Public Order Bill

Stuart C McDonald Excerpts

Consideration of Lords amendments
Tuesday 7th March 2023 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

May I start by commending the hon. Member for Hemsworth (Jon Trickett)? I agree very much with what he had to say, but I say to him that, although the laws and the constitution underpinning these matters are, as he said, up to 1,000 years old, much of the tradition of modern demonstrations goes back to the 1930s, when the behaviour of the police towards demonstrators led to the creation of the National Council for Civil Liberties, for example. I know that because my grandfather led more than one demonstration and was arrested—after being baton-charged by the police—for inciting violence. He was sent to prison for six months—although the judge gave him the option of being bound over for six months and not making irritating speeches, and he said he would rather go to prison, so there we are.

My hon. Friend the Member for Northampton South (Andrew Lewer) made one of the best speeches I have heard in this House for a very long time on something as fundamental as the right to prayer without intercession by the state. That is an issue that is thousands of years old, and he was absolutely right.

This is problematic. What we are debating is the outcome of an over-heavy-handed Bill—that is where it starts. We were all outraged by the behaviour of some of the demonstrators—disrupting ambulances and Lord knows what else—and the Government reacted to that, but they overreacted, frankly. The Lords have corrected that, and the Government have conceded on a number of important points. They have removed the possibility that a serious disruption prevention order—one of the most restrictive measures we have short of imprisonment—can be imposed on people who have never been convicted.

I say to the Minister that five years after a conviction is a very long time. Most non-violent convictions are spent after one year, so five years is a devil of a long time to allow such restrictions to be put on somebody. The Lords have removed the electronic tagging requirement again. The idea that creating nuisance should lead to someone being tagged is, in my view, a barbaric proposal, and it is gone. An explicit provision that the police cannot use their powers against journalists was carried by about 90 votes in the Lords. That should not even have come up; it is so obvious that that is undermining for us.

The SDPOs are still very restrictive for what are relatively simple offences. They involve bans on using the internet in certain ways, bans on being in certain areas, bans on intended protests, and many other restrictions. They resemble control orders, which—remember—are counter-terrorism measures. That is a crude approach. As I said, five years is too long for the criminal offence to be unspent, so I hope that the Government will look at that again, or, if they do not, that the Lords send it back again.

The organisation Liberty, which, as I said, came into being because of these sorts of problems with demonstrations in the ’30s, has raised concerns about the possibility of political interference, which is really serious. The Secretary of State may issue “guidance about identifying persons” to whom the police should apply an SDPO. In that, we in this House will have no say. That is, again, a critical concern.

The most important thing was raised by the hon. Member for Hemsworth: suspicionless stop and search. Stop and search is an abuse of our freedoms, full stop. Being stopped by a policeman and required to strip off, or to empty one’s pockets and bags, is an abuse that we do not allow in this country. Let me be clear: the vast majority of police are responsible, decent and public-spirited people, but the past year has shown that there are also some other people in there. The Sarah Everard offence has been referred to; Couzens was charged with other offences just recently. That demonstrates the danger of handing over unfettered power to people who might abuse it. That is the simple point, and what the state is doing is handing over that power. What we are looking at here—suspicionless stop and search—has to be restricted or eliminated. If we do not do this, we will be in the same position as some states with which we have no sympathy.

Last, I want to reinforce my point with quotations from His Majesty’s inspectorate of police. Inspectors went round 10 police forces asking for their opinions, and right enough, there was a spectrum, but I want to read out a few sentences from their report. They said:

“At one end of the spectrum, an officer we interviewed described the current legislation”—

that is, the existing legislation, not this Bill—

“as providing ‘an arsenal’ of weapons for the police to use, including many appropriate for use in the context of disruptive protests. Consequently, that interviewee”—

a police officer—

“and many others saw no need for change. Arguing against the proposal for a new stop and search power (Home Office proposal 5) another officer stated that ‘a little inconvenience is more acceptable than a police state’.”

That is a policeman speaking. His Majesty’s inspectorate said:

“We agree with this sentiment.”

His Majesty’s inspectorate, with all its knowledge—much greater than that in the civil service and the Home Office—think that the proposal is unnecessary and that to keep it is to veer towards a police state. On that basis alone, I say to the Minister, please think again about getting rid of the amendment.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). Our view remains that, despite the best efforts of the other place, the Bill continues to represent a draconian and utterly unjustified attack on protest rights. It is fair to acknowledge that the Government have given some ground, but it is far from enough, so we will vote against a number of the Government’s motions to disagree.

Let me deal first with no-suspicion stop and search, in clause 11. It is horribly ironic that as part of a Bill which the Home Office claims—unconvincingly—is designed to tackle “dangerous and highly disruptive” tactics, the Home Office itself is turning to one of the most dangerous and highly disruptive police tactics: suspicionless stop and search. It is a tactic that achieves next to nothing, yet causes considerable harm, including shocking racial disparities—a fact which I do not think the Government have properly acknowledged during the course of the Bill’s passage.

