitan Police Commissioner also agrees, confirming this week that “policing is not asking for new powers to constrain protests”.

Experts agree that, since the police already have the powers they need and since this new power would threaten the fundamental right to assemble peacefully, the Government would be wise to think again on this matter. The UK cannot condemn authoritarian regimes cracking down on protests and at the same time celebrate the bravery of protests such as the umbrella movement or the white paper protesters. I will divide the House on Amendment 63, and I hope the Government will use this opportunity to remove this harmful provision.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have contributed to this shortish debate. This group contains notices to oppose, so I will start with those amendments which take issue with serious disruption prevention orders as a whole. The feeling expressed by noble Lords when speaking to these amendments is clear, but I do not support the full removal of these provisions, and it is important that I make clear the reasons why.

Peaceful protest is a fundamental part of our democracy, but causing serious disruption under the guise of a protest is not. Why should protesters who are determined repeatedly to inflict serious disruption continue to be allowed to do so, especially when their actions impact those who simply wish to go about their daily lives, and potentially risk the safety of our emergency services? SDPOs will give the police and the courts the powers that they need proactively to prevent protesters causing serious disruption, time and again. Those protesters found in breach of an SDPO will be liable for arrest, meaning that the police will not need to stand by until an act of protest-related serious disruption has already taken place before they can act.

Some will argue that many of these protesters are already arrested, but a small group of individuals who have been arrested during disruptive protest action have reoffended soon after. To deter this small group of individuals, SDPOs provide an alternative, non-custodial route to prevent those who have a track record of causing serious disruption in the name of protest. SDPOs will prevent protesters causing harm by subjecting them to proportionate and necessary restrictions or requirements. Such restrictions might involve stopping a protester who has previously locked on carrying an item that would assist them doing so again or require a protester, for example, to report to a police officer at the time when a planned protest is due to take place. I should make it clear that it will be up to the courts to consider what measures are put in place on a case-by-case basis to ensure that they are both proportionate and necessary.

In Committee, concerns were raised that SDPOs are a harsh and intrusive way of preventing serious disruption. However, it is important to make it clear that a prohibition or requirement of a preventive order is much less intrusive than a prison sentence, which is a potential consequence of some of the protest-related offences that can lead to an SDPO.

Many noble Lords have asked whether anybody at a protest could be subject to an SDPO. As I hope I made clear in Committee, only those who have committed protest-related offences, breached a protest-related injunction or caused or contributed to protest-related activities on at least two occasions would be considered for an SDPO. It is for the courts to decide whether someone’s actions caused or contributed to serious disruption at a protest and meet the threshold of an SDPO.

In answer to my noble friend Lord Hailsham’s question, I say that the person potentially subject to an order may present evidence so, yes, the court may consider evidence from the person potentially subject to an SDPO and may adjourn proceedings if the person does not appear for any reason. I should also clarify that Clause 20(6) states:

“On making a serious disruption prevention order the court must in ordinary language explain to P the effects of the order.”


Therefore the person would need to be present.

[Viscount Hailsham (Con)]

I interpreted that subsection to mean that the statement could be in writing if the person did not attend. Is that correct?

[Lord Sharpe of Epsom (Con)]

I will need to clarify that but, given the other things that I have said, it would imply—I stress “imply”—that the person needed to be there, but I will come back on that point.

I also stress that those who make their voices heard without committing offences or causing serious disruption would not be affected.

The evidential threshold of SDPOs was also the subject of discussion. I am sure that many noble Lords support the courts’ imposition of injunctions which are made on the civil burden of proof and ban large numbers of people protesting in certain locations, including, on occasions, “persons unknown”. The burden of proof is the same for SDPOs, and they are made against known individuals whose actions have shown that an order is necessary.

Noble Lords also raised the question of how SDPOs will be enforced. As I hope I conveyed in Committee, it will ultimately be for the courts to place necessary, proportionate and enforceable conditions on protesters subject to an SDPO and for the police to exercise any powers of arrest in relation to breaches. However, I assure the House that the Government will be setting out statutory guidance for SDPOs to aid the police and courts in due course.

The use of SDPOs is critical when equipping the police with powers to ensure that they can take proactive steps against prolific protesters. So in removing SDPOs fully from the Bill, we will continue to see the police struggle to get ahead of those protesters who are hell- bent on repeatedly inflicting serious disruption.

The noble Lord, Lord Paddick, mentioned the HMICFRS’s comments about banning orders not being compatible with human rights, but the report from the policing inspectorate considered only orders that would always ban an individual protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption, so depending on the individual circumstances this may mean that the court will not consider it necessary to stop individuals attending protests.

Nevertheless, as I made clear when we discussed these measures in Committee, I recognise the strength of feeling expressed by your Lordships. In that vein, I turn to the amendments tabled by the noble Lord, Lord Anderson. I thank him for his continued engagement on this Bill as a whole. His amendments all seek to amend the SDPO regime in some way, be it limiting the trigger events for an order, limiting the maximum duration of an SDPO, limiting the requirements that can be imposed on an individual or amending some of the guidance that is to be issued by the Secretary of State concerning these measures. We still believe that SDPOs are an important and useful tool for stopping repeat protesters committed to causing disruption. For this reason we regrettably cannot support the amendments proposed, which we assess amount to a substantial dilution of the Bill’s effectiveness. However, we recognise the sentiment behind them, as well as the other concerns raised, which is why I committed to take the matter away.

As a result of that consideration, the Government have tabled amendments which seek to allay some of the concerns expressed by your Lordships. We have tabled an amendment which removes the electronic monitoring provisions from the Bill, meaning that no individual subject to an order would have the requirements and prohibitions imposed monitored electronically. This was a particular concern of your Lordships, and we have responded accordingly. The second amendment reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years. The final amendment addresses a criticism made by your Lordships concerning the renewal of an order. Indeed, many noble Lords expressed concerns that an order could be continuously renewed. The amendment we have tabled therefore addresses this by setting a limit on the number of times an order can be renewed to only once. It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs. I encourage all noble Lords to support the amendments in the Government’s name and to reject the others in this group.

