Monday 23rd May 2022
(1 year, 11 months ago)
Commons ChamberPublic Order Act 2023 Read Hansard Text
21:49 - The House divided: - Ayes: 200 / Noes: 292 - Question accordingly negatived.
22:03 - The House divided: - Ayes: 292 / Noes: 202 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Secretary of State for the Home Department (Priti Patel)
I beg to move, That the Bill be now read a Second time.
From day one, this Government have put the safety and the interests of the law-abiding majority first. We have put 13,500 more police on the streets, and we are on track to reach nearly 20,000 new police officers by March next year.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
Will the Home Secretary give way—already?
Priti Patel
I think I will make some progress, if that is okay.
This Conservative Government understand that if we are to cut crime, level up the country and make sure that people feel safe in their homes, on public transport and on the street, we need to back our police officers by giving them the powers and the tools they need to fight crime and protect the public. That was one of the main purposes of the Police, Crime, Sentencing and Courts Act 2022, which Opposition Members voted against. It also requires proper investment, which is why we are funding the police to the tune of almost £17 billion this year. We are helping the police to tackle violence against women and girls through major investment in safer streets measures—closed circuit television and more street lighting—and initiatives across the country. Earlier this month, I announced that I am strengthening stop-and-search powers, because stop and search is vital to get knives and weapons off our streets and save lives. Each weapon removed from our streets is a potential life saved. More than 50,000 weapons have been seized since 2019 already. I have also authorised special constables to carry and use Tasers.
The police service is not just an institution, but a collection of professional and dedicated people. They are extremely brave, as are their families. The introduction of the police covenant ensures that we will do right by officers and their loved ones, who do so much to support them.
Recently, we have seen a rise in criminal, disruptive and self-defeating tactics from a supremely selfish minority. Their actions divert police resources away from the communities where they are needed most to prevent serious violence and neighbourhood crime. We are seeing parts of the country grind to a halt. Transport networks have been stopped, printing presses blocked and fuel supplies disrupted. People have been unable to get to work and go about their lives free from harassment. Shamefully, they have even been prevented from getting to hospital. This is reprehensible behaviour and I will not tolerate it.
Mr Richard Holden (North West Durham) (Con)
I am particularly interested in seeing whether this Bill will target people such as Extinction Rebellion founder Roger Hallam. I was reading about him recently. He said that he would block an ambulance carrying a dying patient in order to make his political point. Will the Home Secretary ensure that people who would go to those extremes will be properly targeted by that legislation and thrown in jail if they carry out such actions?
Priti Patel
My hon. Friend is absolutely right. We should not tolerate behaviour that prevents people from going about their day-to-day business and stops them getting to hospital and living their lives.
We brought forward measures to address some of these matters in the Police, Crime, Sentencing and Courts Bill. While the Bill was enacted last month, the unelected other place blocked several measures, egged on by Opposition Members. We should not be surprised: Labour is weak on crime and weak on the causes of crime. It seems to care only about the rights of criminals.
Since January 2019, more than 10,000 foreign national offenders have been removed from the United Kingdom. In the past month alone, flights have gone to Albania, Romania, Poland, Lithuania and Jamaica. It was actually a Labour Government who oversaw the UK Borders Act 2007, which requires a deportation order to be made when a foreign national has been convicted of an offence in the UK and sentenced to 12 months or more, unless an exception applies. However, Labour Members, including members of the shadow Cabinet, now demand that we stop the removal of dangerous foreign criminals. They refused to support the Nationality and Borders Act 2022, which makes it easier to remove people with no right to be here, including foreign national offenders.
Many dangerous criminals, including paedophiles, murderers and rapists, are still in this country because of Labour Members. It is no surprise that Labour thinks mobs should be allowed to run riot, but I will not stand by and let antisocial individuals participate in criminal damage and disruptive activity that stops people living their lives and causes chaos and misery. The Public Order Bill will empower the police to take more proactive action to protect the public’s right to go about their lives in peace.
Richard Burgon (Leeds East) (Lab)
I thank the Home Secretary for giving way, and I hope she gives way to my Front-Bench colleague, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), in due course.
I have been listening carefully to the Home Secretary. In the context of this cost of living emergency, the Government are threatening anti-trade union legislation and pursuing voter suppression through voter ID, and draconian anti-protest laws are now being brought in. Will the Home Secretary come clean and admit that this Government know that their economic policies will be increasingly unpopular, so they want to remove everyone’s right to resist and fight back, whether through voting, industrial action or peaceful protest?
Madam Deputy Speaker (Dame Eleanor Laing)
Order. The hon. Gentleman indicated to me that he would like to speak in the debate, and that he would like to speak not at the end of the debate. He has just made half of his speech, which puts me in rather a difficult position, and I hope everyone else will remember that. Interventions are good for debate, but they must be short.
Priti Patel
Let me put the hon. Gentleman’s remarks into context. First and foremost, the right to protest is part of the freedom and democracy that we all cherish in our country, and no one should interfere with that right at all. But I suggest to all hon. Members on the Opposition Benches—some of them write to me frequently to complain about the removal of criminals, foreign national offenders and so forth—that the types of protest specific to the Bill are those where a significant amount of disruption has been caused. He speaks about economic policies, the cost of living and costs to taxpayers. The protests around High Speed 2 have led to an estimated cost of £122 million. Policing Extinction Rebellion protests between April and October 2019 cost the public purse £37 million. The “Just Stop Oil” protests—as Essex Members of Parliament, Madam Deputy Speaker, we will appreciate this, along with our constituents—left Essex police alone with costs of £4.6 million. That is resource from the frontline that is used elsewhere. That resource could be used to protect our communities. That is why these measures are so important.
We all passionately believe in causes. The hon. Gentleman and others on both sides of the House speak with passion on a range of causes—we in this House are advocates and representatives of the people—but we do not make policy as a country through mob rule, or disruption in the way in which we have seen. No democracy can do that. No democracy needs to do that. The protesters involved in the examples that I presented have better, alternative routes to make their voices heard, and they know that.
Priti Patel
I give way to my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis) and then I will come back to the other hon. Members.
Jonathan Gullis
The Home Secretary talks about the “Just Stop Oil” protests. Does she share my concern that those protesters seem to think that cooking oil is something we should be stopping in this country?
Priti Patel
I thank my hon. Friend for his intervention. Again, as a country and as a House, we are confronted with challenges around livelihoods, wellbeing and cost of living right now. These protesters are not doing a great deal to support individuals to get to work and to go out and support their families. We must be very conscious about all that.
Several hon. Members rose—
Priti Patel
I will give way to the hon. Member for Weaver Vale (Mike Amesbury) because he stood up first.
Mike Amesbury
I thank the Home Secretary for giving way. In the Trident retail park in my constituency, a young woman has just been beaten senseless. Her jaw has been broken in four places. The Home Secretary spoke about mob rule. A bunch—a minority—of young people believe that they are given free rein. There is a lack of neighbourhood and community policing. Cuts have consequences. Twenty-two thousand police were cut over 12 years and that has serious consequences for people’s lives. What is the Home Secretary going to do about that? That is a real noise in communities.
Priti Patel
The hon. Gentleman highlights an absolutely appalling case of serious violence against his constituent —an appalling level of violence. No, we should not tolerate that at all. But with all respect to him, he represents a party that has voted against the Government’s work on police, crime, sentencing and courts as well as the resources that we put into policing. He asked what we are doing about that. Our unequivocal support and backing of the police is absolutely based on that, along with ensuring that criminal sentencing and prosecutions go up, working with the Ministry of Justice and, alongside that, ensuring that we provide the resources to ensure that perpetrators are brought to justice. With respect, the Labour party has repeatedly voted against that.
Chris Bryant
I prefer the cheery version of the Home Secretary, if I am honest. In my constituency, we have a high level of domestic abuse—it is higher than in any neighbouring constituency—and the local police want to do something about it, working with all the other agencies, but one of the problems is that, because of shift patterns, often, the police officer who starts dealing with a case is not the one available when the victim of the domestic abuse has to get back in touch. How can we restructure the police so that we really tackle the big issues that affect places such as the Rhondda?
Priti Patel
First, let me thank the hon. Gentleman for his intervention. If I may, I am going to offer him the chance to come and have a conversation with me about local policing in his area. There are a couple of points I want to make here first. He asks a useful question about structuring policing. A lot of work is taking place right now on domestic abuse and domestic violence. We want consistency across all police forces on how victims are treated, how to address the whole issue around perpetrators, the support that goes directly to the frontline and raising the bar. He is very welcome to come and have further conversations about that but, in the context of the Bill, if the police were not having to use the amount of resourcing that these protesters are consuming, there would be more policing in the community and more support for his and all our constituents. That is something we would all welcome.
Edward Timpson (Eddisbury) (Con)
Five years ago, in the run-up to the 2017 general election, an organised group of people forced their way on to my property, where my family were living. We had just had a baby and we were forced out for three days under police protection while the group stayed on top of our roof with loudhailers. Unfortunately, the police were not able to move them on because at that time trespass was just a civil matter. Although we have strengthened the law since then, what is in the Bill that could help people who may find themselves in, if not exactly that situation, a similar situation, which is very distressing and harassing for people on their own private property?
Priti Patel
I thank my hon. Friend for his question. He highlights the appalling nature of what we see. That is not peaceful protest at all, but threatening and intimidating. He will know only too well, as someone in public life, the implications of that. He asks directly about the Bill. Serious disruption prevention orders will help hugely with that, which is why the Bill is so significant. Protesters have routes to have their voices heard, and with that better routes and avenues to change policy, and they know that.
A free society does not tolerate interference in our democratic free press, and in the printing or distribution of our newspapers. As we know, we have also seen that in the last few years. Nobody civilised would dream of stopping someone getting to work or children going to school, let alone blocking ambulances. I am afraid we have seen all those examples all too frequently. So we will not be deterred from backing the police and standing up for the law-abiding majority, and that is what this Public Order Bill does.
First, the Bill introduces a new offence for locking on and going equipped to lock on, criminalising the protest tactic of people intentionally causing pandemonium by locking themselves on to busy roads, a building or scaffolding. Locking on can be an extremely dangerous and disruptive tactic. Protesters locking on from great heights place at risk not only themselves but police removal teams. I spent a great deal of time with specialist, highly trained and equipped police removal teams. The tactics they are experiencing are heavily dangerous and, as we touched on, drain a significant amount of police time and resources.
Stewart Hosie (Dundee East) (SNP)
On the offence of locking on, the Bill states:
“It is a defence for a person charged…to prove that they had a reasonable excuse for the act mentioned”.
If their excuse is that they were trying to stop the destruction of a historic building or to protect a site of special scientific interest from destruction, would that be reasonable? Would that be a defence of the purported crime of locking on?
Priti Patel
The right hon. Gentleman naturally raises the type of questions that will also be brought up in the Bill Committee. To use a recent example, which he may be familiar with, during the High Speed 2 work, specific sites and all sorts of significant places were targeted under the guise of environmental concerns. The Bill has to, and should, take such considerations into account in terms of police commitments, the level of violence and the serious disruption that some of these tactics also bring.
Secondly, we are strengthening the security of our transport networks, oil terminals and printing presses by creating new criminal offences of obstructing major transport works and interfering with key national infrastructure.
Dr Luke Evans (Bosworth) (Con)
On the offence of locking on, we have seen people gluing themselves to various roads and gates and such things. Would that be covered under the Bill?
Priti Patel
Yes, and my hon. Friend highlights just some of the tactics that are used. I have seen the sheer manpower and excessive resource used by our specialist policing teams to literally de-glue protesters. It takes hours and hours and comes with a significant cost and use of resources. That is just one example, along with the example of locking on.
We cannot be passive when individuals target our infrastructure and major infrastructure works and projects. I mentioned HS2; HS2 Ltd estimates that ongoing protester action has already cost it more than £122 million. The recent action by Just Stop Oil against oil terminals and fuel stations, including forecourts, have shown further that the police need additional powers to deal with and combat that.
Thirdly, we are providing the police with the power to stop and search people for equipment used for certain public order offences, so that they can prevent the disruption from happening in the first place. I am sure the House will be interested to hear that during the last year—in fact, in just over a year—the police have found the equivalent of training camps, where these tactics and groups come together and where they hoard and harvest equipment. The police now have the powers to disrupt that type of activity in the first place.
The police have indicated that these powers will help them practically to prevent the disruption that offences such as locking on can cause, while the suspicion-less stop-and-search powers will help the police to respond quickly in a fast-paced protest.
Janet Daby (Lewisham East) (Lab)
I am really concerned that the Bill will allow police officers to stop and search protesters without suspicion. Does the Secretary of State really think that it is fair and right that innocent people should be—or are allowed to be—stopped and searched when there is no suspicion? Does she also think that that is the best use of police time and resources?
Priti Patel
To put this into context, I remind the House that Her Majesty’s inspectorate of constabulary and fire and rescue services has argued that stop-and-search powers would be an effective tool for the police in this case. Stop and search is a critical tool in policing and, as I highlighted, is absolutely crucial when it comes to saving lives and preventing the loss of life.
Dr Julian Lewis (New Forest East) (Con)
I am a little concerned about the point raised by the right hon. Member for Dundee East (Stewart Hosie), because many, if not most, of these protesters feel that their cause is the most important thing in the world—in fact, some of them think that they are saving the world. If, therefore, they can give excuses of that sort by way of a reasonable explanation of what they are doing, is not the legislation leaving a loophole? In particular, I have in mind some previous cases where anti-nuclear protesters broke into military bases and damaged military equipment, and certain courts felt that they should be acquitted because their motives were to try to prevent nuclear war, even if, in fact, it has the opposite effect.
Priti Patel
Outcomes will be for the court to decide, but it is worth noting the numbers of arrests at recent protests: more than 4,000 with Extinction Rebellion, more than 1,000 with Insulate Britain and more than 800 with Just Stop Oil. I have already touched on the cost of policing, but there is also an associated level of criminality and criminal damage, which is why those cases have gone further.
The fourth measure that we are introducing is a new preventive court order. The serious disruption prevention order will target protesters who are determined to inflict disruption repeatedly on the public and cause serious criminal damage, which is one of the most recent disruptive features that we have been seeing. I have to say that there have also been threats to public safety, particularly at oil protests. I have recently visited some of the sites and been in touch with companies whose sites have been targeted. The threats to life and threats to local areas from the tactics being used are very serious.
For a serious disruption prevention order, an individual will have to have been convicted of two or more protest-related offences or instances of behaviour at protests that caused, or could have caused, serious disruption. Courts will have the discretion to impose any requirements and prohibitions that they deem necessary to prevent individuals from inflicting further serious disruption at protests.
Andy McDonald (Middlesbrough) (Lab)
Is the Home Secretary aware that there is a direct comparison between the Russian law on assemblies that has been passed by Putin, and the measures that she is proposing? [Interruption.] Conservative Members can chunter, but these measures go further than Vladimir Putin’s laws on assembly. Is the Home Secretary not slightly embarrassed and uncomfortable about that comparison?
Priti Patel
With respect to the hon. Gentleman, equating the actions of the Russian state to suppress the views of brave Russian citizens who speak out to oppose Putin’s brutal war with our proportionate updating of the long-established legal framework for policing protests is just wrong and misguided. Let me be very clear: these measures are not about clamping down on free speech, but about protecting the public from serious disruption of their daily lives by harmful protests.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
My constituents are horrified by disruption that prevents people from getting to hospital or work and children from getting to school, but they are also concerned about the huge economic impact. Can the Home Secretary tell us how much these policing operations have cost? My constituents and I believe that the money could be much better spent on proper policing, rather than on having to police protesters causing disruption.
Priti Patel
My hon. Friend is absolutely right; her constituents are right to be outraged and concerned, and she is voicing their concerns as their representative in the House. In 2019 alone, the cost to the public purse of the Extinction Rebellion protests was £37 million. The cost of the HS2 protests is estimated at £122 million. In my county of Essex, where I have spent a great deal of time with the amazing teams, the cost has been more than £4.6 million. When I visited the Navigator site, I met police officers from Scotland, Wales, Devon and Cornwall, such is the extent of the resources that have to be brought in to police these protests.
Richard Fuller (North East Bedfordshire) (Con)
I may be the sole dissenting voice on the Government Benches about some of these provisions. When my right hon. Friend talks about specific examples, particularly those relating to infrastructure, the population can get strongly behind her points. However, several clauses of the Bill are drawn very broadly and there is legitimate concern about how they will be applied. What reassurance can she give me that she seeks a tightly scripted Bill, rather than a general threat to our individual freedoms?
Priti Patel
I thank my hon. Friend for his question and comments; he is absolutely right. That is the purpose of scrutiny of the Bill. We know from the past two years of protest activity that the police are seeking clarification about certain requests and powers. We are looking at how the courts can work much better to take action, and how to ensure that policing resources are not being cannibalised or used in this way. That is why I think we are right to focus on the core aspects of disruption and the key tenets that need to be addressed, and the Policing Minister has been working on that in particular.
Finally, we are lowering the rank of officer to whom the commissioners of the City of London and Metropolitan Police Forces can delegate powers to prohibit or set conditions on protests. The rank is being lowered from assistant commissioner to commander. That is very significant in London, because of the extent of the activity that we have seen there. It will bring London forces into line with forces across England, Wales and Scotland, whose chief officers can already delegate their powers to the commander-equivalent rank of assistant chief constable.
It is not only criminals who have rights. The public need Parliament to put the law-abiding majority first, and that means backing the Bill, which will enable that law-abiding majority to go about their day-to-day business and live their lives freely.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
I beg to move,
That this House declines to give a Second Reading to the Public Order Bill because, notwithstanding the importance of safeguarding vital national infrastructure alongside the right to protest peacefully, the Bill does not include provisions for cooperation between police, public and private authorities to prevent serious disruption to essential services, includes instead measures that replicate existing powers, includes powers that are too widely drawn and which erode historic freedoms of peaceful protest, ignores the need for effective use of existing powers and does not recognise emergency NHS services as vital national infrastructure.
