Public Order Bill

Lord Coaker Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I thank the Minister for introducing this Second Reading. There is no difference between us, it seems to me, on the right to peaceful protest being a fundamental part of our democracy. Many of us in this Chamber, including me, have been part of protests, campaigns and demonstrations. Throughout history, in generation after generation, people have made their voices heard and taken action against the decisions and policies of the powerful. Indeed, we have stood and applauded those taking action and protesting in countries around the world, most recently in Iran and Russia.

We are not an authoritarian country, and I do not believe that the Government wish to ban all protests. But the Bill contains a number of provisions that undermine our historic and democratic rights. The Joint Committee on Human Rights said:

“While the stated intention behind the Bill is to strengthen police powers to tackle dangerous and highly disruptive protest tactics, its measures go beyond this, to the extent that we believe they pose an unacceptable threat to the fundamental right to engage in peaceful protest. The right to peaceful protest is a cornerstone of democracy, which should be championed and protected rather than stifled.”


The Government’s response is to dismiss these fears and say that they are the outpourings of middle-class liberals who are out of touch—or, worse, “tofu-eating wokerati”. I had to look up what tofu was.

More seriously, why are the Government doing this? Much of it is in response to the recent protests. Let there be no doubt: we also strongly criticise the serious disruption caused by Just Stop Oil, Insulate Britain and Extinction Rebellion. We have seen behaviour that is unacceptable to us all. Of course vital infrastructure and services on which we all depend need protecting so that others are not put at risk, as we recently saw with an ambulance struggling to get through. That was unacceptable and wrong, as was the dangerous blocking of the M25 or wasting milk, leaving it to low- income cleaners to mop up.

But our contention and belief are that we need to look at the existing laws and powers that the police have to deal with serious disruption and intimidation. Blocking a road or defacing a work of art are already crimes, and we support the continued strict enforcement of these laws and giving the police the confidence to pursue them. The Government should highlight, as the Minister did, the hundreds of arrests of protesters over the last few months. The fear of arrest and actual arrest deter most people, and one wonders what laws would prevent people as determined as those who are protesting at the present time. The Government’s Bill will potentially inadvertently criminalise many from a huge law-abiding majority.

Under existing laws, five Insulate Britain members were jailed for breaching M25 restrictions, Just Stop Oil protesters who threw tomato soup were charged with criminal damage, 11 people were arrested for criminal damage at a dairy in the West Midlands, 80 people were arrested at an oil facility near Heathrow for aggravated trespass and 25 people were arrested in central London for obstructing the highway. There is example after example of arrests by our police service using existing laws. Perhaps there should be tougher sentences, as the Minister said, but that should be done under existing legislation, not simply reacting to what is happening and seeing whether any more laws are needed.

The Bill contains a number of new measures, many of which were not supported by the police inspectorate, including the creation of protest banning orders, as we call them, and locking on. The so-called new threat of locking on, including the use of superglue, is not new: if the Minister looks to the Home Office, he will see that it is referenced in the 2006-07 ACPO Manual of Guidance on Dealing with the Removal of Protestors. This contains action that the Government suggest should be taken with those who use superglue, as well as pictures reminiscent of those we see today. The Government of the day did not respond to those protesters with new draconian laws.

One of the most worrying new powers in the Bill is to do with stop and search, which is always contentious and controversial, particularly because of its adverse impact on ethnic minorities and other marginalised groups. There is stop and search on suspicion if it is believed that, for example, someone will commit a protest-related offence. But suspicionless stop and search, which is usually reserved for protection against terrorism and the most serious violence, would allow the police to stop and search people without suspicion in a specific place, if an inspector or an officer of higher rank “reasonably believes” that a protest offence may be committed in that area. This would allow the police to stop and search not only completely peaceful protesters but also anyone in the vicinity of a protest, including unknowing passers-by. If Parliament Square were so designated, anyone—people going to work, shoppers, school students, parliamentary staff or tourists—could be stopped without reason. Is that where we want to go? Unacceptable.

Part 2 of the Bill deals with serious disruption prevention orders—or, as we and many others call them, protest banning orders. These can be applied both on conviction and without conviction; people can be banned from a particular place and banned from being with certain other people; and they even include, as the Minister told us, electronic tagging. Such an order can be applied when someone has been convicted of a protest-related offence, but also otherwise than on conviction where a person has on two separate occasions carried out activities causing serious disruption to two or more people or has contributed to others doing so. A chief police officer can apply for a protest banning order.

Measures such as suspicionless stop and search mirror laws that, as I have said, exist for terrorism or serious violence. Is this really where we want to go in this Parliament with our laws on protest? I suggest that this undermines the traditions this country has had. Of course, we do not want to see the disruption that we see. However, I must say—although this may be unpopular—that sometimes there is a price for democracy, a price for freedom and a price for campaigning, which the authorities may not find acceptable. Of course, that means that protesters should not get in the way of people going to hospital or be overly disruptive, but the price of democracy allows people to protest—and we play with that at our peril.

Indeed, when this proposal on protest banning orders was first suggested, the Home Office itself rejected it on the grounds that it essentially takes away a person’s right to protest and would likely lead to legal challenge. It was not the “tofu-eating wokerati”—I cannot resist quoting that phrase again—but the police inspectorate which said,

“however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order.”

There are many other areas beyond the two I have highlighted which we will need to debate in Committee, around tunnelling, various restrictions on protests around major infrastructure projects, and so on. I remind this Chamber that it was the last Prime Minister but one—I cannot keep count—Boris Johnson who himself said, about a major infrastructure project, that he would lie down in front of the bulldozer that sought to build the third runway at Heathrow.

These are broad, sweeping and vaguely defined powers with low thresholds that we will need to debate in Committee. We have seen totally unacceptable actions by protesters: defacing buildings and works of art, pouring out milk and causing serious disruption to the everyday lives of so many. However, many of these protesters have been charged under existing laws, and some will remain undeterred whatever the law. The answer to such protests cannot be the introduction of ever more draconian laws undermining the legitimate right to protest. That is why we oppose so much of this Bill: it cannot be right that laws reserved for terrorists and the most serious violence are to be applied to protesters. As the JCHR said:

“The right to peaceful protest plays a crucial role in any healthy democracy. We are concerned that the Government are proposing further sweeping restrictions on peaceful protest … This latest raft of measures is likely to have a chilling effect on the right to protest in England and Wales. They threaten the overall balance struck between respect for the right to protest and protecting other parts of the public from disruption. The Bill also risks damaging the UK’s reputation and encouraging other nations who wish to crack down on peaceful protest.”


I could not have put it better myself. The Bill goes too far in rebalancing the interests of protests and legitimate ways of action: it rebalances that in the interests of the authorities far too much. It deserves real criticism in Committee, and it is going to get it.

Public Order Bill

Lord Coaker Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Skidelsky (CB)]

My Lords, I will speak briefly in support of Amendment 21 from the noble Lord, Lord Paddick, to which I put my name. The principle it seeks to uphold is that the offending person must be the one committing the offence or intending to commit the offence, rather than somebody else connected with that person. That is a very important point, because “in connection with” is another of these vague phrases that have crept into this kind of legislation. It is also there in counterterrorist legislation. How connected? Friend, lover, colleague, co-religionist? What is the nature of the connection? All these things are undefined. What counts as a malicious connection? That is why we want this amendment.

[Lord Coaker (Lab)]

My Lords, I thank those who have supported the various amendments in my name. I very much supported the comments that the noble Baroness, Lady Jones, made when she opened the group. Similarly, I thank the noble Lord, Lord Paddick, for his support and the arguments he put forward on the various amendments. I also thank the noble Lords, Lord Beith and Lord Skidelsky, and the noble Baroness, Lady Fox. She made some very good comments about “serious disruption” and “key national infrastructure”.

This is the first contribution I have made. The Minister said that the Government had listened to the House of Lords by withdrawing amendments when they came up in the Bill at the beginning of the year, putting them through the Commons and then bringing them to the Lords, that constitutionally that was the right way of doing things, and therefore that the Government had correctly brought the Bill forward to the Lords. I say to him that we as the Lords have a constitutional right to review legislation that comes from the Commons, to say where we think it is wrong, to put forward amendments and to seek clarity where there is none.

That has been the purpose of all the amendments put forward here this afternoon as we go into the evening. Each amendment put forward has sought that clarity of definition—what the Government actually intend and mean—so that as this law goes through and the Bill passes, as it will, it will be a better Bill that delivers what the Government want. That is what we seek to do with all the various amendments.

The key question that will keep coming back to the Government is: why is the Bill necessary? There is no dispute in this Chamber—we all totally and utterly feel that the Just Stop Oil protesters went too far, and that was serious disruption that was unacceptable. It is an Aunt Sally, or whatever the politically correct term is, to say, as the Government sometimes do, that they are in favour of the great British public who object to having their lives disrupted while there is a group of others, in this Chamber or elsewhere, who seek to be on the side of the protesters instead. We are all on the side of the public. We all agree that there is a right to protest but that there should be limits to it, and there will be a debate about where that should come.

The third group deals with the scope of the offences. Again, there is a series of questions for the Government in this group about where we are with the drafting and the scope of the offences. As I say, we keep coming back to the need to draft good law and the need for clarity, not offences so broad that they impinge unreasonably on the British public’s rights and are unenforceable. Other key issues include focusing police resources on where they actually matter, not criminalising lawful behaviour or peaceful protest by members of the British public who are causing minor disruption. Our various amendments seek to probe the Government so that we can consider what to bring forward on Report.

Amendments 18 and 20 deal with being equipped to lock on. Currently, Clause 2 provides that an offence of being equipped for locking on takes place where a person is carrying an item that “may” be used “by any person” in the course of a locking-on offence or “in connection with” such an offence, or which may be used “by any person” in the course of or in connection with a locking-on offence. The amendments that I have tabled and others in the group would narrow that scope so that an offence was committed only where a person was carrying an item with the intention that it “will” be used to commit an offence by the person carrying it. As I say, those amendments are to probe the scope of the offence. Why is the word “may” there, not “will”? Why is the phrase “in connection with” used?

What does “by any person” mean? Any person in the group? Any person standing next to them? Any person who happens to be standing nearby? We heard from my noble friend Lady Armstrong about the difficulties one has where you just imply that someone in the group may be associated with a particular person, and the problems that causes. As my noble friend Lord Ponsonby said to me, there is already a well-used piece of legislation containing the offence of being equipped. He would know, as a magistrate. Why does that legislation not work here? Time and again, the Minister has been asked to say why the current legislation is inadequate to deal with such situations.

Last Friday when Just Stop Oil called off its protest, I heard one of the protesters say on Radio 4—it was the “Today” programme, and the Minister can go back and listen to it—that among the reasons why they did so were the number of people who had been arrested and the number who were in jail or on remand. They said that was having an impact on the ability to carry out protests. Is that not part of the existing legislation dealing with these problems? Maybe it should have been used or enforced quicker but that is a process issue and a policing issue, not a legislative one.

Under current drafting, if an item is not used and absolutely no disruption is caused to anyone, has the person committed a criminal offence because something in their possession may have been used by someone else—not even themselves—to lock on? Is that a criminal offence or not? What does “in connection with” a locking-on offence mean? What activity does that cover?

The classic example that we have all used is a bike lock. We keep coming back to that because it has not been properly addressed. If a person walks through Parliament Square with a bike lock, they could be caught by that clause—is that not the case? Will it be up to that member of the public to prove to a police officer that they have no intent even though it might be used by someone else, not even to commit locking on but for an action that is somehow connected to it? Again, clarity is needed in the law because that police officer will be required to enforce it.

It is worth noting that the clause does not include a reasonable excuse defence. In practice, that is what happens when someone has a reasonable excuse, such as they work close by and own a bike. How is that going to work if there is no reasonable excuse defence available in the clause. Or have I misread it? Asking these questions is, after all, the purpose of Committee.