[Lord Anderson of Ipswich (CB)]

The Minister will recall that I described my Amendments 57 and 61 as clarificatory. It seemed to me that the Government must surely have not intended that a second or subsequent SDPO made in respect of the same person could be founded on trigger events that had already been taken into account for the purposes of a previous SDPO. I understand that the Minister does not accept my amendments, but can he at least clarify that that is the Government’s understanding of the Bill?

[Lord Sharpe of Epsom (Con)]

I can clarify that that is the Government’s understanding.

[Lord Anderson of Ipswich (CB)]

I am grateful to the Minister for that and for his engagement throughout this process. I am also grateful to all noble Lords who have spoken in this debate, in particular to the noble and learned Lord, Lord Hope, for his extremely pertinent points on the three sub-paragraphs that my Amendment 56 would remove from Clause 19, and to the noble Viscount, Lord Hailsham, for the broader point, which I tried to make as well, that those sub-paragraphs capture conduct that is simply too remote to justify the imposition of such a draconian order.

Very fairly, the noble Viscount made the point, echoed by the Minister, that a magistrate asked to make these orders under Clause 20, for example, must think it “necessary” for certain purposes—he noted the strength of that word. The noble Viscount is right about that, of course, but I simply ask the Government to have in mind, as I am sure they do, that the purposes for which it can be necessary are expressed very broadly indeed. For example, if you look at Clause 20(4)(c), you see that it can be necessary to prevent a person

“causing or contributing to … the carrying out by any other person of activities”.

One has all the same, very indirect language that I seek to remove by Amendment 56.

My amendments leave the police with a completely workable system to deter the small group of individuals who, in the Minister’s words, are hell-bent on repeating serious disruption; there can surely be no doubt about that. Both my amendment and the amendment relating to Clause 20 are too modest to impact on that objective. That is less than some of us would have wished, and I am sure the Government and the House of Commons will be well aware of that when it goes back to them, if these amendments are carried.

I have sympathy with the noble Lord, Lord Paddick, who does not think that my Amendment 56 goes far enough. I would love to have seen other amendments put to the vote, but I am told that politics is the art of the possible. I think the noble Lord agrees that this amendment is a great deal better than nothing and that this improvement will be greater still if Clause 20 can be removed from the Bill. I would like to test the opinion of the House on Amendment 56.

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Moved by

[Lord Sharpe of Epsom]

65: Clause 21, page 26, line 12, leave out paragraph (c)
Member’s explanatory statement
This amendment omits the provision in Part 2 of the Bill that provided for a serious disruption prevention order to include a requirement for a person to submit to electronic monitoring of their compliance with such an order.

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Moved by

[Lord Sharpe of Epsom]

66: Clause 22, page 27, line 17, leave out subsection (5)
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.

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Moved by

[Lord Sharpe of Epsom]

67: Leave out Clause 23
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.

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Moved by

[Lord Sharpe of Epsom]

68: Clause 25, page 30, line 17, leave out subsections (6) and (7)
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.

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Moved by

[Lord Sharpe of Epsom]

69: Clause 28, page 32, line 32, at end insert—
“(8A) The court may not renew a serious disruption prevention order more than once.”Member’s explanatory statement
This amendment provides that a serious disruption prevention order may not be renewed under Clause 28 more than once.

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Moved by

[Lord Sharpe of Epsom]

70: Clause 28, page 32, line 33, leave out subsection (9)
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.

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Moved by

[Lord Sharpe of Epsom]

73: Leave out Clause 32
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.

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Moved by

[Lord Sharpe of Epsom]

74: Clause 33, page 35, leave out lines line 22 to 24
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.

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Moved by

[Lord Sharpe of Epsom]

75: Clause 35, page 36, line 22, leave out “, 13 and 23” and insert “and 13”
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom that leaves out Clause 23.

Public Order Bill

Lord Sharpe of Epsom Excerpts

3rd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we too support all the amendments today. I open by thanking the noble Baroness, Lady Sugg, for all her work on this matter; I know that she has worked tirelessly between both Houses and both sides of this House. I am glad that we have reached this point and, to that extent, I agree with the noble Lord, Lord Cormack.

I reiterate what the noble Lord, Lord Paddick, said: plenty of Christians support the amendments and there are a number I know who would take exception to people describing them as somehow not as good Christians as those who wish to protest by praying within 150 metres of an abortion clinic. It is perfectly clear that you can pray wherever you like, but outside 150 metres of an abortion clinic.

I would like to reinforce the points made by the noble Lord, Lord Anderson, who talked about the strength of the votes at earlier stages of the Bill. He highlighted stop and search and SDPOs, and the strength of support from across the Cross Benches, including from many very senior former judges. I hope that when the Minister wraps up, at this stage or the next, he says something or gives us some hint about how far the Government will go in recognising the concerns that this House has expressed.

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

My Lords, subsequent to Report and ahead of today’s Third Reading, the Government have brought a number of clarificatory technical amendments.

First, during the debate on Report on 7 February, the noble Lord, Lord Anderson, asked for clarification, as he has referred to, that a second or subsequent serious disruption prevention order made in respect of the same person could not be founded on trigger events that had already been taken into account for the purposes of a previous order. I confirmed that that was indeed the Government’s intention. In this spirit, the Government have today brought an amendment clarifying that position within the legislation. I hope noble Lords are satisfied with that legal clarity and I thank the noble Lord for his remarks.

Finally, on Report, your Lordships voted to remove from the Bill Clause 11 on suspicionless stop and search, and Clause 20 on serious disruption prevention orders made otherwise than on conviction. As a result, the Government have brought tidying amendments that are consequential to those amendments. I will not speculate further on what may happen later.

Amendment 1 agreed.

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Moved by

[Lord Sharpe of Epsom]

6: Leave out Clause 12
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 11 (powers to stop and search without suspicion).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

7: Leave out Clause 13
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 11 (powers to stop and search without suspicion).

--- Later in debate ---

Moved by

[Lord Sharpe of Epsom]

8: Leave out Clause 14
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 11 (powers to stop and search without suspicion).

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Moved by

[Lord Sharpe of Epsom]

9: Clause 20, page 21, line 28, at end insert—
“(c) P’s conduct mentioned in paragraph (a) has not been taken into account when making any previous serious disruption prevention order in respect of P.”Member's explanatory statement
This amendment clarifies an uncertainty in the Bill regarding the conditions for making a serious disruption prevention order. It clarifies that a previous conviction or breach may not be taken into account if that conviction or breach has already been taken into account in respect of the making of any earlier serious disruption prevention order.

