Public Order Bill

Viscount Hailsham Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I rise to speak briefly in support of the Bill—briefly because I want to focus on the main purposes of the Bill and on the principles that underpin it.

I acknowledge that there are major concerns that have been expressed by many of your Lordships, as well as in the House of Commons, about the constraints that the Bill undoubtedly imposes on the right of individuals to protest or to express their views. I hope that Ministers will be sensitive to those criticisms when the Bill is considered in Committee and on Report. That said, I do think that the Bill in its essential respects is a proportionate and necessary response to a growing problem.

The truth is that democratic societies have always accepted that there is a balance to be struck between the rights of an individual to protest and the rights of other members of society not to have their lives unreasonably disrupted by such actions. The rights to free expression, assembly and association are important, but they are not absolute in the sense that they can be exercised whatever the consequences for other people. Thus, in the context of free speech, society has long accepted limitations, such as in the law of defamation in civil law. In criminal law, there are many more illustrations: the most recent are the prohibitions on the use of racist language or language likely to cause distress or put minorities at risk. I suspect that many of those who protest in the way that this Bill has sought to address would support those particular restrictions.

Some constraints have also been placed on the right to demonstrate. My noble friend the Minister and the noble Lord, Lord Beith, referred to Clause 9, regarding buffer zones to prevent demonstrations around abortion clinics, which was debated in the House of Commons on 18 October. I agree with the majority in the House of Commons that buffer zones should be created, but I accept that it is undoubtedly a serious restriction on the right to free expression and the right to assembly. My own feeling is that the buffer zones get the balance right and are certainly justified by Articles 10(2) and 11(2) of the convention—but I accept that this is a matter on which there are, reasonably, competing views.

I turn directly to Clauses 1 and 8, which address tactics much favoured by the present generation of protesters, such as locking on, tunnelling, and the obstruction of major transport works and of key national infrastructure. In my view, the restrictions imposed on such activities by the Bill are clearly justified. Locking on, disrupting the highway and interfering with rail travel impede and often prevent fellow citizens going about their daily business—going to work, taking their children to school, shopping, visiting elderly relatives and keeping medical appointments. In such circumstances, the activities of the protesters will frustrate the essential work of the emergency services. These consequences, in my opinion, are a wholly unreasonable interference with the rights of others, and the disruptive consequences are intended. I regard such actions as profoundly selfish and to be roundly condemned.

So too is the promotion of strongly held views by acts designed to impede the normal requirements of an interdependent state, or acts designed to frustrate policy objectives duly approved by properly constituted institutions, often elected. I have in mind, for example, tunnelling to frustrate HS2 or the blocking of fuel supplies to promote specific climate change policies. I regard these actions as an abuse of freedom. In my view, they are wrong in principle. As the noble Lord, Lord Blair, said, they divert police resources from more pressing demands. They often provoke citizens to take the law into their own hands, which undermines the basis of a civil society. They also display a fundamental contempt for democratic and representative government. So I am firmly behind the purpose of the Bill.

Some of the opposition to this Bill relies on historical analogies—on the suffragettes, whom the noble Baroness, Lady Chakrabarti, referred to, on the actions of the ANC in apartheid South Africa, and on the civil disobedience now going on in Iran. Of course, there are many other cases that can be cited, both historical and contemporary. But we should be very careful not to use such examples as justifying similar action in the United Kingdom.

Our democracy is by no means perfect. Many of its defects were identified by my father when he wrote and spoke about the “elective dictatorship”. Incidentally, he would have been deeply shocked by some of the actions and much of the conduct of Mr Johnson—not something that he would have expected from a Conservative Prime Minister. However, we live in a society in which policies can be changed by elections, by a change of Government, through discussion and by the force of public opinion.

Our task in Parliament is surely to identify the correct balance between the right of individuals to protest and the right of others not to be unreasonably interfered with. Many of the critics of this Bill suggest that the constraints on free speech and the right to protest go too far. Although I think that the under- lying purposes of the Bill are correct and should be supported, I hope, as I have said, that the Government will be sensitive to the detailed criticism of the Bill that has been and will continue to be expressed in this place.