The Minister for Crime and Policing (Kit Malthouse)
Will the right hon. Lady give way?
Yvette Cooper
Do you know what, Madam Deputy Speaker? I actually will. I was deeply disappointed that once again the Home Secretary, sadly, would not take an intervention from me. It was deeply disappointing to note how frit she seemed to be of any of the questions that I tried to raise, which, once again, would have been extremely factual. I will give therefore way to the hon. Gentleman, if he can explain why crime has gone up and prosecutions have gone down since he became Policing Minister.
Kit Malthouse
When Labour Front Benchers called for “an immediate nationwide ban” on Just Stop Oil, did they have the support of their own Back Benchers? If not, is that why the right hon. Lady has performed the most enormous reverse ferret in the amendment that she has put before the House?
Yvette Cooper
I think that there is a strong case for using injunctions to deal with the kind of disruption that we saw from Just Stop Oil, but that is not dealt with at all in the Bill, which is part of the problem with it. It does not address a great many of the problems about which the Home Secretary is supposedly concerned; instead, it will cause alternative huge and serious problems. Most significantly, it fails to deal with some of the very serious issues about which the Home Secretary should be most concerned at this moment.
This is the first of the Government’s Queen’s Speech Bills of the Session. This is the Bill to which they have chosen to give pride of place, and what does it contain? There is no action to deal with the cost of living, although inflation is hitting its highest level for decades and millions of people are going without food to get by; nor is there any action to deal with the crisis facing victims of crime. There is no victims Bill, even though 1.3 million victims of crime who have lost confidence in the criminal justice system dropped out last year, and even though crime is rising and prosecutions are falling.
Instead, what we have are rehashed measures from last year’s Bill. We have a second round of measures on public order, even though the Government had plenty of time to work out what they wanted to do in last year’s Bill; even though the Home Secretary claimed that that Bill would solve all these problems—she said then that it would
“tackle dangerous and disruptive protests”;
even though the Government have not even implemented the measures from last year’s Bill, or assessed them to see what impact they are having before coming back for more, as any sensible Government would do; even though, for seven years running, the Home Secretary and her party have been promising a victims Bill; and even though, over those seven years, support for victims has become staggeringly worse. The number of victims dropping out because they have lost confidence has doubled since that victims Bill was first promised. That is more victims being let down and more criminals being let off.
Anne McLaughlin (Glasgow North East) (SNP)
“A little inconvenience is more acceptable than a police state”—not my words, but those of a police officer consulted by Her Majesty’s inspectorate of constabulary and fire and rescue services on proposals in the Bill. I agree with the sentiment.
People are fleeing war in Ukraine and multiple other countries. The Home Secretary could be focused on sorting out the dangerously long time it is taking to get them to safety. She could be putting her energy into fixing the chaos at the Passport Office. She could be using her power to solve the supply chain issues that are pushing up food prices, which have made things unaffordable for many on these islands. Instead, she is bringing back populist—according to YouGov and Daily Express polls, at least—draconian, anti-human rights policies that were rejected only a matter of weeks ago in the other place. The reason for that is anyone’s guess. Is it to distract from the aforementioned failings of her Department? To raise her profile for when the Prime Minister surely, inevitably, has to stand down? Or just because she can?
Make no mistake: this, to quote Liberty, is
“a staggering escalation of the Government’s clampdown on dissent”.
It is at odds with people’s right to freedom of thought, belief and religion; freedom of expression; and freedom of assembly and association. For some, it will also lead to a clampdown on their right to respect for private and family life. Those are all rights we enjoy through the Human Rights Act 1998, but I do not expect this Government or many of their Back Benchers to care, because they want to tear that Act up and define the rights that they think we should enjoy.
However, I think that the people out there, who after all elected us, have the right to know that this Government want to control what they think, believe and say. This Bill allows the state to stop and search people who are not suspected of a single wrongdoing. It could lead to someone who has committed no crime having to report to certain places at certain times. I would be interested to hear who they will report to in Scotland, and what consultation has taken place with the Scottish Government on that. The Bill could mean people out there, again having committed no offence, having to wear an electronic tag, and having every single move they make monitored 24/7. That is sinister. The Home Secretary did not like it when the Opposition said this, but it bears striking similarities to what happens in Russia and Belarus. It is all about oppressing and controlling people. It is the stuff of conspiracy theories no more; this is the menacing new reality if you do not agree with the Conservative Government.
Big Brother Watch is concerned that the Bill takes us one step closer to becoming a surveillance state. That may be ideologically in line with this Government’s desire to control the people, but is it necessary? Will it work?
Anne McLaughlin
No, I am not giving way. There is widespread acceptance that the answer to both of those questions is no. Again,
“a little inconvenience is more acceptable than a police state”.
It is not just the one police officer who felt that way. Her Majesty’s inspectorate consulted widely on these powers as early as 2020 and they were rejected across the board, not just because they were incompatible with human rights legislation, but because police concluded that they would not be an effective deterrent. So what is the point?
Existing legislation is already heavily weighted in favour of the authorities, and the 2022 Act has made that even more the case. The former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), said in 2018 that,
“it is a long-standing tradition that people are free to gather together and to demonstrate their views. This is something to be rightly proud of.”
He was right: it was something to be rightly proud of. Where a crime is committed, the police already have the powers to act so that people feel protected. Where there is a clear need to protect critical infrastructure or transport hubs, the UK already has an array of legislation that allows that to happen, as the former Home Secretary said. The Public Order Act 1986 gives the police powers to place restrictions on protests and, in some cases, prohibit those that threaten to cause serious disruption to public order. There is an array of criminal offences that could apply to protesters, including aggravated trespass or obstruction of a highway.
Despite that, the Government waited until the Police, Crime, Sentencing and Courts Bill had completed its passage through this House to slip much of what we have before us today into that Bill at the last minute, when it was in the House of Lords—and the Lords roundly rejected it. Instead of accepting the defeat, one week later, the Government regurgitated most of the measures into the Bill before us today. The Home Secretary should accept that these draconian measures have already been rejected by Parliament and respect the democratic process. After all, this Government keep telling Scotland to do likewise, although the issue we intend to revisit—the matter of Scotland’s independence—was last put before the people eight years ago, not just last month.
Wera Hobhouse (Bath) (LD)
We should not be fooled: the measures in this Bill are the very same as those the House of Lords overwhelmingly rejected from the Police, Crime, Sentencing and Courts Act 2022 on the basis that they form a dangerous and blatant power grab that undermines our civil and democratic liberties. The measures include the creation of serious disruption prevention orders that could subject individuals to 24/7 GPS monitoring whether they have been convicted of a crime or not. They include new stop-and-search powers for the police despite a wealth of evidence, as we have heard, that black people are disproportionately targeted. They include a broad, potentially catch-all, new offence of
“being equipped for locking on”,
meaning that someone could face an unlimited fine for as little as carrying a bike lock.
The measures have been described as “draconian”, “authoritarian” and a
“staggering escalation of the Government’s clampdown on dissent”.
They were rightly rejected from the 2022 Act and, even though the ink is not yet dry, the Government are already trying to reintroduce powers that would not be out of place in some of the world’s most repressive regimes. Is this really the kind of country that this Conservative Government want us to be?
It goes without saying that no one should be blocking ambulances from getting where they need to go, which puts lives at risk and does nothing to build public support for a cause. However, the new laws are not about stopping people blocking roads. If the Government really cared about ambulances being delayed, they would be doing far more to tackle the ambulance crisis that is leaving people waiting hours in an emergency. The new laws are about cracking down on the right to peaceful assembly and protest. The police already have the powers they need, as we see when people are arrested for going beyond what is acceptable for a peaceful protest.
The police are not asking for these new powers; they do not even support them. When consulted, senior police officers said that the orders being proposed by this Government would be a “massive civil liberty infringement”. To make matters worse, this legislation will not even be effective. To quote Liberty,
“the Government cannot legislate people into silence”.
If peaceful protest is effectively banned, the likely consequence of this Bill will simply be to push people to seek more urgent routes to protest. All it will do is undermine confidence in our public institutions and in our police at a time when public trust in the police leadership is already fragile.
Without the right to protest, countless hard-earned freedoms would never have been won. From the decriminalisation of same-sex relationships, to employment rights, to women winning the right to vote, the right to peaceful protest has been a force for change time and again. Protest is not a gift from the state to be given and taken at will. It is a fundamental right, and it is the foundation on which any democracy stands. We Liberal Democrats will always stand up for that right.
I add my support to the efforts of the hon. Member for Ealing Central and Acton (Dr Huq) to amend the Bill to introduce buffer zones around abortion clinics. It is a clear and tightly targeted measure that would address the harassment of women accessing healthcare. More than 100,000 women in England and Wales every year have abortions at clinics that are targeted by these groups. Since I last supported this measure in July 2021, three more abortion clinics have been targeted for the first time, leaving more women open to abuse and feeling afraid.
Kit Malthouse
I am honestly and genuinely perplexed by the argument about buffer zones. I agree that the harassment of women seeking those services is disgraceful and should not be allowed, but why just them? Why not hospitals in general? Why not places of worship? I understand the sensitivity in that particular situation, but why is it that we object to and are willing to restrict that particular form of protest, but not others?
Wera Hobhouse
I support a simple and targeted measure against protests outside clinics that harass women seeking abortion. We can talk about other measures, but it is important to protect women who are already in an extremely vulnerable position from such harassment.
Last week, “Newsnight” ran an alarming story on the difficulty that clinics and local residents face in getting councils to make use of the public spaces protection orders—legislation that Ministers say is the only option. These PSPOs create an unacceptable postcode lottery. Our colleagues in Northern Ireland and Scotland are prioritising finding a solution to this form of persistent and targeted harassment, and we cannot allow women in England and Wales to be left behind.
I will never support a Bill that goes against our fundamental civil rights and those who do so tonight should be ashamed.
John McDonnell
My constituents and I have taken the view that because expansion is such a threat to our community, we are willing to engage in direct action, and if we are prosecuted under existing law, we take it on the chin. We go to court, explain our case and accept the fine or whatever. That is the reality of it. That is the way it works. The Bill, however, takes things to another level. One way we have protested is by blocking the tunnel at Heathrow for an hour. Well, we have never really stayed there that long; we have stayed there for half an hour, done a deal with the police and then dispersed. A number of my constituents were fined for that. We went to court, which gave them the opportunity to express their views about what was going on, and to expose what was happening. In some ways, it gained us maximum publicity. Under the Bill, however, they could be serving a sentence of a year, or could have an unlimited fine.
There is an issue of balance and fairness. There is something about British democracy that we have to uphold here, because we have a long tradition of people like my constituents saying to the state, “This far and no further. You are going beyond the bounds of the mandate on which you were elected.”
Kit Malthouse
Does the right hon. Gentleman acknowledge that sentencing is not just about handing out a punishment? It is about deterring people from committing the offence again. Obstructing the highway attracts a level-3 fine of up to £1,000, but that does not seem to have any impact on the willingness of some protestors to do it time and again. Is there not some justification in using sentencing as a deterrent there?
John McDonnell
The problem is—and here I follow the advice of Her Majesty’s inspectorate of constabulary and fire and rescue services—that the measures will not be a deterrent. All they will do is incentivise many more people to come forward, because this will make them angry and it will cause undue suffering. I am just giving a concrete example of what the good people in my constituency are doing. If Members thought a road was going to be built through their local cemetery, and that their relatives would have to be dug up, I doubt any of them would not join the demonstration. A number of Conservative MPs and councillors did join us.
Caroline Lucas
As others have said, evidence-based stop and search—where there is evidence and a good reason—is not in question. What is in question here is stop and search on the basis of a whim. As others have eloquently said, there is a very real danger of antagonising some groups who are already most disadvantaged, and therefore making the situation far worse.
The Government want to give the police powers to stop and search a person or a vehicle in a protest context, even when there are no grounds for suspicion. That will be permissible simply if a police officer believes that an offence—such as wilfully obstructing a highway or intentionally causing a public nuisance—might happen in the area or thinks that some people in the area might be carrying prohibited items; and there we are, back to the marker pens and knitting needles.
Protest is, by its very nature, liable to cause a public nuisance, disruption and noise, and to have specific targets, but real democratic leadership does not seek to ban opposition voices from protesting. Only a cowardly Government, who do not trust or respect their people, would take such a step.
Kit Malthouse
I wanted to ask whether the hon. Lady, notwithstanding her objection to the banning of protest, subscribes to the enthusiasm across the House for the ban of protests near abortion centres or clinics, and supports the creation of buffer zones that ban protests in those circumstances. If that is the case, is she possibly guilty of wanting to ban only protests with which she does not agree?
Caroline Lucas
I disagree with the premise of the Minister’s intervention. I have been proudly at the forefront of moves to say that women seeking their right to healthcare should not be subject to the personal, direct and threatening individual harassment that happens all too frequently outside abortion centres. I would wager that I have been on more demonstrations than anyone on the Government Benches—I have been arrested for them and I have been alongside them, and I have to say in parentheses that the characterisation of protesters by Government Members is wildly short of the mark—but I have seen nothing that is tantamount to the kind of harassment and direct intimidation that I have seen outside abortion centres, which is why the Minister’s comparison is not a reasonable one.
While I am on the subject of who protesters are, let me say that I am fascinated by the division between the protesters we support and those we do not. It seems to me that we support the ones who are silent and probably protesting in their own front rooms, because we do not like protest to be disruptive.
Rebecca Long Bailey (Salford and Eccles) (Lab)
Many of the rights that we take for granted today were largely not born of the spontaneous goodwill of some trail-blazing politician. They came about because people stood together, they demanded change, they protested and they made those with power listen. For example, I would not be standing here today as an MP, and many of my constituents would not even have the right to vote, had it not been for the Peterloo protest, also known as the Peterloo massacre due to the horrific atrocities inflicted upon those protesting. That protest movement called for reforms to parliamentary representation. Ultimately, it resulted in the Great Reform Act 1832, which went some way to addressing the injustices in the political system.
We have heard today how women would not have the right to vote had it not been for the suffragettes. They are hailed as heroines now, but back in their day they were demonised and viewed as trouble-making anarchists. They were the so-called “lefties” Conservative Members have been talking about today.
Equal pay legislation was largely born of the actions of brave striking workers at Ford Dagenham and the large scale protests that followed. The establishment of the National Parks and, ultimately, the principle of the right to roam would not have happened without the Kinder Scout trespass. The list is endless, but, sadly, it is clear that such era-changing moments in our history will be a fairy tale that we simply tell our children if this House allows the Public Order Bill as drafted to become law.
Human rights organisation Big Brother Watch says this of the Bill:
“It is without doubt that it includes some of the most undemocratic, anti-protest measures seen in the UK for decades.”
Law reform and human rights organisation JUSTICE considers that the Bill
“would pose a significant threat to the UK’s adherence to its domestic and international human rights obligations.”
Further, Amnesty’s analysis is that many of the provisions that have re-emerged in this Bill after being roundly rejected by the House of Lords in February
“would seriously curtail human rights in this country and damage the UK’s international standing, potentially irreparably.”
On protest banning orders, the vast range of peaceful and innocent conduct that the police would seemingly be able to criminalise is breathtaking. The Bill says that these orders can apply to people without conviction if someone has carried out activities
“or contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption”
among a range of other scenarios, on two or more occasions. Let me explain that. If a law-abiding person attends two marches, for example, where hundreds of thousands are in attendance and some people completely unrelated to them cause a “serious disruption”, which is undefined and could mean literally anything, could that law-abiding person be subject to a protest banning order? The Bill as drafted certainly seems to suggest that they could.
The offence of locking on is also veiled in ambiguity. As JUSTICE says, it is so vague that it would appear to capture a couple walking arm in arm down a busy street where they may be being reckless as to cause “serious disruption” to another couple walking in the opposite direction. Again, “serious disruption” is undefined and could mean literally anything.
The widening of already extensive stop and search powers also appears wholly disproportionate and hugely damaging to racialised communities. Indeed, clause 7(2) is one troubling example. That allows for the police to search an individual when they have reasonable grounds for finding an object that is
“made or adapted for use in the course of or in connection”
with one of the relevant offences. “Object” is not defined; it could be anything from a mobile phone used to agree meeting points with friends to a leaflet about the event. Those are just three staggeringly pernicious examples from a frightening selection box of draconian and anti-democratic measures in this Bill.
Kit Malthouse
I just thought I would take the opportunity to deal with the “serious disruption” issue. My hon. Friend the Member for North East Bedfordshire (Richard Fuller) also mentioned it. I believe the hon. Lady is a lawyer by training, so she will know that the phrase “serious disruption to the community” has been in use in the law since 1986 and is therefore a well-defined term in the courts, which of course is where the test would be applied under the legislation.
Rebecca Long Bailey
I welcome the Minister’s contribution but, as he well knows, case law differentiates and changes from time to time without adequate explanation in the text of a piece of legislation. That is what causes significant ambiguity here; there is no doubt in my mind that what would be deemed a serious disruption would change over time and could ultimately result, given the other provisions in the Bill, in an inference that serious disruption is of a lesser nature than it currently is in present case law.
To be frank, those provisions have no place in a democratic country with a long, proud history of upholding the fundamental right to lawful and peaceful protest. There has been a lot of talk in this debate about the Bill cutting crime; if that were the case, I think we would all welcome it. However, as the Government well know, the first step to cutting crime would be to properly fund our police services, which have suffered 12 years of dramatic cuts to their funding and resources. This Bill will not cut crime. Indeed, Her Majesty’s inspectorate of constabulary and fire and rescue services said in relation to protest banning orders that they
“would neither be compatible with human rights legislation nor create an effective deterrent.”
There has also been an illusion created that new offences are being brought in to deal with some of the issues that have been referred to. I want to set the record straight on that. We talked earlier about the terrible issue of emergency vehicles being stopped. That should certainly not be happening, but there is already legislation for that; the Emergency Workers (Obstruction) Act 2006 makes it a criminal offence to obstruct an emergency vehicle. Similarly, the Criminal Damage Act 1971 imposes a fine or prison service of up to 10 years for an act of criminal damage. Highway obstruction is also a criminal offence.