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Moved by

[Lord Sharpe of Epsom]

10: Clause 21, page 23, line 7, leave out from “20(5)” to end of line 8
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).

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Moved by

[Lord Sharpe of Epsom]

12: Clause 27, page 27, line 12, leave out paragraph (d)
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).

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Moved by

[Lord Sharpe of Epsom]

15: Clause 28, page 29, line 12, leave out subsections (2) and (3)
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).

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Moved by

[Lord Sharpe of Epsom]

17: Clause 33, page 31, line 35, leave out “sections 8 and 13” and insert “section 8”
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom that leaves out Clause 13.

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Moved by

[Lord Sharpe of Epsom]

That the Bill do now pass.

[Lord Sharpe of Epsom (Con)]

My Lords, perhaps I may detain the House a little longer to mark the end of this Bill’s passage through your Lordships’ House. It has been a wide-ranging debate, with much scrutiny across three days of Committee and two days of Report.

I must express the Government’s disappointment at the removal of some very important measures, the aim of which was to support the police in better responding to the sort of disruption which has been impacting the public going about their daily lives. Those amendments will now be considered in the other place and we will no doubt be debating them again soon.

Notwithstanding that, I want to take this opportunity to recognise the contributions of those who have supported me in steering the Bill through the House. I pay particular tribute to my noble friends Lord Murray of Blidworth and Lord Davies of Gower. I also express my thanks to noble Lords on the Government Benches for giving this Bill the scrutiny that the public expect. I thank the Front Bench opposite for its engagement on the Bill, accepting that there have been some areas of disagreement between us. I expect nothing less, of course, of these noble Lords. The noble Lords, Lord Coaker and Lord Ponsonby, and the noble Baroness, Lady Chakrabarti, have been passionate advocates for their causes throughout this process.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendment 1 and do agree with the Commons in their Amendment 1A in lieu.

1A: Page 36, line 15, at end insert the following new Clause—
“Meaning of serious disruption
(1) For the purposes of this Act, the cases in which individuals or an organisation may suffer serious disruption include, in particular, where the individuals or the organisation—
(a) are by way of physical obstruction prevented, or hindered to more than a minor degree, from carrying out—
(i) their day-to-day activities (including in particular the making of a journey),
(ii) construction or maintenance works, or
(iii) activities related to such works,
(b) are prevented from making or receiving, or suffer a delay that is more than minor to the making or receiving of, a delivery of a time-sensitive product, or
(c) are prevented from accessing, or suffer a disruption that is more than minor to the accessing of, any essential goods or any essential service.
(2) In this section—
(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them;
(b) a reference to accessing essential goods or essential services includes in particular a reference to accessing—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a transport facility,
(v) an educational institution, or
(vi) a service relating to health.”

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

My Lords, with the leave of the House, I shall speak also to Motion C.

Amendment 1 provides a definition of “serious disruption” which is the trigger for a number of offences and powers contained in the Bill. As I explained when this was first considered on Report, the Government do not believe that the amendment is appropriate. First, it does not read compatibly with the measures in the Bill—a point made by several of your Lordships during that debate. Secondly, it does not set an appropriate threshold for what constitutes serious disruption, which is why, on Report, the Government supported the definition proposed in the amendments tabled by the noble and learned Lord, Lord Hope of Craighead. The Government have brought an amendment in lieu to more closely align the definition with that proposed by the noble and learned Lord and to address these two issues. The new proposed threshold is rooted in case law from both the Court of Appeal and the Supreme Court. It now has the support of the other place.

The noble Lord, Lord Coaker, has tabled Motion A1, which replaces the “more than minor” threshold in this amendment with “significant”. I will paraphrase the noble and learned Lord, Lord Hope of Craighead, who, when this was debated on Report, expertly argued why “more than minor” was an appropriate threshold. There is no question that minor disruption is not only acceptable but is a constituent part of the right to protest. However, when disruption exceeds this, the police should intervene. The use of “more than” implements this concept in law, which is why the Government continue to support the formulation of the noble and learned Lord. We encourage your Lordships to support Amendment 1A.

Motion C relates to journalists. This group concerns Amendment 17, which seeks to establish a specific safeguard for journalists and bystanders during protests. It is in response to the unlawful arrest of the LBC journalist, Charlotte Lynch, and others by Hertfordshire Constabulary in October 2022. The Government are clear that the role of members of the press must be respected. They should be able to do their job freely and without restriction. However, we remain of the view that the amendment is unnecessary. The police may exercise their powers of arrest and powers to maintain public order and public safety only in limited circumstances specified in law. Therefore, there is no need whatever for carve-outs of circumstances where these powers cannot be used.

However, we recognise the strength of support for this amendment. Sometimes there is a need to send a signal as to the values and principles we stand for; this is one of those times. That is why the Government brought forward an amendment in lieu in the other place. It accepts the principle of the amendment while also minimising the risk of unintended consequences. We make it explicit that the police may still use their powers on those reporting and observing protests when it is necessary and lawful to do so. The police must still be able to exercise their powers on journalists and observers who break the law or who put public safety at risk.

Amendment 17A was supported by the other place, including by the Opposition Front Bench. I hope that it will now also be accepted by your Lordships’ House. I beg to move.

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[Lord Paddick (LD)]

My Lords, with the leave of the House, before I start, I thank all noble Lords from all sides of the House, the doorkeepers, the attendants, the security and the police officers, who have shown such kindness towards me following the sudden, unexpected and so far unexplained death of my husband. I am very grateful.

As the Minister and the noble Lord, Lord Coaker, have explained, the definition of “serious disruption” underpins the entire Public Order Bill. It is an element of many of the new offences and the trigger for the use of new draconian police powers, which we will debate in the next two groups. The police asked for clarity, as there was no definition of “serious disruption” in the Bill that originally came to us from the other place, and we joined forces with His Majesty’s Official Opposition to provide a reasoned and reasonable definition of “serious disruption” that gave clear guidance to the police—Lords Amendment 1—which was agreed by this House. The Commons disagreed with our amendment and substituted Amendment 1A as an amendment in lieu.