There is always a danger, which I accept, that when seeking to address issues of public order Governments will go too far. Powers once given are hard to withdraw. Such powers will often be abused. I agree with the right reverend Prelate the Bishop of St Albans who made precisely that point.

Also, I have to say I treat with great caution recent policies coming out of the Home Office, especially when they were fashioned at a time when Miss Patel was the Home Secretary, although I have to say I treat with equal caution policies that have the authority of the present Home Secretary. I am amazed that, when Attorney-General, Miss Braverman should have advised that the doctrine of necessity justified a breach of recently made treaty obligations with the European Union. Surely it is a case of providing a legal argument, however bad, in order to provide cover for a previously determined policy outcome.

We will need to look carefully at, for example, a whole variety of the provisions contained in the Bill, such as the power to stop and search without suspicion, the power that enables courts to make a serious disruption prevention order in the absence of a conviction, the management content of such orders and the power of the Secretary of State, mentioned by the noble Lord, Lord Blair, to seek injunctions. There are serious criticisms to be addressed, and they may require serious amendments. The Joint Committee on Human Rights has identified a number of issues. However, that said, I believe that the fundamental purpose of the Bill is correct, and I hope that in its essential elements it will receive the consent of this House.

Public Order Bill

Viscount Hailsham Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

Regulations which require consultation with key stakeholders and need approval by both Houses improve on the current public spaces protection order system, which allows a local authority to impose buffer zones with scant transparency.

[Viscount Hailsham (Con)]

Would the noble Lord address the point that regulations are unamendable?

[Lord Farmer (Con)]

I thank the noble Viscount for the intervention. I would have thought that regulations are amendable by a debate in this House.

[Viscount Hailsham (Con)]

They are not, and they never have been.

[Lord Farmer (Con)]

These regulations would allow for sunset and review provisions to be included, so the legislation can cease to have effect if appropriate, as I said.

I was talking about how regulations that require consultation with key stakeholders and need approval by both Houses improve on the current public spaces protection order system, which allows a local authority to impose buffer zones with scant transparency. The decision to introduce PSPOs is often initiated, drafted and implemented by one person or a group of council officials, with very little scrutiny and awareness of what factors they have taken into account.

I will speak briefly to other amendments. Those tabled by the noble Baronesses, Lady Fox and Lady Hoey, engage with the civil liberties and rights issues. However, they accept that interference with a decision can be disallowed, which would be a first in criminal law and very hard for the individual to defend themself against. A woman could simply claim that a choice made in the privacy of her mind had in some way been influenced by a message or person.

However, the tidying-up changes that my noble friend Lady Sugg proposes do not speak to the disproportionality of Clause 9, and in some ways worsen it. For example, Amendment 84 would ensure that a buffer zone also applies where an abortion clinic is embedded within a hospital or GP surgery, as we heard. This would vastly increase the footprint affected by buffer zones. Even if only all 373 abortion clinics were included, this would leap from the current 225 square metres to 26 square kilometres, and it would single out the issue of abortion for wildly disproportionate restrictions in comparison with other health areas. A person providing false information on a leaflet about any other medical issue would be free to do so, but someone providing accurate information on abortion would be criminalised.

I could say a lot more, but this is a big group with many speakers, and I know at least one noble Lord who was dissuaded from speaking because time is not limitless. As my noble friend the Minister will know from his many conversations, there is strength of conviction on both sides of this argument. I urge him to adopt the evidence-based policy route. There is again clamour for reform of this House, but the importance of our scrutiny and revising role is not clearly understood. We would be lax in our duty if we merely rubber-stamped or gently tweaked this inadequate and ideologically inspired clause.

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[The Lord Bishop of Manchester]

I rise to address Amendments 85 to 88, 90 and 92, to which my right reverend friend the Bishop of St Albans has added his name. He regrets that he is unable to be in his place today. I also have sympathy with a number of other amendments in this group.

