Crime and Policing Bill

Lord Walney Excerpts

Committee stage
Tuesday 13th January 2026 Lords Chamber

I take the point of the noble Lord, Lord Pannick, that perhaps the Supreme Court on a couple of occasions has tried to give better clarity. The problem for the cops is that they do not easily understand how Supreme Court decisions and judgments pan out. That is why we have law: to articulate what the Supreme Court has sometimes made clear to itself but does not always make clear enough for officers on the ground. The fact that the court needed to remedy it indicates that perhaps there is a gap in the law that the Government might want to remedy now. This is a great opportunity to provide clarity, which I argue that Amendment 382H would do.

[Lord Walney (CB)]

My Lords, I will speak briefly to commend the noble Lords who have brought this amendment. I add my praise and gratitude for Policy Exchange in having led the charge on this. I benefited greatly from Richard Ekins’s report in producing my own review, which was published in May last year. One of the recommendations of my review was for the then Government—it falls now to this Government—to set out a clear plan to move on and clarify after the Ziegler judgment. There have been a number of pertinent cases since then. The Court of Appeal’s ruling on the Colston statue case has, in my understanding, made it clear that this is not an unqualified defence. Nevertheless, it has left a level of confusion, for magistrates and for the police, over more minor but still significant criminal damage, such as spraying paint on statues or throwing soup over a painting. This situation is highly complex and difficult for the police and the courts to navigate now. Leadership from the Government and Parliament is needed to put the matter right.

[Lord Murray of Blidworth (Con)]

My Lords, I find myself in complete agreement with the noble Lord, Lord Walney, and in particular I draw attention to the excellent work of Professor Ekins and Policy Exchange in this area.

As the noble Lord, Lord Faulks, observed in his opening remarks in respect of Amendment 382H, it is plain that the Supreme Court took a wrong turn in the Ziegler case. The noble Lord, Lord Pannick, notes that a number of subsequent cases have touched on the finding in Ziegler and come to an apparently inconsistent conclusion, the most notable of those being DPP v Cuciurean and the Bristol Colston statue case. As the noble Lord, Lord Walney, observes, the Court of Appeal in that case found that the Ziegler judgment had prominently spilled over into trials concerning criminal damage. The Court of Appeal, in its criminal context, made it clear that the defence of lawful excuse was not available in that context, and that sits uneasily with the Supreme Court’s findings in Ziegler.

The noble Lord, Lord Pannick, pre-eminent member of the Bar that he is, says that the law is tolerably clear and should survive with the embellishments of the subsequent cases. I am afraid that, in this context, for the reasons so ably set out by the noble Lord, Lord Hogan- Howe, that is not adequate for the purposes of either the protesters or the police.

In my submission, Amendment 382H is a model amendment, in that it is clear and brief, and sets out with admirable clarity what it is seeking to do. In particular, I draw the Committee’s attention to the fact that it would apply, across the gamut of all offences which contain a lawful excuse provision, the words,

“the excuse must be a lawful excuse or … must be a reasonable one”.

There are many areas across the canon of criminal law that can be engaged with protest that may give rise to this, thus the application of this amendment would be wide-ranging and provide considerable clarity.

Amendment 382H sets out, in proposed new subsection (2), when it is no excuse, and does so with great clarity. I submit that the various judges trying these cases would be greatly aided when making decisions in summary offences and when giving directions to juries on this area in the light of this amendment.

Finally, in proposed new subsection (5), the amendment directly addresses the provision in the Human Rights Act, which takes into account whether or not this is the exercise of a qualified right and provides that this provision is necessary in a democratic society. It therefore sits happily with the human rights arrangements, so ably highlighted by the Minister in his closing speech on the last group. For those reasons, I hope that this amendment is brought back on Report. I, for one, will heartily support it.

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[Lord Strasburger (LD)]

My Lords, I will comment briefly on Amendments 382A and 382C. Amendment 382A amounts to the banning of protests in almost any circumstances at the behest of the police. Proposed new subsection (2)(1B) is particularly guilty in this respect, allowing, as it does, for a protest to be banned because, in the opinion of a chief officer of police, it would place undue demands on the police. But the police, as a public authority, have a duty to facilitate protests, not prevent them. Of course, that duty to facilitate protests has resource implications for the police, sometimes serious implications. That means that the police must be provided with adequate resources by the Government, but it does not mean that, as an alternative to proper resourcing, financial corners should be cut by the Government, thus making it impossible for the police to carry out their duty to facilitate protest. But that is precisely what Amendment 382A would do. It says that protests should be banned because the police are underresourced. It would be better if it said that the police must be sufficiently resourced to allow them to facilitate protest. It does not, and for that reason Amendment 382A must be opposed.