On the point made by the noble Lord, Lord Wolfson of Tredegar, about the problem with ambiguity around the word “significant”, the fact is that the original amendment this House passed had examples clearly explaining to the police what we meant, so that ambiguity was not there in the original amendment passed by this House.

Instead of defining “serious disruption” as causing

“significant harm to persons, organisations or the life of the community”,

which would include, for example, preventing an ambulance taking a patient to a hospital, the Government have substituted, as we have heard,

“more than a minor degree”

for “significant harm”. With the greatest respect to the noble and learned Lord, Lord Hope of Craighead, and to address the concerns of the noble and learned Baroness, Lady Butler-Sloss, I will repeat what I said on Report: on a spectrum of seriousness, “minor” is at one end and “serious” is at the other. I say that as a former police officer speaking about how the police might interpret the legislation. For example, a minor injury is a reddening of the skin, and a serious injury is a broken limb or inflicting a fatal injury. My interpretation, as a former police officer, of what is being said in the Bill is that disrupting to

“more than a minor degree”

cannot reasonably be said to be “serious disruption”; it is far too low a threshold. While I understand that the noble and learned Lord wanted to establish a threshold—the exact point at which the law would be broken—our argument is that that point is far too low. We therefore support Motion A1 in the name of the noble Lord, Lord Coaker, and we will support him if he decides to divide the House on his Motion A1.

I join the noble Baroness, Lady Chakrabarti, in saying that I am grateful to the Minister for Amendment 17A, mentioned in Motion C, which we support. It is right to protect observers of protests from being prevented from carrying out their work by the police.

Finally, I thank the noble Baronesses, Lady Chakrabarti and Lady Fox of Buckley, for their kind words about my public service, but I reassure the House that this is not my valedictory speech.

[Lord Sharpe of Epsom (Con)]

My Lords, again, I thank all noble Lords for participating in this debate and for the scrutiny they continue to bring to bear on these important measures.

Before I get on to the amendments, the noble Lord, Lord Coaker, asked about the Government’s intentions for Section 73 of the PCSC Act. For the benefit of the House, Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act contain delegated powers which allow the Secretary of State to amend the definitions of

“serious disruption to the life of the community”

and

“serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession”

for the purpose of Sections 12 and 14 of the Public Order Act 1986.

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Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendments 6, 7, 8, 9 and 36 to which the Commons have disagreed for their Reasons 6A, 7A, 8A, 9A and 36A.

6A: Because it is appropriate for the police to be able to exercise the stop and search powers contained in the clause removed by the Lords Amendment.

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36A: Because the Amendment is consequential on Lords Amendment 6 to which the Commons disagree.

[Lord Sharpe of Epsom (Con)]

My Lords, your Lordships’ Amendment 6 and the related consequential amendments remove the power to stop and search without suspicion from the Bill. While I recognise the strength of feeling expressed by noble Lords when considering these amendments during Report, the Government cannot accept the removal of the suspicionless stop and search powers from the Bill. The other place has also disagreed to these amendments for their reasons 6A, 7A, 8A, 9A and 36A. I therefore respectfully encourage the noble Lord, Lord Paddick, to reflect on Motion B1, which seeks to overturn this wholly and which I do not think appropriate.

Suspicionless stop and search is a vital tool used to crack down on crime and protect communities, and we see it as entirely appropriate that these measures be extended to tackle highly disruptive protest offences. These are much needed proactive powers. Large protests are fast-paced environments where it is difficult for the police to reach the level of suspicion required for a suspicion-led search. The police should not have so sit by idly where there is a risk that someone will commit a criminal offence, and this is why suspicionless stop and search powers are necessary.

This view is shared HMICFRS, which found that suspicionless search powers would act as a deterrent and help prevent disruption and keep people safe. I want to be clear that the power to conduct a suspicionless search does not mean that anyone at a protest will be at risk of being searched without suspicion. The vast majority of protests in this country are peaceful and non-disruptive. These powers will be used only in the exceptional circumstances where it is likely that people at a protest will go on to commit criminal offences that cause serious disruption to others.

I also want to assure your Lordships, as I have sought to do throughout the passage of this Bill, that the safeguards on existing stop and search powers will apply to these powers, both for suspicion-led and suspicionless stop and search, and that includes body-worn video and PACE codes of practice. The Home Office also publishes extensive data on the use of stop and search to drive transparency. We expect the police to operate in a legitimate, fair and transparent manner, which includes decisions surrounding their use of this power.

The noble Lord, Lord Coaker, has tabled Motion B2. I want to remind the House that the power to conduct a suspicionless stop and search in a public order context will only be used in limited cases where a police officer of or above the rank of inspector reasonably believes that protest-related offences will occur and therefore authorises its use. In such cases, suspicionless stop and searches are limited to a specified locality for a specified period, but no longer than 24 hours. This can be extended for a further 24 hours to a maximum of 48 hours by an officer of or above the rank of superintendent, but it cannot be in place for more than 48 hours.

The reason why we have set out the thresholds and time limitations in this way is that we wanted to keep the legislation as consistent as possible for officers who will be using suspicionless stop and search powers. The amendments put forward by the noble Lord, Lord Coaker, would set a higher authorisation threshold for suspicionless searches than if officers are searching for a weapon, and limit the initial window that officers would have to use these powers, which has the potential to confuse officers with the well-established Section 60 legislation that we have discussed previously.

Suspicionless stop and search can be authorised only if specific protest-related offences are likely to be committed. These are the offences in this Bill and the offences of obstructing the highway and public nuisance. As the offence of public nuisance is committed so frequently by those who use disruption as a protest tactic, it is nonsensical to remove it from the list of relevant offences. Doing so would completely undermine this power.

The Government recognise that communication is a fundamental element of building trust and confidence between the force and the community it serves. As good practice, most forces already communicate their Section 60 authorisations, and I know that communities appreciate knowing detail on the geographical area, time limits and the background of the issue. Therefore, although I am sympathetic to the final proposed new subsection in the proposed amendment, which would establish in statute a requirement for the force to communicate when the powers are used, I do not think we want to introduce an inconsistency between the Section 60 legislation framework, which does not carry a communication requirement, and the proposed powers in the Bill. I therefore ask that your Lordships’ House does not insist on these amendments.