It is a heated and emotive debate on this clause, and it was heated and emotive when it was added in the other place. The danger is that we get dragged into debates about whether abortion is morally right or wrong. Indeed, I have had plenty of emails over the past few days, as I am sure other noble Lords have, tending in that direction. As it happens, I take the view that the present law on abortion strikes a reasonable balance; in particular, it respects the consciences of women faced, sometimes with very little support, with making deeply difficult decisions.

Moreover, history teaches us that the alternative to legal abortion is not no abortion but illegal abortion, with all the evils that brings in its train. Others, including people of my own and other faiths, may disagree with me on either side but that is not the focus of your Lordships’ deliberations this afternoon. Rather, as the noble Baroness, Lady Fox, reminded us, we are seeking to weigh the rights of women to access legal health services alongside the rights of others to seek peacefully to engage, persuade or simply pray.

However much we may disagree with the causes and tactics of those protesting, we need to remember that in a democracy not everything that is unpleasant should in consequence be made illegal. Harassment and abuse of the kinds to which the noble Baronesses, Lady Fox and Lady Sugg, and others have alluded must be condemned in the strongest possible terms. The use of legislation, including on harassment, to confront inappropriate behaviour is absolutely legitimate, but it already exists. If such behaviour is becoming more widespread, let us see the police and local authorities use those current powers more extensively so that they can create a safe and respectful atmosphere for vulnerable women.

I understand that no one has ever demonstrated that widespread abuse is prevalent or that new powers are necessary. At the least, we need clear research, as the noble Lord, Lord Farmer, proposes, to underpin such extensive new measures. In line with other provisions of this Bill, many of which we have already discussed, there is a need for the Government and police to take proportionate action while maintaining the strongest possible safeguards for freedom of speech, expression and assembly. Those are at the core of our nationhood. I do not think that Clause 9, as drafted, takes that proportionate approach.

I respect the views of those noble Lords who take a harder line against abortion and the many who reject the position from a more liberal standpoint. However, I cannot accept that it is desirable to legislate against expression of opinion on the matter or providing advice and guidance, even if one is in one’s own home or a place of worship. I cannot believe or accept that seeking to provide information could be met with a six-month prison sentence. I believe Amendments 88, 89 and 90 would help set a better balance on these provisions around freedom of speech. They would leave those things that are genuinely egregious in the clause and extract those things that are not.

Amendment 85 clarifies that Clause 9 cannot apply within an area

“wholly occupied by a building which is in regular use as a place of worship”.

Again, I do not expect or demand that religious positions on abortion are respected any more than others, but I worry that a minister of a religion holding views that are mainstream within his or her faith tradition—and are demonstrably legal to hold—could be barred under this legislation from expressing that view within their own place of worship.

[Viscount Hailsham (Con)]

I have some difficulty in understanding the thinking behind this amendment. If a sermon was being preached in a church or mosque, which is what we are being asked to contemplate, that sermon would not in any way impact on the person visiting the abortion clinic some distance away.

[The Lord Bishop of Manchester]

I thank the noble Viscount for his intervention. As the noble Lord, Lord Beith, said a few minutes ago, you might have a poster outside the church, mosque or temple saying that you are having a particular event on a particular day. It appears that would be caught by this legislation, but let us have the matter clarified by Ministers.

I thank the noble Baroness, Lady Fox, and others for their principled note that good powers must protect those who hold views with which you disagree or even find deplorable. Abortion is contested and emotive. I do not dispute that, as a result, there may on occasion be actions and levels of disruption that fail the test of Christian or any other charity. I deplore it when that happens.

However, there is a point of principle here going far beyond matters of abortion. Clause 9 is so broad and non-discriminate in its approach that it sets unfortunate precedents. I have real concerns that if we pass this clause into law in anything like its present wide form, we will see demands arise for exclusion zones, buffer zones or whatever they may be called in all manner of other locations and for all manner of purposes. I will listen with care to the rest of this debate, but I urge further concern in the approach to this part of the Bill. I hope Ministers will reflect on this and bring back some revised wording at a later stage.