To suggest that the Public Order Bill is in some way a panacea for actions that many within our communities would deem irresponsible, unlawful and incorrect is way off the mark. Therefore, I hope that colleagues across this House will recognise before it is too late the chilling effect that the Bill will have on our democracy and vote it down on Second Reading.
The Minister for Crime and Policing (Kit Malthouse)
I have listened to others with pleasure, Madam Deputy Speaker. We have had a debate with a vigorous exchange of views, although I am afraid it was largely bifurcated. There was a group of speeches on the end of democracy: “Here we go, fascism is on its way,” or “We are about to become North Korea”—although I am sure the right hon. Member for Hayes and Harlington (John McDonnell) would not think that an entirely backward step. The speeches made by the right hon. Member for Hackney North and Stoke Newington (Ms Abbott) and the hon. Members for Bath (Wera Hobhouse), for Norwich South (Clive Lewis), for Streatham (Bell Ribeiro-Addy), for Middlesbrough (Andy McDonald), for Edmonton (Kate Osamor), for Brighton, Pavilion (Caroline Lucas), for Salford and Eccles (Rebecca Long Bailey), for Stockton North (Alex Cunningham) and for Battersea (Marsha De Cordova) were all of a kind, predicting the end of democracy as we know it. Among the froth of outrage and alarm, there were some nuggets of questions that need to be answered, particularly on why we chose to bring back the Bill after it was roundly rejected by the House of Lords. Well, their key criticism was that the Bill had not had enough scrutiny in this House, so we brought it back as soon as we could for the scrutiny of hon. Members.
A number of hon. Members claimed that there is no public support for the Bill whereas, in fact, recent polling shows that a majority of the British public support it. There was a lot of focus on and concern about stop and search powers in the Bill. We should all take stop and search powers seriously, and look at them with care, but there seems to be a misapprehension among a number of Members about how the provision will operate, particularly regarding disproportionality and demographics. The notion is that the police will authorise an area for the equivalent of section 60 stop and search that will be where they believe the protest is likely to take place or where people will approach the protest. Therefore, the demographics of those searched are likely to reflect those attending the protest, rather than generally across the board as with other stop and search powers.
Getting ahead of those who are likely to lock on or take other equipment with them to protest will give the police an important head start in stopping some of the prolonged and difficult protests with which they have to deal and which often put them in danger. A number of Members asked why key infrastructure, such as hospitals and NHS sites, are not covered in the Bill. There are already offences that cover those areas in other legislation, so we do not need to cover them here.
I thought that two speeches in particular illustrated some of the issues. The hon. Member for Glasgow North East (Anne McLaughlin) was alarmist in her portrayal of the direction in which the Government are going on protest, but nevertheless was not seen throwing herself between Police Scotland and the oil protesters at Clydebank, when they were carted off and arrested. Then there was the conundrum faced by the hon. Member for Ealing Central and Acton (Dr Huq): she has happily accepted restrictions on protest outside abortion clinics and, in previous legislation, outside schools and vaccination centres—privileging them, quite rightly, as areas where protesters may come into conflict with those who are going to school or undergoing sensitive medical procedures, or indeed those denying vaccination—but I still cannot see the logic of then not applying some controls on protest outside other facilities or other people’s houses. [Interruption.]
There were some thoughtful speeches that added to the debate, including that of my hon. Friend the Member for North East Bedfordshire (Richard Fuller), who posed some interesting questions that we will address in Committee. I am more than happy to engage with him as he ponders the Bill. The Chair of the Home Affairs Committee, the right hon. Member for Kingston upon Hull North (Dame Diana Johnson), also asked some probing questions to which we will give some thought as the Bill passes through the House.
We heard two interesting speeches about the two sides of protest. The right hon. Member for Hayes and Harlington spoke about a community who have been using protest to further what they regard as their interest against, as he put it, the changing winds of political decision about Heathrow. My hon. Friend the Member for Cities of London and Westminster (Nickie Aiken) put the other side of the argument—about living with protest. Having lived in very central London for many years, I know the burden that protest can bring to residents and businesses in that part of town. The relentlessness of it—week in, week out, seemingly every weekend—can really prey upon people’s standard of living.
Then we come to the frankly hilarious contortions of the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), and the shadow Policing Minister, the hon. Member for Croydon Central (Sarah Jones), where we see in full the contradictions writ large in the body politic of the Labour party. First, the Front Benchers want a nationwide ban via injunctions, but not criminal sanctions. The right hon. Member for Normanton, Pontefract and Castleford condemns Just Stop Oil and XR but is unwilling to do anything about them, and she believes that injunctions, which sometimes take six weeks to bring people to justice, will be faster than a criminal offence.
The truth is that the right hon. Lady’s objective this evening is not to fashion legislation that will deal with new tactics in public order. It is to get her party through the same Lobby in once piece, and at the same time to keep her head down, because we know that she has form; back in 2005, she was the Minister in a Government who voted to ban protest entirely within half a mile of this place. Famously, the first arrest was of a woman reading the names of the Iraq war dead at the Cenotaph. The right hon. Lady has form and Labour Members all know it—she is just trying to get them through the Lobby in one piece.
My hon. Friend the Member for Devizes (Danny Kruger), who is my constituency neighbour, made a thoughtful speech in which he nailed fundamentally the issue with which we are wrestling. As I said in the debate that we had on protest in respect of the PCSC Bill, the job of a democratic Government is to balance competing rights in any scenario, but most importantly in respect of protest. How do we balance that most fundamental right to make our voices known, to protest about those things that are important to us and to try to bring about change? As my hon. Friend quite rightly said, this is about balancing moral force against physical force. The use of moral force is legitimate in a democratic society, but the use of physical force to bring about what one wants to see is less so.
Yvette Cooper
The Minister talks about the extension of the powers of stop and search in the Bill; will he confirm that the Bill will make it possible for the police to stop and search people to try to find something that makes noise—such as a boombox, because that could contribute to a protest offence—and will also allow the stopping and searching of peaceful passers-by who walk through Parliament Square?
Kit Malthouse
It would depend on which part of the Bill they used for their powers. In essence, they would be stopping and searching people to look for equipment that could be used in the commission of an offence. I know the right hon. Lady will not want to confuse colleagues, but she possibly confuses the conditions that can be placed on a protest with the criminal offences that may ensue from a protest. The police will use their stop-and-search powers to deal with those criminal offences.
Let me return to my thread. As my hon. Friend the Member for Devizes said, we cannot allow our tradition of liberty to be used against us. Sadly, over the past few years we have seen, time and again, so-called protesters abuse our fundamental rights to make our views known to bring about their opinionated aggression, thereby impacting on people’s lives in a way that we feel is unwarranted. When I was a young politics student at university, I was taught by a member of the Labour party and great liberal thinker called Professor Hugh Berrington, who once said to me in a lecture I have never forgotten: “Being a liberal democracy doesn’t mean lying back and allowing yourself to be kicked in the stomach.” Sadly, too many of these so-called protesters—they masquerade as protesters but they are really criminals—bring about opinionated aggression that we believe is unacceptable.
We know that we have the support of the majority of the British public. Opposition Members have lightly lain aside the rights of the British public, but they have been championed in this debate by my hon. Friends the Members for Ipswich (Tom Hunt), for Dudley North (Marco Longhi), for Runnymede and Weybridge (Dr Spencer), for Stockton South (Matt Vickers), for Peterborough (Paul Bristow) and for Ashfield (Lee Anderson). In particular, my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis) yet again gave a bravura performance in defence of not only the ancient right of protest but the ancient British quality of proportion and moderation in everything.
Paul Bristow
Does my right hon. Friend remember recently visiting my Peterborough constituency? He saw it for himself when he met police officers, members of the public and many fine people in my constituency. Does he agree that the majority of the people in my constituency support this Bill and the powers in it?
Kit Malthouse
I do agree with my hon. Friend, but you do not have to take it from me, Madam Deputy Speaker. You can take it from any polling that has been done recently that shows that the majority of the British people support the measures that we are taking.
My hon. Friend brings me to my final point, which was neatly illustrated when I visited Peterborough and looked at its work on knife crime. What the British people actually want is for their police officers—men and women—to spend their time fighting crime, not detaching protesters from fuel gantries, not unsticking them from the M25, and not having to surround fuel dumps in Essex so that the petrol can get out to the people who need it to go about their daily business. The British people want the police to be catching rapists and putting them behind bars, detecting paedophiles and making sure that they pay for their crimes, and stopping young people of all types being murdered on a regular basis. That is what we want our police officers to do. This Bill will release them to do that job, and I hope that the House will support it.
Question put, That the amendment be made.
Thursday 9th June 2022
(1 year, 10 months ago)
Public Bill CommitteesPublic Order Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 June - (9 Jun 2022)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Chair
Thank you, Mr Noble. If, at any time, you have any difficulty in hearing the questions, please indicate and we will make the necessary technical adjustments.
The Minister for Crime and Policing (Kit Malthouse)
Q
Chris Noble: Thank you, Minister. There is a lot, in terms of looking back. There have been a number of trends. We have seen global causes land on our shores very quickly and having significant impacts. Black Lives Matter is a good example. We have seen causes overlapping, both in terms of membership and tactics. There have been some very novel—without giving them any credit—and highly disruptive tactics; that is reflected on the contents page of the Bill. If we look across the breadth of protest organisations and groups, we see that they are very aware of some of the legal gaps, inadequacies and shortcomings; that is very clear from their engagement with police, as well as their tactics. There is a focus, albeit not exclusively, around what we would call non-violent direct action, which is slightly different from previous protest phases, where violence was maybe more commonplace. That said, it is not completely exclusively non-violent.
Most protests are still relatively non-contentious. However, in terms of complexity, intensity and tactics, there has been a step up, and the assessment going forward is very clear that we will still see those challenges around complexity and the co-ordination and the adapting of protests, and we have significant gaps around our information and intelligence. Even though we will have our own, home-grown causes that people will wish to protest against, I anticipate that a lot of protest will potentially be generated from outside these shores. That is a little bit of the picture on what has been, and what may well be to come.
On impacts, there are safety challenges across the board, including safety risks to some of the protestors, challenges to members of the community on our roads or, indeed, in their communities, and challenges for police officers and private contractors in dealing safely with tactics that we will perhaps talk about. Also, there may be increasing cost as we try to deal with more complex issues—costs either to communities, the businesses impacted, or indeed the police, be it financial or opportunity cost, in terms of officers not being able to work in neighbourhoods, or in serious and organised crime, or in the other roles on which they clearly want to be focused. Those are real challenges, but still, the backdrop is that the vast majority of protest activity is relatively non-contentious. However, there is a hard core, a small element, that I do not see going away any time soon.
Kit Malthouse
Q
Chris Noble: In Staffordshire, we have a very experienced protest removal team, and on occasion they have dealt with individuals glued to the top of fuel tankers by cutting them loose, using cutting equipment. There are obvious risks in that. Equally, if you go on to a busy motorway and glue yourself to it, there is a raft of risks from traffic, and risk to police officers. Understandably, we have seen members of the public, through sheer frustration, look to take matters into their own hands. You can translate that to power stations and other vulnerable sites. Although this may be attention-grabbing and headline-grabbing, the risks to the protestors, the police and members of the public are becoming ever more significant.
Kit Malthouse
Q
Chris Noble: There is quite a disciplined training regime. The training is licensed through the College of Policing. You have command training at what we call gold, silver and bronze levels. The strategists—those who develop a plan—are at the silver level; those who carry it out on the ground are at the bronze level. There is not only initial very intense and comprehensive training for those individuals, but annual continual professional development, which is annotated and logged. There is also re-accreditation to ensure that people are still fit for operation. There are also annual inputs on what has changed—training on new legislation, new powers, learning from court cases, different protest tactics and emerging risks—so there is a continual learning cycle, as well as a very detailed pass-or-fail approach to training.
This week, we had an early morning dial-in with the vast majority of gold commanders across the country to break out some peer learning around Just Stop Oil. It was about what we could do differently, and how we could learn. There are specialist teams in policing that share information and liaise with the Health and Safety Executive and other bodies on how we do our very best to minimise danger to protesters, the wider public and police officers.
The challenge for policing is that training is at one point in time, and tactics and intentions are constantly moving. There is a constant challenge in making police training fit for purpose. The one thing that stays consistent—you alluded to this—is the police commitment to striking the balance between our positive and negative obligations to protest, and our ongoing responsibility to those impacted by protest.
Kit Malthouse
Q
Chris Noble: In short, yes, we would. You have already partly qualified that. For us, the more intrusive our tactics, the more they need to be focused on the harm being caused. In our approach, there has to be a constant test of what is proportionate, and that is subject to significant internal and external scrutiny.
We can see greater risk of harm to communities and protesters if things are left to run. An example was the G7 operation. I was speaking to one of the senior commanders recently, and they described a lack of powers around stop and search for people with items that could only have be used for generating a lock-on device. They had to intervene later in the day, with more significant powers, on a wider group of protesters, therefore interfering with more people’s rights. As long as early intervention and prevention are subject to proportionality tests, and are applied precisely, they are preferable to some of the risks that protesters place themselves under, and some of the significant disruption that they cause to other individuals.
Sarah Jones
Q
John Groves: We have recorded 1,600 incidents against HS2 since the end of 2017. All of that is unlawful activity—trespass, violence against staff, criminal damage. Not all of those offences will lead to an arrest or any legal action. So, for us, this legislation is about the deterrent effect—absolutely. The extent to which it will cause a behavioural change in those who are participating is, I guess, the open question, but I would certainly see that tougher sentences and more police action would help—absolutely.
Kit Malthouse
Q
John Groves: Absolutely. It is probably everything and anything. We have seen violence against both staff and against those who are building the railway—so it is not just security staff who engage with them. These are protests that are taking place not just on the ground, but in tunnels. I am sure that you will all remember what happened at Euston; there was a 25-tunnel network under Euston. When we went in there to remove the protesters, the protesters were using lock-on devices sub-surface. There was violence against staff in there.
We have seen large-scale trespass. In Buckinghamshire, we did an operation to remove protesters from a site. We secured the venue, but they came back with about 100 people. They shone lasers in the eyes of staff members, they threw human waste around—I mean, it is the full panoply. What is different between what you see against HS2 as compared with other locations is that it is probably quite invisible to most of the public. Again, we have got an operation live at the moment. I have four protesters in a tunnel at the moment and they have been there since 10 May, and that is costing the taxpayer a huge amount of money. The safety risk to them, not just to the people who are working on the surface to support them, is significant. As you say, up until the end of March, £126 million of taxpayers’ money has had to go into protester removal or the cost to HS2 of the delay that these illegal protesters are causing us.
Kit Malthouse
Q
John Groves: Indeed, yes.
Kit Malthouse
Q
John Groves: Yes. I mean, if you consider the definition of “protest”, you have people protesting in Swynnerton, Staffordshire—they are not particularly visible to the public. Other than probably at Euston, that is what we have seen consistently right across the piece. I would say that nearly every day there is something—there is an incident, an unlawful act against HS2.
Kit Malthouse
Q
John Groves: I hope so. I mean, it is about the deterrent. The overwhelming issue for us is tunnelling, because it is the thing that causes us the most significant cost and delay. We can, with the support of specialist contractors, move people off our land, but when there are tunnels involved, or high structures, which we also see quite regularly—they will build structures on the surface, at height, and underground. However, the tunnels are the most significant, for us, in terms of removal and, again, the safety risk is significant.
Kit Malthouse
Q
Nicola Bell: Yes, absolutely. The thing is that I think a lot of people at the time thought that an injunction was the thing to go and do, but you must see it through; you must follow up with the committal proceedings, and it is that that then takes the time. We had to apply for a very urgent injunction, sometimes overnight, with things being prepared at pretty breakneck speed in order to try and protect what we were seeing. I am sure you are all aware of what we saw on the M25, with people either gluing themselves or sitting on the road. It is about the resource intensity that is needed to follow that up and follow that through. If I take the example of a day that they were protesting, on 8 October, by the time that got to court, that was at the end of November and by then Insulate Britain had called off its protests.
Kit Malthouse
Q
Nicola Bell: Yes, two years.
Kit Malthouse
Q
Nicola Bell: No. I think you heard from the chief constable earlier that the arrests being made on the day were being made for low-level criminal offence—I think they were the words the chief constable used—for obstruction of the highway. It was literally going to the police station, getting processed and, the very next day, often the same person going out to another part of the M25 to do the very same thing again.
Kit Malthouse
Q
Nicola Bell: Yes. I am a civil engineer not a lawyer, but—sorry.
Kit Malthouse
Q
So in your view, would it be a sensible move to combine the best of both? Effectively having a power of arrest for an offence that attracts a not dissimilar level of sentencing, which might act as a deterrent, that you would get under an injunction.
Nicola Bell: I think the level of offence is a matter for the police. For me, it is the same as John has mentioned. It is about the deterrent and, for me, it is really about safety. Walking on to a 70-mph road is not wise. If you look on Insulate Britain’s website, you will see evidence of the day they blocked the M25 at junction 25, where four protestors came out and sat on the road. They did exactly the same on the opposite side of the carriageway and that footage clearly shows the police in danger, my traffic officers in danger and the protestors in danger as people are trying to swerve, brake and avoid them. What is included in the Bill, I hope, offers that deterrent. That is what I would like to see given that my job is about trying to keep the motorway network flowing as freely and as safely as possible. If something deters them in terms of the locking on or interfering with infrastructure—of course, we have talked a little bit about the serious disruption prevention orders that might be available—maybe that might mean that you do not have to apply for an injunction because, actually, those repeat offenders could be tackled through that means.