[The Deputy Speaker (Baroness Watkins of Tavistock) (CB)]

I must inform the House that if Motion B1 is agreed to, I cannot call Motion B2 by reason of pre-emption.

Motion B1 (as an amendment to Motion B)

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have partaken in another fruitful debate. It has long been the Government’s view that suspicionless stop and search powers are necessary and much-needed proactive powers for tackling highly disruptive protest offences. This view remains unchanged.

I will endeavour to answer some of the points that were raised. First, on why, in its report into the policing of protests HMICFRS concluded:

“On balance, our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency and effectiveness in preventing disruption and making the public safe”.


It is worth reiterating that last point “making the public safe”.

On the disproportionate use of the powers with people of colour, nobody should be stopped and searched because of their race. Extensive safeguards, such as statutory codes of practice and body-worn video exist to ensure that this does not happen. The Home Office publishes extensive data on police use of stop and search in the interests of transparency and will expand this publication to the use of the new powers provided for in this Bill.

On the subject that was just under discussion about the appropriate level of officer who may authorise a suspicionless stop and search, I take the points that noble Lords have made about Section 47A, but this replicates existing powers within Section 60 of the Criminal Justice and Public Order Act 1994, as I said in my opening remarks. Wherever possible, to ensure consistency, officers of inspector or higher may give an authorisation for up to 24 hours. Any extension must be made by an officer of superintendent rank or higher and no authorisation can last for more than 48 hours.

With regard to the geographical extent of a no-reasonable-suspicion stop and search order, it is for police forces to determine how and, indeed, whether to communicate the geographical extent of a search order under Section 60. This will also be the case for the new suspicionless powers in the Bill. Forces are no longer required to communicate that a Section 60 order is in place, but many continue to do so, where they judge it operationally feasible. Obviously, that in itself helps to deter criminals and enhance community trust and confidence. It is common for forces to use their social media channels or websites to communicate the extent of a Section 60 order.

I do not think there is a great deal more I can usefully say or add. I therefore invite the noble Lords, Lord Coaker and Lord Paddick, not to press their amendments.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for their contributions to this debate, particularly the noble Lord, Lord Coaker, for his comprehensive and convincing explanation of his Motion B2, and the noble and right reverend Lord, Lord Sentamu, who, from his personal experience and from the experience of the people he works with and has talked to and whose experiences he has shared, has said that we should listen very carefully. I thank the noble Lord, Lord Hogan-Howe, who feels that Clause 11 should not be part of the Bill but, regrettably, as I said before, probably accepts, as do I, that constitutionally we cannot take it out at this point.

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Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendment 17 and do agree with the Commons in their Amendment 17A in lieu.

17A: Page 19, line 22, at end insert the following new Clause—
“Exercise of police powers in relation to journalists etc
(1) A constable may not exercise a police power for the sole purpose of preventing a person from observing or reporting on a protest.
(2) A constable may not exercise a police power for the sole purpose of preventing a person from observing or reporting on the exercise of a police power in relation to—
(a) a protest-related offence,
(b) a protest-related breach of an injunction, or
(c) activities related to a protest.
(3) This section does not affect the exercise by a constable of a police power for any purpose for which it may be exercised apart from this section.
(4) In this section—
“injunction” means an injunction granted by the High Court, the county court or a youth court;
“police power” means a power which is conferred on a constable by or by virtue of an enactment or by a rule of law;
“protest-related breach”, in relation to an injunction, means a breach which is directly related to a protest;
“protest-related offence” means an offence which is directly related to a protest.”

[Lord Sharpe of Epsom (Con)]

My Lords, I have already spoken to Motion C. I beg to move.

Motion C agreed.

Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendments 20, 21, 23, 27, 28, 31, 32 and 33 and do agree with the Commons in their Amendments 33A and 33B in lieu.

33A: Clause 20, page 24, line 19, leave out sub-paragraphs (iii) to (v)

33B: Clause 20, page 24, line 31, at end insert—
“(c) P’s conduct in relation to each occasion mentioned in paragraph (a) has not been taken into account when making any previous serious disruption prevention order in respect of P.”

[Lord Sharpe of Epsom (Con)]

My Lords, your Lordships’ Amendment 20 removes Clause 20—“Serious disruption prevention order made otherwise than on conviction”—entirely from the Bill. The Government listened carefully to the concerns expressed by this House regarding the conditions that could be considered when applying an order to an individual. That is why the Government have accepted the Lords amendment tabled by the noble Lord, Lord Anderson of Ipswich. Making this change means that an order could be given only on the basis that an individual has been convicted of a protest-related offence or been found in contempt of court for a protest-related breach of an injunction on at least two occasions. I believe that this is the issue with which your Lordships were most concerned, so we listened and we acted.

We still believe it is important that the police have the opportunity to apply for an order at a later point following conviction. Without this measure, it would not be possible to place an order on individuals who have already been found guilty of multiple protest-related offences until they reoffend and are convicted of yet another offence. Removing the ability to impose an SDPO otherwise than on conviction undermines this proactive element. That is why we disagreed with Lords Amendment 20 and tabled amendments in lieu, which reintroduce this clause but tailor the list of conditions, so that upon application an order can be made only where individuals have been convicted of protest-related offences or breaches of injunctions, thereby aligning this with the Lords amendment tabled by the noble Lord, Lord Anderson of Ipswich.

There has been some confusion about the nature of this clause, quite possibly due to its title, which should more accurately be defined as “Serious disruption prevention order made on application”. I assure noble Lords that we will look to make that change following the passage of the Bill.

For the avoidance of doubt, updated Clause 20 will not allow an order to be applied to an individual without a conviction. It will simply allow for an order to be made by a magistrates’ court on application by a relevant chief officer of police at a later point following two or more convictions.

The noble Lord, Lord Ponsonby, has tabled Motion D1, which, with respect, I cannot support. To be subject to a SDPO, a person must be convicted of two protest-related offences or found in contempt of court for breaching two protest-related injunctions. Being found guilty by a court for these acts inherently means that their conduct was beyond a genuine expression of their right to protest. Additionally, it creates an inconsistency between this provision and SDPOs made on conviction, which have already been accepted by Parliament. With that in mind, I respectfully ask that the noble Lord does not move his Motion.