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[Lord Cormack (Con)]

I am delighted to tell the noble Baroness what my opinion is. My opinion is based on real sadness that, since 1997, the other place has progressively ceased to be a House of scrutiny. MPs devoted just two hours to the Report stage of this Bill. What happened in 1997 was that there was an exuberant Conservative who tested the patience of the Labour Government with their great majority. The noble Baroness deserves a proper answer to her question. His name was Eric Forth; he is, sadly, no longer with us. I begged him, and so did my noble friend Lady Shephard of Northwold, because we were shadow Leader and Deputy Leader of the other place, to be a little bit selective, but he was not. Night after night, he kept up the Labour Party, so what did the Labour Party do? In exasperation, it brought in programme Motions, which means that every Bill has a limited amount of time. What did the Conservatives do? They protested, saying, “We won’t allow that to happen when we come back into government.” Of course, it is such a convenience for the Executive that they did allow it to happen when they came back into government. That is why every Bill is subjected to inadequate scrutiny in the other place, so it is incumbent on us to give it the proper scrutiny that our lack of timetable Motions enables us to give it.

[Viscount Hailsham (Con)]

I agree with what my noble friend is saying about timetables, but in response to the noble Baroness, perhaps he would address this point. The truth is that Members of Parliament voted for Clause 9 in very large numbers. They did so because they were aware of the very considerable concern in their own constituencies about what was going on outside abortion clinics.

[Lord Cormack (Con)]

They might have voted for all sorts of reasons. We have already heard that Stella Creasy refused vote for the Bill because it had gone wrong as far as she was concerned. Of course I will give way.

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[Baroness Hamwee (LD)]

My Lords, I have Amendment 93A in this group. In the spirit of scrutiny, I wondered what “an abortion clinic” and “abortion services” actually meant. To me they include professional counselling which puts both sides of an issue and all the options. I say that because it seems as if we have got into a rather binary state where this is just about the abortion procedure.

I am convinced that there is a serious problem for women attending some clinics who are seeking an abortion. I am also aware of how activities can move around geographically. I understand that there is not a problem now with the activities that we have been talking about outside places where abortions do not take place but counselling does. However, as the noble Baroness, Lady Sugg, said, activities have moved to new sites; she mentioned one that has been affected for the first time in many years. My amendment is to raise that issue, bothered that what is a problem now could be displaced and become a problem elsewhere. Obviously it is probing the position, but as we are seeking to tackle this, we should do so comprehensively.

[Viscount Hailsham (Con)]

My Lords, I am in general opposed to those of the amendments which are designed to reduce the impact of Clause 9. As I said at Second Reading, I support the concept of buffer zones around abortion clinics. Of course I accept the two propositions eloquently expressed by the noble Baroness, Lady Fox: first, that the right to demonstrate and freely express views is of great importance in a democratic society; and secondly, that the provisions of Clause 9, as many of your Lordships have articulated, impose serious restrictions on such abilities. But again, as I said at Second Reading, these rights are not absolute. They have to be balanced with the rights of others, and the correct balance is often not easy to identify and can be the subject of legitimate disagreement—it usually is. However, in the context of abortion clinics, Clause 9 gets the balance about right.

I will identify occasions where the balance falls the other way: in favour of the demonstrator. Some of your Lordships will think that the examples are trivial. I have often hosted meets for our local hunts, both before the ban and after it; after the ban, our local hunt acts fully within the law. The saboteurs come and demonstrate, and they are often very tiresome. However, provided they operate within the law, I would not for one moment seek to ban them. There is another example. Pacifists sometimes demonstrate outside military recruitment offices. I disagree with that and think it is wrong in principle, but again it would never occur to me to seek to prohibit that activity.