Kit Malthouse
Q
Nicola Bell: I do not have the exact figure, but I will just give you a couple of examples. There is a day when they protested at Littlebrook interchange, just off junction 1A of the M25—maybe some of you will know it. Four protestors sat across our traffic signal control junction. You might have thought that was not going to cause too much impact because it is just a little bit off the M25. The impact was 4 km of slow-moving and queuing traffic over the Dartford crossing, and it took until lunchtime for the effects of that to disappear. The day they protested down at the port of Dover, they sat on the road, but two protestors climbed up the side of an oil tanker and glued themselves to the top of the oil tanker while we got rid of the people on the road. By mid-morning, the effects of that around the roads in Dover were felt until about half-past 5 in the evening. The economic impact of that alone, given the importance of road freight to the UK and goods coming in and out of Dover, probably speaks for itself.
Anne McLaughlin
Q
John Groves: I come back to the tunnel point I made earlier. I assume that those that participate in going on to land and trespassing on land and digging tunnels know that they are breaking the law. but they do not see the current law as a significant deterrent to stop them from doing that. The police will always seek the balance between lawful protest and the rights of the landowner or whoever. Invariably, that often means issues with access to sites.
Access to some of our sites has been delayed for about eight hours. We cannot do any work. We cannot move vehicles in or out of our sites, because protesters are sat down outside at the access point, sometimes locked on, sometimes not. The police are there but they will not take action because they are allowing the right to protest. Because the protestors are not on HS2 land, we cannot do anything about that. We cannot move them on—on the public highway, only the police can move them on.
My sense is that this Bill, if enacted, will provide a deterrent effect for the protestors. I come back to the safety point—I am sorry to keep going on about tunnelling. Four people in a tunnel is such a serious thing; I am concerned that we will have a fatality at some point in the future. We have been really lucky. We have had four or five tunnel incidents and we have yet to have any serious injury, but I suspect it will come one day, if it continues in the way it is going. If we look at our data, we are seeing protestors turning to tunnelling more readily. In the operation we have just run, there were four shafts on one piece of land; they moved on to another piece of land very quickly and they started to dig a tunnel. We were able to get in quickly and move them on. That is my principal concern.
Kerry McCarthy
Q
John Groves: We want the legislation to work so that it provides that deterrent. I do not think I can say any more than that.
Kit Malthouse
Q
John Groves: Absolutely.
Kit Malthouse
Q
Nicola Bell: To your first point, once people saw that injunctions were being followed through, committal proceedings were happening and people were going to prison, that did have a deterrent effect, because we have not seen a protest on the strategic road network since 2 November. Three of the injunctions, particularly covering the south-east—the M25, M25 feeder roads, and the roads down to Dover—still exist and are still in place. Certainly, the public mood was something that was different as the protest happened. By the time we saw things through in court the protests were finished. Nobody was seeing them every day, whereas the first time we went it was fresher in people’s memories. People were mostly peaceful but then realised the impact that it could have on their lives—that was clear.
The Chair
If there are no further questions from Members, I thank the witnesses for their evidence.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Thursday 9th June 2022
(1 year, 10 months ago)
Public Bill CommitteesPublic Order Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 June - (9 Jun 2022)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Matt Vickers
Q
Steve Griffiths: I am here to talk about the disruptions; I cannot really talk about the policy itself.
Elizabeth de Jong: The areas we have focused on are the definitions of key national infrastructure. Locking on is important, and it is important that petrol stations are included. We do not have views on the other areas of the Bill, around stop and search for example. That is for people who have studied and are expert in what deters people or does not deter people.
The Minister for Crime and Policing (Kit Malthouse)
Q
Steve Griffiths: That is clearly one obvious option, yes.
Kit Malthouse
Q
Steve Griffiths: Yes, certainly. We work with the police on intelligence and they do a lot of scanning to try to look at risks that are presented at the airport, but certainly, having those facilities to stop people directly and search them would be helpful.
Kit Malthouse
Q
Steve Griffiths: Yes, we have a very well-defined plan that is a joint plan between the airport, the airport police and Essex police. That is really around the seriousness with which we take breaches on the airport. We have to have a very clear escalation plan and very clear, constant monitoring in place, because the seriousness of the disruption it causes, and also the threat to safety, is significant to us as an operating airport.
Kit Malthouse
Q
Elizabeth de Jong: Yes. Site security and risk assessment per se, given that we work in such a tightly regulated and potentially dangerous environment, are very much at the core of all operations throughout the downstream oil sector.
Kit Malthouse
Q
Elizabeth de Jong: Indeed.
Sarah Jones
Q
Also, there seem to be slightly different issues. The issue with the flight was a slight one-off, in that people were objecting to that particular flight going away. There is a particular problem, it seems, with people trying to block entire infrastructure programmes across the country. They are two quite different things and I think they need a slightly different response.
I want to confirm with you, Mr Griffiths, that the police arrested the people but that the issue was that the charge was not right. It was not that they were not arrested and taken away; it was just that the charge did not stick because the right charge was not there, if you see what I mean.
Steve Griffiths: Yes, you have the fact that the incident occurred in the first place and then, as you say, the perpetrators were arrested, but then the subsequent charge fell apart because of, presumably, a gap in legislation, in that the route taken for prosecution did not stand up. On your first question, I do not have that answer with me today.
Elizabeth de Jong: I have some information on the first one. We received police intelligence about the attacks and that intelligence was broadly correct.
Kit Malthouse
Q
I want to ask you a couple of questions. First, you seem to be quite happy for those who profess to be protesters to go to prison in certain circumstances. So, if someone glues themselves on to a fuel gantry, bringing themselves and others into danger, you are quite happy for those people to go to prison—the only question in your mind is for how long. I presume you accept that part of the role of sentencing is not just to punish, but to deter. In circumstances where somebody is persistently committing those offences, whether or not they are subject to the order that you talked about, would you not expect them to get increasing sentences as they reoffended?
Adam Wagner: The first thing I would say is that I have come here voluntarily. I did not come here to have someone be personally rude to me, and I really do not appreciate it. I do not understand the benefit of that to anyone.
The second point is that I am not happy for any protester to go to prison. That is the criminal law as it is. The question this Committee is asking is: does the criminal law need to change to deal with the problems that the Bill is supposedly dealing with? I just do not think it does. If the aim of the Bill is to send a lot of peaceful protesters to prison, it will do that. By peaceful, I mean non-violent. Locking on to something is not a violent protest. It is disruptive and annoying for the people who are trying to do whatever they are going to do in the location the protester has locked on to, but it is a classic form of protest. It is something that has always been used. It is something that society generally tolerates.
If we want lots more people like that to go to prison, this is the Bill to do it. However, if you want to stop people blocking roads, oil refineries or fracking sites—whatever the cause at the moment is—this is not the Bill to do that. I can tell you that, because I know these people; they will continue doing what they are doing. The difference is that they will end up in prisons all around the country, and I am not sure that is a good look for the country.
Kit Malthouse
I understand. I apologise if I was rude before.
Adam Wagner: Thank you.
Kit Malthouse
Q
Adam Wagner: First, it depends on whether the police are charging under that. I have not really talked about the relationship between the police and the public. The police will have to think really carefully about whether they want any of the aggravation of having to recommend for charging people who are not violent criminals, but are, in fact, peaceful protesters expressing their views.
Secondly, you cannot guarantee at all that the judges will send people to prison. There has been a step change through Insulate Britain. I have acted in a lot of these contempt cases—where people breach injunctions. The big difference with Insulate Britain is that these people are being sent to prison, and the courts’ reasoning, as I said, is that the protest is not directed at the social evil that the protesters are protesting. They are blocking the highway, and not blocking anybody who is insulating or not insulating anything. That is why they are sending people to prison.
However, what the judges have not done is send to prison people who, like my clients, were protesting at the entrance of a fracking site in Blackburn at Preston New Road, or people protesting on the HS2 line. The courts have said very directly: “We tend not to send people to prison for that.” It is quite possible that the courts will not oblige. Who knows? The powers will be there.
Kit Malthouse
Q
Mrs Elphicke
Q
David Dinsmore: I do think that the way the law is structured protects the rights of the few against the rights of the many. That feels to me to be anti-democratic. So, without going into the specifics of it, yes, I do think that. On that point of “you can get it online”, there is still a significant cohort in the community—principally older readers—who cannot or do not get it online, and do get their news in print.
Kit Malthouse
Q
David Dinsmore: I do not know if we know for a fact that that is the case. However, certainly, in a lot of protests that we see—and believe you me, we see a lot of protests—an anti-Murdoch element always comes out. We are big, grown-up girls and boys, and we deal with most of that in our daily work, but on that occasion, the level of disruption caused was well beyond what would be acceptable.
Kit Malthouse
Q
David Dinsmore: Apart from the fact that it was Extinction Rebellion, I would need to go back. I think there was a lot of assumption about what it was against—I think they did some tweeting at the time, but I will need to come back to you with the specifics around what was actually said and claimed at the time.
The Chair
Do any Members wish to ask further questions? On that basis, Mr Dinsmore, I thank you for your evidence.
Examination of Witnesses
Sir Peter Martin Fahy QPM, Matt Parr CB and Chief Superintendent Phil Dolby gave evidence.
The Chair
Q
Stephanie Needleman: Yes, please. I want to add that when we talk about what these protest banning orders do, we should note that they do not necessarily just ban people from attending or organising protests. They have significantly wider, far-reaching applications into everyday aspects of people’s lives. As long as they are imposed for one of the purposes listed, the conditions that can be imposed when someone has been given one of these orders can be anything. Look at the conditions listed in the Bill: they can prevent people using the internet, associating with particular persons or participating in particular activities. It is not necessarily limited to protest. We are talking about activities that are far, far broader than just being prevented from attending protests.
Kit Malthouse
Q
Martha Spurrier: Well, there is a potential difference in how it would be applied, but the serious disruption prevention orders have the capacity to be absolute bans in the same way as the protest banning orders.
Kit Malthouse
Under judicial supervision.
Martha Spurrier: Yes, under judicial supervision—but, as we have said, to a low standard of proof, based on no criminal conduct.
Kit Malthouse
Q
Martha Spurrier: I don’t think so, because I do not think you could attach the same invasive conditions. I do not think you could have electronic monitoring, for example, if you had an injunction. That is my understanding.
Kit Malthouse
Q
Martha Spurrier: I would not describe them as unlimited powers, but judges absolutely can impose injunctions. It goes to the broader point of whether these additional powers are needed, and I know that there have been people giving evidence that—
Kit Malthouse
Q
Martha Spurrier: I do not understand the question. A civil injunction and an SDPO are both civil procedures with criminal sanctions attached.
Kit Malthouse
Q
Martha Spurrier: If you are going to face imprisonment, you will always have access to counsel—to legal aid. You may face those sanctions either directly from a breach of the criminal law or, if you are under a civil order that has criminal sanctions attached to it, from breaching that civil order. I cannot see an argument that any person is better off having an SDPO, as opposed to an injunction or any other offence. The fact of the matter is that an SDPO is a novel legal provision that, for all the reasons we have gone over, captures non-criminal conduct as well as criminal.
Kit Malthouse
Q
Martha Spurrier: Well, the impact of an SDPO is much, much wider, because you could end up having a civil order attached to you that has invasive conditions, such as electronic monitoring, that could be renewed indefinitely, and if you breach them you could face almost a year in prison and an unlimited fine. I do not think they are comparable at all. We do not have anything like that currently, whereby, for non-criminal acts, you could face that kind of civil or criminal sanction.
Kit Malthouse
Q
Martha Spurrier: You can. What I am saying is that you would not currently have an injunction based on non-criminal conduct—the kind of non-criminal conduct we are talking about with this Bill—that then has attached to it invasive conditions such as electronic monitoring. There is no comparison with what this Bill is doing.
Kit Malthouse
Q
Olly Sprague: I do not want to give a non-answer here. Obviously, policing is a devolved matter, so our offices in Scotland have an equivalent of me. They are involved in a number of policing and scrutiny panels, and they are actively involved in the human rights framework around public order policing. They were involved in a scrutiny panel for the COP protests, for example. These are discussions that our colleagues have with the Scottish Government all the time. I am not fully abreast of the details of those, but I can tell you that we have them. Where we are critical, we make that known.
Kit Malthouse
Q
Martha Spurrier: Liberty’s position on buffer zones is to support as limited a buffer zone as is possible to protect access to reproductive rights for the people who need to use the services of the clinic, while also protecting the right to protest. One of the amendments proposes a 150-metre buffer zone, and we think that that limit is acceptable, although it should be dependent on circumstances—if a narrower one is possible, that should be used. There are some aspects of the amendment that we agree with, and some that we think are too broad and could infringe the right to protest. I have to say that of all our concerns about this Bill, buffer zones around abortion clinics are not high on the list. There are much more egregious interferences with the right to protest in this Bill than those proposed in that amendment.
Kit Malthouse
Q
The Chair
Ms Needleman, would you like to comment?
Stephanie Needleman: Sorry; I could not hear very well. Were you asking me whether I wanted to comment?
The Chair
Order. I am going to come to you, Dr Huq, but I will decide who speaks and when. The Minister is currently speaking, and we are asking Ms Needleman, who is joining us by Zoom, whether she wishes to give a response.
Stephanie Needleman: I do not think I have that much to add—Justice, as an organisation, does not have a formal position on this—but I agree in terms of protecting the rights of women to access abortion services, obviously, and that should be done in a way that does not infringe the right to protest. The right to protest is not an unlimited right, so there is scope to do something, but it needs to be limited so that it is within the bounds of articles 10 and 11.
Olly Sprague: We agree totally with that. In general, we would take a very dim view of the idea of protest buffer zones, unless there are exceptionally good reasons. We would be looking at things like drawing on existing regulations around incitement to hatred and privacy rights—those sorts of things. A way of protecting rights on both sides would be seen as important. As Martha said, what mitigation could be allowed to make sure that one right does not overshadow the other, if that makes sense? But, obviously, this is an incredibly sensitive and difficult area.
Kit Malthouse
Q
Martha Spurrier: Liberty has a long history of working on the right to protest, both in terms of protestors and members of other communities. For example, we have a rich history of tackling the difficult issue of far right protest and incitement to hatred, where Liberty has very much supported the idea of communities needing to be protected when they are faced with far right, extremist protests. One of the other things that article 10 does, and that policing has had to grapple with since the advent of the Human Rights Act, is to protect counter-protests and protests. You very often have two protests going on at the same time where there is a clash. Again, Liberty has done lots of work to make sure that both protest groups, acting within the law, are protected with their article 10 rights upheld, in so far as that can be done, compatibly with each other.
I absolutely refute the idea that this is subject-specific. The abortion buffer zones case is a really good example. As with many other cases, it is a fact that we have public order laws in this country and we accept that things such as preventing violence and preventing incitement to violence, for example, are an important infringement on protest. Many of those considerations are in play when you think about abortion buffer zones. It is when you are dealing with rights that butt up against other rights that you have to make difficult calls, for sure, but we are saying that the Bill fundamentally gets the balance wrong.
I do not know whether we will have time to get on to the stop-and-search proposals or the offence of locking on. However, thinking about locking on as an example, just very briefly, those who are policing a protest are confronted with a dynamic situation. They are trying to work out at what point that crosses the line and might need to be shut down. If someone locks themselves to an animal testing centre—let us take it out of modern, current examples—the police have to work out at what point that person’s right to lock themselves to the testing centre becomes an infringement of other rights. It might be that the police think, “Actually, that guy can be there for two days and it doesn’t really matter. It’s a perfectly lawful and acceptable exercise of his protest rights. But, at a certain point, it is going to become a problem and we are going to consider removing him.”
If you create an offence of locking on—if you criminalise such specific protest tactics—the minute a man puts his padlock around that testing centre, he has committed a crime. There is no ability for the police to act in a dynamic way, to assess, and to do the balancing act of comparing competing rights. That is it: the tactic is criminalised and that man can be removed immediately, regardless of whether there is any impact on other people.
Of course, any of us who work in this area are really adept at trying to manage competing rights, and that is what the police have to do all the time. But the proposals in the Bill are blunt instruments that will criminalise hitherto lawful activity. They will have a chilling effect on the ability to protest, and they will not deter normal people who want to make their voices heard from trying to do so—instead, the Bill will just criminalise them. It will not deter the hard core, who have breaking the law as one of their tactics, because the provision just falls into what they already do.
Kit Malthouse
Q
Martha Spurrier: What should we do about protests?
Kit Malthouse
No, what should we do about the hard core that you are talking about?
Martha Spurrier: What about the hard core we already have? The police already have a whole range of measures to deal with hard-core protesters. We have criminal offences and we have specially trained police officers dealing with those people. Someone earlier talked about not living in perfect harmony. A measure of disruption and nuisance is going to be a factor of any protest about any hot political issue at any one time, whether you are talking about the civil rights movement in America, the movement for votes for women with the suffragettes in this country, or the climate justice movement now. You cannot take the sting out of it entirely, because then there would not be protest, and then we would not live in a democracy any more.
The Chair
Ms Needleman, do you wish to say anything?
Stephanie Needleman: On the measures that already exist, there is obviously the Police, Crime, Sentencing and Courts Act 2022, which has literally just been passed, which includes measures—the expanded circumstances —under which the police can impose conditions on protests. That just adds to the existing measures. I do not think these new measures have even come into force yet, so we do not know what effect they will have. There is no evidence base that further measures are needed.
Tuesday 14th June 2022
(1 year, 10 months ago)
Public Bill CommitteesPublic Order Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 14 June 2022 - (14 Jun 2022)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Wendy Chamberlain
As this is my first Bill Committee, I was worried that I had already made a mistake. I am glad to hear that the issue causing us difficulty was beyond my purview.
As I say, I have policed events and protests; Lord Paddick has been the commander at them. I highlight the evidence that we heard last week from police officers, particularly Chief Superintendent Phil Dolby, who leads on the management of such events. What really came through for me in the evidence was the need for ongoing dialogue and agreement with those exercising their democratic right to protest. I have concerns that the legislation will hinder that dialogue. As former Chief Constable Peter Fahy said, we do not live in France or any other country with a paramilitary aspect to their policing. We do not want any legislation to risk our approach. I have concerns about that balance, about unnecessarily criminalising protesters, and about bringing into the scope of the legislation people who have nothing to do with a protest.