Motion D1 (as an amendment to Motion D)

Moved by

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[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.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Consideration of Commons amendments
Tuesday 28th March 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendments 6B, 6C, 6D, 6E and 6F to which the Commons have disagreed for their Reason 6G.

6G: Because it is not necessary to amend the stop and search powers contained in Clause 11.

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

My Lords, the Public Order Bill is about giving the police the tools they need to tackle the highly disruptive protest tactics we have seen in recent months which have blocked ambulances, delayed passengers from making important journeys and held the capital to ransom. We have had a fruitful debate over the course of the last few months about the contents of the Bill. Your Lordships have undoubtedly given the Bill the scrutiny the British public want and expect, and important compromises have been made along the way which I hope have satisfied the House. I do not intend to detain noble Lords for longer than necessary by repeating those debates. The British people are fed up with inaction and it is time that the Bill became law.

As your Lordships will be aware, this House voted to amend Clause 11—

“Powers to stop and search without suspicion”—

in a variety of ways. As I explained when those amendments were first considered, we cannot support them. This has been reiterated by the other place, and it is why we have brought Motion A. The amendments, among other things, vary the timescale and authorisation threshold for the powers, thereby creating inconsistency with the Section 60 stop and search powers which the Bill’s measures are modelled on.

I understand the argument put forward by the noble Lord, Lord Coaker, in seeking these changes—that by limiting the scope of the power you can attempt to address the disproportionality attached to it—but as the noble Lord, Lord Hogan-Howe, pointed out during the previous debates, this power “has to be practical”. With respect, I cannot see how not establishing parity with existing Section 60 powers supports that, with the unintended consequence likely to be confusion for the officers who will be using them.

Turning to Motion A1 in the name of the noble Lord, Lord Coaker, which seeks to further alter the Bill’s powers to stop and search without permission, first, I remind the House about the legal framework that already exists for all stop and search powers. Under Section 3.8 of PACE Code A, the code of practice for powers to stop and search, officers have to give their name or identification number, police station to which they are attached and grounds for every search. These criteria are also covered in the “GOWISELY” mnemonic drilled into every officer.

Secondly, concerning the requirement for police forces to establish a charter on the use of powers, it is our view that this would cause unnecessary burden on police forces and officers. Plenty of long-established safeguards already exist for stop and search powers. Additionally, we have supported the National Police Chiefs’ Council in its publication of national guidance on the use of body-worn video. This includes encouraging forces to share footage with external scrutiny groups to support transparency and reflective practice and learning.

On the reporting on the use of stop and search powers, I reassure all noble Lords that the Home Office already publishes an annual statistical bulletin. This outlines in detail the information gathered during each stop and search incident. This reporting will be conducted for the use of the new stop and search powers, both suspicion-led and suspicionless, so I would argue that such a measure is unnecessary.

Finally, on publishing a statement giving reasons for the use of powers, as I said in our last debate, the Government recognise that communication on their use is a fundamental element of building trust and confidence between a force and the community it serves. The majority of forces, including the Metropolitan Police Service, already communicate their Section 60 authorisations, and I know that communities appreciate knowing detail on the geographical area, time limits and justification for the authorisation. Those forces will continue this practice for these new powers. Nevertheless, I recognise the merits that establishing this communication requirement in statute could bring. I commit now, on the Floor of the House, that the Government will amend PACE Code A to require that, where it is operationally practical to do so, forces communicate the extent of the area authorised for the suspicionless stop and search, the duration of an order and the reasons for the order.

The Home Office already publishes an annual statistics bulletin which analyses the data from forces across England and Wales. We will also amend PACE Code A to place data collection within the legislative framework. This will include a breakdown of both suspicion-led and suspicionless searches, cross-referenced with protected characteristics such as age, sex and ethnicity. I hope that will satisfy the noble Lord, Lord Coaker, and—respectfully—persuade him to withdraw Motion A1.

The other place voted to disagree with this House’s previous amendments to Clause 11. This matter has been considered and the other place has expressed its will. I believe it is now time that this Bill becomes law.

Motion A1 (as an amendment to Motion A)

Moved by

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[Lord Dear (CB)]

My Lords, I had not intended to speak in this debate today, but I find myself totally in agreement with the noble Lord, Lord Coaker, and with the last remark about Lord Scarman. I worked very closely with him in 1981 and after that and agreed wholeheartedly with his findings then. They are still good today.

The noble Baroness, Lady Meacher, spoke very eloquently and I found myself nodding all the way through her speech. I agree entirely with what she said and will not weary this House by repeating those very wise words, save to say that I think that this is the wrong time for this projected policy. What we need now is temperate and measured policing and this is not going to help that. I support the noble Lord, Lord Coaker.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for another fruitful debate. As I said at the beginning, this Bill has undoubtedly been given the scrutiny the British public want and expect.

Before I go on to more substantive remarks, I should say that I fully support the Casey report. The Government and the Met Police have taken this report very seriously. Guidance on the use of stop and search is statutory and is set out in PACE. It is the law. That is the place for it, as the noble Lord, Lord Hogan-Howe, pointed out, if nothing else to ensure consistency. There are safeguards and considerable scrutiny of stop and search and I will come back to that.

The noble Lord, Lord Coaker, and others will no doubt accuse me of semantics but as my noble friend Lord Sandhurst reminded us, these powers relate to serious disruption—ambulances should not be stopped from getting to hospital, as the leader of the Opposition has pointed out in the past.

On the comments from the noble Lord, Lord Paddick, about the effectiveness of stop and search, I was reminded of a pack that I still have in my folder. I was giving some statistics yesterday, and every knife seized through stop and search, I think, is a potential life saved. In 2021-22, stop and search removed around 14,900 weapons and firearms from our streets and resulted in almost 67,000 arrests. I appreciate that we are on a slightly different subject, but none the less this is an important and powerful illustration that, used appropriately, stop and search can work.

Recent protests have been clear in their aim of causing as much disruption as possible through the use of guerrilla tactics. These measures give the police the proactive powers necessary to respond to those dangerous and disruptive tactics quickly. We will work closely with our partners in the police to ensure that they have the support and resources in place to use these powers.