The motives of those demonstrators and those who demonstrate outside abortion clinics have something in common. It is not that they are just expressing their own opinions, which of course they are absolutely entitled to do, but they are trying to induce a change of attitude on the part of others. It is when I come to those who protest outside abortion clinics that I am conscious of why the balance tips. Those who attend abortion clinics have come to a very painful and serious decision, and often an anguished one. I think it is very wrong to subject them to what is often intemperate bullying of an extremely nasty kind.

[Lord Farmer (Con)]

I mentioned at Second Reading that the BBC did a poll which found that 15% of women who went to abortion clinics had been coerced into doing so. We do not have the information as to how many partners have said, “I don’t want this child, go and have an abortion”. We need to establish that by finding the evidence. We hear all the time that the people outside the abortion clinic are against abortions. We do not see the intimate pressure that women are often under in the home—not only from male partners but perhaps from their families—to do with shame and other things. This needs to be looked into before we make a decision on this.

[Viscount Hailsham (Con)]

Parliament is in a position to make a judgment about these matters. I was in the House of Commons for nearly 30 years—not as long as my noble friend Lord Cormack—and I was well aware of, in many circumstances, from evidence which came from many quarters, the kind of abuse to which women seeking an abortion were subjected by those who demonstrated outside abortion clinics. I strongly suspect that is why the House of Commons voted for Clause 9 in such substantial numbers, because it knew it was happening and that it was wrong. We do not need a further review to establish those basic judgments.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, my difficulty is this. In interpreting things in the way he is, the noble Viscount is suggesting that he knows why people did something. I have no idea why people in the Commons voted in the numbers they did. The noble Viscount has a view on what might have driven that; others might have another view. Generally speaking, since I have been in this place, the House of Commons has voted in huge numbers for things I have disagreed with, and unless the Opposition is going to go home, what am I supposed to do? I cannot keep saying, “I think they really did it because they were really motivated —we do not know, do we? Will the noble Viscount clarify why he keeps stressing that? Is it relevant to us?

[Viscount Hailsham (Con)]

It is, because we are being asking what the evidence is. I was telling the noble Baroness that, when I was a Member of the Parliament, for a very long time, I was conscious of some of the abuse that was going on from speaking to people coming to my surgery. In the House of Commons, we get a reflection of the views of Members of Parliament who are encountering the same response from their own constituents.

[Baroness O'Loan (CB)]

Is the noble Viscount aware of any statistics on the number of people now who are being prosecuted or who have been convicted of harassment of people at abortion clinics? I am completely unaware of that, and none of those who are promoting this clause has produced any such evidence.

[Viscount Hailsham (Con)]

I am not, but what I am telling the Committee is that those who have a great many dealings with the public, particularly Members of the House of Commons, have passed by a very substantial majority the view that Clause 9 is necessary. That accords with my own personal experience, after 30 years or so in the House of Commons.

[Lord Cormack (Con)]

May I remind my noble friend that he and I cast many votes during the debates on Brexit, regardless of what the House of Commons was doing, because we thought we were right?

[Viscount Hailsham (Con)]

I agree with that, but I think my noble friend is overlooking the fact that, in the House of Commons, it was not a whipped vote when they were talking about Clause 9; it was what is sometimes laughingly referred to as a free vote. I personally always took the view that, when I was not a Minister, a vote was a free one, but I am conscious that that was not always the view—perhaps not even of my noble friend. If my noble friend wants to intervene again, of course he can.

I would like to say a word about one or two of the amendments. I start with Amendment 80. The substantive offence is that provided in Clause 9(1). I ask rhetorically what can be the reasonable excuse for an interference? I agree with the view expressed by my noble friend Lady Sugg. I suspect that I know the intended purpose of the amendment: to allow the defendant to introduce the defence of free speech before the courts. However, if Parliament decides that Clause 9 should not have the defence of free speech—and that is what the clause provides—then such a defence should not be available in a court.