Chief Constable Chris Noble observed in his opening remarks last week that the vast majority of protest activity is non-contentious. I urge us all to remember that in our deliberations. The provisions in the Bill were introduced into the Police, Crime, Sentencing Courts Act 2022 when it was in the Lords last Session, and they were resoundingly opposed in the other place, so I am surprised that the Government are pretty much reintroducing the same measures and are not taking the experience in the Lords into account. I thank Lord Paddick, who spoke strongly against the provisions; the Chair may find that some of my remarks bear a resemblance to his.
Clause 1 will criminalise people who lock on even if there is no disruption caused, as long as there is potential for disruption. Amendment 29 would remove the words
“or is capable of causing”
which are incredibly broad and uncertain. If the Government are determined to create these additional offences—it appears that they are, given that we are back considering this Bill—the law that introduces them must be legal. These provisions are vague, undefined and open to subjective interpretation, as we will see in the law courts if the Bill as drafted passes into law.
The National Police Chiefs’ Council said in evidence that it is concerned about the phrasing, as it will be open to interpretation, and the onus will be on officers to decide the meaning. As I said in our evidence session last week, the first officer to attend a protest, whether they be a police constable, sergeant or inspector, is in charge and takes control and command—they lead. No one officer has the overall picture necessary to make such decisions, and I argue that this measure places the onus on individual officers to decide its meaning. Not only are the police unable to enforce such restrictions, but, as we have heard from organisations such as Amnesty International, the lack of certainty and broad scope makes the conduct in question illegal from the outset. That is not what we should intend to do in legislation. The provision severely curtails the fundamental human right to protest peacefully and will further damage our global reputation.
The clause potentially criminalises all sorts of protests. What about a counter-demonstration to stop holocaust deniers marching past a synagogue? If protesters linked arms to protect the synagogue, they could be caught by this clause. There is no definition of “capable of causing”. We do not criminalise behaviour that might cause crime. We prosecute people who have caused crimes.
The Minister for Crime and Policing (Kit Malthouse)
Amendments 29, 46 and 30 target clause 1, which introduces a new offence of locking on. Locking on is an extremely disruptive and often dangerous tactic that can place both protesters and police at extreme risk. It is unacceptable that protesters can use bike locks, glue and an imaginative range of other equipment to inflict disruption on businesses and the public, and the testimony we heard in the oral evidence sessions highlights the need for the Government to act.
Amendment 29 would raise the threshold of the offence by requiring a person’s lock-on to have caused, rather than be capable of causing, serious disruption before they were liable for the offence. That would not account for situations where, for example, a person locks on with intent to cause serious disruption but is quickly removed by the police before serious disruption can be inflicted. If there is to be a deterrent effect, it is important that those who commit acts that could cause serious disruption face appropriate penalties. I do not see the value of accepting the amendment.
Amendment 46 would inadvertently lower the threshold for serious disruption; it would remove the statement that serious disruption is caused by a lock-on only if the disruption applies to two or more individuals or the activities of an organisation. It is entirely reasonable to assume that if someone commits a lock-on that causes serious disruption to one or more person, they may be arrested and charged with the offence. I am not sure the hon. Member had the intention of lowering the threshold of application of this clause.
Alex Cunningham (Stockton North) (Lab)
I am looking at subsection (2) which says:
“It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection.”
Will the Minister please explain what is meant by that, and who might be caught by the Act? Who would actually have a reasonable excuse? Can he give us an example?
Kit Malthouse
The notion of reasonable excuse is well defined in our common law and is adjudged by courts daily, particularly in protest situations. We have seen that over the last few months. Although I assume that the hon. Gentleman seeks some precision in definition, “reasonable excuse” is for the courts to define, and they do so regularly.
Amendment 30 would raise the threshold for the offence of locking on by requiring individuals to have intended their lock-on to cause disruption, rather than having been reckless about that. Recklessness is, however, also a very well understood term in criminal law, and it applies to numerous criminal offences. I do not see the value in removing it from this clause, not least because, as I am sure the hon. Member for North East Fife knows, it is a well-known term in Scottish law and is often used in Scottish courts to adjudge an offence. For the reasons I have set out, I ask hon. Members not to press the amendments.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to serve under your chairmanship, Mr Dowd. I thank the hon. Member for North East Fife for tabling her amendments, which we are happy to support. She spoke clearly and eloquently about them, and I echo some of her arguments. We agree with the narrowing of scope proposed in amendment 29, which would mean that locking on must cause disruption, rather than just being capable of doing so. The Minister has already spoken, but I think there is an issue with the wording, and with defining an act as being capable of causing disruption. The definition is so broad and imprecise that it could include almost anything.
Kit Malthouse
On Cromwell Road in west London, a lorry pulled up and scaffolding was quickly brought out and semi-erected, but as Territorial Support Group 5 happened to be on the scene, the scaffolding was quickly removed. That offence was capable of causing significant disruption, but because of swift police action, it did not. Does the hon. Lady believe that an offence was committed in that case, and that the sentence should deter those people from trying again?
Sarah Jones
It was jolly good that the police were there and able to deal with that case. We do not need new legislation to enable them to do their job, which they did swiftly and well.
We will come on in more detail to the fundamental flaws in the Bill, but our underlying argument is that it will not deal with the small number of repeat offenders who come back time and again. It may, however, criminalise people who protest peacefully. Whatever the Government intended, that is not necessarily how the provision will be interpreted. That is why laws need to be drafted very clearly. As the former Prime Minister has said on several occasions, she might have thought that she would interpret her powers very sensibly when she was Home Secretary, but who knows who will come next? If we do not have sensible people making decisions, we do not necessarily want them to be able to interpret these very broad powers, so the law needs to be precise.
The hon. Member for North East Fife referenced Lord Paddick, who made the point that if the locking on
“were on a different road or at a different time, it would be capable of causing serious disruption. But if it is 3 am on a Sunday, is that still capable of causing serious disruption?”—[Official Report, House of Lords, insert date in form 1 January 2057; Vol. 816, c. 980.]
That is a good and interesting point. We are happy to support the amendments put forward by the hon. Member for North East Fife.
Amendment 46 addresses another of our concerns. All those who gave evidence last week discussed the scale of the disruption caused by protest. We were all horrified by the astronomical costs involved, such as the £126 million that High Speed 2 spent on protester removal, which might rise to £200 million next year. However, under clause 1, the offence is triggered where a lock-on causes disruption to just two people. There is clearly a huge difference between the enormous scale of disruption caused to HS2, or by lock-ons on the motorway, and disruption caused to two people. They are simply not the same thing, and it is problematic that the clause appears to conflate them.
Sarah Jones
Sadly, the Government are good at wasting taxpayer money. We have seen lots of cases of the profligate use of funds; let us hope this will not be a similar case.
Kit Malthouse
To be clear, all the people who currently lock on are arrested and charged with other offences, including in Scotland. It is not necessarily the case that more people would be arrested. In fact, given the specificity of the offence, and as we hope that the sentence that we attach to it will prove a deterrent, in time fewer people will commit this offence and cause serious disruption; there will therefore be fewer arrests. Is that not the point of the laws we pass in this place?
Sarah Jones
The point is that the offence would not be a deterrent, given that there are plenty of other things that people are charged with, and imprisoned and fined for. It would not be a deterrent to those difficult people who come back time and again, as they can already be arrested, charged and sent to prison for a multitude of existing offences.
Wendy Chamberlain
I beg to move amendment 31, clause 1, page 1, line 21, after “fine” insert
“not exceeding level 2 on the standard scale”.
A person convicted of an offence of “locking on” may be subjected to a fine. Under this clause there is no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
The Bill allows for unlimited fines but the amendment would limit the fine for the offence to level 2, £500. The amendment belongs with my amendments 34 and 37, because as currently drafted the offences of locking on, being equipped to lock on or obstructing major transport works can carry an unlimited fine.
To divert slightly, reference was twice made during last week’s evidence sessions—and this morning— to Scots law, although I appreciate that the Bill relates to England and Wales. Last week, the Minister referred to the crime of malicious mischief in Scotland, which carries an unlimited fine or prison sentence. That took me right back to my basic training days at the Scottish Police College—is it vandalism or malicious mischief? It is a crime at common law, and that is why it carries unlimited fines or imprisonment. The Scots Advocate, Andrew Crosbie, a member of the Faculty of Advocates in Scotland, describes common law offences on his crime.scot blog as follows:
“I tend to summarise common law cases…they’re crimes because they just are.”
You know us Scots, we are blunt and to the point. But common law crimes such as assault, theft, murder, fraud and breach of the peace were not created by Parliament, and as such are not defined in legislation. In fact, David Hume, whose statue stands outside the High Court of Justiciary in Edinburgh, pooled all the High Court decisions to produce the authoritative account of the state of Scots criminal law in the 1840s. All of those offences could result in unlimited fines or prison time, and I have lost count of the number of times that I charged someone with the breach of the peace, because it is a catch-all piece of legislation. The reality is that those offences do not carry those sanctions because sentencing decisions are usually made within a scale and scope, dependent on the seriousness of the offence and previous case law. I would argue therefore that, contrary to the Minister’s argument last week, it is not as straightforward as it first looks that Scots law is more draconian; it is about the scope of previous stated cases and decisions.
Malicious mischief consists of the wilful, wanton and malicious destruction of, or damage to, the property of other persons. There must be malice, either actual or inferred, on the part of the perpetrator, as destruction or damage caused by accident or under a reasonable belief of right, is not criminal. One main difference between that offence and vandalism is that the latter must result in damage to actual property, whereas under malicious mischief financial damage brought about by a criminal act would suffice. I hope Members will note why malicious mischief might be an appropriate offence in Scotland for some of matters that we are considering in the Bill.
From a police officer’s perspective, if property is damaged and the value of the damage is high, it may be more relevant to label the act as a common law crime other than vandalism. That is certainly how I recall it from my police college days—if it was high value, or involved cruelty to animals, it was malicious mischief, otherwise we preferred statutory vandalism.
I wanted to touch on that because in a democracy punishments are made to be proportionate to the crimes. Is it proportionate to fine someone potentially tens of thousands of pounds for a single act of protest? My simple proposal is that the fine should be limited to level 2 on the standard scale at £500. I am happy to hear from the Government should they have other proposals for a limit, but I argue that it cannot and should not be limitless.
Sarah Jones
The intent behind the amendment—to prove whether an unlimited fine is proportionate or not—is sensible. It is difficult to find examples of offences that have resulted in huge fines, and I wonder whether the Minister could provide some examples of the scale of fines for the offence set down in clause 1. I know that the coalition Government introduced an unlimited fine in 2015 under the terms of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The explanatory notes to those regulations state:
“For the most serious offences tried by magistrates that maximum is generally £5,000 although for certain offences where the financial gain from offending is substantial—for example in some environmental offences—the maximum fine can be as high as £50,000.”
How will the offences we are considering compare? I understand that when a similar amendment was considered during the passage of the Police, Crime, Sentencing and Courts Bill, the Minister in the other place said,
“We think that an unlimited fine is appropriate in the case of these new offences; a level 1 or level 2 fine…would not…in our view…reflect the seriousness of the conduct in question. An unlimited maximum fine allows courts to determine the level of any fine on a case-by-case basis, having regard to the gravity of the offence and the ability of the offender to pay.”—[Official Report, House of Lords, 24 November 2021; Vol. 816, c. 994.]
It would be helpful if the Minister could shed some light on an estimated fine that he believes could reflect the seriousness of the conduct in question, which, as we have just debated, is so broad in scope.
Kit Malthouse
I have already spoken about the harm that locking on can cause and we feel strongly that those who commit locking on should face a sentence proportionate to the harm they cause. The maximum fine of £500, which the amendment provides, is simply not proportionate to some of the offences we have seen and the courts should have the discretion to impose an unlimited fine on a case-by-case basis. Judges do this on a regular basis within the framework set for them, dependent on the individual’s circumstances, their relative wealth and the likely deterrent effect the fine will have.
Although I understand and hear what the hon. Member for North East Fife says about what happens north of the border with malicious mischief, it is the case that in theory that offence carries an unlimited fine and, indeed, an unlimited prison sentence, notwithstanding the guidance judges operate under. I am conscious that the fuel protestors recently arrested outside Glasgow have all been charged, as I understand it, with malicious mischief. We will wait to see what the result may be, but I have no doubt that Scottish judges will look to the circumstances of those individuals and the damage and disruption they caused while they decide what the fines should be. Although she might say that that is not more draconian, we are simply seeking to mirror what would be experienced north of the border, and I urge the hon. Lady to withdraw the amendment.
Wendy Chamberlain
We ask the Minister to accept that because malicious mischief is a crime of common law there are unlimited fines and imprisonment attached to it. We have no legislation that does not have a fine scale within it, which is why I think we should ensure that we have something on this. My amendment is very much intended to probe what the Government would consider reasonable, so I have no intention of pressing it to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Sarah Jones
I thank the hon. Member for her remarks. I hope she will forgive me, as I do not have the evidence in front of me, but as I recall it, clearly the charge made there did not lead to the outcome that those people had intended. Perhaps there were other offences, of aggravated trespass, for example, which is imprisonable and could have led to a charge.
Trespass laws can apply even on public roads, when someone is not using them for a permitted purpose. Other legislation is also available. In the evidence session, the Minister suggested that some existing legislation does not allow prison sentences, but it does. Wilful obstruction of the highway comes with a fine but in the Police, Crime, Sentencing and Courts Act 2022—
Sarah Jones
Well, it does not, because it has not been implemented. When it is, there will be six-month sentences attached to that. Criminal damage can lead to up to 10 years in prison, depending on the value of the damage. Aggravated trespass can lead up to three months in prison, a fine, or both. Breaching an injunction, as we have heard, can lead to two years, a fine, or both. Public nuisance can lead to 12 months on summary conviction, or 10 years on conviction on indictment.
Failure to comply with a condition can lead to a fine, but one year in prison if someone incites someone else to breach a condition. Organising a prohibited trespassory assembly can lead to three months in prison, a fine, or both. Participating in a trespassory assembly can lead to a fine. It is clear there is a broad list of offences of which criminal protesters can be found guilty. On fines, as we discussed, the law changed in 2015, to allow magistrates courts to issue unlimited fines for serious offences. Prior to that, there was only an unlimited fine in the Crown court.
Conditions on protests only need to be applied to public land. That was again an issue that the Minister raised in the evidence session. The de facto position on private land is that permission for protest is not granted, unless an invitation has been extended by the landowner. If people protest on private land, they could be found guilty of either aggravated trespass or trespassory assembly. Even if the threshold for those offences is not met, they would still be committing an offence, merely by their incursion on to private property and, whether they were aware of doing so or not, of the more basic offence of trespass, which is a civil wrong, not a criminal one.
Two things are required to commit aggravated trespass: trespassing and intentionally disrupting, obstructing or intimidating others from carrying out lawful activities. Further, a senior police officer has the power to order any person believed to be involved in aggravated trespass to leave the land. If they refuse to do so, that is an additional offence. The maximum penalty is three months’ imprisonment or a fine of £2,500, or both. First-time offenders would likely get a fine of between £200 and £300. I could go on, but I will not.
There are several examples in recent history of the police responding to lock-on protests. In September 2020, 80 Extinction Rebellion protesters were arrested and charged with obstruction of the highway after blocking printer works at Broxbourne and Knowsley. In October 2021, Kent police arrested 32 people for obstructing a highway and conspiring to commit public nuisance on the A40 and M25. In early 2021, the police used trespass offences to clear anti-High Speed 2 protestors from Euston Square. The police are entirely able to use reasonable force—indeed, they should be encouraged to do so—to, where necessary, unlock people who are locked on.
In the case of Insulate Britain, people have been jailed for defying a court order preventing them from protesting on the M25. Five Insulate Britain campaigners who had held a demonstration on the motorway in September were jailed and all charged with contempt of court. Ben Taylor, Ellie Litten, Theresa Norton, Stephen Pritchard and Diana Warner were given jail terms, each lasting between 24 and 42 days. Eleven others from that group received suspended prison sentences. A number of High Court injunctions were put in place after Insulate Britain’s road blockades last year. Nine other Insulate Britain campaigners were given jail time or suspended sentences. Two protestors were handed prison sentences of two months and 30 days, while seven others received two-month suspended jail terms for breaching injunctions.
As Liberty has pointed out, people have not gone to prison in some cases, but have in others. The courts look at the location and the manner of the protest. They are very unsympathetic to protesters who block the M25, because they have a damaging effect on people who have nothing to do with their cause, but more sympathetic to those who demonstrate against the actual object of their protest, because they do not affect the public in general.
Sometimes the police do not use the powers at their disposal. There is a number of reasons for that, including lack of training. We heard from John Groves from HS2, who said:
“Certainly, there is frustration from my team on the ground that the police are not more direct with some of the protesters”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 23, Q43.]
Part of that is about resources. We do not have the French system, nor do we want it, but in some cases we do not have enough people. As Peter Fahy said:
“There is not a standing army waiting to deal with protest. They come out of normal policing when they are required to do so, and the amount of neighbourhood policing that is affected by just keeping up with that demand is…quite acute.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 63, Q123.]
The other reason why the police do not always act on a raft of existing legislation—as HS2 found, to its frustration—is lack of training. We have debated several times the report by Her Majesty’s inspectorate of constabulary and fire and rescue services. Written by Matt Parr, it looked at protest, the nature of protest and what should be done. Most of its recommendations had nothing to do with changing the law, focusing instead on training for officers. Its findings included that,
“protester removal teams…are trained to remove protesters from lock-on devices. But we found that forces do not have a consistent way of determining the number of trained officers they need. As a result, the number of specialists available varies widely throughout England and Wales.”
Matt Parr also highlighted that
“the police should develop a stronger rationale for determining the number of commanders, specialist officers and staff needed to police protests.”