The profoundly negative impact of stop and search on individuals and on community faith in the police came across loud and clear to me as a member of the Home Affairs Committee when we heard evidence as part of our “The Macpherson Report: Twenty Years On” inquiry. Nobody with reasonable knowledge of the Macpherson report, numerous subsequent inspection reports, or the Home Affairs Committee report could responsibly think that expanding no-suspicion stop and search is a sensible way to go, or the answer to any of our problems. Our Committee report warned of the dangers of such search powers resulting in injustice and undermining the legitimacy that is fundamental to the model of policing by consent. In doing so, we echoed earlier inspectorate reports and the words of the former Home Secretary, the right hon. Member for Maidenhead (Mrs May), who in 2014 spoke about the huge damage done to the relationship between the police and the public when innocent people are stopped and searched for no good reason.

Similarly, when looking at the Bill, the Joint Committee on Human Rights—we will hear from its Chair, my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), shortly—objected to these powers. We fully support the Joint Committee’s conclusions on the inherent risk of arbitrary and discriminatory use, and the point that post-exercise accountability is simply not enough. The Committee rightly highlighted that such powers have been used only for really significant and serious offences, such as terrorism or serious violence. Now, the Government want to use them for non-violent activities that are only just now being made criminal offences. The question is: what comes next? It is a very, very slippery slope and a totally inappropriate use of such powers.

The trigger for the powers is also ridiculously low: it could be the possibility that someone somewhere is seriously annoying or inconveniencing somebody else—the public nuisance offence—or that somebody somewhere could lock on to a fence or a gate in a way that is capable of causing more than minor disruption to two people. Suddenly, the whole neighbourhood can be searched in the name of stopping that serious annoyance or the more than minor disruption for two people. The right hon. Member for Haltemprice and Howden quoted the police officer who told His Majesty’s inspectorate that

“a little inconvenience is more acceptable than a police state”.

That is absolutely spot-on. In short, it is a totally ludicrous proposal of dubious consistency with human rights law. It is similarly ludicrous and disproportionate that the penalty will put at risk of imprisonment completely innocent people who simply challenge an officer over an asserted use of a blanket power. That is a dangerous road to go down.

Turning to serious disruption prevention orders, we acknowledge again that the Government have come some way in diluting these highly objectional orders made otherwise than on conviction, but we remain of the view that the whole idea of SDPOs is utterly Kafkaesque and threatens an unjustified infringement on the right to protest of huge numbers of people each and every year. We support the critique provided by Lord Anderson in the other place. It is not long since terrorism prevention and investigation measures were reluctantly introduced, which see significant infringements of a person’s liberty without the use of a criminal court to protect the public from a risk of terrorism. Recently, this House gave cautious support for state threat prevention and investigation measures, but the application of similar ideas, not for the purposes of countering terrorism or espionage, but in the field of protest, is utterly disproportionate and unnecessary. The nature of the SDPO is less defined and lacks similar oversight, limitations or protections compared even with TPIMs or STPIMS, and that is extraordinary. The possibility of a prison sentence for a breach is ridiculous, and the trigger for the imposition of an SDPO is many times lower. Again, the question is: where next? It is a slippery slope indeed. The police do not ask for these powers, and the whole notion should be removed from the Bill.

Finally, we support new clause 1, which seeks to clearly define the meaning of serious disruption and put an appropriate threshold on it. That definition is crucial for a number of other offences and powers. The Government amendment in lieu puts in place so low a threshold that we would prefer no definition at all. If this Government want serious harm simply to be “more than minor”, that triggers all sorts of crazy and unacceptable consequences. Crimes could be committed simply because two people or an organisation had to face moderate or even moderate to minor disruption. Frankly, it is such a wishy-washy low bar that the Bill would be better off with no definition at all. Our view remains that this whole Bill is rotten, overblown, unwelcome and a dangerous threat to human rights, perhaps a bit like the Government themselves. It is a dreadful attack on rights, and it is also dreadful that the constitution allows it to happen. Anything that waters it down is welcome, but in reality the whole Bill should go altogether.

[Sir Charles Walker]

I rise in support of Lords amendments 6 and 20 and to urge the Government not to strike them out. I received some excellent briefings, as many hon. and right hon. Members did, from Big Brother Watch and Liberty, supporting the arguments that will be made this afternoon as to why Lords amendments 6 and 20 should be retained, but actually I found an even better briefing in support of those amendments, and it was provided by the Whips Office.

In “Chamber Brief: Public Order Bill”, the Whips make the best argument possible for retaining these two amendments. If I may, I will just quickly read it out. The brief states:

“Lords amendment 6 removes clause 11: power to stop and search without suspicion from the Bill.”

That sounds an outstanding thing to do. It continues:

“This would mean senior police officers would not be able to give an authorisation allowing a constable in uniform to conduct a suspicion-less stop and search of a person or vehicle”.