On Amendments 81 and 86, in my view the matters are of far too much importance for the designation of zones to be left to local authorities, as advocated, I think, by the noble Baroness, Lady Fox. The abrogation of the right of free speech and the abrogation of the right of association should be left to Parliament and not to local councillors.

The phrase “intentionally or recklessly” in Amendment 82 is wholly unnecessary, with one exception. It seems to me that the concept of intent is incorporated in the definition of interference as contained in Clause 9(3). The exception is the word “impedes” in paragraph (c), because I acknowledge that an act of impeding could perhaps be committed without intent. Ministers should clearly reflect on the criticism that has been expressed as to the scope of what is included in the definition of interference. I agree very much with what my noble friend Lady Sugg said about the expression of opinion. I am sure she is right about that, and it has been supported by others in the Committee.

Amendment 85 is in the names of the right reverend Prelate the Bishop of Manchester and my friend the noble Lord, Lord Beith. I almost always agree with him but on this occasion I am bound to say that I think he is wrong. With the exception of the point he made about the poster outside the church, I have very great difficulty in seeing anything that could be said within the church that could interfere with somebody seeking access to an abortion clinic, save for that which has been addressed by Amendment 97, in the name of my noble friend Lady Sugg.

As to the penalties provided in Clause 9(4), I am much more relaxed and would not seek to argue against some amelioration of the sentences set out in the Bill. In general, I think that Clause 9 is a proportionate response to a very serious mischief, and I hope that we will not water it down substantially.

[Baroness Thornton (Lab)]

My Lords, I did not expect to say how much I agree with the noble Viscount, Lord Hailsham. It means that I do not need to say an awful lot. I regret that the people moving the amendments which seek to water this down very significantly, starting with Amendment 80, have not addressed the amendments moved by the noble Baroness, Lady Sugg, which seek to turn this into a reasonable working clause.

Public Order Bill

Viscount Hailsham Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Viscount Hailsham (Con)]

I am very grateful to my noble friend for giving way, but I am afraid that he is wrong about the absence of suspicion. When I was a special constable 40 years ago—I do not have the experience of the noble Lord opposite—I would stand in Trafalgar Square and get messages on the police radio such as, “Race code 3 or race code 9 coming down in a beaten-up Vauxhall: worth a stop.” That is not suspicion; that is arbitrary stopping.

[Baroness Meacher (CB)]

My Lords, we are not focusing right now—nor should we be, in my view—on the issue of the lack of suspicion, although that is fundamental to Clause 11. Let us focus for a minute on Clause 10, which is about stops and searches without suspicion. Those stop and search powers were introduced for police, necessarily and very importantly, to enable them to stop people who they believe may be carrying a knife or another potentially dangerous weapon. I fully support those stop and search powers, but there is not a strong evidence base that the stop and search powers in that context are actually effective in preventing violent crime. So the idea of extending those powers to stop and search people in case they have a placard—a piece of paper—is completely and utterly disproportionate.

In a democratic society, it is utterly wrong to give disproportionate powers to our police to interfere with the fundamental right in our democracy to protest and to go out on the streets to express our opinions. If we forget the issue of suspicion, Clause 10 is utterly disproportionate, anti-democratic and unacceptable, and it will lead to further discordance between the police and lots of communities where we need to build community support for our police. It will have very detrimental effects on all sorts of people across our society. It is for these reasons that I, among others—I hope the whole House—would support withdrawing Clause 10 from the Bill.

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[Baroness Jones of Moulsecoomb (GP)]

I speak as the mother of a journalist, so I have a vested interest here, but journalists do not go along to protests to join them but to watch and report on them. The Hertfordshire police and crime commissioner, David Lloyd, with whom I had the displeasure of sharing a panel the day after this all happened, said that protesters should not have the oxygen of publicity. That was his attitude: “Freedom of the press is fine, but not for protesters.” That is utterly unreasonable, as are the noble Lord’s comments. I support this very strongly. I do not see why anyone here would have a problem with it, except the Government. What are they frightened of? What do they think journalists will report that would look so bad for them? Obviously, almost anything.