I have heard what the House has said about the potential disproportionality involved in this and we acknowledge that nobody should be stopped and searched because of their race. Extensive safeguards such as the statutory codes of practice to which I have referred and the use of body-worn video exist to ensure that this does not happen. The Home Office publishes extensive data on police use of stop and search in the interest of transparency and we will expand the publication to the use of the new powers provided for in this Bill, as I have already outlined.

I referred to GOWISELY earlier, which is a mnemonic. This follows, and frankly supports, many of the recommendations from the noble Baroness, Lady Casey. I will go through them. The G stands for grounds for the search. These are the minimum bits of information which should be given to the person detained for the purpose of the search. O stands for the object of the search. W is for the warrant card to be shown to the person searched. I is for the identity of the officer—that is usually the officer’s name unless the officer thinks that giving their name would put them in danger, in which case an identification number can be given. S is the station to which the officer is attached. E is the entitlement to a copy of the search form. L is the legal search power being exercised. Y means that you, the officer, must tell the person stopped that they are being detained for the purpose of the search.

The noble Lord, Lord Morgan, referred to the situation in Paris. As I understand it, much of that is a consequence of the activities of the gendarmerie, which is not a police force with any equivalent in this country.

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[Lord Baker of Dorking (Con)]

Would the Minister answer a question? In a situation where there is a protest preventing traffic, which is very grave and serious, and there are two people young people involved in it, if the police decided to use their power to strip and search, what would they expect to find on those two young people?

[Lord Sharpe of Epsom (Con)]

My Lords, we are debating stop and search. I am not quite sure where strip and search came into this, I am sorry.

[Baroness McIntosh of Hudnall (Lab)]

With respect to the Minister, that was not an entirely adequate answer. He was probably quite clear on what the noble Lord, Lord Baker, was asking him.

That said, the Minister has relied very heavily in what he has said to the House this afternoon on existing protocols that the police are expected to use. We have just been told through the Casey report, using very recent evidence, that those protocols are substantially ignored by the police. Does he have an answer for that?

[Lord Sharpe of Epsom (Con)]

I apologise if I misunderstood my noble friend. I was basing my answer on the fact that a report was published yesterday by the Children’s Commissioner that specifically related to young people and strip search. If I misunderstood, I apologise. With regard to stop and search, I would argue that all the criteria for establishing the cordon and the area and so on would mean that the circumstances described by my noble friend would be highly unlikely.

With regard to the Casey report, as I have already said, both the Government and the Met police are taking it very seriously. These are rules that we expect to be followed.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his response and also thank all noble Lords who have participated in this further discussion between us on this incredibly important matter. For the avoidance of doubt, I will be testing the opinion of the House on my amending Motion A1.

At the very beginning, I said to the Minister that one of the things he would do in his remarks was send up smoke. What did he do in his reply? He sent up smoke. What on earth has praying in aid that 14,900 weapons were seized under existing legislation got to do with the legislation we are currently debating? I am delighted that 14,900 weapons have been seized under stop and search powers—as every single Member in this Chamber will be—but they are nothing to do with suspicionless stop and search under Clause 11; I guess they are probably to do either with stop and search with reasonable suspicion, or with Section 60 suspicionless powers, where needed. I said that I support those powers, and I suspect that nearly everybody, if not everybody, here supports them. What I object to, and what is wrong, is using that to somehow speak against my amendments, because it is irrelevant: we are talking not about weapons or terrorism but about protests and using suspicionless stop and search with respect to protests.

I say to the noble Lord, Lord Sandhurst, that we lost the debate about taking Clause 11 out: it is in the Bill. So the things that he wants to do—confiscate without suspicion various objects that are used for protest—are not what this debate is about: people continue to be able to do that. We lost that debate: we agreed it here, but it was put back in in the other place, and, given that we respect the will of the elected House, I revised what we were doing to seek to mitigate. That is what my amendment seeks to do: to mitigate this further. It does not stop it in any way.

However, I say to the noble Lord, Lord Sandhurst, that the bigger problem is that the police do not have the confidence to use the existing powers to do the things he wants. Nobody in this House supports the protests we have seen on our streets in the last couple of years. But the Government put up this sort of mirage of “This is what people who oppose what we are suggesting are for”. So people who are for the sort of amendment I am talking about are somehow on the side of protesters who are stopping ambulances, or on the side of people who want to take protests too far. That is a nonsense. What I am against is allowing the unmitigated use of Clause 11 without the safeguards needed.

Every single report from the inspectorate, the police complaints authority or whoever says that, if you are going to use this sort of power, which is the most severe power you can give the police, to stop people without suspicion going about their lawful business—that is the power you are going to give to these people—you have to build in safeguards. My contention is that, even with the concessions that the Minister made, the Government’s safeguards are not sufficient and need to be in the Bill. Why do I say that? I use the evidence in the Casey review. I do not just make it up and say, “Oh, that’d be a good idea”; I use the evidence from somebody who has researched and understood this, talked to people, been out to communities, and said, “This is what needs to be included. If you don’t, you risk carrying on with some of the problems that we’ve got”. The noble and right reverend Lord, Lord Sentamu, talked about disproportionality, and my noble friend Lady Lawrence and others with experience of this are here. The disproportionality is, frankly, a scar on our society, and now we are now going to extend that suspicionless power, with all that that may entail, without the necessary safeguards in the Bill.

It is not people like you and me who will be stopped and searched; it will be some of the most deprived people in some of the most difficult communities, who already have problems with trust and confidence in the police. We have the opportunity here, through the Casey review, to draw a line in the sand and set the agenda to support our police by saying that we will help them regain the trust and confidence they need. But we cannot do that if the Government are hiding behind saying, “Oh well, we are in favour of getting weapons off the street and stopping these awful protests”. We are all in favour of that, but this is an overreach of legislation which will potentially have very serious consequences for our society.

My amendment simply seeks to mitigate the impact of the suspicionless stop and search power. I agree with the noble Lord, Lord Paddick, that it should not be in the Bill anyway, but, as we have lost that argument, all we are seeking to do is to mitigate its impact. That is a perfectly sensible and reasonable thing to do.