Amendment 382C seeks to extend from six days to 28 the notice period for informing the police of a demonstration, but many demonstrations are spontaneous or are, by necessity, organised at short notice. In any case, the amendment would appear to not achieve anything, because this section of the Bill already contains a provision for late notice as soon as practicable, so there is nothing to be gained by increasing the formal notice period, unless the goal is to make it ever more difficult to organise a protest. Amendment 382C should also be opposed.

[Lord Walney (CB)]

I will briefly comment on the issue of notice periods for protests, because I have sympathy for the desire to create an ordered system where there is more notice for protests, although I struggle to see how it could be practical in some ways. But the main issue that I would like the Government to reflect on is the now fairly routine practice of the police disregarding the fact that many protests do not meet the current seven days. They may have their reasons, but they take a view to not have any form of prosecution for that. Even if they were to prosecute, the fines are relatively low and therefore not a deterrent. So any change in the notice period needs to be wrapped in with looking at the issue that this law is simply not being enforced at all officially at the moment.

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Moved by

[Lord Walney]

370A: After Clause 122, insert the following new Clause—
“Designation and restriction of Extreme Criminal Protest Groups(1) The Secretary of State may by regulations designate a group as an Extreme Criminal Protest Group (“ECPG”) where the Secretary of State reasonably believes that—(a) the group has as its purpose, object or practice the deliberate commission of imprisonable offences, including but not limited to sabotage, criminal damage, obstruction of critical national infrastructure, or serious public order offences,(b) such offences are carried out with the intention of influencing public policy, parliamentary debate, ministerial decision-making, or the exercise of democratic functions, and(c) the activities of the group create a risk of serious harm to public safety, democratic institutions, or the rights of others.(2) A designation under subsection (1) does not amount to terrorist proscription for the purposes of the Terrorism Act 2000.(3) The following are offences in relation to group designated as an ECPG under subsection (1)—(a) membership of a designated ECPG;(b) promotion of a designated ECPG, including public advocacy, recruitment, or dissemination of the group is materials;(c) fundraising for a designated ECPG, including soliciting or providing funds or financial benefit;(d) organising, directing or coordinating activities of the group;(e) providing material support, training, funds or equipment to the group where the person knows or ought reasonably to know that the recipient is a designated ECPG.(4) Any offence under subsection (3) is punishable on conviction—(a) on indictment, by imprisonment for a term not exceeding three years, or a fine, or both;(b) on summary conviction, by imprisonment for a term not exceeding six months, or a fine, or both.(5) Before making a designation under subsection (1), the Secretary of State must lay before Parliament a statement of reasons, subject to the protection of sensitive information.”

[Lord Walney (CB)]

My Lords, it is a pleasure to move Amendment 370A in my name and those of the noble Lords, Lord Polak and Lord Goodman of Wycombe. I also intend to speak to Amendment 371AA in my name and those of the noble Lords, Lord Leigh of Hurley and Lord Mendelsohn, Amendment 378A in my name and that of the noble Lord, Lord Pannick, and Amendment 380 in my name and those of the noble Lords, Lord Pannick and Lord Polak, and the noble Baroness, Lady Foster of Aghadrumsee.

Several of these amendments seek to enact recommendations from my review, Protecting our Democracy from Coercion, laid before Parliament in May 2024 in my then role as the Government’s independent adviser on political violence and disruption. These remain an excellent set of recommendations that the Government are entirely free to accept at any point, notwithstanding the new review set up by the noble Lord, Lord Macdonald of River Glaven, which has already been mentioned a number of times by the Minister’s colleague.

Let me pre-empt his response and enable him to give a subtly different response from his colleague’s. He will say, or is probably gearing up to say, at the end of this debate that we must all wait for the review by the noble Lord, Lord Macdonald, to conclude and then wait and see after that. I gently put it to the Government that they have chosen not to do that themselves in one of the amendments that they have put forward on cumulative disruption. If it is good enough for His Majesty’s Government on that amendment, it is entirely within their power, and proper, to move on some of these other issues while the noble Lord looks at the wider picture. He has about 45 minutes—probably a bit more—to make up his mind on that, and I am sure we will see.