[Viscount Hailsham (Con)]

My Lords, I support what the noble Lord, Lord Hogan-Howe, has said. This is really a matter of definition. We all agree that journalists should not be arrested while doing their job, but it is very difficult for a policeman to distinguish between A and B—

[Baroness Jones of Moulsecoomb (GP)]

They have cards.

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[Viscount Hailsham (Con)]

Yes, but I do not think the noble Baroness has focused on the point that a lot of demonstrators would represent themselves as journalists to avoid the prescriptive provisions of the Bill. That is what the noble Lord, Lord Hogan-Howe, was talking about, and he is wholly right.

[Lord Hope of Craighead (CB)]

I thank the noble Viscount for giving way. The word “journalist” is not in the amendment—just “a person”, who is defined as “observing or otherwise reporting”. That is what it says, and it is very clear.

[Viscount Hailsham (Con)]

I appreciate that. I did not realise that the noble and learned Lord was intervening—I apologise for not sitting down at once. The point is surely that we are dealing with the need to protect journalists. The risk is that any demonstrator involved will say that they are a journalist or otherwise fall within the protection of this proposed new clause. That is what worries me.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, if anything illustrates why this amendment is needed, it is the last few exchanges. A number of noble Lords are already suspicious that people reporting on a demonstration are really malevolently pretending to be doing so. The noble Lord, Lord Hogan-Howe, said that the police have said to him that people will pretend to be reporting and asked how they would know. That is the difficulty. If the police start off suspicious that journalists are really just people pretending to be journalists to get away with locking on and being disruptive, we have a problem.

What this amendment will do, and it is important to do so, is to state that it is a legitimate pursuit to be reporting on a demonstration, whatever your opinion of the demonstration. I have heard people say that all the people reporting on a demonstration who are not officially working for the BBC or LBC are actually demonstrators, but there are people who are opposed to, for example, Just Stop Oil who are reporting on it because they are trying to get support against the demonstrators. That is what is ironic. The point is that they are reporting. In a democracy, we need to know about such things. One of the great things about technology is that you can sometimes see it and know about it because somebody is there reporting on it or filming it.

We should stick by the principle of journalistic freedom. Those people who say people pretend to be journalists to get off scot free show how the Bill is already poisoning the well and making anybody associated with a demonstration in any capacity seem dodgy. What is dodgy is making that conclusion.

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[Lord Hope of Craighead (CB)]

My Lords, as the noble Lord, Lord Anderson, said, I support all but one of his amendments. The one I do not support is very minor and, out of an abundance of caution, I decided not to put my name to it. A particular point I wish to draw attention to arises from his Amendments 56 and 60, which deal with the trigger events for the pronouncement of these orders. The noble Lord seeks to take out the third, fourth and fifth trigger events. He is absolutely right to want to do so because of the breadth of the expression, and of a particular point that I will come to.

The third trigger event concerns carrying out

“activities related to a protest that resulted in, or were likely to result in, serious disruption”.

That phrase describes a protest, but the word “activities” is so wide that it raises real questions about the certainty of this provision. The same point arises in respect to the fifth trigger event.

The fourth trigger event contains quite an extraordinary proposition, which is that the person

“caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction”.

An offence is defined in statute. Everyone is presumed to know the law, so it is fair enough to mention the “offence” in that particular trigger event, but injunctions are directed to individuals; they are not publicised in the same way as offences. A person might have absolutely no idea that the other person in question was in breach of an injunction, of which he had no notice whatever. That is absolutely objectionable. On any view, the fourth trigger event should be deleted from both these clauses, but for broader reasons and those given by the noble Lord, Lord Anderson, which I need not elaborate on, I support his amendments.