That sounds excellent. I do not want suspicion-less stop and searches. It sounds extraordinary that anyone in this House would support suspicion-less stop and searches. In fact, I am surprised that the Whips in my party are requesting colleagues to strike out Lords amendment 6 in relation to suspicion-less stop and searches. When I am going about my business, I do not want to be stopped by a police officer and asked about my business. When I say to the police officer, “Why are you stopping me?”, it seems pretty odd that they can say, “I have not really got a reason to stop you, it is just that I can.”

The Whips’ brief, or the Government’s brief passed through the Whips Office, has a wonderful bit of doublespeak at the end of the paragraph. It states:

“Removal of this clause from the Bill reduces the tools available for the police to use when responding to serious disruption and the Government cannot support it”.

The police do not have these tools yet, so how can the amendment reduce the tools available? That does not make any sense at all.

In promoting their position that Lords amendment 20 should be struck out, the Government say:

“Lords amendment 20 removes clause 20: serious disruption prevention orders made otherwise than on conviction entirely from the Bill. This would mean that an order could not be made by a magistrates court on application by a relevant chief officer of police. It is important that the police have the power to seek an order on application, rather than solely at the point of conviction.”

I understand that, when someone is convicted, the police might have a point of view, but to begin placing restrictions on people before they have been convicted of any crime strikes me as somewhat unBritish.

--- Later in debate ---

[Joanna Cherry]

I am not sure the Minister is right about that. I think what he is trying to say is that the police officer could have a highly subjective view prior to stopping, and a highly subjective view is not a reasonable suspicion. We took all these matters into account in our report.

[Stuart C. McDonald]

I think what the Minister is trying to point out is that before the 24-hour period where the suspicionless stop and search can come into force, there has to be a reasonable belief that somebody somewhere in the locality may commit one of these wishy-washy offences. If that happens, then everybody in that locality can be subject to suspicionless stop and search. I am afraid that is just not an adequate answer to the fact that everybody in that locality could be subject to suspicionless stop and search. It is nonsensical.

[Joanna Cherry]

The Minister must know that we are still bound by the European convention on human rights. Clearly, from what the Home Secretary said earlier this afternoon, some Government Members are trying to find a pretext to take us out of the convention, but we are still bound by it just now. The Minister must know that in order to interfere with freedom of assembly or freedom of association, under article 11 the interference has to be lawful, necessary and proportionate. What my hon. Friend just described is not lawful, necessary and proportionate.

--- Later in debate ---

[Chris Philp]

In just a moment.

As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) correctly said in an intervention, these so-called suspicionless stop and searches can only take place in the absence of personal suspicion, when an officer of the rank of inspector or above believes, or has reason to believe, that in the next 24 hours a number of offences may be committed in the locality. That reasonable belief is required before any suspicionless stop and search can take place, and even then it is time-bound to a period of 24 hours. We think that that is proportionate. We have heard some views from the police and, in particular, from the His Majesty’s inspectorate of constabulary, which has said: “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.” So this is something that HMIC has supported.

[Stuart C. McDonald]

I think we all accept that suspicionless stop and search can be triggered quite rightly, for example if there is a danger of terrorism, but the Bill now allows it to take place when, for instance, there could be a danger that someone somewhere might commit a public nuisance or lock themselves to a fence. That could lead to hundreds or even thousands of suspicionless searches, which is surely disproportionate.

[Chris Philp]

I do not accept that. When there is a reasonable suspicion that in the next 24 hours offences may be committed which may themselves have a profoundly disruptive effect on members of the public, it is reasonable to prevent that. Let me point the hon. Gentleman to the example of the protests on the M25 last November, when a 10-mile tailback was caused. I suggest that preventing that would be a reasonable thing to do.

Lords amendment 17 deals with the question of journalists. As I have said previously, although the law as it stands does protect journalists—in fact, an apology rapidly followed the arrest of the journalist in Hertfordshire —the Government accept that clarification and reaffirmation of journalistic freedom is important, so we accept the spirit and the principle of the amendment. We have improved the wording slightly in our amendment in lieu, but we accept that journalists need special protection.

Lords amendments 18, 19 and 20 deal with serious disruption prevention orders. There has been some confusion over this, on both sides of the House, so I will reiterate the point for the purpose of complete clarity. The Government have accepted the point made in the Lords that a conviction is required before a serious disruption prevention order can be made. That is a significant concession. However, we do not accept Lords amendment 20, because clause 20—as formerly numbered —simply allows for an application to be made at a time after conviction, but a conviction must previously have taken place. We have therefore tabled an amendment in lieu.

I think it important to emphasise that there will be a free vote on buffer zones, at least on the Government side, because it concerns an issue of conscience, namely abortion. There is no Government position on this matter, and Members will vote according to their consciences. We have heard Members on both sides of the House speak about this issue passionately and with conviction.