Amendment 52 concerns the obstruction of major transport works. Clause 6 makes it an offence to obstruct any actions that are

“reasonably necessary … in connection with”

constructing or maintaining transport works. The amendment would remove “in connection with”. Again, this is to probe what actions that may cover. Clause 6 currently provides that it is an offence to obstruct a person

“taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works”.

What does “in connection with” mean? Imagine the list of activities that could be considered as any step that was reasonably necessary in connection with maintaining a transport work. If a local protest prevents a person from painting a railway generator for a few hours, is that now a criminal offence? As the JCHR said:

“For example, the offence would be committed by moving any apparatus that ‘relates to’ construction or maintenance of major transport works (such as a shovel, a broom or a traffic cone) or, indeed, moving any apparatus (even if unrelated to the works) that belongs to a person acting under the authority of the person in charge of the works.”


Is the JCHR wrong to have used those examples? As I say, poor, open-ended drafting will make these offences unusable, casting the net so wide that it means that in no way is the Bill focused on the small number of highly disruptive protesters who are purposefully breaking the law.

--- Later in debate ---

[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.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I hesitate, as a non- lawyer, or even as someone who has never been a judge or magistrate, to enter this debate. I have amendments 34, 56 and 62 in this group.

Amendment 34 seeks to ensure that only those people present in tunnels created under Clause 3 are criminalised—in other words, illegal tunnels, or tunnels dug by protesters—rather than those present in tunnels such as the London Underground tunnels. The drafting of the offence appears to capture people causing serious disruption in the London Underground tunnels, which I am sure was not the intention. In meetings with Ministers before today’s debate, there was an undertaking to recognise that and address it. I would be grateful to hear from the Minister what conclusions the Government have come to, bearing in mind that they have been given prior notice.

Amendments 56 and 62 reflect the recommendations from the Joint Committee on Human Rights that particular regard must be had to the right to peaceful protest under Articles 10 and 11 of the European Convention on Human Rights when deciding whether someone has a reasonable excuse for their actions that would otherwise be an offence of obstructing major transport works and interference with the use or operation of key national infrastructure.

On the other amendments, I admire the ingenuity of the noble Baroness, Lady Jones of Moulsecoomb, in her Amendment 9. I shall leave it at that.

With regard to the noble and learned Lord, Lord Hope of Craighead, the reasonable excuse defence is clearly very difficult. One can understand and sympathise with Extinction Rebellion or the Just Stop Oil people who say, “You’re destroying the planet by giving out more licences for oil and gas exploration”. What more reasonable excuse could you think of for causing this sort of disruption? My only concern is that the Government will take the noble and learned Lord’s first option of doing away with the reasonable excuse defence altogether in these offences, rather than adopting the approach that the noble and learned Lord has suggested.

In the case of the journalist who was arrested, the alternative suggestion in the noble and learned Lord’s detailed amendments would clearly be something that she could use in her defence. I hesitate to say what would happen to her if there were no reasonable excuse for these offences. As the noble and learned Lord said—and with no disrespect to the noble Lord who is a serving magistrate—these are very difficult decisions. If the Court of Appeal and the Supreme Court disagree, and if you have two judges even on the Supreme Court dissenting, how can a Bench of lay magistrates grapple with these difficult issues around reasonable excuse? So there certainly needs to be clarification and clarity around reasonable excuse, and I hope that the Minister can help us with these issues.

[Lord Coaker (Lab)]

My Lords, this is an interesting group of amendments. I will come to the amendments of the noble and learned Lord, Lord Hope, but I will deal with my Amendment 42 first, because it deals with an important specific ask of the Government. I will then come on to the more general point about the reasonable excuse defence.

My Amendment 42, for which I am grateful for the support of the noble Lord, Lord Paddick, would insert a defence for a person who is present in a tunnel or is undertaking acts

“wholly or mainly in contemplation or furtherance of a trade dispute.”

The amendment probes situations where all or part of a person’s workplace is within a tunnel, such as the London Underground.

Currently, other clauses, such as Clause 6 on obstruction of transport works, include a reasonable excuse defence for people causing disruption as part of a trade dispute, and I think we all welcome the Government’s inclusion of that. But have they considered whether that defence needs to be replicated for the new offence of being present in a tunnel? What is covered in the definition of a “tunnel” under the Bill? Does it include the London Underground or the Channel Tunnel, for example? Under the Bill, the definition of a “tunnel” is simply

“an excavation that extends beneath land”.

So some clarification of that would be helpful, and I would be grateful for answers on my Amendment 42.

Aside from that amendment, we have had an interesting, almost philosophical, debate. The noble and learned Lord, Lord Hope, is right to say that you cannot just leave this to others to debate. There is a very real debate here: how far is protest justified by people who say, “My reasonable excuse is that there’s such a climate emergency and, if only people realised it, they would realise that we’re the people who are being sensible and reasonable”? This is a very difficult debate and discussion, but the noble and learned Lord, Lord Hope, has challenged Parliament to have it. The Government may need to think about this and come back on Report with something that seeks to explore the whole issue.

This example is not the same, for obvious reasons, but the Chartists would have been regarded in their time as unreasonable extremists. Many of the suffragettes were imprisoned and force-fed. You can say that this is different and we are in a different time, but you see the point that the noble and learned Lord, Lord Hope, is getting at: what is a reasonable protest, and how far should someone go? In other words, where is the balance in a protest that will inevitably cause some disruption? I have been on protests and demonstrations that have caused disruption. But where is the balance and where do you draw the line? We never debate or discuss this—

[Lord Hope of Craighead (CB)]

The crucial point that I was trying to make is that we are dealing here with serious disruption. I have been trying to get a definition of what that really means. These two points meet: you have to identify what you mean by “serious disruption”, and you reach a point where the proportionality tips against the person who is causing the disruption. That is what we need to get at and why the language in the Bill needs to be more precise to enable that to be determined.

[Lord Coaker (Lab)]

I could not agree more; the issue of proportionality is exactly right. But this is difficult. I have been on demonstrations that caused serious disruption that we regarded as perfectly reasonable, but I am not sure that everybody else would have thought they were perfectly reasonable.

So I support what the noble and learned Lord’s amendments seek to do, which is to get the Government to justify where they think that line should be and say—I am not a lawyer, but I often hear the lawyers here say this—that it should not be left to the courts to determine and try to guess what the Government’s view was and what Parliament was seeking to do. It is Parliament’s responsibility to try to define and clarify what the law seeks to achieve. The courts then interpret that, which is right in a democracy. But we abrogate our responsibility if we do not even seek to discuss this.

The noble and learned Lord, Lord Hope, is exactly right, but my question to him is: where does it tip? One person’s view of what is proportionate may be regarded by someone else as weak and not strong or determined enough to challenge the system. The system might need more challenge, not less, to bring about the change that is needed.

So the debate is necessary, but quite where that takes us and how you put forward an amendment, other than the interesting amendment of the noble and learned Lord, Lord Hope, is really important, as is how the Government respond to it. This important point should not be lost. It is almost a philosophical debate, but its practical implications for protest in our society are immense.

Speaking as an individual, I would put up with some disruption because I recognise the need for people to protest. When I drive into London and sometimes cannot get into Parliament, I remind myself that I have done similar things to people in other circumstances—

[Lord Lennie (Lab)]

And worse.

--- Later in debate ---

[Lord Coaker (Lab)]

And worse. Well, not quite worse, but I have done similar things, and that is the price you pay for democracy. Where you draw the line —before anyone takes me on, I suggest that the Just Stop Oil protesters have acted disproportionately—is an interesting debate and discussion to have, and the noble and learned Lord has done the Chamber great credit by bring it forward.

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

I thank all noble Lords for their contributions to this very interesting debate on this set of amendments. Before I begin, I will respond to the noble Lord, Lord Paddick, and the noble Baroness, Lady Chakrabarti, who is not present in her place, in respect of the comments made at the end of group 1, particularly those relating to the reasonable excuse defence being available before arrest and the recent specific case of the arrest of the journalist Charlotte Lynch. I repeat the words of my noble friend Lord Sharpe: this was clearly wrong and should not have happened. Hertfordshire Constabulary has confirmed that additional measures are now in place to ensure that legitimate media are able to do their jobs.

More generally, I make clear that, to arrest someone, the police need to have reasonable grounds to suspect that they have committed or are about to commit a crime. Of course, we would expect the police to consider the likelihood of someone having a reasonable excuse when making arrest decisions. But the police must be able to intervene early to deal with serious disruption, without having to go through bureaucratic hurdles.

Turning to the group at hand, we have already discussed the reasonable excuse defence at some length today, and I will not detain noble Lords for too much longer. Specifically in relation to Amendments 9 and 10, I thank the noble Baroness, Lady Jones, for giving me the opportunity to make it clear that trampling on the rights of the public in the name of environmental activism is not by default a reasonable excuse for locking on; nor does legitimate activity by the highly regulated energy sector constitute a criminal offence.

Turning to perhaps the most interesting part of the recent debate—regarding Amendments 11, 30, 41, 57 and 63—I particularly thank the noble and learned Lord, Lord Hope of Craighead, for his amendments, which seek to ensure that the reasonable excuse defence is assessed by the courts with reference to an individual’s direct intentions, rather than with reference to any type of public interest they claim to be pursuing through an offence. This would prevent someone using an argument of public interest as a reasonable excuse for committing an offence. I also thank him for his excellent contribution to the debate.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

In Clause 7, “Interference with use or operation of key national infrastructure”, one can see that, in subsection (2), “a defence” is provided

“for a person charged with an offence under subsection (1) to prove that … (b) the act mentioned in paragraph (a) of that subsection was done wholly or mainly in contemplation or furtherance of a trade dispute.”

I am sure the noble Lord can see how the protection for the right to be involved in a trade dispute is protected by that drafting—and that is certainly the clear intention of the Government.

[Lord Coaker (Lab)]

Is the Minister saying that you cannot lock on in the furtherance of a trade dispute but you can picket in the furtherance of a trade dispute?

[Lord Murray of Blidworth (Con)]

Clearly, the provisions of the locking-on offence do not expressly contain the same provision. Therefore, it is correct to say that the Bill envisages a defence for the involvement in industrial disputes in relation to key national infrastructure, but there is no need for such a like provision in respect of locking on. I will obviously clarify that with my officials and respond to the noble Lord in on that.

Public Order Bill

Lord Coaker Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, my noble friend Lady Chakrabarti has allowed us to have a very important short debate. Again, I was interested in the remarks of the noble Lords, Lord Paddick and Lord Carlile. The whole point, which I repeat as it is really important, is that the constitutional position of the House of Lords is to review and improve legislation, and sometimes to say to the House of Commons—which, as the elected body, in the end has the constitutional right to have its way—that we think, in this instance, they may have got it wrong. That is a perfectly reasonable thing for this House to do.

All the way through the first day of this Committee, the Government have been asked to justify the Bill. Why is it necessary? What evidence do the Government have to show that this legislation is required? As I said, there is no difference between the vast majority of us in this House in deploring the tactics of Just Stop Oil, and believing that it went far too far in the pursuit of its agenda and beliefs. That is not the point; the point is how we deal with protests in this country.

Many of us are asking: why was existing legislation not used as quickly as it might have been? Why was existing legislation shown to be inadequate? As the noble Lord, Lord Paddick, has just reminded us—I reminded the Minister of this earlier on—on the Radio 4 “Today” programme last week, a Just Stop Oil protest organiser said that one of the reasons it called off its protests was because of the number of arrests that had been made. It was the number of its members who, as organisers, would have been out on the M25 or wherever but were in prison or on remand. That was not done with the Public Order Bill; it was done with existing legislation. I think it was last week when the Minister told me that, in the month of October, 677 arrests had been made of Just Stop Oil protestors under existing legislation.