He looked at whether chief constables were making good use of their legal services teams, and at a raft of different systems for gathering intelligence on protests and for dealing with them when they happen. In the evidence that Matt Parr gave us, he was really clear and enthusiastic that his changes are beginning to be implemented in the way in which he wants them to be. Before seeking to change things again, we need to wait for the implementation of all of those recommendations—which he has said will significantly improve the police response to protests—and of the Bill that has recently been passed.
The police seem to be in possession of some very useful powers to help deal with lock-on protests when they go beyond the scope of a legitimate protest. Even if we look further back into history, we find really good examples of peaceful lock-on protests and of the police making good use of the powers available to them when they need to.
For example, people look back on the Greenham Common women’s peace camp as a protest by a group of women who made good points and achieved some success. It involved a series of protest camps against nuclear weapons at RAF Greenham Common in Berkshire. Women began arriving in 1981 after cruise missiles were stored there, and they employed lock-on tactics by chaining themselves to the base fence. The camps became well known in 1983—I was 11 at the time—when, at the height of the protests, about 70,000 people formed a 14-mile human chain around the base. It is interesting that we are talking about the methods used by Insulate Britain and Just Stop Oil as if they are a new phenomenon. I do not remember it, as I was too young, but it must have been quite something to have 70,000 people form a 14-mile human chain—a lock-on—around the base.
Another encircling of the base occurred in December of that year, with 50,000 women attending. Sections of the fence were cut, but the police acted and arrested hundreds. Protest activity continued to occur at Greenham, and the last missiles left the base in 1991, following the intermediate-range nuclear forces treaty. The Greenham women clearly left their mark on history. They used peaceful lock-on tactics, and when they entered the RAF site, they were arrested by the police. As today, the women were apparently subjected to abuse and hatred. Vigilante groups attacked them with slogans such as “Peace Women: You Disgust Us”.
Sarah Jones
My hon. Friend is absolutely right. Not all lockons are a criminal offence and nor should they be, but where people are locking on in a way that is dangerous and disruptive, that should be an offence.
Kit Malthouse
Does the hon. Lady accept that, in the Bill as drafted, the reasonable excuse defence and the serious disruption requirement mean that not all lock-ons will necessarily be a criminal offence? If something similar to the St Stephen’s Hall example given by the hon. Member for Ealing Central and Acton were to occur, that would not necessarily cause serious disruption to the life of the community, and would therefore not necessarily constitute an offence under the Bill.
Kerry McCarthy (Bristol East) (Lab)
I echo what my colleague on the Front Bench, my hon. Friend the Member for Croydon Central, was saying about how we approach the policing of protests in this country. Obviously, Bristol has had quite a reputation for protests, particularly around the time of the events involving the Colston statue. We know that the people involved in that protest were eventually acquitted of criminal damage.
I have been out with the police to see how they approach things. There were a number of weekends in a row when there were protests against the Bill that has become the Police, Crime, Sentencing and Courts Act 2022. People were, quite rightly, very unhappy about what the Government were trying to do. I went out with the police and also went to the operations centre to see their approach; what they wanted to do was to facilitate protest. They wanted to facilitate peaceful protest and were very good at trying to ensure that it did not turn into something that put people at risk. For the most part, they were successful. Can the Minister say where the parameters of the clause come in?
There are historical examples. My hon. Friend the Member for Croydon Central mentioned Greenham Common, but if we look back at the suffragettes, part of their tactics was to tie themselves with belts or chains to Buckingham Palace or Parliament. In January 1908, Edith New and Olivia Smith chained themselves to the railings at No. 10, which would not happen now, while one of their colleagues, Flora Drummond, went inside to disrupt the Cabinet meeting. I dread to think what the response would be now; they would not get anywhere near it. They chained themselves because that they wanted to make their voices heard. If they were immediately arrested, they would not have the chance to make their speeches, so it was a tactic to stay in place and at least get a few sentences out before they were removed.
Kit Malthouse
We might as well address that point straight away. As I said to the hon. Member for Croydon Central earlier, there are two tests that the police or, indeed, the courts will have to apply. The first is that serious disruption is caused. I am not sure necessarily that somebody chaining themselves to the railings outside this place would cause serious disruption. Secondly, there would be a defence of reasonable excuse. In the case of the suffragette who chained herself in St Stephen’s Hall, we would imagine that there may well be other offences but I doubt that this provision would apply. Indeed, if someone were able to chain themselves to the railings serious disruption would not necessarily be caused. We are trying to address some of the events we have seen over the last couple of summers, not least the fuel protests, which have been dangerous and caused massive and serious disruption to the community.
Kerry McCarthy
The Minister has rather pre-empted what I was going to say. The suffragettes knew that they would be arrested but took the decision because they felt their cause warranted it and they knew, roughly speaking, what the response would be and the sort of punishment available. If people are going to engage in this sort of activity and knowingly do things that would break the law, when we have an offence that treats something so seriously, my concern is at what point people can make that calculation on whether they are going to be arrested and taken to court under lesser legislation or whether the clause will be invoked. Its vagueness means that it is not clear where those parameters are.
This silly example is more for the Committee’s amusement: we had the case of an Extinction Rebellion protestor in Bristol who tried to glue himself to the doors of City Hall. However, they were automatic sliding doors, so the moment someone approached them, they opened. I think it was caught on camera, but every time he tried to glue his arms to the door, they opened. He could not manage to do it. I do not suppose the protestor would be dealt with under an offence of this kind and he probably deserves a prize for entertaining everybody.
That was an aside, but to give an idea of the sort of calculations people make, in my constituency I have a good activist on disability issues who has disabilities himself. He has a personal assistant who went on a protest with him, and he insisted that his personal assistant chain handcuff him to the pole by the door of a London bus. There was a big protest of disability activists blocking the streets—I think it was around Piccadilly Circus—to protest about accessibility and public transport. When the police came along, they did arrested not the guy who was chained up but the personal assistant for locking him to the pole. It was the personal assistant’s birthday and he spent the night in the cells, while somebody else managed to get my friend, the activist, home.
There is a clause in the Bill about locking somebody else to something and that raises interesting issues about the situation for a personal assistant. They are there to act at the will of the person they are assisting and to do anything they ask. If somebody were asking a personal assistant to commit a criminal offence, such as assaulting someone or something that is generally regarded as beyond the pale, the assistant would not do that. If disability activists want to exercise their right to protest, are they allowed to exercise their right to break the law as well? Personal assistants are not meant to have their own opinions on such matters; they are meant to do as they are asked.
Kerry McCarthy
The Parliamentary Private Secretary asks why not. That is quite worrying. Would that cause serious disruption, if he had one hand attached to the door and was wiggling backwards and forwards as everyone went in and out? That is exactly my point. If that is deemed to cause serious disruption, that is very worrying. I cannot think of many locking-on offences that would not be deemed serious disruption. It proves my point if the PPS thinks that the provision would cover a case as ludicrous and minor as that. That proves my point, so I will sit down and ask the Minister to explain where the middle ground and that clarity is.
Kit Malthouse
Clause 1 is a key part of the Government’s plans to protect the public from the dangerous and disruptive tactic of locking on. Recent protests have seen a minority of selfish individuals seek to cause maximum disruption by locking themselves to roads, buildings, objects and other people. That has seen traffic disrupted, public transport impacted and the transport of fuel from terminals ground to a halt, to name just a few examples.
Such tactics cause misery to the public, with people unable to access their place of work or schools, or to attend vital hospital appointments. It is impacting people’s ability to go about their daily lives and is causing considerable anger. The Committee will remember the frustration and anger expressed by members of the working public at Canning Town station in 2019, when protesters from Extinction Rebellion glued themselves to a Docklands Light Railway train during the morning rush hour, risking their own safety and that of the travelling public.
I welcome the condemnation of some of those protests by the hon. Member for Croydon Central, and her possibly belated support for the increase in sentencing in the Police, Crime, Sentencing and Courts Act 2022, which has just received Royal Assent. As she said, there is now a suite of offences that may or may not be committed. To address the point made by the hon. Member for Bristol East, we want people thinking about using this tactic to make a calculation about whether and how they break the law. It is not a human right to break the law. If people calculate that they want to do that, they must, as she said, face the consequences. In employing dangerous tactics and causing disruption, those who call themselves protesters, but are in many cases trying to effect a mass blackmail on the British public, should make a calculation about whether they are causing an offence, and there should be an air of jeopardy to what they do.
Andrew Bridgen
The hon. Member for Bristol East said that many of these people’s protests might be spontaneous and not pre-planned. Does the Minister agree with me that it would be very unlikely that people would have the equipment to lock on if it was not a pre-planned protest?
Kit Malthouse
My hon. Friend makes a very strong point. Certainly a lot of the most disruptive protests that we have seen will have taken meticulous planning and preparation and the acquisition of materials, not least the adhesive chemicals required, scaffolding poles and vehicles. We have seen all sorts of tactics employed, which, as he rightly says, take serious preparation to put into effect.
Kerry McCarthy
To clarify, when I was talking about protests in general and people breaking the law during a protest, I was not talking about locking on.
Sarah Jones
To be clear, the clause makes it an offence to attach oneself in any way to any person, which means that any form of linking arms is a criminal offence. Does the Minister genuinely believe that a group of women standing outside Parliament locking arms would be committing a criminal offence as soon as they do that?
Kit Malthouse
That is just nonsense. The hon. Lady will not address the issue of disruption or reasonable excuse. I am sure the police are able to determine and the courts will interpret what is designed in this legislation. She has said rightly that the people we are talking about should go to prison. She said they are committing crimes. The only dispute between the two sides of the Committee is what offence they should be charged with, which is what we seek to provide.
Opposition Members have sought clarity and precision. We have seen that those who are arrested and charged in these circumstances are charged with a range of offences—obstruction of the highway, aggravated trespass, which the hon. Lady referred to, and criminal damage and public nuisance, depending on where the offence occurred and the circumstances. Unfortunately, we have seen situations where, on technicalities, a lack of precision in our ability to deal with the offence has meant that people have got off. For example—
Kit Malthouse
As the hon. Gentleman will know, there were protesters who locked on to a printing press in Knowsley in Liverpool. They were charged with aggravated trespass, but avoided conviction because the prosecution was unable to prove where the boundary was between the private and the public land. We are trying to provide precision in that offence area, and that is what this part of the legislation does. Aside from the disruption and anger that they cause, lock ons also waste considerable amounts of police resource and time, with specialist teams often required to attend protest sites to safely remove those who have locked on.
The hon. Member for Croydon Central seems to imply that we should have at-height removal teams on stand-by in all parts of the country 24 hours a day, but it is not realistic for British policing to do that. Some lock ons, particularly those that occur at height, place both the police and protesters at serious risk of injury and even death. For example, protesters at HS2 sites have deployed bamboo structures, necessitating the deployment of specialist teams who are trained to remove them at height at considerable risk to themselves and the protesters they are removing. That is why the Metropolitan Police have asked us to provide them with more powers to tackle that kind of reckless behaviour, and the Government have now responded.
Sarah Jones
I just want to clarify what the Minister says because he misrepresented my point, which was not that we should have thousands of officers ready in a kind of French-style tool. My point related to the points that Matt Parr made about how forces do not have a consistent way of determining the number of trained officers they need. There are not enough specialist roles in the right places at the right time. That was his recommendation, and there is a programme of work to fix that. I am arguing that we should wait for that fix so that the police can do the best job that they can.
Kit Malthouse
As the hon. Lady rightly says, Mr Parr said, I think, that the responses had been exemplary. Work is ongoing. She referred to the printing press incident in Hertfordshire, and she put the problems experienced down to the delay in the police getting there—in the middle of the night, in some numbers—to remove protesters who had managed to erect scaffolding very quickly and glue themselves effectively to the top of it. It is just not realistic for the police to be there in seconds to deal with such an incident. I believe that the hon. Lady said that the main problem was the delay.
Kit Malthouse
No, but the point is that the clause will make such protesters think twice about their actions, because the offence that they are committing when charged is not necessarily vague.
Kit Malthouse
Just a minute.
The clause creates a new offence of locking on that will be committed when an individual causes serious disruption by attaching either themselves or someone else to another individual, an object or to land, or attaching an object to another object or land. Their act must cause or be capable of causing serious disruption to an organisation or two or more individuals, and the person intends or is reckless as to that consequence. The offence carries a maximum penalty of six months’ imprisonment and an unlimited fine.
Referring only to the act of locking on rather than to the equipment used recognises that protesters deploy a wide range of equipment to lock on, from chains and bike locks to bespoke devices, and ensures that the offence will keep pace with evolving lock-on tactics. The offence can be committed on either public or private land, and that ensures that those who use that tactic in, say, an oil refinery do not evade arrest and prosecution for the offence. Furthermore, new stop and search powers that we will consider shortly will allow the police to take proactive action to prevent locking on in the first place, by seizing items that they believe will be used by protesters to lock on.
Alex Cunningham
The Minister has just referred to oil refineries and private space. Chris Noble said in his evidence
“If we moved more into a private space than currently, we would see that as potentially being incredibly significant for money and opportunity lost in terms of policing communities. Those abstractions would probably quite fundamentally change my local model of policing, in terms of being able to maintain that.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 13, Q17.]
Does the Minister accept that he is putting greater pressure on the police, and certainly on their resources?
Kit Malthouse
As I said earlier, I do not accept that because if we get the cocktail of deterrent correct, and get those protesters—
Kit Malthouse
He has to see all the clauses in the round. If we get those protesters to think twice about their actions, we hope that they will desist—
Kit Malthouse
Or at least they will be incarcerated, such that they will not be able to continue with their protests.
The Chair
Order. Minister, just a moment. We are actually dealing with the Public Order Bill, and I would like a little bit of order in here as well. Can we stop shouting across the room and keep some order?
Kit Malthouse
We are trying to provide some precision in the offences that the police are able to charge offenders with in certain protest situations that have evolved in the past couple of years. Lock ons have caused significant distress, alarm and disruption to the community. The police, particularly the Metropolitan police, have asked us to introduce the offence and we are pleased to be able to help them. We heard in evidence to the Committee from the operational police chief that he thought that the legislation would help with the situation. We also heard from Her Majesty’s inspectorate of constabulary and fire and rescue services, notwithstanding the fact that he thought there was an exemplary response to his original report, that what we were doing seemed sensible. The clause will ensure that those who resort to inflicting misery on the public by locking on will face the maximum sentences, proportionate to the serious harm that their actions cause.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Offence of being equipped for locking on
Sarah Jones
I beg to move amendment 47, in clause 2, page 2, line 13, leave out “may” and insert “will”.
Wendy Chamberlain
My party and I are happy to support Labour’s amendments 47 and 48. The scope of my amendments 32 and 33 is similar.
The intention of our amendment 32 is to probe what might be criminalised in connection with an offence. The theme this morning has been the broadness of the legislation as drafted, and the Opposition are looking to get some definition of what that might look like. Amendment 33 intends to ensure that the person who is prosecuted for the offence of being equipped also did the locking on themselves.
My concerns are linked to those set out by the shadow Minister, the hon. Member for Croydon Central. As she asked, will the provision of food and drink to someone engaged in protest activity be included? What about medical supplies, if a protester is injured in the course of the protests? What about a parent, simply worried about the safety of a young adult, who makes sure before they go to a protest that they are wearing sturdy clothing? What about the community group that lends its loudspeakers to an event?
The scope is so broad that such people, arguably, could get caught. This morning, we have discussed how the law will be interpreted. Those interpretations, given the Bill’s existing scope, are valid. What about people who happen to be caught passing a protest while carrying material used for locking on? For example, lots of MPs cycle in to Westminster, and demonstrations happen in Westminster all the time. Are MPs to be caught by this legislation simply because they are carrying their bike locks as they make their way into the estate? Under the Bill, that could theoretically happen.
While the police may not prosecute MPs, we know from the evidence we heard last week and from other evidence that sections of the population are overly policed. We will discuss the stop-and-search powers later—I am sure that Members will have much to say then—but if the evidence currently says that black people are eight times more likely to be stopped and searched, it follows that black people will also be disproportionately criminalised for carrying innocent items in the wrong place at the wrong time. As such, I am keen to hear from the Minister what this clause includes, and for amendments to be tabled that will limit its scope appropriately.
Amendment 33 addresses some of those problems. As drafted, the Bill allows for someone to be prosecuted for carrying an item that someone else uses to lock on. This has the potential to criminalise people who are peacefully protesting, or indeed those who are not protesting at all. We need to be clear: it is not a crime to attend a protest, nor is it a crime to carry the sorts of household items that are used for locking on—if that were the case, how would anyone purchase those items? Doing so without then breaking the law, simply put, cannot be a crime.
Kit Malthouse
I will speak to the amendments now, and then speak more substantively on stand part.
The amendments seek to raise the threshold for the offence of going equipped to lock on. Amendment 47 would raise the threshold for that offence, requiring that individuals “will” intend that the equipment be used in the course of locking on, rather than “may” intend. It is important that the police can protect the public from the possibility of someone locking on. Raising the threshold of the offence to “will” rather than “may” would restrict its effectiveness and the ability of the police to take proactive action against lock-ons, which we heard from the operational police chief during our evidence session was critical to minimising disruption.
Amendments 32 and 48 would remove from the scope of the offence of being equipped to lock on, someone who carries equipment intended to be used in connection with the locking-on offence, rather than in the course of that offence. Amendment 33 would also narrow that offence by applying it only to the individual who commits a lock-on. These amendments would mean that during disruptive protests, those who deliberately brought lock-on equipment to hand over to fellow protesters for them to use would not be criminalised for doing so, effectively allowing protesters to continue to legally provide lock-on equipment to others and removing a key deterrent aspect of the offence. Doing so would severely limit the effectiveness of the offence in stopping the use of lock-ons from spreading during a fast-moving protest situation, and I am afraid that we cannot support it. We ask that the amendment be withdrawn.