I will try to be brief. Amendment 370A, on extreme criminal protest groups, would create a power for the Secretary of State by regulations to designate an extreme criminal protest group

“where the Secretary of State reasonably believes that … the group has as its purpose, object or practice the deliberate commission of imprisonable offences, including … sabotage, criminal damage, obstruction of critical national infrastructure, or serious public order offences”

in order to influence public policy or democratic decision-making, and where those activities

“create a risk of serious harm to public safety, democratic institutions, or the rights of others”.

This amendment is carefully framed. It makes explicit that designation is not terrorist proscription, and it would seek to restrict membership, promotion, fundraising, organising and material support, with proportionate penalties less than those that a proscribed terrorist group would attract.

I think we can see a reason why this amendment—having this power available to the Government—would have been so valuable in recent years. For that, we should look at the example of Palestine Action. Now, there are deeply opposed views in this House on whether it was appropriate to designate Palestine Action as a terrorist organisation. It has divided the House, it has divided some of my friends with whom I usually agree on the vast majority of issues, and it certainly would divide the country. But I put it to the Committee and the Government that there would be a much greater consensus if it had been available to the Government to stop this organisation, which was avowed in its criminal intent and carried out criminal operations for a period of five years before it was eventually seen to reach the terrorism threshold and was designated.

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[Lord in Waiting/Government Whip (Lord Katz) (Lab)]

This is a slightly delayed response, but I have just realised that the noble Lord was speaking to Amendment 371AA. I realise that there are a lot of amendments in this group, and there have been some changes in the groupings since the previous day in Committee. Amendment 371AA is in group 6. I apologise for interrupting the noble Lord’s flow, but I wanted to make that clear for the Committee.

[Lord Walney (CB)]

I will leave the clerks to unpick that mess. Forgive me. Does that mean we all have to stay incredibly late for group 6? It probably does, does it not?

[A noble Lord]

Yes.

[Lord Walney (CB)]

Oh good, that is such great news. Amendment 378A is not about shielding politicians from criticism but about ensuring that elected representatives, working people and members of the public can access democratic institutions and that those who work in and around them can do so without the fear of intimidation. There is clearly a divide in this Chamber on the kind of noisy, disruptive protest to which elected Members and Parliament are now exposed with increasing regularity. I think it is important that we draw a firmer line, and that the Government set the lead in this, in saying that engagement with the democratic process can actually be diminished by aggressive, angry protests, which implicitly can be a menace, a threat of implied force, rather than freedom of expression and making the views of individuals or groups known to their elected representatives, which there are myriad ways of doing in our advanced society.

Amendment 380 is related to the shadow Minister’s previous set of amendments on cumulative disruption. It is in my name and those of my noble friend Lord Pannick, the noble Lord, Lord Polak, and the noble Baroness, Lady Foster. This builds on the Government’s own amendments to put the principle of cumulative disruption more clearly into Sections 12 and 14 of the Public Order Act, which is welcome. It has been shown to be necessary by the detrimental impact, primarily on Jewish communities, since the Gaza conflict. Many Jewish people have felt intimidated from coming into central London and other places by regular marches and have been beseeching the Government and the police to do something about this—not to ban protests, but to strike a better balance so that they are able to go about their lives and not find themselves in the situation where if a protest group, such as the Palestine Solidarity Campaign, wants to organise a march in central London every Saturday, then, in effect, many Jewish people find that area out of bounds.

It is welcome that the Government have sought to strengthen the ability of the police to place conditions on those protests, but Amendment 380 is necessary because when I, members of the Jewish community and other Peers discussed this with the Metropolitan Police in the thick of the protests, it was clear that its understanding was that that was simply about choosing one street rather than another or perhaps limiting the time, but did not give the ability to say, “You have already been in the centre of London on two Saturdays, so you have to pick a different day”, or “You have to give it a rest this Saturday. Come back the Saturday after”. Under Section 13, that would require recommending that the Secretary of State says no to a march. Therefore, the cumulative impact proposal from the Government will prove insufficient unless it is extended to Section 13 —the ability, on occasion, to say no.