It is not good enough for the Government simply to say, “We think that this needs to be done”. What is the evidence and who is demanding this? The Minister has been reminded time and time again during debate that the police themselves have not asked for it. Regarding Clause 5 on being equipped for tunnelling, the National Police Chiefs’ Council said in its evidence:

“There is current legislation, such as that contained in the Criminal Damage Act 1971, that creates offences of damaging property and having article to damage property. With the associated powers of search these allow the Police to find articles or equipment intended to cause damage.”


That is what the police are telling the Government with specific reference to tunnelling. Yet the Government turn round and say, “We need a new offence because the police do not have enough power to do the things we say they need to do.” The police have turned that around and said that they have. They cannot both be right. Is the evidence that the police have given about tunnelling wrong?

The police raised another concern, on which it would be interesting to hear the Minister’s response. They have another significant concern

“that any specific offence relating to tunnelling would apply to private land. This again could place a significant responsibility on policing.”

They have asked why the Government decided to apply it to private as well as public land; that was a specific request.

The demand from noble Lord after noble Lord has been: can the Government point to how the existing legislation has or has not been used, and where are the specific gaps in legislation that meant the Government have been unable to deal with the protests that we have seen and which the Bill we are debating seeks to fill? As yet, we have had no answer.

In regard to the stand part debate on Clause 1, which deals with locking on and being equipped to do so, locking on is not a new phenomenon. I pointed out to the Minister last week or the week before that there was guidance on police action with respect to locking on between 2008 and 2010. It had pictures of people being locked on to various fences, buildings or whatever.

It looks to me as though the Government have panicked in the face of what is happening. They think, “We have to be seen to be doing something; we can’t have a situation where we seem powerless”. In fact, what is needed is for the Government to get a grip, sit down and talk to the police and magistrates about how to resolve this situation in a way that is consistent with the democratic values of our country but does not allow a reckless minority to overstep the mark and put the majority through unnecessary disruption.

Public Order Bill

Lord Coaker Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, first, I declare my interest as co-chair of the National Police Ethics Committee for England and Wales, though I am speaking on my own behalf. I want to focus my remarks on the amendment opposing the question that Clause 12 stand part of the Bill, to which I am a signatory, but also on those opposing the questions that Clauses 10, 11, 13 and 14 stand part of the Bill. I am grateful to the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones, for the way they have introduced this debate.

It is deeply concerning that the Bill seeks to extend suspicion-less stop and search powers to the context of protest. If brought forward, such measures would open a Pandora’s box for the further misuse of such powers that have in many contexts caused trauma, both physically and mentally, particularly to those in marginalised communities. The proposers of these clauses may have in mind the current environmental protesters, who appear, somewhat unusually, to include a large proportion of those from white, middle-class backgrounds, notably one of my own clergy. But history tells us that such powers, after a short time, are almost invariably and disproportionately used against minorities, especially ethnic minorities.

I would not be involved with the police in the way that I am if I was not passionate that our forces should gain and hold the confidence and respect of all sections of our society. But I know all too well how fragile that respect and confidence are. Police powers that are not grounded in suspicion create suspicion, and they create suspicion in those parts of society, as the noble Lord, Lord Paddick, has so eloquently indicated, where we can least afford it.

We must note when considering the Bill’s creation of a new stop and search power in relation to specified lists of protest offences that there is—as has been referred to—no agreed position among police forces that such a power is either necessary or wanted. When you add to this the fact that the definition of “prohibited objects” is so broad—the noble Baroness, Lady Jones, has referred to bike locks, but it could be posters, placards, fliers or banners—I am not sure about jam sandwiches, but I suspect it fits in somewhere; all could become suspect. How would the police ascertain that such objects were in fact for use at a protest? There are lots of legitimate reasons why you have household objects with you. The Joint Committee on Human Rights states:

“A suspicion of such an offence, even a reasonable one, in the course of a protest represents an unjustifiably low threshold for a power to require a person to submit to a search.”


There are serious risks here for people’s ability and willingness to exercise rights that are fundamental in a democratic society.

The Bill attempts to address what it refers to as “public nuisance”. But its scope is too broad—arguably, any form of protest risks “public nuisance”. Indeed, in these very halls of Parliament, four suffragettes chained themselves to statues to bring attention to their demands for votes for women; we must ask ourselves whether our contemporary context allows space for similarly important issues to be protested on. As things stand, these clauses risk a disproportionate interference with people’s Article 8, 10 and 11 rights as set out in the Human Rights Act.

This country has long prided itself on being a democracy, this Parliament is at the heart of that, and one of our duties is to ensure that the rights and freedoms necessary to such a system of governance are not undermined. Those rights and freedoms include the right to peaceful protest. Therefore, should these provisions remain at a future stage, I will vote to oppose the questions that Clauses 10 to 14 stand part of the Bill.

[Lord Coaker (Lab)]

My Lords, I rise to speak to the clause stand part amendments in my name. In doing so, I thank the noble Lord, Lord Paddick, the noble Baroness, Lady Jones, and the right reverend Prelate the Bishop of Manchester for their supportive remarks and the views that they have expressed, which I very much support.

Stop and search can be a frightening experience; it can be intrusive and intimidating. There are real concerns, as the noble Lord, Lord Paddick, outlined, about disproportionality, and a point that nobody has yet made is that it can be used against children, worries which matter so much in any democracy.

I am going to spend a few minutes going through this. The Chamber is not packed, but a lot of noble Lords will read our deliberations in Hansard, and this is one of the most important parts of the debate in Committee that we are going to have, as the right reverend Prelate the Bishop of Manchester outlined.

Despite these concerns, Parliament has given police the power to stop and search with suspicion for items such as offensive weapons, illegal drugs and stolen property. In its recent report, the Joint Committee on Human Rights accepted that stop and search with reasonable suspicion was appropriate in certain circumstances. However, as the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick, are arguing through their Clause 10 stand part notice, is it right that these stop and search powers should be extended to peaceful protest? For example, new paragraph (g) inserted by Clause 10—I urge noble Lords to reread that clause—extends stop and search powers to an offence of

“intentionally or recklessly causing public nuisance”,

when we know how wide the scope of “causing public nuisance” can be. Can the Minister explain what, in the Government’s view,

“intentionally or recklessly causing a public nuisance”

actually means? We would be passing this in new paragraph (g).

By creating a risk of causing serious inconvenience or serious annoyance through your actions in the course of a protest, or preparation for or travel to a protest, you would have to submit to a search under the Bill. How would an officer know my intention? Extending the stop and search powers to cover searches for articles connected with protest-related offences risks encounters between the public and the police where there is little or no justification. Does the Minister agree with that? People on their way to protests, marches, rallies or demonstrations are at risk of being searched in case they are equipped to commit one of those offences—or so the police believe.

As the noble Baroness, Lady Jones of Moulsecoomb, has just articulated with reference to her Amendments 100 and 101—this is the purpose of a Committee—what on earth do the Government mean by “prohibited” items? It is incumbent upon us to give some indication of what we consider prohibited items to be. It is easy to scoff when the noble Baroness, Lady Jones, asks if that includes a bicycle lock—but does it? I think it is quite right to ask that question.

This takes us to Clauses 11, 12, 13 and 14. Even if one thinks that stop and search with reasonable suspicion may be appropriate, to stop and search for prohibited items without suspicion, looking for articles with respect to peaceful protest, is not where this country should be going or what this Parliament should be legislating to allow the police to do. The application of suspicionless stop and search powers was previously reserved for use in the most serious circumstances, such as the prevention of serious violence, gun and knife crime, or indeed terrorism. Is this where we want our democracy to go—to use stop and search powers that we have previously said should be used only in relation to the prevention of terrorism or serious violence? We are now saying that they are appropriate to be used to search people going to a peaceful demonstration for prohibited items.

The Minister needs to explain—this is the purpose of my clause stand part notices, even though we are in Committee—why the Government think that is appropriate, whether the Minister agrees that it is appropriate, and why the Government believe it is necessary to give terrorist-related powers to the police to deal with peaceful protest. That is the purpose of my clause stand part notices for Clauses 11, 12, 13 and 14 on the creation of the suspicionless stop and search power in relation to a list of specified protest offences. I am grateful for the support of the noble Lords, Lord Paddick and Lord Anderson—who is not in his place—the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Manchester. I know there are others; the noble Baroness, Lady Jones, has just said that she supports it. My reason for opposing these clauses is to ask the Government to justify such an extension of power to the police in the context of peaceful protest.

--- Later in debate ---

[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 ---

[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 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.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I support the comments of my noble friend. The only observation I was going to make about the powers being given to the British Transport Police is that it is primarily funded by the rail industry and whoever pays the piper calls the tune. Can the Minister confirm that the BTP is accountable to the British Transport Police Authority, the members of which are appointed by the Secretary of State for Transport? What does the Minister believe to be the consequences, for example, for protests at railway stations, of such funding and accountability mechanisms?

[Lord Coaker (Lab)]

My Lords, Clause 16 covers the British Transport Police in England and Wales. It is reasonable that, as the Minister explained, the government amendments also cover the BTP in Scotland, since that has been requested by the Scottish Government. We disagree with the premise of the Bill, as was visible in many of the groups, not least the last one, but we understand recognising the specific roles that the MoD and British Transport Police play as part of the wider policing family. Can the Minister confirm—this is part of what the noble Lords, Lord Paddick and Lord Beith, said—that the use of their powers is strictly limited to the areas under their jurisdiction?

Prior to today’s debate, I asked the Minister why the Civil Nuclear Constabulary was not referenced in the clause. Helpfully, he responded. I received a letter that said:

“we have not seen assemblies outside civil nuclear establishments and … the public do not have access to this land, so any assembly outside them … falls under the jurisdiction”

of the usual territorial force. I take that to mean that it is not included because no need has been identified for it to have these powers, which is welcome. It would be handy if the Government had applied that logic elsewhere in the Bill.

Does the Bill allow the Government to extend these powers to the Civil Nuclear Constabulary, should they wish to do so? In other words, we have just seen the Government announce and give the go-ahead to the building of Sizewell C, and the Civil Nuclear Constabulary would presumably be involved in and around that sort of site. Would the Government have to come back to Parliament to get primary legislation through in order to give the Civil Nuclear Constabulary similar powers to those in the Bill? Is some secondary legislation tucked away that would allow them to do that, without us being able to properly scrutinise that to determine whether we believe the Civil Nuclear Constabulary should have these protest-related powers?

[Lord Beith (LD)]

I remind the noble Lord that the Civil Nuclear Constabulary is armed. It was armed by the late Anthony Wedgwood Benn, when he was Secretary of State for Energy.

[Lord Coaker (Lab)]

That is a very good point—I was going to make that point and ask whether that made any difference. What makes this even more important is whether, tucked away in the Bill, there is some mechanism by which the Government could extend these protest-related powers to the Civil Nuclear Constabulary. The Government are saying that, at the moment, there is no need for it to have these powers because there have been no protests and it has not been appropriate—that is the information I received. All that I am asking—this is particularly relevant given the point of the noble Lord, Lord Beith, about it being armed—whether the Bill gives the Government the opportunity to do that, should they so wish, or whether they would have to come back and pass primary legislation to do that. It would be useful to find that out.

On Amendment 106 of the noble Lord, Lord Beith, which probes the breadth of the powers, can the Minister give us more clarity on the power to make an order prohibiting specified activities for a specified amount of time? What is the amount of time in scope, and who grants the order?

The clause references assemblies

“on land to which the public has no right of access or only a limited right of access”.

Would that activity therefore be covered under existing trespass offences? I am just asking for clarity on one or two of the specifics with respect to these amendments.