Sarah Jones
Given the vote that we have had on a similar measure, I see little point in pressing amendment 47 to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Wendy Chamberlain
I beg to move amendment 34, in clause 2, page 2, line 17, after “fine” insert
“not exceeding level 1 on the standard scale”.
A person convicted of an offence of “being equipped for locking on” may be subjected to a fine. In the Bill there is currently no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
The amendment is very similar to the amendment to clause 1 that I tabled previously. It ensures that any fines levied for the offence of being equipped for locking on are quantified, rather than left as an unlimited fine. I have very little to add beyond the remarks that I made regarding my previous amendment.
Kit Malthouse
As I made clear when speaking to the hon. Lady’s previous amendment, we disagree with lowering the maximum fine available for this offence. We feel strongly that those who commit lock-ons and carry lock-on equipment should face a proportionate sense of the harm they cause. The maximum fine that the hon. Lady proposes, £200, is simply not proportionate; we believe that the courts should have discretion to apply an unlimited fine. As such, I encourage the hon. Lady to withdraw her amendment.
Sarah Jones
The clause creates a new criminal offence targeting people who have an object with them in a public place with the intention that it will be used in the course of or in connection with the commission of the new offence of locking on, as we have been debating. The punishment for the offence is an unlimited fine.
Our concerns about the clause should be read and understood in conjunction with our concerns about clause 1. This very short clause is too vague and ambiguous to be useful. Line 12 talks of an “object”, but that object need not be related to protesting at all. All that is required to be criminalised under this offence is that a person might have intended to use the object—potentially, any object—in a certain way. Perhaps more pressingly—I will come back to this later—the object does not have to be used by the person who has it in their possession. It needs to be used only
“in the course of or in connection with”
a lock-on.
It is so important that we consider the limits of the legislation that we create in this place. None of us who works here in Parliament is a stranger to protests. We see them outside our offices almost every day. The example of the bike lock is real and I do not think it has been meaningfully disputed by the Minister. Perhaps it is in someone’s bag or attached to the bike, but that makes no difference.
Someone could wheel their bike through Parliament Square—multiple protests might be going on at once, which is not uncommon—and be in potential breach of this legislation. No proof that the bike lock is to be used in a lock-on is needed, only that it “may” be. Hard-working, law-abiding people simply trying to get in to their place of work are at risk of being found to have committed this offence. The original drafting of the clause is deeply ambiguous.
It was notable that so many of our witnesses last week spoke of the deterrent effect that they hoped the Bill would provide—a desire for something to be done to act as a deterrent. John Groves from High Speed 2 Ltd hoped that
“this legislation is about the deterrent effect”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 18, Q28.]
Nicola Bell noted:
“what is included in the Bill, I hope, offers that deterrent.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 20, Q37.]
We have real doubts, however, as to whether the Bill will provide anything close to a deterrent to hardcore repeat offenders. Instead of providing a deterrent to the hardcore of the protest movement, who are intent on causing disruption, such people might be delighted that their lock-on protests would be criminalised. We were told last week that those protesters
“will not be deterred by this legislation.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 44, Q91.]
For them, going to prison for the cause is a badge of honour.
Sir Peter Fahy said:
“I do not know whether there is actually any evidence that people are deterred...but clearly some people are so determined, and have a certain lifestyle where it does not really have any consequence for them, that—if anything—it makes them martyrs.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 58, Q120.]
However, we must absolutely not ignore the people who will be deterred, those who are not willing to go to prison, but who might not do anything illegal at a protest—those who just want to express their democratic right.
The title of Matt Parr’s report was “Getting the balance right?”, and it seems abundantly clear that the Government have not got the balance right with this legislation. I note that, with regard to lock-on, he was
“impressed by forces for the work they have done to make sure that PRTs”—
protester removal teams—
“are able to deal safely with lock-ons.”
He noted:
“It is vital that PRTs remain up to date with the rapidly evolving problems presented by lock-on devices.”
I agree, and much of the evidence from last week suggests that improved sharing of best practice, more resources and better training would help the police to deal with nuisance protests much better—without the need for this specific legislation.
Lord Rosser noted in the other place:
“The reality is that powers already exist for dealing with lock-ons. What we should be looking at is proper guidance, training and…improving our use of existing resources and specialist officers.”—[Official Report, House of Lords, 17 January 2022; Vol. 817, c. 1433.]
Matt Parr’s report also notes that most interviewees, who were junior police officers, did not wish to criminalise protest actions through the creation of a specific offence concerning locking on. With regard to his fifth proposal, Matt Parr noted explicitly that the purpose was not to create an offence of lock on during a protest. He did not call for that in his report.
The Government have brought back these overreaching clauses without any real evidence that they will work. Our witnesses were unable, quite rightly, to comment on the new clauses with any specificity. Elizabeth de Jong was unable to be specific about how the clauses would help. She noted:
“I can see a direct reference to locking on.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 33, Q59.]
Steve Griffiths stated:
“I am really here to talk about the impact of disruption, and I am probably not qualified to comment intensely on the Bill.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 34, Q60.]
He later noted:
“I cannot really talk about the policy itself”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 39, Q81.]
Those witnesses were right: they were present to define the problem as they saw it, and not to tell us that the legislation will work: that is our job. In the Opposition’s view it will not work. It is fair and understandable that the witnesses instinctively feel hopeful about something being done, but they did not claim that they had the expertise to know that.
The clauses, which make provision for the offences of locking on and going equipped to do so, are ill thought through and represent a knee-jerk reaction to events that have caused real disruption and annoyance—no one disputes that. There were criminal acts that were infinitely more disruptive to people and the police acted. There is no evidence that the clauses will act as a deterrent and it seems likely that they will be welcomed by the hard core of protestors who are willing to go to prison for their cause. The clauses will, however, deter those who come to protest peacefully, and that is our concern.
Kit Malthouse
Clause 2 supports the new offence of locking on created by clause 1, and specifically it creates a new criminal offence of going equipped to lock on and cause, or risk causing, serious disruption. During fast-moving protest situations, the police need the power to proactively prevent individuals from locking on to roads, buildings and objects, as we heard powerfully from the operational police commander during our evidence sessions. Therefore, along with the associated stop-and-search powers, which the Committee will scrutinise later, the new offence will allow the police to prevent lock ons before they occur, taking punitive action against those who attempt to lock on and deterring others from considering doing so.
Much has been made of criminalising people who happen to be carrying everyday items such as bike locks—the hon. Member for Croydon Central raised that—near a protest. To be clear, that will not be the case; the offence will be committed only when someone is carrying an object with the intention that it may be used by themselves or someone else in the course of, or in connection with, committing a lock-on offence as defined in clause 1. The police will need reasonable grounds for suspicion to arrest someone for that offence. There is a clear difference between a person pushing a bicycle past a protest and a person walking purposefully towards a gate with a lock in hand.
As the hon. Member for North East Fife knows from her policing experience, the offence of going equipped is well used by the police in England and Wales, and indeed in Scotland, in the prevention of burglary. I have had individuals arrested in my constituency who were going equipped to commit a burglary, and I am not aware of a plethora of plumbers, carpenters or builders with vans full of tools being arrested in my constituency on the basis of their going equipped, or having the capability to break into my home. The police are well able to adduce intention—and often that is tested in court—in charging someone with going equipped.
As we heard most powerfully from the operational police commander in our evidence session, the ability to stop and search, which we will consider later, and the ability to charge with going equipped would allow the police to operate in a situation where there would be less infringement on people’s right to protest, rather than more. He was strongly supportive.
Dr Huq
I remind the Minister that it is not just the Opposition who think that the locking on offence and the offence of preparing to lock on is a crazy idea. The last time the matter was subject to a vote in the Lords it was defeated massively, in a vote of 163 to 216. Has he got any new arguments for them, because the offence of being equipped to lock will never make it to a vote? Is there not a definition of insanity that is repeating the same action and expecting a different result? That saying is attributed to Einstein. I just wonder what new arguments the Minister will pull out of the bag for the Lords.
Kit Malthouse
As I understand it, one of the main arguments used in the House of Lords to vote against the measures in the Police, Crime, Sentencing and Courts Bill was that they did not feel that the matters had been properly scrutinised by the House of Commons. Those measures were introduced as amendments in the Lords, and therefore would not have gone through Committee here. So here we are, listening to their advice and subjecting the measures to democratic scrutiny by a forensic Committee of which she is a part, in the hope that the House can now the support them. We can then signal to the Lords that the intention of the democratic House is to strengthen the police’s ability to deal with this difficult and dangerous tactic.
Anyone found guilty of the offences will face a maximum penalty of an unlimited fine. I commend the clause to the Committee.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Ordered, That further consideration of the Bill be now adjourned.—(Scott Mann.)
Tuesday 14th June 2022
(1 year, 10 months ago)
Public Bill CommitteesPublic Order Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 14 June 2022 - (14 Jun 2022)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Sarah Jones
I am speaking to the amendments, which we have some sympathy with, on behalf of the hon. Member for North East Fife, who is not in her place at the moment. We are moving on from the lock-on offences we debated this morning to a new offence of obstruction of major transport works. Amendments 35 and 36 would remove some of the language that perhaps makes the scope of the clause too broad. We have already covered the principle behind the objections to the present clauses, which are similar to those on locking on and being equipped to lock on. These clauses are broad, and indeed potentially infinite, but as was said this morning, restrictions on people’s fundamental rights must be limited to what is absolutely necessary.
I repeat that no one is denying that people who commit criminal acts should be arrested and charged—in many cases, we know that that is why protesters do what they do—but there are already laws to deal with these behaviours. The Public Order Act 1986 contains offences of organising or taking part in a prohibited trespassory assembly. Where a chief of police reasonably believes there will be a trespassory assembly that may result in serious disruption to the life of the community, they can place a pre-emptive ban on it, and breaching that ban is a crime.
The key point we seek to make in thew amendment is that there must be a balance. The Government should not go too far down the road of criminalising protest; that is not what happens in our democracy, and that is why the hon. Member for North East Fife tabled amendments 35 and 36.
Amendment 35 would limit the offence of obstruction to blocking the core activities of major transport works, removing clause 3(1)(a)(iii), which appears to be a catch-all for any protest near or relating to major works. Would that provision also catch construction workers who are on strike at their own places of work or a protest at the entrance to the land where works are being done?
Amendment 36 would remove reference to interfering with or moving apparatus, because the provision in the clause is broad and goes too far. The disruption from apparatus being moved is not such that the Government should seek to introduce legislation to stop peaceful protest.
The Minister for Crime and Policing (Kit Malthouse)
Amendments 35 and 36 take issue with the scope of the offence of obstructing major transport works. I understand that the hon. Lady is concerned about the wide scope of the offence, but it is clear from the evidence that the Government need to protect vital transport construction sites across the country. I think the whole Committee was shocked to hear evidence from HS2 that the cost of protest to the scheme was £122 million and likely to rise to £200 million.
Amendments 35 and 36 attempt to limit the potential acts that fall within the offence by removing references to any acts that obstruct steps “in connection with”, or “reasonably necessary” to facilitate, construction or maintenance of a particular project. They would also remove references to acts that interfere with, move or remove any apparatus that relates to the construction or maintenance of major transport projects.
As I said, I understand that there are concerns about the wide scope of this offence, but a balance needs to be struck. Protest against transport sites comes in many different forms and is constantly evolving, as a small minority seeks new ways to inflict further disruption. It is entirely proportionate for this offence to capture behaviour that obstructs any stage of these projects. Furthermore, it is right that this offence should protect from interference key machinery, materials and other necessary apparatus, without which construction or maintenance of projects cannot occur.
It is worth remembering that we are talking about projects that have been decided through a democratic process. In many ways, individuals seeking to impede such projects are latter-day King Canutes. seeking to stop something that has been decided by the House of Commons or other democratic process and should therefore be allowed to take its course.
Mrs Natalie Elphicke (Dover) (Con)
Does the Minister agree that the health and safety measures that are so vital to protect everyone, as well as equipment, on construction project sites are simply not respected by those seeking to disrupt, and that that puts everyone at risk?
Kit Malthouse
My hon. Friend makes a powerful point, which we have seen throughout some of the protest tactics that we aim to deal by means of the Bill. They include a complete disregard for the safety not just of the protesters but of the workers on the sites affected and indeed the police, who have to go and remove the individuals.
Sarah Jones
What is the Minister’s view on the Prime Minister’s intention to lie in front of bulldozers at the start of the construction of the third runway at Heathrow?
Kit Malthouse
The Prime Minister was then Mayor of London and made his views known in a light-hearted way to indicate his opposition. If he had lain down in front of the bulldozers on a project democratically decided by the House, he would have committed an offence. Having said that, it is fair to say that the leaders of all major parties at the time went and planted trees at Sipson in the hope that a forest would flourish there. We will see whether those trees last. In any event, for the reasons I have outlined, I urge the hon. Lady to withdraw the amendment, with which the Government cannot agree.
Sarah Jones
Given that the amendment is not mine and I have only supported it in principle, I will not press it to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Jones
I beg to move amendment 37, in clause 3, page 3, line 3, after “fine” insert
“not exceeding level 2 on the standard scale”.
A person convicted of an offence of obstructing major transport works may be subjected to a fine. Under this clause there is currently no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.
I think that if the hon. Member for North East Fife were here, she would say that this amendment makes the same point that she has made in previous amendments and that she has nothing to add.
Kit Malthouse
We oppose this amendment for the same reason I have given in consideration of previous amendments in a similar vein. Lowering the maximum fine for the offence to £500 is simply not proportionate. The penalties available under the Bill must be proportionate, otherwise they will not be a sufficient deterrent. I urge the hon. Lady to withdraw the amendment.
Sarah Jones
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Alex Cunningham
With that third reprimand, Chair, I shall wind up my remarks.
Kit Malthouse
I think we can take from that that the hon. Gentleman is voting against the clause. As the hon. Member for Croydon Central says, the clause creates a new offence of obstructing major transport works. We heard in strong evidence from the police, High Speed 2 and others why the offence is needed, and why the offence should ensure that all stages of construction and maintenance are protected from disruptive action, including necessary steps prior to construction, such as ecological surveys, and why the offence should also cover the removal of, or interference with, apparatus needed for construction.
I reassure the hon. Lady that “apparatus” is a usual term in legal circles; any strict definition in the Bill might result in the Bill not being future-proof, or in its being too definitive in a way that protesters could find a way around. I am sure that it will not be beyond the wit of courts to interpret what “apparatus” means. When they do, anyone found guilty of the offence will face a maximum penalty of six months’ imprisonment, an unlimited fine or both.
As with other offences in the Bill, we have provided a reasonable excuse defence. In reference to something the hon. Lady said earlier, there is a defence for trade disputes, so those on strike will have a defence against this kind of offence. As she pointed out, “major transport works” are defined as works that have either been authorised by an Act of Parliament, such as HS2, or by a development consent order under section 114 of the Planning Act 2008, such as the Silvertown tunnel. The definition ensures that transport works of strategic importance in England and Wales are protected.
The hon. Lady raised the issue of human rights. That is a common issue that courts have to address when looking at offences committed by all sorts of people in all sorts of circumstances, and it is something we are used to. I confess that I am confused by the hon. Lady’s position. She is encouraging and supportive of national injunctions, which carry unlimited fines and prison terms that depend on the views of the judge at the time. They also provide less protection for the accused, as judges generally require a lower burden of proof in deciding whether the case is proven. Of course, we heard strong evidence last week that injunctions are cumbersome, long-winded, expensive for people to put in place and unpredictable in their efficacy.
Sarah Jones
We will talk properly about injunctions under the new clauses, because we have a new clause on that. To clarify, we are not calling for big thing called a national injunction; we are calling for a national approach to dealing with all the complications that arise when there is a large infrastructure issue, and when we might need local authorities and the private sector, working with Government, to do what is needed as quickly as possible. We did not suggest a national injunction that is one chunk of a thing.
Kit Malthouse
Maybe I misheard the Leader of the Opposition on the television when he called for exactly that: a national injunction. The hon. Lady has neatly pointed out the complexity—for example, in HS2, there are different landowners, geographies, areas and phases of development—of obtaining an injunction that covers the whole of the works. The point still stands that, as far as I can see, she is content for people to be punished and to go to prison under an injunction, but strangely not under a criminal charge. I do not understand that asymmetry. As far as I can see, a criminal court has greater protections for our fellow citizens who are accused of such crimes—not least a higher burden of proof—than the civil courts, where injunctions are heard.
Sarah Jones
The Minister made that point to several of the people who gave evidence to us, but they did not accept it. Our point is that the Bill automatically criminalises things that are not criminal offences. An injunction is time-limited, specific, and pertains to an area where serious disruption is being caused; that is not the same as a lock-on offence, which might just be some women locking arms and therefore automatically committing a criminal offence. Those are very different things.
Kit Malthouse
Part of the hon. Lady’s repeated case is that there are already plenty of criminal offences with which we could charge all these people. There is no one yet who she thinks should not have been charged with an offence. Some of them, I am afraid, seem to get off on technicalities and through loopholes; I outlined a couple of examples. High Speed 2 in particular expressed frustration at the police’s inability to get some charges to stick. We are trying to satisfy the hon. Lady’s requirement for more specificity in charging decisions, as well as creating a sentencing regime that we hope will act as a deterrent. It is unacceptable that a handful of individuals repeatedly delay and add costs to important works that have been through the democratic process. They are vital to the levelling-up agenda, and the measures in the clause will support them.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Interference with use or operation of key national infrastructure
Sarah Jones
I beg to move amendment 49, in clause 4, page 4, line 30, leave out “interferes with” and insert “prevents”.
Kit Malthouse
I have a speech. The amendments are concerned with the scope of the new offence of interfering with the use of key national infrastructure. Amendments 49 and 50 replace the words “interferes with” with “prevents”. We assume that the intention is to raise the threshold of this offence to actions that completely stop a piece of key national infrastructure from being used for its intended purposes, although in fact subsection (4) already defines “interferes with” as preventing use or operation. Amendment 51 supports the change by removing that definition.