I finish by saying that we are giving our police the most severe power that they can be given: suspicionless stop and search. Just by walking down the street, you could be stopped and searched. We have said that the power is fine with respect to terrorism—but even there we have mitigated it—and we accept that it is fine if it stops murder, gang warfare and all those sorts of things. But it is a totally different set of circumstances to talk about using suspicionless stop and search for protests. That is a step too far and, as such, we should at least mitigate its impact by supporting the amending Motion I have put forward.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Consideration of Commons amendments
Wednesday 26th April 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That this House do not insist on its Amendments 6H and 6J to which the Commons have disagreed for their Reason 6K.

6K: Because it is not necessary to amend the stop and search powers contained in Clause 11.

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

My Lords, I thank all noble Lords for their engagement throughout the passage of this Bill. As I have already said, the Bill has undoubtedly received the scrutiny that the British people would want and expect, and it is only right to acknowledge that, through the scrutiny of this Chamber, important compromises have been made along the way.

I do not wish to detain noble Lords for longer than necessary. We have debated the contents of this Bill scrupulously and there remains just one disagreement. It is still the Government’s position that we do not support the changes proposed by your Lordships to Clause 11 on the power to stop and search without suspicion. This has been reiterated by the other place, which voted to disagree with your Lordships’ Motions 6H and 6J. Our position has been, and remains, that these changes are unnecessary.

As I mentioned in the previous debate, I remind noble Lords that a legal framework already exists for all stop and search powers. Section 3.8 of PACE Code A requires an officer conducting a search to give the following information to the person being searched: that they are being detained for the purposes of a search; the officer’s name and the name of the police station to which the officer is attached; the legal search power that is being exercised; the grounds for the search; and that they are entitled to a copy of the record of the search and can ask for this within three months from the date of the search. I have already committed, as has the Policing Minister in the other place, to amending PACE Code A to further improve transparency of the use of all stop and search powers. We will make it a requirement to communicate the extent of the area authorised for the suspicionless stop and search, the duration of an order and the reasons for the order where it is operationally practical to do so.

There is a good reason for these changes to be made to PACE Code A and not to the Public Order Bill, which is consistency. We want these changes to apply across the board to all stop and search powers, not just those being debated today. Placing them in the Bill would create one rule for stop and search for protests and another for stop and search for other purposes. This would inherently complicate officers’ training, increasing the chance that these powers are misused. I am sure that all noble Lords agree that this is something we must minimise.

I would also like to reassure all noble Lords that amending PACE Code A does not deny these changes to the principle of stop and search-appropriate scrutiny. Changes to the code require a full consultation with external stakeholders, such as the APCC, MOPAC, the NPCC, the Bar Council, the Law Society and others on the proposed changes and must be brought back to the House for us to consult upon before they are enacted into law.

Finally, on the requirement for a charter, it remains our view that this would be unnecessarily burdensome. The legislation already makes it clear when these powers can be used, and this is bolstered further by the additional requirements for the use of stop and search contained within PACE Code A. This will provide the right balance between tackling these disruptive protesters and protecting the rights of each citizen when these powers are used, so I call on all noble Lords not to insist on their amendments and to pass the Bill as presented. I beg to move.

[Lord Paddick (LD)]

My Lords, the Minister said that there is only one disagreement remaining. He was, of course, referring formally to what the House as a whole disagrees about; but we on these Benches have opposed police stop and search in relation to protest from day one, as any stop and search power will have a chilling effect on those wishing to exercise their rights to freedom of expression and freedom of assembly. These are fundamental human rights that are even more important to those who feel excluded from the parliamentary process, such as black and other minority-ethnic people. These groups are less likely to be registered to vote, less likely to have the correct form of voter ID even if they are registered to vote, and more likely to be stopped and searched by the police. Black people, for example, are between seven and 17 times more likely to be stopped and searched by the police than white people, depending on whether the power used is with or without suspicion. That is despite the legal safe- guards the Minister referred to.

The Commissioner of the Metropolitan Police, in response to the Baroness Casey Review, accepts the fundamental need to reset relationships between the police and the public, especially on the back of the findings of racism, misogyny and homophobia. Sir Mark Rowley acknowledges the past tendency of the police to impose tactics, rather than collaborate with, listen to and engage with communities. That is exactly what the noble Baroness, Lady Casey of Blackstock, said needed to happen, and the wording of the Lords amendment that we should insist on today is taken exactly from the Baroness Casey Review.

On the one hand, we have the Commissioner of Police for the Metropolis and the noble Baroness, Lady Casey of Blackstock, both pulling in one direction, wanting stop and search to be based on collaboration, listening and engaging. On the other hand, we have this Government pulling in the other direction, rejecting the Lords amendment that would require police forces to draw up a charter on the use of stop and search, in consultation with local communities. This House should insist on the implementation of the recommendations of the Baroness Casey Review and not reject them.

I understand that some noble Lords have been concerned about the precise wording of the amendment. But as the commissioner has found to his cost, not accepting the exact wording of the Baroness Casey Review can result in diverting attention away from actually getting on and doing things instead of debating the meaning of words. However, with other important votes to come this afternoon, and without the support of the Labour Opposition, we appear to have reached the end of the road.

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[Baroness Jones of Moulsecoomb (GP)]

Just for the record, I am absolutely furious about the Bill. I think the Government have panicked. It is unworthy of any Government who think freedom of speech is important. Shame on you all.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank almost all noble Lords for their contributions to another fruitful debate. As I have already said, there is no doubt that the Bill received the scrutiny it deserves. I will not go on at great length, but noble Lords have raised the subject of the Casey review. To remind the House I point out that the review said that, as a minimum, Met officers should be required to give their name, their shoulder number, the grounds for the stop and search and a receipt confirming the details of the stop. As I outlined in my opening remarks, it is fairly clear that our amendments to Section 3.8 of PACE Code A go beyond that. I accept the point the noble Lord made about the face of the Bill, but PACE codes are statutory.

The noble Lord, Lord Coaker, asked about the data that we will collect. I refer to a previous debate and reiterate what was said then:

“The Home Office already publishes an annual statistics bulletin which analyses the data from forces across England and Wales. We will also amend PACE Code A to place data collection within the legislative framework. This will include a breakdown of both suspicion-led and suspicionless searches, cross-referenced with protected characteristics such as age, sex and ethnicity”.—[Official Report, 28/3/23; col.131.]


The British public are rightly sick of the disruption that has been caused by a very selfish minority and expect the Government to act. That is what this Bill does, and it is time for it to become law.

Motion A agreed.