[Lord Davies of Gower (Con)]

I am grateful to noble Lords for their speeches in this group. I turn to Amendment 106, in the name of the noble Lord, Lord Beith, who explained that it is intended to avoid excessively wide use, at railway stations, of the power for a chief constable to make an order prohibiting a trespassory assembly if certain conditions are met. This is an outcome that we can all support: the Government are clear that public order powers should always be used proportionately and should have appropriate safeguards and limitations. However, I hope I will be able to provide him with assurances that his amendment is not necessary to achieve that outcome and indeed that it would not have the effect of limiting the use of this existing power at or around railway stations.

--- Later in debate ---

[Lord Beith (LD)]

The Minister asked me whether I would be kind enough not to move the amendment. I am not entirely satisfied; he has promised to write on a couple of issues. The evidence that has not been brought forward is any inability of the local police forces to manage these situations if they arise. It does not appear to me that there have been situations where the lack of British Transport Police powers has made it impossible to deal with the situation. My worry is that giving it new powers will lead it to use them in circumstances that are not really envisaged by the Bill. At this stage, I am happy not to press the amendment.

[Lord Coaker (Lab)]

The Minister said, quite rightly, that he will write to the noble Lord, Lord Beith. For the benefit of the Committee, it would be useful for it to be put in the Library. The letter writing is fine but I sometimes worry about it because it means it is not in Hansard. For those people who read our deliberations, I think that could be a bit of flaw in them being able to understand what is going on. The answers often are in a letter or in the Library and not as widely available as they would be if they were in Hansard. It is a point that has increasingly bothered me, to be frank.

[Lord Davies of Gower (Con)]

I recognise what the noble Lord says and will make sure that the letter is placed in the Library.

Public Order Bill

Lord Coaker Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

These are very important amendments, which should give reassurance to journalists and observers of protests. This points out just how bad the Bill is as far as journalists are concerned, as opposed to how bad it is for everybody else who might be subjected to these offences. The noble Lord, Lord Faulks, talked about the reasonable excuse defence. All the reasonable excuse defences in this Bill are post-charge defences and would not prevent journalists and others who have a reasonable excuse being arrested and detained for five hours, as the LBC reporter was. This really highlights the debate we have had today. The dangers this over- reaching, overbroad legislation poses for journalists shine a light on the dangers it poses for protesters generally.

[Lord Coaker (Lab)]

My Lords, it is a privilege to speak to these important amendments in the name of the noble Baronesses, Lady Boycott and Lady Jones, my noble friend Lady Chakrabarti and the noble Lord, Lord Paddick. The way they spoke to the amendments, particularly the noble Baroness, Lady Boycott, was not only moving but challenging. I want to say something more generally, as other noble Lords have, about what happened to Charlotte Lynch.

Every now and again, something occurs in our society and our democracy which should act as a wake-up call. We all speak here and say that we are proud of our democracy and of our freedoms and traditions. Of course we are. I do not believe that we live in a totalitarian country, but even in a democracy things occur that are totally unacceptable. Such things require the state to act and respond, require Parliament to take action, and require a Minister of the Crown to look at what has happened, listen to what is being said and respond in the way that the noble Baronesses, Lady Boycott and Lady Jones, my noble friend Lady Chakrabarti and the noble Lords, Lord Deben and Lord Paddick, mentioned.

The Minister’s brief will probably say that the amendments are not necessary, that we have ways of dealing with this and that it is an isolated incident that means that no action is required—we can condemn it and say it should not happen, then move on. It is too serious to do that. You cannot do that with certain things that occur. This is not a weakness; it is a strength when a democracy responds in this way. It is a strength when a democracy shines a light on things that have happened. This is not to blame an individual officer or circumstance; it is to say that, for whatever reason, something happened in our democracy—this was about a journalist—and the police operated unacceptably.

That is what the amendments seek to do. They ask the Government, “If these amendments are not the right way of solving the problem, what are you going to do, other than say warm words, to ensure that it will not happen again?” That is what Parliament wants to hear and what all of us here expect from the Government. We do not want a massive condemnation of the country’s police or a massive assertion that every time you go out on a protest, people are arrested. But Charlotte Lynch, as well as the other two that the noble Baroness, Lady Boycott, mentioned, Felgate and Bowles, were reporting on a protest and were arrested. That is astonishing. It is incredible, quite frankly, when you go through the actual events. Despite producing a card, they were arrested, handcuffed, taken away and detained for hours.

That cannot just be explained away. How on earth did it happen? Where was the senior officer? Where was the very senior officer? Where was even somebody saying, “Hang on a minute. What is actually going on?” That happened in our country in 2022. Let me repeat: nobody is saying to the Minister that we live in a totalitarian state, but you cannot have a situation like that occurring without the Government of our country responding in a way that is appropriate and reflects the seriousness of it. That is why the amendments have been put forward. I do not know whether the noble and learned Lord, Lord Hope, is right that Amendment 127A is better because it talks about observing as well and has a broader scope, or whether the Government’s lawyers could come forward with an amendment, but something needs to be done that addresses something that has really occurred.

We talk about other countries where this happens, and ask why they do not do something about it. Actually, we need to look in the mirror and reverse it on to ourselves and say, “Why don’t we do something about it?” I repeat, because it is so important, that the Government’s defence mechanism—and I have been in government and know what happens—will be: “It’s a very serious matter, but, of course, it’s not the normal state of affairs.”. That is absolutely not the point.

I was rereading the briefing we have had from the NUJ, from Amnesty and from other people. It is just words sometimes, because words and principles matter. Principles that underpin out democracy are important, particularly when it comes to the freedom of the press, freedom of expression and freedom of journalists, broadcasters or whoever to go and do their business and report on demonstrations or protests. The Government’s own statement on 3 November said:

“Media freedom is an essential part of a healthy information ecosystem. The free flow of independently generated and evidence based information is the scaffolding for building democracy.”


That says it all.

Warm words matter, but so does policy and so does government reaction. It was a terrible situation that occurred with Charlotte Lynch. There are other examples where that has happened, and I cannot finish without responding to my noble friend Lady Symons. I played all sorts of roles during the miners’ strike. I was in Nottinghamshire as a local councillor representing and, by and large, working alongside miners who were on strike in a community where the vast majority were working. People know—and the noble Lord, Lord Murray, will also know the situation in Nottinghamshire with his background—the important role that journalists and broadcasters of all sorts played, including by my noble friend’s late husband, in reporting that. That is the strength of democracy. It is a crucial series of amendments, and if the Government are not prepared to accept what the noble Baroness, Lady Boycott, has said, what are they going to do about it?

Before I forget—I just got carried away with my own rhetoric—I want to ask one simple but important question. The Hertfordshire police did an inquiry into what happened in respect of Charlotte Lynch. They published five recommendations on 23 November. Given the importance of this, they made all sorts of recommendations about training and guidance. They also said:

“Hertfordshire Constabulary should consider ensuring that all officers engaged with public order activity complete the NUJ package and identified learning is shared.”


That means shared with other forces across the country. That is really important. If something good can come out of what happened to Charlotte Lynch, surely it is an improvement in police practice. It is also about the Government themselves considering whether something needs to be said in this Public Order Bill that strengthens and underpins the right of journalists to go about their business. Sometimes it is action that is needed as well as warm words.

[Lord Paddick (LD)]

Before the Minister responds, I have to say that, while I do not often take issue with the noble Lord, Lord Coaker—normally we are on the same side—I am more concerned than he appears to be about what happened in Hertfordshire. That is because, when somebody is arrested and taken to a police station, a sergeant or a custody officer has to satisfy himself or herself that there are grounds to detain that individual. I cannot believe that the journalist did not say to the custody officer, “I’m a journalist”. Yet a sergeant or above—as a custody officer has to be—authorised the detention of that journalist. That does not sound like officers on the front line getting a bit overenthusiastic and not having the right training; that was a sergeant in a controlled environment who was not at the scene of the protest and who authorised the detention of somebody he or she knew to be a journalist. That sounds more like something systemic than something unusual.

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, it is difficult to argue with the point made by the noble Baroness, Lady Jones of Moulsecoomb: if the Government, as they have, bring back those parts of the Police, Crime, Sentencing and Courts Bill that they want to reinstate, why can she not ask this House to remove those parts of Police, Crime, Sentencing and Courts Act 2022 that she does not want retained? The noble Lord, Lord Coaker, has adopted a less provocative approach in his probing amendment, Amendment 127, to establish how often the new noise trigger powers have been used by the police in relation to protests outside buildings—with or without double glazing.

We on these Benches vehemently oppose the provisions in the Police, Crime, Sentencing and Courts Act that the noble Baroness wishes to repeal, although we subsequently and reluctantly accepted the usefulness of Section 80. But that was then, and this is now. I believe that the Committee should perhaps operate on the basis of appeals in criminal trials and ask this: what new evidence is there to persuade Parliament that we should now reverse the decisions that it made a year ago?

[Lord Coaker (Lab)]

Before I forget, I thank the noble Lord, Lord Paddick, for signing Amendment 127, which deals specifically with noise. I have a lot of sympathy with much of what the noble Baroness, Lady Jones of Moulsecoomb, has said about many of the powers, but I will concentrate specifically on noise, so may disappoint her.

--- Later in debate ---

Moved by

[Lord Coaker]

126: After Clause 18, insert the following new Clause—
“Consolidated public order guidance(1) Within three months of the day on which this Act is passed, the College of Policing must, with the approval of the Secretary of State, publish consolidated guidance on public order policing. (2) Guidance under this section must consolidate into a single source—(a) the College of Policing’s authorised professional practice for public order, and(b) the National Police Chiefs’ Council and College of Policing’s operational advice for public order policing.(3) The Secretary of State must require the College of Policing to annually review its guidance under this section.(4) The College of Policing may from time to time revise the whole or part of its guidance under this section.(4) The Secretary of State must lay before Parliament any guidance on public order policing issued by the College of Policing, and any revision of such guidance.(5) Guidance under this section must include—(a) legal guidance on existing public order legislation and relevant human rights legislation;(b) operational guidance on best practice in public order policing, including how best practice should be shared between police forces;(c) specific operational guidance in addressing techniques for locking on;(d) minimum national training standards for both specialist and non-specialist officers deployed to police protest-related activity;(e) guidance on journalistic freedoms and the right of journalists to cover protests without interference.”Member’s explanatory statement
This amendment probes the need for public order policing guidance to be consolidated into one accessible source and regularly updated, as recommended by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. It would require guidance to include minimum training standards, clear information on relevant law, and operational guidance on best practice.

[Lord Coaker (Lab)]

My Lords, I emphasise my Amendment 126 in this group, which probes the need for public order policing guidance to be consolidated into one accessible source and regularly updated, as recommended by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. It would require guidance to include minimum training standards, clear information on relevant law and operational guidance on best practice.

Throughout the Bill we have argued that this legislation does not answer the actual issues. Rather than layer upon layer of new legislation, we need to use the powers the police already have. Police need clarity, excellent training and robust and up-to-date guidance on how to use the powers they have, what the rights of the British people are and what best practice is out there. Our officers need the support and resources to be confident in what their powers are and to use them effectively and proportionately, not be left to interpret broadly defined new powers every few months. As we have just been debating, we have seen stark examples of what happens when this goes wrong.

My Amendment 126 reflects issues raised by His Majesty’s inspectorate in Matt Parr’s report on public order policing, Getting the Balance Right?, published in March 2021. On guidance, the report found:

“The College of Policing’s ‘authorised professional practice’ … is out of date: it does not include recent relevant case law, or information on certain new and emerging tactical options. The College is planning a review.”


Has this review taken place?

The report welcomed work by the National Police Chiefs’ Council and College of Policing to put together operational guidance for protest policing, but

“found problems with some of its legal explanations, particularly how it sets out the police’s obligations under human rights law.”

This document was being revised in light of the inspectorate’s concerns. Has that taken place?

Crucially, the inspectorate recommended that it would be beneficial to consolidate relevant guidance into one source, as my amendment seeks to do, with arrangements to keep the guidance current and regularly revised as is necessary. My amendment provides for that, as I said, but what action have the Government taken on this with the police?