Finally, and briefly—because time is marching on and the issue has been raised in a previous amendment— I turn to Amendment 382E concerning the cumulative impact on policing resources. At the moment, the police are not able to factor in the huge drain on resources that weekly mass marches have been placing on their ability to regulate a protest. Therefore, the bill is racking up to tens of millions of pounds. Bluntly, that is either being placed on taxpayers at a time of increasing fiscal scarcity, or it is going to impact on other front-line policing priorities.

Yes, absolutely, there is a right to protest in this country, but that right is qualified and balanced with other factors. I put it to the Government that ensuring the ability of the police to factor in their own depleted resources in making decisions on repeat processions would be absolutely proportionate. Going out on the streets in mass numbers is probably not the most effective way of getting your view across anyway, in my entirely subjective judgment. It is certainly only one of a myriad of ways in which we have the privilege in our liberal democracy to be able to get our views across. Ultimately, we can also choose to change them every election if we wish.

[Baroness Falkner of Margravine (CB)]

Before the noble Lord sits down, I just wanted clarification on Amendment 370A. Am I to understand that, if this amendment had existed in law, there would not have been any need to use terrorism laws to proscribe Palestine Action?

[Lord Walney (CB)]

My view on this is, admittedly, from the outside; I had some access as the Government’s independent adviser on political violence for a number of years while this issue was being debated. But, yes, my clear view on looking at this is that you would have been able to place a restriction on Palestine Action much earlier in the process, which would have stopped or been able to inhibit much of the criminal damage. Crucially, it would have meant restrictions before they got to the terrorism threshold, and much of this controversy could have been avoided. I beg to move.

[Baroness Blower (Lab)]

My Lords, I have a number of amendments in this group, and I am grateful to my noble friend Lord Hain for having signed them. It will not come as a great surprise to the noble Lord, Lord Walney, that I have differences with his presentation. My amendments represent a compromise rather than the stand part objection in the name of the noble Baroness, Lady Jones, although I have to say that the stand part argument does have some attractions.

The first of my sets of amendments is on the question of “in the vicinity”. When discussing a different Bill in this House, the phrase “in the vicinity” was taken to mean within 10 miles. I imagine that that is not the intention of this clause, but it is imprecise. I hope that many noble and learned Lords in the Committee might agree with me that precision in this aspect of the legislation would be helpful and, perhaps, is even necessary. This is what Amendments 371A, 371C and 371E seek to address.

It is accepted from all sides of the Committee that the right to protest should operate in a free, democratic and pluralist society such as ours. It therefore behoves us that, if we infringe on that right, as this Bill clearly does, we do so with clarity in law—I apologise to the right reverend Prelate the Bishop of Manchester, but I do think that, in this case, clarity would help—so as to do the least damage to that right, particularly as, in my view, we must always seek to protect the Article 11 right to freedom of assembly.

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[Baroness Chakrabarti (Lab)]

I am sorry. He was sitting on them. I do not mean to defame him.

My noble friend of course went on to be Northern Ireland Secretary and therefore has some understanding of the need to balance rights—the rights of peaceful dissent but also the rights of people to go about their business, particularly in their homes and places of worship and so on. That is proportionality and precision.

This vice of vagueness with the concept of “vicinity” is mirrored in the concept of “area” for the purposes of cumulative disruption. As with the Section 44 provision that ended up being impugned in the Strasbourg court, “area” for the purposes of cumulative disruption is not defined, so we are looking at a very broad power here. I say to noble Lords, with all solidarity with their concerns about, for example, synagogues and places of faith and worship, that provisions such as these can be applied as much to a counterprotest as to a protest, and to one group or another group at different times. When we legislate, we need to have a mind to how these powers might be used in the future.

To those noble Lords who spoke of a new quasi-terrorist proscription but for groups that do not quite meet the threshold—

[Lord Walney (CB)]

Not terrorist.

[Baroness Chakrabarti (Lab)]

Not for terrorism but for extreme protest et cetera that by definition does not meet the test of terrorism but something less than that, I urge extreme caution. There is a reason why powers to proscribe have to date been limited to terrorist groups—that exceptional threat—and the reason is that guilt by association is extremely dangerous when you are dealing with broad communities, potentially millions of people, and protest movements.

I have no doubt that some of the activities by some suffragettes—and we saint them now; everyone in this Committee saints and canonises the suffragettes—would meet the terrorist threshold. But does that mean that we want to tar them all in the same way and suggest that the entire movement should be subject to proscription? I urge caution with that and with any amendments in this group that go further than is precise or proportionate.