[Viscount Hailsham (Con)]

My Lords, I will make three brief comments about these amendments. First, regarding the trigger points, I entirely agree with Amendments 56 and 60 from the noble Lord, Lord Anderson, which the noble and learned Lord spoke to. The reference to an injunction is particularly worrying because, for the reason the noble and learned Lord mentioned, members of the public would not be aware of it. In any event, what are or could be contemplated in the third, fourth and fifth trigger events are acts that are very remote from the mischief the Bill contemplates. Therefore, I very much hope that the amendments are put to the House, and I shall support them if they are.

Secondly, your Lordships need to keep in mind that the test of necessity, which is dealt with in Clause 20(1)(d), is quite a high bar. I deal with it in interim orders made by the regulatory panels, which are fully aware that “necessity” is different from “desirability” and requires quite a high threshold.

My last point is a query to the Minister, if he would be so kind. It is a very long time since I dealt with complaints before magistrates’ courts, so I apologise for not really being familiar with the procedure. In any view, these SDPOs are very serious. Does the complaint, which presumably has to be made both by the court and to the person named, specify the concerns felt by the senior police officer? Does it specify the relief being sought in the order itself? I assume that these are inter partes hearings, not ex parte. Does the person against whom the order is sought have the opportunity to make representations, give evidence, be represented and object to the relief being sought? This is ignorance on my part, but I fancy that quite a lot of your Lordships would like to know the procedure being invoked.

[Lord Paddick (LD)]

My Lords, as we have heard, most of the amendments in this group seek to restrict the proposed provisions in serious disruption prevention orders so that they are more in line with terrorism prevention and investigation measures. TPIMs are primarily designed for instances where the case against someone who is believed to be a serious threat to society—a suspected terrorist—is based on intelligence rather than evidence that could be given in open court. They are supposed to be a temporary measure while attempts are made to secure the evidence necessary to convict the person of a criminal offence. SDPOs as originally drafted were potentially limitless banning orders preventing people from involvement in protests, even if they had never physically been present at a protest before and, in the case of Clause 20, had never been convicted of a criminal offence.

As the noble and learned Lord, Lord Brown of Eaton- under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights if a court was satisfied on the balance of probabilities—depriving people of their human rights on the weakest of evidential tests. Even in the case of Clause 19, on serious disruption prevention orders on conviction, where the court is convinced beyond reasonable doubt that a criminal offence has been committed, the court needs to be satisfied only on the balance of probabilities that the offence was protest related. It then has to be satisfied—again, only on the balance of probabilities—of a second involvement in a protest. For example, if someone had contributed to crowdfunding to pay for coaches to take protesters to London and, in the end, there were not enough protesters and the coaches never went, but serious disruption was likely to have resulted if they had and the coaches had been full of protesters, on the balance of probabilities the court could impose an SDPO.

That many of the amendments in this group attempt to weaken SDPOs, making them merely outrageous rather than totally unacceptable, is no reason to support them—perhaps with the exception of Amendment 56, which seeks to limit those who would be made subject to an SDPO and which, frankly, goes nowhere near far enough. The House should not make legislation less bad when it has an opportunity to oppose it in its entirety. The noble Lord, Lord Anderson, expressed his support for that by signing Amendment 59.

As His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported in its review of public order policing, the police’s view was that courts would be reluctant to deprive individuals of their right to protest by granting protest banning orders in the first place, and even more reluctant to impose any significant penalty should someone breach an order by peacefully participating in a future protest. If they caused serious disruption, they would be convicted of a substantive public order offence. As a result, SDPOs were seen as unworkable and having no real deterrent effect.

We support the amendments in the name of the noble Lord, Lord Ponsonby of Shulbrede—to leave out Clauses 19 and 20—which have been signed by me, the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Chakrabarti. We cannot support depriving anyone of their human rights on an evidential test of the balance of probabilities, especially when the police believe that the courts would be unlikely to impose SDPOs or a deterrent penalty for any breach. We will support the noble Lord when, we hope, he divides the House on Amendments 59 and 63.

--- Later in debate ---

[Viscount Hailsham (Con)]

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

[Lord Sharpe of Epsom (Con)]

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

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

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

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

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

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

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

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