Noble Lords have experienced how difficult it is to find a comprehensive summary of the existing powers that the police have to manage protests. We have asked the Government whether it would be possible to publish a comprehensive guide to all the powers available to the police so that we can see for ourselves whether there are any gaps.

On training, can the Minister provide information to us on what national training standards are in place for the police on their protest powers? One issue picked up in Matt Parr’s report and reflected in the amendment is the deployment of non-specialist officers to protest sites. The report found

“a wide gap between specialist … officers and non-specialists when it comes to understanding and using existing police powers. Non-specialist officers receive limited training in protest policing, and lack confidence as a result … In every force we inspected, interviewees told us that some of these non-specialist officers do not have a good enough understanding of protest legislation.”

What changes to training will be required as a result of the Bill, when it becomes an Act, or Acts that have preceded it? How many specialist officers are available for deployment and how often are non-specialist officers being deployed out of necessity, with the obvious potential consequences?

--- Later in debate ---

[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.

Amendment 126 withdrawn.

--- Later in debate ---

[The Lord Bishop of Chelmsford]

My Lords, I add my support to Amendments 146 and 147, to which my right reverend friend the Bishop of Manchester added his name—I know he regrets that he is unable to be here today. I thank the noble Baroness, Lady Chakrabarti, for bringing these important amendments forward. Throughout the debate on the Bill, it has been clear that there are many justified and genuine concerns about provisions and the expansion of police powers laid out in it. I believe that it is therefore appropriate that further reflection should take place, and these amendments would provide for exactly that opportunity, requiring parliamentary debate of an HMCI report concerning improvements to the vetting, recruitment and discipline of protest police officers. In recent years, we have arguably seen an accelerated decrease in trust in the police, and it is critical that any expansion of powers such as those set out in the Bill does not occur without regard for the real implications of such measures.

[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.

Public Order Bill

Lord Coaker Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

Moved by

[Lord Coaker]

1: Before Clause 1, insert the following new Clause—
“Meaning of “serious disruption”(1) In this Act, “serious disruption” means disruption causing significant harm to persons, organisations or the life of the community, in particular where—(a) it may result in a significant delay to the delivery of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including access to—(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.(2) In subsection (1)(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.”Member’s explanatory statement
This new Clause defines the concept of “serious disruption” for the purposes of this Bill, which is the trigger for several new offences and powers.

[Lord Coaker (Lab)]

My Lords, I start consideration on Report by moving my Amendment 1. I thank the noble Baroness, Lady Jones, the noble Lord, Lord Paddick, and my noble friend Lady Chakrabarti, for their support for this amendment regarding serious disruption and its meaning and relevance to this Bill’s new powers. I start by also thanking the Minister for his courtesy and usual help in discussing the Bill and its relevant parts, which have been very gratefully received. I also thank all his officials and other Ministers.

However, in thanking the Minister, I have to say how disappointed I was by the Minister in the other place, who said in an online article in the Telegraph over the weekend that our job as politicians “of all colours” was

“to stand up for the law-abiding majority whose lives were seriously disrupted by such protests”.

Who does not want to stand up for the law-abiding majority? I have never said, in any of the debates on this Bill, that the Government, or anyone who has opposed what I have said, want to ban protests, or accused any of them of being against the law-abiding majority. This is a genuine debate and discussion between people of different parties, across this House, on very serious issues on which we are seeking to improve and amend the Bill. There will be differences of opinion, but that does not mean that people are against the law-abiding majority, and that does not mean that people are not in favour of protest.

The debate is about clarity and thresholds; it is about where we draw the line—democracy at its best, thrashing out these issues and, yes, voting in the best traditions of a revising Chamber. It is my contention, and that of my party and others from other parties across the House, that the Bill has gone too far. My amendments have a higher threshold than there are in other amendments, such as Amendment 5—but there are others. There is a risk of the police, in my view and that of others, being given lots of new powers that, instead of providing clarity, will end up undermining and clamping down on peaceful and legitimate protests.

My Amendment 1 says that “serious disruption” must cause

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

in certain situations, but not exclusively in those situations. That would keep the threshold at a relatively high level, not lower it. The EHRC says, in an article published today, that these new amendments have the potential to enable the police to block peaceful protests or to shut down non-disruptive protests.

I shall not go through every amendment in this group tabled by the noble and learned Lord, Lord Hope, and supported by the Government. The language of Amendment 5 is much the same as in many of the other amendments, as it seeks legal clarity on definitions that are offence specific. Amendment 5, for example, relates to locking on, which means attaching yourself to a person, object or land, as set out in Clause 1. There is no definition of “attach”, so it can be linking arms. Clause 1 goes on to say that the offence happens if this

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

I want us all to consider that when we decide how we should vote on these matters. In other words, on some of the specifics around these amendments, we have to remember that an offence does not even have to happen—it just has to be capable of happening, and that should trouble us all.

Amendment 5 has a threshold and uses language such as “prevent” or

“hinder to more than a minor degree the individuals or the organisation from carrying out their daily activities.”

The same threshold is set for all the offences in Clauses 1, 3 and 4. Goodness me. Many of us—noble Lords in this Chamber and others watching these proceedings—would have been arrested or would have fallen foul of the law under these provisions. Let me give one example from my background. I will not go into the miners’ strike—it is more recent than that.

I, along with a community group, stopped a bus, rerouted by the bus company, from going down a road through an estate where there were children’s play areas, parks, et cetera. Many in that community were determined to act together because they decided that the bus company was acting in a way that was irresponsible with regard to the lives of people in that community and put children’s lives at risk. So we blockaded the road, linked arms across it and stopped the bus coming down that road for a few days. As a result, the bus company changed back to the original route.

This Bill would have threatened that activity and protest, making it unlikely that I, as a politician and councillor representing that area, as well as mothers, parents, grandmothers, grandfathers and friends with their children, using pushchairs in the road, would have been able to do that because it was more than a minor hindrance. It stopped that bus going down the road. Who is to say that that was wrong? Who can also say, if we pass these amendments, that that action would not be made inappropriate?

Do not take my word for it. I stand here as a Labour politician, but sometimes I read ConservativeHome. I was doing so at the weekend to see what might be said, which is always interesting and worthwhile. An article from Policy Exchange says that,

“the amended offences would make criminal liability turn on proof of serious disruption, which makes the meaning of ‘minor’ hindrance and ‘daily activities’ loom large”.

Of course there is a debate. I am sure that people are going to say, “Well, if you look at Lord Coaker’s amendment, and the others that support it, what does ‘significant’ mean? What does this mean? What does that mean?” Of course, there are debates about what different words mean, but the Government are pretending that, by lowering the threshold and using the words that they have included, you get rid of the legal uncertainty. That is not the case because, instead of having a debate about “serious”, you have a debate about “minor”. What is a “hindrance”? All those debates will loom large as, as the ConservativeHome article suggests.

As I have said, on my Amendment 1 there will be debate on the meaning of “significant”. It sets the threshold higher, which is the point that I am trying to make in my amendment. It does not prevent protest that might be capable of hindering someone carrying out their daily activities. So the lower threshold for serious disruption in Amendment 5 and others means that more than minor hindrance to the carrying out of daily activities, or construction, maintenance works or other activities, could result in police intervention and arrest. Wheelchair activists chaining their wheelchairs together in certain circumstances could cause more than a minor hindrance to daily activities. It could stop someone shopping.

I have looked at various websites through the weekend and have seen lots of different people supporting tree protests, where people have roped or attached themselves to trees to prevent something happening. Who is to say that those protests will not be affected by the new amendments? I have seen fine, upstanding citizens—not just members of the Labour Party, Communist Party, Socialist Workers, Liberal Democrats, Greens or others of similar ilk but even Conservatives—join those protests. Well, they are going to get a shock when they wake up and find that their own Government have said, “What you are doing is illegal, the village green trees that have been outside the pub for 300 years are going and there is nothing that you can do about it because we have introduced measures and amendments that mean that such protests will not be able to happen”.

Are we really saying in this Chamber that the definition of “serious” is “more than minor” and not incompatible with Articles 10 and 11 of the European convention? At the heart of this is the question of what “more than minor” means, particularly if applied to Clause 1. If, as Liberty says, I chain myself to a traffic light, and if that hindered two or more people for 10 minutes from crossing the street to shop, would that be “more than minor”? There is no legal certainty in what is meant by “more than minor”, nor indeed in what is meant by “hinder”—remembering that “serious disruption” does not even have to happen for those offences to be committed.

[Lord Pannick (CB)]

The noble Lord spoke about legal certainty. Could he help the House on how a court is to determine whether disruption is “prolonged”? If there is locking on and I am unable to take my child to school or my mother-in-law to hospital for an hour, two hours, or 10 hours, is that prolonged?

[Lord Coaker (Lab)]

That is the point I am making: there is of course going to be a debate about what various words mean. I have admitted it. I said to the noble Lord and to others that I have asked in the debate what “significant” means in certain situations. All I am saying is that I want to set the threshold higher; I want the threshold to be at a level at which “serious” can be used, rather than the “minor” level which the Government seek to introduce, supported by other noble Lords. Of course there will be a debate, whether about what I have put forward, or about “minor”, or about what “hindrance” means in certain situations. But this Chamber should be saying to the courts that what we mean by “prolonged” is that it has to happen not just once. It has to be more than a daily activity; it has to be something that impacts on the life of the community more than once or twice. That is what we are saying and that is why I am putting forward these amendments. I want the courts to realise that, when this Chamber passes these amendments, we are saying that serious means serious.

Of course there will be a debate about what that actually means. It is the same as with any other law we pass—it does not matter which one. The noble Lord, Lord Pannick, has much more experience in this than I do, but, in the end, the courts will have to determine what it means. We will come on to “reasonable excuse” in a minute, but I think the courts would want to know that this House has debated it. I am saying that “serious” means more than minor, and that “prolonged” means more than daily. In the end, the courts will have to determine that. But I say to the noble Lord, Lord Pannick, that that would be true whatever wording we use in the Bill: there will be a debate in the courts as to what it actually means. I want the courts to debate what “serious” means and what “prolonged” means. I do not want them to debate what “minor” means because the threshold starts too low.

[Lord Faulks (Non-Afl)]

I think the noble Lord said, just before the intervention from the noble Lord, Lord Pannick, that it would not be necessary to prove serious disruption. That cannot be right, with respect; I hope it was a mistake on his part. I understand that the proposed new clause inserted by the amendment is to go before the definition of the offence, which includes the words “serious disruption”, which will have to be established. Is that correct?

[Lord Coaker (Lab)]

Yes, of course. If I gave that impression, it was a mistake on my part. This is the whole point: there has to be “serious disruption”, as in my amendment. The debate—not the argument but the debate, as the noble Lord, Lord Pannick, just raised—is about what we actually mean by serious disruption. I thank the noble Lord, for pointing that out. If I said that, it was a mistake.

[Baroness Jones of Moulsecoomb (GP)]

I am curious about this “serious disruption”. Quite honestly, if anyone has driven on the M4, the M25 or through the streets of London, they will know what serious disruption is, because we get it every single day from people using their cars. If we have any confusion about what serious disruption is, that is what it is: traffic jams. Perhaps we ought to lobby the Government to stop traffic jams, because they cause more delays to children getting to school, to ambulances getting to hospital, and so on. Please, can we just understand that serious disruption is something we all experience, every single day of our lives? What we are talking about here is not really serious disruption: this is people who care about the future of humankind, here in London and worldwide. Could we take it a bit more seriously?

[Lord Coaker (Lab)]

I agree with my friend the noble Baroness about the importance of the issues. I think everyone in the Chamber is taking this seriously. There is a legitimate debate going on as to what “serious disruption” means. My friend is right to point out that we are discussing very serious issues, and we will talk about that when we come to “reasonable excuse” in particular. Before I am accused of being a hypocrite, I should say that I did drive here today—I thought I had better own up to that.

I turn to Amendments 48 and 49 and the Government’s response, we think, to slow walking, introduced at a very late stage—not in the Commons, and not even in Committee in this Chamber, but here on Report. It has been our contention that existing legislation, enforced robustly, would deal with many of the problems we have seen. As the chief constable of Greater Manchester said—and no doubt we will quote chief officers at each other, so let me start—in an article in the Telegraph on 12 December 2022, entitled “Just Stop Oil protesters should be arrested ‘within seconds’”:

“I think fundamentally, if people obstruct the highway they should be moved … very quickly”.


In other words, he argued for greater use of obstruction rather than a whole range of new powers, as contained in Amendments 48 and 49. We should remember that existing law, whatever the rights and wrongs of this, have led to Extinction Rebellion calling off its action.

In new subsection (3) as inserted by Amendment 48 and new subsection (4) as inserted by Amendment 49, there is the same argument about hindering that is more than minor, which I have just been through with respect to the meaning of “serious disruption”. In other words, the threshold for what constitutes “serious disruption” is being lowered.

I think all of us believe in the right to protest. Yes, sometimes we may get irritated when protests disrupt our lives, and clearly there have to be limits, but many of these amendments simply go too far; they will have a chilling effect on protests and protesters. It will undermine one of the fundamental freedoms we all enjoy: standing up to injustice as we see it. It is a price we pay for our democracy. Any interference with these freedoms poses an unacceptable threat to the right to protest, which is a fundamental cornerstone of our rights and our democracy. I beg to move.

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

My Lords, I remind the House that if this amendment is agreed to I cannot call Amendments 5, 14 or 24 due to pre-emption. As we are on Report, I remind noble Lords that they are allowed to speak only once.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I thank all noble Lords who have participated in this really interesting and thoughtful debate. I thank the Minister for his response. I do not want to go through every single contribution; I do not wish to be rude to anybody who I do not respond to, but I want to make and reinforce a couple of particular points. I totally agree with the noble Lord, Lord Faulks. I repeat that the attempt by this Chamber to define “serious disruption” on the face of the Bill, as the Constitution Committee asked it to do, is a really important step forward and to try and do. The debate between us is where we set the threshold and how we define “serious disruption”. Perhaps this debate should have taken place on the Bill a few months ago, but it is taking place now and is particularly important.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, as the House has just heard from my noble friend Lord Sandhurst, the area of law we are dealing with is the proportionate interference with convention rights. I respectfully agree with him that the decision of the Supreme Court in Ziegler raises the question of the correct balance and makes it important for the House to legislate in this area. However, it is my misfortune to disagree with him that we should take this opportunity to overturn the decision in Ziegler. Rather, I respectfully commend the approach of the noble and learned Lord, Lord Hope of Craighead, which has been set out for us this evening by the noble Lord, Lord Faulks.

Critically, the presumption of innocence is at the heart of our judicial process, and I do not think that any of these amendments cut across that. There are three reasons why I suggest that the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which is supported by the Government, ought to be accepted. The first is the point made by the Constitution Committee that we need precision in this area. Secondly, there is the fundamental point that we should not be leaving this to the police or the courts to decide on a case-by-case basis; as Parliament, we should take the opportunity, and indeed the responsibility, to draw the bounds of the offences in this area. Thirdly, we need to remember that, at the moment, Section 3 of the Human Rights Act requires the court to read any legislation, if possible, consistently with the convention. Absent, I suggest, the amendment of the noble and learned Lord, Lord Hope of Craighead, there is a real risk that the court will read down clauses to make them consistent with how it considers convention rights should be applied.

On the basis of the approach of the noble and learned Lord, Lord Hope, there is scope for reasonable excuse, but it is limited. That means we do not run the risk of the courts deciding cases on an unanticipated, or perhaps even incorrect, basis. We also do not need—despite my noble friend Lord Sandhurst’s amendment—to overturn the Ziegler case; what we will have, however, is a consistent, clear and precise approach to criminal law, which is precisely what we ought to have. I accept that some of my colleagues at the Bar may not be particularly happy with that, but, in this area and perhaps in others, their loss may indeed be the law’s gain.

[Lord Coaker (Lab)]

My Lords, in supporting Amendment 2 tabled by my noble friend Lady Chakrabarti and the noble and learned Lord, Lord Brown, and the points they have made, I will focus my remarks on Amendment 8 and the amendments consequent to it which seek to define a “reasonable excuse defence”.

I start by saying that I cannot really believe the mess the Government have got themselves into on both the definition of “serious disruption”, which we discussed previously, and the definition of a “reasonable excuse defence” we are discussing now. Nobody disagrees with the noble Lord, Lord Faulks—again, I agree with the Constitution Committee, as, I think, do most of us—but it would be extremely helpful if there were a definition of “reasonable excuse defence” in the Bill. I do not think that is a point of disagreement between us; the Constitution Committee itself recommends that. However, let us look at Amendment 8 as an example of the wording that is also used in Amendments 17, 27, 33, 50 and 51, as well as in other related offences. What protest ever takes place that is not part of a current dispute? Who protests because they are happy about something? I have not seen any demonstrations saying how brilliant this or that is; there might be an example, but, usually, a dispute happens and then people protest it—that is logical. But in each of these amendments, you cannot use “an issue of current debate” as a reasonable excuse in any circumstance. That is what we are being asked to agree to in Clauses 1, 3, 4 and 7 and some of the later clauses. Those clauses currently contain the reasonable excuse defence; the Constitution Committee says, quite rightly, that it would help if that were defined; and the definition the Government have supported says that you cannot use a current dispute as an excuse. I could go on at great length, but it makes the point by itself—it is ludicrous. That is the amendment the Government are supporting and that they are asking people to vote for.

Public Order Bill

Lord Coaker Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Viscount Stansgate (Lab)]

My Lords, I want to make one point about Clause 11, which in my view should not be in the Bill. I appreciate that the previous speaker has just given a very lawyerly defence of the Government’s view. I am not a lawyer, but I want to say this: I wonder why the Government want to be on the wrong side of history by including Clause 11 in the Bill. I look at Members around the Chamber and think to myself, “What on earth would you feel like if you were ever arrested, stopped and searched without suspicion by a police officer?” I would like noble Lords to bear that in mind when they come to vote, if we are going to vote on this. A lot has been made of the younger generation, and I personally believe that Clause 11 would damage relations in the way that has been outlined by many people making very able speeches. But your Lordships should ask yourselves: how would you feel if you were stopped and searched without any reasonable suspicion by a police officer?

[Lord Coaker (Lab)]

My Lords, I rise to speak to Amendment 47 in my name, for which I am grateful for the support of the noble Lord, Lord Paddick, the noble Baroness, Lady Chakrabarti, and the right reverend Prelate the Bishop of Manchester. Just in case I forget, I say now that I want to test the opinion of the House on Amendment 47.

Before I do so, I want to say how much I sympathise and agree with much of what the noble Lord, Lord Paddick, and others have said about Amendment 46 and stop and search with suspicion. It is worth reflecting that many of us are grappling with a Bill with much of which we disagree, but we are at Report stage and difficult decisions and choices are before us about how we might improve the Bill—if the votes are won in your Lordships’ House—and send it back to the other place with the best possible chance of it not being overturned, thereby impacting on the legislation in a way which will protect, as many of us want to, the rights and freedoms that the people of this country have enjoyed for generations and which parts of the Bill seriously threaten to undermine. That is the choice that lies before us. That is the difficult choice I have in saying from the Labour Front Bench that we are focused on Clause 11 in particular. That does not mean that we agree with other aspects of the stop and search powers, but it means that we think that Clause 11 in particular is an affront to the democratic traditions of our country.

We have heard what it actually does. We have had a former Commissioner of the Metropolitan Police, a former senior police officer of the Metropolitan Police, and others, telling us about stop and search without suspicion and the impact that it has on black and ethnic minority communities, particularly on the young. Will your Lordships seriously pass into law something that will make that fragile relationship between the police and those local communities even worse? Is that what we want to do? And what is it for: terrorism, serious gun crime, serious knife crime, or the threat of murder and riots on our streets? No, it is because some protests may take place somewhere, and we will have stop and search without suspicion to deal with it. Is that in any sense proportionate or a reasonable response to public disorder? Clearly, it is not.

I cannot believe that His Majesty’s Government are seeking to introduce into law stop and search without suspicion for protest-related offences. I do not believe the Government themselves would have believed it—they certainly would not have believed it in the time of the noble Lord, Lord Deben, with the Conservative ideology as it existed then. Margaret Thatcher would not have introduced it. She would have regarded it as an affront, even in the face of the poll tax riots and the miners’ strikes—although there were certain things that went on there. In the face of all that, she did not introduce that sort of legislation. I will be corrected by any member of that Government—there are a few here—as to whether that was the case. She understood that the right to protest was fundamental, however difficult that was for Governments. Yet the Conservatives of today believe it is perfectly reasonable to introduce this not for murder, terrorism or knife or gun crime, as I said, but for protest. Is that the Tory tradition that this Conservative Government want to lay out before the country? It cannot be. It is a totally disproportionate reaction to what is happening, but the consequences are serious and dramatic, and potentially catastrophic. As so many noble Lords have said, at a time when there is a fragility of confidence between the police and certain communities, it is like pouring petrol on the flames. It is just unbelievable.

However, it is not just that. In the debate last week I gave an example, and I will give another one, because that brings it home and makes it real. When your Lordships vote on leaving out Clause 11, consider this. If it is in the Bill, there is a fear about what happens when there are protests around Parliament—there will be protests; I do not know what they will be about. Let us say that people lock arms—disgraceful—so they have attached. The police are worried about it and so an inspector declares that, for 24 hours, it is an area that they are concerned about. That gives an additional power to the police to stop and search without suspicion. Your Lordships can be searched. I know you would think that was an affront, but that is the reality that many black and ethnic minority communities face every single day, sometimes—that is an exaggeration, but they face it in certain circumstances.

[Lord Anderson of Swansea (Lab)]

Surely it is not just a matter of black and ethnic minorities. We do not know who were the two care workers who were stopped, whom the noble Baroness, Lady Fox, mentioned. However, it is clear—I speak as someone who, as a young barrister, had to carry out many sus law prosecutions—that a person stopped in those circumstances may next week appear on a jury and may be hostile to the police as a result of that, taking it out on them as a member of the jury.

[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.

--- Later in debate ---

Moved by

[Lord Coaker]

47: Leave out Clause 11

[Lord Coaker (Lab)]

I beg to move.

--- Later in debate ---

[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.

Public Order Bill

Lord Coaker Excerpts

3rd reading
Tuesday 21st February 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, I thank the Minister and his Bill team for listening to at least some of the concerns noble Lords have raised, and for the way in which they have responded to them. When similar restrictions on protests were considered by this House in the Police, Crime, Sentencing and Courts Act, the Government were defeated on 14 occasions. This time, the Government were defeated eight times, but that was only because we did not feel there was enough time to vote against other measures that we were very concerned about. However, I thank the Minister and his team. I thank Elizabeth Plummer in the Liberal Democrat Whips’ Office, who has supported me throughout. I thank His Majesty’s loyal Opposition for the constructive way in which noble Lords of the Labour Party have worked together with us to ensure that the democratic right to protest has been maintained.

[Lord Coaker (Lab)]

My Lords, I start with some brief remarks. I very much thank the Minister, his colleagues on the Government Front Bench and the Bill team for their help and time during the passage of the Bill—including today’s clarificatory amendments which the Minister brought forward. It is an example of how this can and should be done, even when there are genuine disagreement between us. The briefings and discussions we had helped inform debate and, I hope, have led to better legislation—which is indeed what we all want. I thank the Minister very much for that; it is much appreciated.

I thank my noble friend Lord Ponsonby for his support and important contributions. I say to the Chamber that he brings a calmness to my more excitable character, which is extremely helpful. In thanking him, I also thank our office for its support, and in particular, over the last few weeks, Liz Cronin. I thank many of my noble friends for their contributions to this debate, particularly my noble friend Lady Chakrabarti. I thank the noble Lord, Lord Paddick, and his colleagues, and I thank him for the remarks he just made. I thank the noble Baroness, Lady Jones, for the contributions she has made, and a number of Cross-Benchers—including the noble Lord, Lord Hogan-Howe, who has been mentioned, the noble Lord, Lord Anderson, and others.

To those very senior former judges, including the noble and learned Lord, Lord Hope, I say that I very much appreciated my crash course in the law; I hope that I have appeared to know what I am talking about, which is always a start. The interventions of the noble and learned Lord, Lord Hope, and those of many of the other senior judiciary members who we have here, make a huge contribution to the difficult debates that we have, even where we disagree between ourselves. This is an extremely important Bill and the debate will no doubt continue as it returns to the other place for its consideration of our changes.

I want to emphasise—the noble Lord, Lord Anderson, mentioned this—that the debates here and the changes made reflect a genuine attempt to address where the line should be drawn between the right to protest and the right of others to go about their daily lives. It was not about those supporting a law-abiding majority and those putting the rights of protestors first. Across the world, democracy and the right to protest are non-existent or under threat. In our great democracy, tensions arise and anger around protests can sometimes, quite rightly, provoke public outrage. In seeking to deal with that, however, we must not, even inadvertently, damage freedoms that we all cherish.

I hope that the other place will reflect carefully not only on the actual amendments that we have made but on the debates that took place around them. They were debates, yes, on how we deal with the challenges emerging particularly from recent protests but also, crucially, on maintaining the democratic traditions of which we are all so rightly proud.

Bill passed and returned to the Commons with amendments.

Public Order Bill

Lord Coaker Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

Moved by

[Lord Coaker]

At end insert “and do propose the following amendments to Amendment 1A—

1B: In subsection (1)(a), leave out “more than a minor” and insert “a significant”

1D: In subsection (1)(c), leave out “disruption that is more than minor” and insert “significant disruption””

[Lord Coaker (Lab)]

My Lords, the Minister said that the noble and learned Lord, Lord Hope, proposed his amendment for “more than minor” and that was why the Government reintroduced it in the Commons and were supporting it again. Of course, that was lost when it was debated in your Lordships’ House and the Government have inserted “more than minor”—admittedly, with some flowers and curtains around it. I keep saying to noble Lords that it goes to the heart of the debate as to the threshold we wish to set where we start to undermine the right to protest. I still contend that the Government’s “more than minor” threshold is too low. Hence my Motion A1 would insert in subsection (1)(a) “significant” instead of “more than a minor”; in subsection (1)(b), it would leave out

“delay that is more than minor”

and insert “significant delay”, and in subsection (1)(d), it would leave out

“disruption that is more than minor”

and insert “significant disruption”. The point of that is, of course, to raise the threshold.

First, because I think it is important for noble Lords to understand, I want an assurance from the Minister that whatever we decide will be respected by the Government. To refer back to the Police, Crime, Sentencing and Courts Act 2022, Sections 73 and 74 define public nuisance and impose conditions on public processions, public assemblies and various sorts of activities, including defining what activity may result in serious disruption. Tucked away in those sections is the power for the Government to change any of that by regulation. I want a categorical assurance from the Minister that, were the Government to lose the amendments before us today, and they may win, and the Bill went back to the other place, or if the amendments that could not be reinserted in the Commons because they had been introduced in the Public Order Bill only in the Lords—namely, what we called the “slow walking” clause and the “reasonable excuse” amendments—were lost, the Government will not seek to overturn the expressed will of this Chamber and, I hope, eventually the will of the other place by using Sections 73 and 74 of that Act, which they could do. I would appreciate that.

The debate today centres on thresholds. At what level should we restrict the right to protest, above the laws that we already have? We already have a number of laws that restrict the right to protest and allow us to deal with protests as they occur. Indeed, many chief constables, including the chief constable of Manchester, have asked why we do not use the existing legislation. Notwithstanding that, the Government have panicked and come forward with the Bill to try to deal with what they perceive as a problem.

To make this real, I spent Sunday afternoon looking at various protests that have taken place around the country that, I contend, with a “more than minor” threshold would under the Bill be something that the police could arrest people for and stop. I ask everybody in this Chamber whether that is what people want, because I contend that it is what the “more than minor” threshold will mean, rather than the “significant” threshold that I am seeking to replace it with.

Let me quickly go through some of these protests that made the headlines, which would be illegal under the Bill. The first is “Protest in Oxford blocks major road in both directions”. I suggest that, before a court, that may not be significant but is more than minor. Next we have a “No HS2” protest. Some people may have more sympathy with that, but lots of protests have taken place with respect to that. “No nuclear power station” protests have taken place in Suffolk. Are they covered by the Bill? They come under “more than minor”, and I contest that offences would be committed under the Bill. East Sussex residents protested outside the housing department at the treatment of a road and blocked access. That is an offence under the Bill, and certainly above the “more than minor” threshold. Next is “Furious parents block road to protest poor enforcement of school street in north London”. I contend that that is an offence under the Bill. In the case of “Wellingborough: Protesters halt tree-felling plans”, they blocked the diggers and the cutters, which is not allowed under the Bill and is certainly more than minor. Two more are angry mothers blocking drivers over school drop-offs and unhappy Trowbridge residents turning out to block tree cutting. Under the Bill, some of these protests would be illegal and the police could potentially have the capacity to arrest.

We also saw the massive protests that took place last July when summer holidays were affected. Thousands of lorry drivers across the country blocked the M4, the M5, the M32 and the A38 in protest at the cost of fuel. My contention is that under the Bill that is more than minor and those protesting against the cost of fuel would be liable to arrest more than they are now. If you are blocking five or six motorways, that is certainly more than minor. What else did I find? Farmers blocked roads in protests; tractors were used in response to falling milk prices. That would not be allowed under the Bill. Blocking a major road is certainly more than minor. There is example after example showing that the Bill puts at risk the rights of people to protest. It puts at risk one of the democratic traditions of our country.

I do not hold with the idea that the Minister seeks to ban protests. That is ridiculous: I have never said that. What I have said is that the Bill unnecessarily restricts the right to protest and unnecessarily causes uncertainty about what is allowed or not. Lowering the threshold would mean that activity that is currently allowable in some of the examples I have given would not be. That is because of the phrase “more than minor”.

I am sure that many noble Lords will wish to comment on that, but all I ask is for noble Lords to reflect that if a tractor turns up, a mother turns up or a group links arms, before anything has happened it could be illegal under the Bill—this is the point made by the noble and learned Baroness, Lady Butler-Sloss. It does not even have to have caused disruption; it simply has to be capable of causing disruption. You can turn up with five tractors and park in a car park, and if the police think you are going to do something, even if you have not done anything, they could stop it because it is capable of causing disruption.

The Government will say, “Of course, this is ridiculous —an overreaction. Stupid nonsense. Why on earth is that going to happen? Our police will not act in that way. Ridiculous. People will be shaking their heads in disbelief that anybody could posit that anything like this would happen in our country.” All I say is: why would you pass legislation that creates the potential and the risk for it to happen?

It is not the way to legislate. Existing laws are appropriate and satisfactory and could be used. They are not being used as effectively as they could be. The Government’s answer to Just Stop Oil, Extinction Rebellion and all that is to seek to pass a totally disproportionate piece of legislation. Through my Motion I am trying to mitigate the impact and effects of that. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, since the noble Lord was kind enough to mention my name, I should perhaps briefly explain the thinking behind the form of words the Government have introduced to this debate.

Before I do, I remind your Lordships of what the noble Lord, Lord Coaker, said at Third Reading—words that are worth listening to again. He said that

“the debates here and the changes made reflect a genuine attempt to address where the line should be drawn between the right to protest and the right of others to go about their daily lives.”—[Official Report, 21/2/23; cols. 1560-61.]

Those are valuable words and were worth saying again because they encapsulate exactly the dispute between us, which has been conducted with a great level of courtesy, certainly on the other side of the House and, I hope, on my side too, in trying to find a solution to the problem.

The words I chose were designed specifically to deal with the two groups of offences in the Bill, locking on and tunnelling. Those offences differ from the other kinds of protest activities. The noble Lord, Lord Coaker, has reminded us of a lot of examples of these. The whole purpose of those conducting these activities is to disrupt. That is their method of making their views known. That is quite different from people who assemble with flags, shouting, singing and so on, or who walk in a procession as their method of making their views known. If you make your views known by disrupting, the position is that you cross a line.

That line was identified by the Court of Appeal in the Colston case. It used the words “minor or trivial”. If that kind of activity goes beyond what is minor or trivial, you lose the protection of proportionality available under the European Convention on Human Rights—you have moved to something different—because the activity you are conducting is deliberate and the consequences of what you have done in the exercise of that deliberate decision are properly described as more than minor.

I was looking for a definition of the threshold because I took the view, rightly or wrongly, that when you are dealing with those categories of offences, there is a point—at a fairly early stage, as the Court of Appeal is indicating—where it should be available to the police to stop the activity. Tunnelling, for example, is designed to inflict economic harm on the body that is conducting the railway. We are talking about HS2, which has parliamentary backing. To inflict economic harm should not be allowed to continue for any longer than a minor interference.

Locking on is the same thing. Once it reaches a stage of going beyond minor, the sooner the police are free to take the necessary action, the better. It is their judgment, but the point of my amendment was to identify a threshold. The problem with “significant”, which is a perfectly respectable word for describing a state of affairs, is that it does not define a threshold. It defines a state of affairs. The police need a threshold to be clearly identified, which my words were designed to do.

The problem, and it is part of our debate with each other, is that in legislation we cannot use algorithms or numbers. We are driven to use adjectives, which are quite malleable creatures. They have a shade of meaning, and some people have different views as to what words such as “significant” mean. I would say that once you move beyond “minor” you have reached something that is significant.

That is the point: it is a state of affairs that you have reached, whereas my wording is to identify exactly the stage at which the threshold is crossed. As I said last time, “more” is absolutely crucial. I can well understand that “minor” excites fear and alarms but, with great respect, I do not think that is really justified. “Minor” has to be given full weight. In my submission, it achieves the object that I was trying to achieve and which I think that the Government have now accepted. It is the difference between a state of affairs and a threshold. In the end, that is the crucial point.

--- Later in debate ---

Finally, I will touch on government Amendment 17A. I hope noble Lords are wholly satisfied and I appreciate the indications that they are. The Government have accepted the principle of Amendment 17, while adding a clarification. I particularly thank the noble Baroness, Lady Chakrabarti—and, of course, others—for her not insignificant thanks.

[Lord Coaker (Lab)]

My Lords, I join others in thanking the Minister for listening, and my noble friend Lady Chakrabarti and the noble Baroness, Lady Boycott, for the amendment on journalists. The Government are to be congratulated for moving on that and for responding to people’s very real concerns.

I thank the noble and learned Lord, Lord Hope, for saying that there is a genuine attempt within this Chamber to deal with what is clearly quite a difficult issue, with genuine differences between people. It has been well argued and well debated. That has never been an issue. There is an issue about where the threshold is but there has never been an issue about the genuine nature of that and I welcome his point.

I also thank the noble and learned Lord, Lord Hope, the noble Lord, Lord Wolfson, and many other noble Lords practised in the law for my speed course in trying to understand what some aspects of it mean. I think the point made by the noble Lord, Lord Paddick, the noble Baroness, Lady Fox, and my noble friend Lady Chakrabarti, and indeed by the Minister in his response just now, goes to the heart of it. The Minister said—and I have not got this completely right so I hope he will correct me if I am wrong—that in the end there will be an element of subjectivity in the police and the courts.

That is the very point made by the noble Lord, Lord Paddick, the noble Baroness, Lady Fox, and my noble friend Lady Chakrabarti. If there is an element of subjectivity, if a police officer or Vernon Coaker is walking down the street and you said that something is “significant”, I would see that as more serious than something that is “more than minor”. I cannot argue it with all the case law that the noble Lord, Lord Wolfson, used. I cannot use the legal terminology that the noble and learned Lord, Lord Hope, and many others would use. But I absolutely defy anybody to prove to me that 130,000, or however many there are, police officers across our country would not see “more than minor” as a lower threshold than “significant”. I just do not believe it.

The Minister himself said that there would be subjectivity. Of course, there will be subjectivity, which is why I raised the examples that I did. The Government have panicked. It was outrageous what happened with Just Stop Oil and Extinction Rebellion—and none of us supported the disruption caused by that. Many of us in this Chamber asked why the police were not using the powers on obstruction that they had and quickly sorting it out by using those powers. They should have had the confidence to use them and to know that this Chamber and the other place would be behind them, sorting those protesters out and dealing with the issue in the way it should have been done.

The Government’s response through the Public Order Bill and some of these measures will impact on people who should not be impacted on in any way, especially if you have a definition of “more than minor”. A police officer will go to those people who are driving tractors and protesting about milk, they will go to people slowing lorries down on the motorway because of fuel prices, and they will go to parents blocking roads because of school playgrounds—they absolutely will. If people start getting cross, as they inevitably will, the police will say, “Well, this is more than minor”, and do something about it—rather than what they would do if they had a threshold of “significant”. That will be the practical reality of the legislation that this Government are asking this Chamber to pass, supported by the other place. It is simply not tenable, and simply not good legislation; it will have consequences that the Government do not intend for it.

There was one thing on which I disagreed with the noble and learned Lord, Lord Hope, when he talked about disruption. I have not been on many protests that have not caused disruption, and I suspect that not many noble Lords have been on protests that have not caused some sort of disruption. I do not want to be controversial, but sometimes the point is to cause some disruption—that is the absolute point. I am sure that there are many noble Lords, not just behind me but on other Benches, who have been on demonstrations and protests and have caused disruption. The argument is over whether that is serious disruption—and according to the Bill it has to be serious; well, “more than minor” —whereas I am saying that it should be “significant”. At the end of the day, that is the point of difference between us.

All I say in closing is that the police, in policing the Public Order Act, as it will become, will treat “more than minor” at a much lower level in dealing with protests than they would if “significant” was in the Bill. For me, that trumps any arguments of case law or that the courts will have problems defining it. The courts always have problems defining things, and that is why, in the end, you have courts, because they will use their best judgment to define it—but I would rather they had to define “significant” than “more than minor” in dealing with protests. I wish to test the opinion of the House.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, police stop and search is an intrusive power that is used disproportionately against visible minorities. As I said on Report, you are seven times more likely to be stopped and searched by the police if you are black than if you are white if suspicion is required, and 14 times more likely to be stopped and searched if no suspicion is required. The facts show that the police have been targeting black people for stop and search, the overwhelming majority of those stopped and searched having done nothing wrong.

In 2020, 25% of eligible black people in the UK were not registered to vote, compared with 17% of eligible white people. Black people, even more than the population as a whole, have little or no confidence that the political system represents them. Protest is therefore more important to them than the population as a whole. Giving the police powers to stop and search in connection with protests will deter black people from exercising their human rights to freedom of assembly and freedom of expression. We cannot and will not support the inclusion of new stop and search powers for the police in connection with protests for these reasons, whether with or without suspicion.

However, at this stage of the Bill, if this House again insisted on removing stop and search without suspicion from the Bill the other place would have to move. That is something that many noble Lords around the House, for constitutional reasons, would be reluctant to do. I therefore do not intend to test the opinion of the House on my Motion B1.

On the basis that the perfect should not be the enemy of the good, we support Motion B2 in the name of the noble Lord, Lord Coaker, which, as he will no doubt explain, would restrict the circumstances in which the police can invoke stop and search without suspicion in relation to protest. We will support the noble Lord should he divide the House. I beg to move.

[Lord Coaker (Lab)]

My Lords, I will speak primarily to my Motion B2, which I will move and seek to test the opinion of the House on. In doing so, I very much agree with some of the points made by the noble Lord, Lord Paddick. We have arrived at a place where I and, I suspect, many in this Chamber would not wish to be. In other words, frankly, suspicionless stop and search should not be in the Bill.

--- Later in debate ---

Moved by

[Lord Coaker]

As an amendment to Motion B, at end insert “and do propose the following amendments to the words so restored to the Bill—

6B: Clause 11, page 12, line 17, leave out “inspector” and insert “chief superintendent”

--- Later in debate ---

[Lord Coaker (Lab)]

I wish to test the opinion of the House.

Public Order Bill

Lord Coaker Excerpts

Consideration of Commons amendments
Tuesday 28th March 2023 Lords Chamber

Moved by

[Lord Coaker]

At end insert “and do propose Amendments 6H and 6J in lieu—

6H: Clause 11, page 13, line 30, at end insert—
“(7A) Officers exercising the powers conferred by subsection (6) must give to the subject of a search—
(a) their name,
(b) their badge or shoulder number, and
(c) any details of the stop the officer considers relevant.”

6J: Clause 11, page 13, line 37, at end insert—
“(9A) Within one year of the passage of this Act, all police forces must establish a charter on the use of the powers in this section, setting out how, when and why they will be used.
(9B) The charter must—
(a) be drawn up in consultation with local communities,
(b) be evaluated independently, and
(c) explain how Body Worn Video footage will be used.
(9C) Each police force must produce an annual report on the use of the powers over the year, broken down by location.
(9D) Within one month of the powers in this section being used, the authorising officer must publish a statement giving reasons.””

[Lord Coaker (Lab)]

My Lords, I thank the noble Lord, Lord Sharpe, for his continued engagement over this difficult issue and indeed the further concessions that he has clearly made. I am sure they are very welcome as part of the deliberations between us.

We need to start by considering why we are here and what today’s debate is about. First, it is not about not having suspicionless stop and search. We believed, as did many in this Chamber, that the whole of Clause 11 should have been taken out—that suspicionless stop and search for protests should have been taken out of the Bill. But we lost that; that vote was lost. With this being a revising Chamber, we believed it was necessary to consider whether further mitigation of Clause 11 was therefore needed, given that it was going to stay in the Bill.

But the Government threw out our mitigation completely, although the Minister has now come back with some words about communication. We wanted that point about communication in the Bill and said that the seniority of the officer allowing the suspicionless stop and search should be increased, but that was thrown out. The noble Lord, Lord Hogan-Howe, can no doubt speak for himself but I remind the Minister, who prayed him in aid, that the noble Lord voted for my amendment at our last debate—the Minister can check Hansard. He ought to recognise that. After the Government threw out our mitigation, the Casey review and the report from the Children’s Commissioner into stop and search of children came along.

Let me deal with some of the things that I think the Minister will say in response. He will throw up smoke—when in trouble, the Government always do. I suspect there has been a huge debate in the Home Office on suspicionless stop and search at protests, and the Government have conceded that they perhaps ought to communicate a bit better. As he has said when we have debated this before, the Minister will no doubt say that the public support stop and search for knife crime, gun crime and so on. This Bill has nothing to do with that at all. Of course I support suspicionless stop and search if it stops stabbings, murders and serious violence, but Section 60 of the 1994 Act is completely irrelevant to the Bill. Yet the Minister in the other place used the public support for stop and search because it stops serious violence as a reason for including suspicionless stop and search in the Bill. It is completely irrelevant.

As was raised in a previous debate, even the Conservative- led Government in 2012 changed suspicionless stop and search in respect of terrorism because they believed that the power in the 2000 Act went too far. To their credit, the then Prime Minister Cameron and Home Secretary Theresa May said that it had gone too far and that they would restrict it, narrowing the criteria even for terrorism. I have not checked who was in the Committee that passed it, but some noble Lords sitting on the Conservative Benches will have voted for it in the other place—quite rightly; it should be a matter of pride that they did so, even for terrorism.

This suspicionless stop and search power does not relate to terrorism or serious violence. It relates to protest —whether someone has a padlock or some glue. If it has been agreed by an inspector, not the chief superintendent, you can search people without suspicion on the basis that they may have those things in their pockets. It is a complete overreach of the law, one of the most serious powers that this Parliament can give the police to use on the streets. I cannot believe that anybody thought it would be used for protests. If the British public, all of sudden, not just around Parliament but in the middle of another city or wherever, find themselves being searched on the basis of suspicionless stop and search, they will just not believe that it is because they are at a protest, and neither will their friends, parents or family.

The Minister will no doubt say that this is all covered by PACE Code A, and indeed he has said that there will be some changes to that code. That is a complacent response to the scale of what we are facing. It ignores the evidence that those two recent reports have put before your Lordships; it flies in the face of those reports.

--- Later in debate ---

[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 Coaker Excerpts

Consideration of Commons amendments
Wednesday 26th April 2023 Lords Chamber

[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.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his response and the noble Lord, Lord Paddick, and many others for the detailed scrutiny and the way this Chamber has tried to hold the Government to account. To be fair, the Government have made one or two changes with respect to suspicionless stop and search, and I will go to them in a moment. But before we do, it is important to reiterate that the Bill is about giving powers to the police that the Government say they need, where—I think it is worth repeating—many of us believe they have the powers necessary to deal with the protests that have caused such alarm in government and beyond over the last few months.

In the last couple of months, it has come down to stop and search without suspicion—for the avoidance of doubt, to deal with protest rather than knife crime, terrorism or serious offences such as those. I welcome what the noble Lord, Lord Sharpe, has agreed to in the amendments to PACE Code A: to require, where operationally practical, to communicate the extent of the area authorised for suspicionless stop and search, the duration of the order and the reasons for it. I think the noble Lord, Lord Hogan-Howe, said that this would be important to include in any change to the PACE code, so I thank the Government for listening and including it, as well as for placing data collection in the legislative framework of PACE Code A and therefore including a breakdown of suspicionless stop and search by age, sex and ethnicity. Can the Minister confirm my understanding of the changes that the Government are proposing?

While it is welcome, it is to say the least a missed opportunity, as the noble Lord, Lord Paddick, said, to respond to the Casey review. If noble Lords refer to page 22 of that review when they return to their offices, they will find that the amendments we put forward, which were supported by the House, are a complete lift from what the noble Baroness, Lady Casey, recommended. My contention is that, given their significance, it was and should have been a real necessity for the Government to put them in the Bill. If things were working with respect to PACE Code A, why was she so insistent that, to restore trust and confidence in the police, this needed to be placed in the Bill? The Government have rejected that, saying that it is fine because of what is in PACE Code A.

Let me share the view expressed on Monday in the other place by David Davis MP:

“why should it not be on the face of the Bill? After all, that would broadcast in clear terms what we want to happen”.

Many noble Lords said this, including the noble Lord, Lord Paddick, and I. That was precisely the point: not to tuck it away in regulation but to say clearly that, such is the significance of suspicionless stop and search related to protest, the Government would put it in the Bill and demonstrate to everyone what they believe should happen. They rejected that for what I consider to be no good reason. It was not only David Davis; Wendy Chamberlain MP said that, in line with the Casey review,

“we need this provision on the face of the Bill”.—[Official Report, Commons, 24/4/23; cols. 550-51.]

The Government say that they absolutely agree with the Casey review and accept its recommendations. Why then do they choose to ignore what the noble Baroness believes is one of the most important things that the Government need to do to restore trust and confidence in the operation of suspicionless stop and search? It is a real missed opportunity and chance for the Government to demonstrate how serious they are about the use of this power and the need to restore that confidence.