I understand what I presume are the hon. Lady’s concerns about the scope of the offence, but I do not see a need for the amendments. Subsection (4) already defines interference with key infrastructure as an act that
“prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Removing that subsection and replacing “interferes with” with “prevents” would leave the threshold of the offence undefined, leading to ambiguity over what sort of acts it would apply to.
Furthermore, I reiterate that it is vital that this offence applies to a range of disruptive actions against infra-structure, rather than ones that halt operations completely. As we have seen during protests by groups such as Insulate Britain and Just Stop Oil, even acts that delay the use of infrastructure—for example, acts that stop roads being used by the public—can cause severe disruption. Ambulances cannot get through, key deliveries are delayed, contracts cannot be fulfilled—the list goes on.
Fundamentally, the Government consider acts by a small number of determined, disruptive protesters who significantly delay the use of key infrastructure to be just as damaging as those that prevent its use entirely. I therefore encourage the hon. Member for Croydon Central to withdraw the amendment.
Sarah Jones
I think I might have handed my speaking notes to Hansard in my previous handover of information. We have tabled three simple amendments to clause 4, which is on interference with use or operation of key national infrastructure. It is similar in some ways to the previous clause, which looked at major transport works.
A person commits an offence if
“they do an act which interferes with the use or operation of any key national infrastructure in England and Wales”
and
“they intend that act to interfere with the use or operation of such infrastructure or are reckless as to whether it will do so.”
In amendments 49 and 50, we seek to replace “interferes with” with “prevents”. We believe that it is a stronger word and has the clarity that the law requires. The term “interferes with” is broad and difficult to interpret; “prevents” is much stronger.
In amendment 51, we seek to remove a passage that says:
“For the purposes of subsection (1)”,
which is the offence itself,
“a person’s act interferes with the use or operation of key national infrastructure if it prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Sarah Jones
I beg to move amendment 52, in clause 4, page 5, line 18, after “newspaper printing infrastructure.” insert—
“(j) emergency services.”
The amendment adds emergency services to the list of key national infrastructure in clause 4(6), on page 5. This is really a probing amendment. As we have already discussed, we have issues with the entire clause. However, there is something interesting in how one defines national infrastructure.
Labour is the traditional party of work and workers, and over the last several years, we have spent much time clapping, thanking and cheering key workers in the emergency services, particularly through the covid pandemic. As shadow Minister for police and the fire service, I spend much time in and around the blue-light services, as I am sure the Minister does in his role. We see at first hand the incredibly important work that they do, night or day, come rain or shine. I therefore find it strange that the Government have not added emergency services to the list of key infrastructure. I actually think that the fire service, the ambulance service and police forces are just as important, in terms of infrastructure, to the continued smooth running of our country as all the other things on the list. They keep people safe and secure and save lives in a multitude of ways.
Let me explain our amendment a little further. We do not think that protests should be able to stop the emergency services from doing their jobs. An ambulance should not be stopped when rushing a patient to hospital. A fire engine should not be halted when people are trapped in burning buildings, and the police must be able to reach the scene of a crime as quickly as possible. We know that time is often of the essence in those things. However, I should also make it clear that we do believe that there is scope for protest, in some instances, around such sites, for instance with protests against the closure of a GP surgery, a police station—the Minister may well remember several of those from his time at City Hall—or an accident and emergency facility.
In April of this year, for instance, protesters staged a protest in Shropshire, in a little town called St Martin’s, at the closure of a GP surgery. The surgery in St Martin’s, Shropshire, has been closed since March 2020 and made an application to the health board to close permanently. Hundreds of people have signed a petition calling for the practice to remain in the village. In recent years, there have also been protests in Lincolnshire at the closure of A&E services in Grantham.
Those are very legitimate protests; they are examples of local people taking a stand at closures that will really affect their local area and the health of their families and neighbours. The key point is that they were done in proportionate ways. It is important that we make that distinction; they did not and do not stop the emergency services. Our amendment to this clause provides protection for emergency services but does allow for legitimate protests around sites that may come under the aegis of the emergency services, such as a police station or an A&E site.
I think that we can all agree that the emergency services do an exceptionally important job, and the Minister might therefore like to comment on their inclusion on this list of key national infrastructure. Would he not agree that blocking a police car as it races towards a crime, such as domestic violence, ought to be considered interfering with key national infrastructure?
I hope that I have given Members on both sides some food for thought about what should come under the definition in the clause. Emergency services are an essential service, and if an oil refinery is going to have such offences applied to it, the logic stands that emergency services infrastructure should too.
Kit Malthouse
I must say that I have some sympathy with what the hon. Lady is trying to achieve. However, her Government, she will be please to know, got there before us by creating the Emergency Workers (Obstruction) Act 2006, which has already created an offence of intentionally obstructing an emergency worker from exercising their functions, punishable on summary conviction by an unlimited fine.
Sarah Jones
There are lots of other bits of legislation that can stop protests and stop people from interfering in all kinds of different ways. The key point that we were trying to make is that if we define national infrastructure, it is peculiar not to include emergency services in that definition.
Kit Malthouse
I understand the hon. Lady’s point, although it was only a breath ago that she was telling me that the clause was broad, and, now, she is attempting to broaden it. As I said, we already have significant legislation that will assist us. We should not forget that some of the offences that we have already considered will assist. The police use the roads and therefore our ability to deal with people glued on to the roads will be critical. The police need fuel and ambulances need fuel, so locking on to fuel depots will similarly be covered.
Sarah Jones
I absolutely agree; the struggle within policing to have enough people to do the day job is already bad enough. I have been to Berwick, and very often in the summer months, when there are vast numbers of holidaymakers at the caravan parks, the police will only have one or two officers on. If there is a fight and they choose to arrest somebody, they then have to take that person into custody, which means there is no one left, so they have to make very difficult decisions. In the case of a protest, the police can have a negotiation and allow people to make their point, which is what protesters want to do and what we all want to facilitate. Then, the police can get to the stage where they say, “You are now causing serious disruption, so now we need to begin to use some of our powers.” That is a much preferable way of policing.
The police did not ask for most of these powers, and there has not been a proper consultation process with them on this piece of legislation. The big piece of work that was done by Matt Parr took place before the then Police, Crime, Sentencing and Courts Bill and, as we heard in evidence, some aspects of this Bill were considered by him, but some were not, including the infrastructure and transport sections. There has been no proper consultation with the police on these clauses.
The police should not have to make decisions about definitions of vague terms in legislation. They will look like political decisions and put even more pressure on the police. During progress of the Police, Crime, Sentencing and Courts Bill, many Members from different sides of the Chamber made that point in the House.
The National Police Chiefs’ Council wrote:
“It is essential that any powers or legislation are straightforward and capable of use by officers and staff at all levels. Experience has shown that unless legislation is clear and simple for use in complex and fast-moving public order situations that it can fail to have the positive impact intended and sometimes create an expectation that cannot be met or lead to unintended issues.”
I also note the points in the NPCC’s excellent evidence about police responsibilities on private land. It wrote:
“We want to ensure that any new legislation does not inadvertently transfer or encourage reliance on policing for security or reduce the ability or necessity of organisations to obtain injunctions. This would not only be a fundamental change in the role of policing but would create a significant capacity issue that would detract from force’s wider duties to prevent and detect crime.”
The NPCC argues that,
“police powers that are practical for use on the front line…Police responsibilities on private land—The funding and resourcing of Home Office police forces is applied primarily to ensure effective policing of public spaces.”
There is an interesting section on this issue that I will not read out, but I am sure the Minister has seen it and will be thinking it through.
The NPCC goes on to say,
“we believe that the question of the responsibility for policing of private land is key. There is a question about the definition of ‘key national infrastructure’, and we would have concern about an explicit duty being placed on policing to deal with activity on private land.
We would be concerned about the impact to our operational response were the responsibility, risks, and costs for securing these sites to be moved from private sector organisations to the police. The impact on police resources, especially for the forces where much of this key infrastructure resides, could be substantial. We believe there is potential for other agencies and organisations to have the powers which would go some way to prevent this.
We believe that there needs to be a strong rationale behind what is considered key national infrastructure, taking into consideration the potential impact of any disruption taking place, so that there is no risk to confidence in policing in being seen to protect private business interests or placing an unreasonable burden on policing that will detract from our core mission.”
We argue that it is not fair to keep piling on new offences. In his evidence, Sir Peter Fahy talked very well about expecting the police to make sense of the new offences, then interpret them and then do all the work.
The Government could do more to work with the police, those who run public and private infrastructure and local authorities to support the right to peaceful protest, to work together to safeguard essential infrastructure, to review the measures that they have just introduced before coming back for more, to work on training, guidance and the resources that public order teams need, and to work on streamlined plans for injunctions that could protect the smooth running of essential infrastructure, if needed.
I again make it clear that we do not support those hardline protesters who keep returning to make people’s lives a misery. We do not believe that clause 4 will fix the problems that our evidence sessions highlighted. It will not speed up the removal of protesters who are causing serious disruption or be a deterrent for those who want to break the law. It risks creating more flashpoints for the police.
Our national infrastructure needs protecting. We hear the anger, irritation and upset when critical appointments are missed, when children cannot get to school and when laws are broken. Of course, the police must act but, unamended, the legislation is too broad to be workable.
Kit Malthouse
As the hon. Lady said, clause 4 introduces a new criminal offence of interfering with the operation of “key national infrastructure”. As we heard in our evidence, recent actions by protestors, including activity blocking or obstructing our printing presses, roads and fuel supply, have inflicted misery on the hard-working public.
As my right hon. Friend the Home Secretary said on Second Reading, the Government cannot stand idly by and let small groups of disruptive individuals prevent people from getting to their places of work by blocking trains and roads, or stop vital supplies of fuel reaching the public by preventing oil tankers from leaving terminals across the country. Such actions cause enormous damage and have a serious economic cost. For example, policing Insulate Britain’s sit-down protests on our major highways cost £4 million, while the policing cost alone of responding to Just Stop Oil’s campaign against terminals and fuel stations is over £6 million in total so far. It is clear that we have to act.
Individuals commit this offence if they intentionally or recklessly engage in an act that prevents the use or operation of key national infrastructure to any extent, including through acts that significantly delay the operation or use of such infrastructure. The range of infrastructure covered by this offence will ensure that our major transport networks, and our energy and fuel supplies, are protected. I will say more on this issue when the Committee scrutinises clause 5.
Sarah Jones
We have seen some new tactics, but the tactics are mainly old. I understand that Swampy, who we will remember from decades ago, is in a tunnel somewhere under HS2¸ so these things do come around again.
As for the Minister’s point about the police, it is important to note that there has not been a proper consultation on the clauses on infrastructure and transport. I have spoken to lots of police officers about the Bill, and there is not as much knowledge about it as there might be, because there has not been a proper consultation process, whereas there was with the previous piece of legislation. The police quite rightly do not take a political position, but there are plenty of people who have concerns about the breadth of this legislation, not necessarily because they do not want new powers—some of them are saying, “We need new powers”—but because they worry that interpretation of the Bill, which is so broad, will put them in a very difficult position.
Kit Malthouse
I am glad that the hon. Lady accepts that the police are asking for more powers; indeed they are.
Kit Malthouse
And they have specifically requested a number of the powers in the Bill. The person who, as I hope she will agree, was the most credible witness was the National Police Chiefs’ Council’s lead for public order and protest, who said positive things about the legislation.
The hon. Lady is perhaps struggling with the notion that while we can define offences and human behaviour in this place, there is an entire industry of lawyers out there who then go on to interpret what we say. There are common terms that might appear that have particular meaning in colloquial English that have developed meaning over time in the courts. “Serious disruption” is the one that the hon. Lady is speaking to, and I will give some thought as to whether we need to think more about that, but “serious disruption” to the life of the community has been an established part of public order policing and indeed general policing for some time—at least, I think, since 1986 and the Public Order Act of that year. That Act has been interpreted through the courts in a number of ways, which means that it is well understood by police, lawyers and indeed protesters.
Jackie Doyle-Price (Thurrock) (Con)
As the Minister will be aware, in my constituency, we have significant amounts of fuel infrastructure. Indeed, in the recent Just Stop Oil protests, more than half of the arrests made nationally were made in my constituency. The proposals in this legislation absolutely reflect the conversations that I have had with the local police and with local authorities. I pay tribute, through the Minister, to the great efforts of the local police and local authorities to ensure that the disruption caused did not spill out into the wider community, because the role of Thurrock in the dispersal of fuel across the country is significant, so things could have been much worse. These proposals will make it much easier for the police to act and will make them more fleet of foot.
Kit Malthouse
I am grateful to my hon. Friend; she makes a very strong point and she is quite right; that is my experience of talking to the police officers dealing with those protests. She points to the importance of particular locations in our fuel supply network. A number of key, large, strategic fuel depots take the bulk of the load, and even a small interference with their ability to get fuel out could have a significant ripple effect that would be felt by the public.
The hon. Member for Croydon Central seems to be under the impression, or possibly trying to create the impression, that the police will change their practice and thousands of protesters will be locked up. I am confused; she seems to imply that those who are disrupting High Speed 2, for example, deserve to be arrested. She said that the cost was “horrifying”—I think that is the word she used. She accepts that HS2 has been approved by a democratically elected Parliament, and was voted for unanimously across the House. It was supported by all parties, and those protesters are seeking to frustrate that democratic decision.
All we are talking about is what offence those individuals should be charged with. We are seeking to give the police more of the options that they have asked for, and more tools to use. That reflects the fact that a number of individuals have avoided charges on technicalities, because of the complexity of the operations and the landownerships involved.
Sarah Jones
At the risk of more repetition, the point is if there is a new offence of locking on, the police might see people linking arms at a protest and think, understandably, “That is an offence! I need to arrest them.” I did not make the point earlier, but there is also an issue around resources. I wanted to ensure that I mentioned to the Minister the issue around resources for protests. For example, the number of police horses has been cut significantly in recent years. They are a very useful tool in managing protests. I am sure that the Minister understands that, and has seen how successfully police horses can manage a crowd. In this cost of living crisis, the cost of horses has gone up by £2,000 or £3,000, so the police are finding it difficult to replace horses. That is slightly niche, but it is a very important part of our ability to protest. I ask the Minister to support our police horses as much as he can.
Kit Malthouse
I am always keen to support all forms of non-human participants in crime fighting, from dogs to horses. I am not sure what relevance that has to the legislation. The hon. Member is right that in certain crowd-control situations, police horses can prove enormously calming to a crowd, which is important. However, that is a crowd situation. Horses are often used in the control of football crowds, as she will know. In a protest situation, particularly a violent protest situation, they are often used more as a dispersal tool. That is where I have seen them used. We have to be careful about straying into police tactics, rather than the legislation, which is our responsibility.
The hon. Lady seems conflicted: she is happy for protesters to be arrested and charged under current offences, or for them to go to prison under an injunction that may have been obtained by HS2, News International or any other site owner, but she seems strangely reluctant to achieve the same effect through the criminal charge that we are putting in place through this legislation. I find that asymmetry difficult to explain.
I explained earlier how seriously the Government take the offence in clause 4, and the maximum penalties available reflect that. Individuals can face a maximum penalty of 12 months’ imprisonment, an unlimited fine, or both. It is completely unacceptable that small numbers of protestors can attack the vital infrastructure that keeps this country running. This Government stand on the side of the public, who want to go about their lives free from the disruption and misery that these protesters can cause.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Key national infrastructure
Question proposed, That the clause stand part of the Bill.
Sarah Jones
The clause defines the different types of key national infrastructure for the purposes of clause 4. I was critical of the breadth of clause 4 earlier. It defines “interference” incredibly broadly as any act that
“prevents the infrastructure from being used or operated to any extent for any of its intended purposes.”
Given that low threshold, we should be wary of the risk to the protections afforded to protest under articles 10 and 11 of the Human Rights Act 1998.
As we heard from legal experts in the evidence sessions last week, the courts have a tendency to look more kindly on disruptive protests when they are directed towards the perceived social, environmental, political or ethical ill identified by the protesters and take place at the site of that perceived ill. It is worth exploring that in a little more detail, as it is important to keep that in mind when looking at the raft of infrastructure that the Government have deemed worthy of the title “key national”.
Let us start with the Greenham Common protests, which were motivated by a desire for nuclear disarmament and carried out in opposition to the Government’s placing of missiles on its Berkshire base, RAF Greenham Common. Crucially, the protests were carried out on that site. Hands were held, arms interlocked and songs sung around the base. There were shows of solidarity, kindness and compassion at Greenham Common, as well as criminal behaviour, which was dealt with. Whatever our views, those protests hold a special place in our national history and consciousness.
Kit Malthouse
Greenham is on the edge of my constituency, as I am sure the hon. Lady knows. I hope that she will accept that defence installations are not defined as key national infrastructure in this legislation.
Sarah Jones
Why not, when nuclear energy is? My point is broader: it is not about the definition but the way that courts define whether a protest is significant. The kind of punishment they give often depends on whether the protest is near the thing being protested about. I will explain what I mean. If we look at more recent protests, such as the Insulate Britain protests on motorways, there is no clear relation between the issue being protested about and the site of the protest. In other words, there is no direct link between insulation and the M25. The M25 has nothing to do with poorly insulated homes. It is not the Government Department responsible for insulating homes. I can see why Insulate Britain might choose to protest outside a Government Department.
I am sure that Insulate Britain would argue that there is a link between the M25 and insulation, but when the courts passed their judgment on Insulate Britain, they came down much more harshly because there was no connection between the place and the people whom the protesters were interfering with and the issue that they were arguing about. Members of Insulate Britain have gone to prison for the M25 protests because the courts take such a dim view of that lack of connection.
The point about clause 5 is that often these key national infrastructure sites are key to the point of the protest. As Liberty notes,
“one of the key ways that people seek to make their protests effective is to draw attention to sites of power”.
The manner and location of protests are key to their power. Had the suffragettes not protested in Downing Street or Parliament, but outside a building a few hundred metres away, their protest would not have had the same impact. Had the Greenham Common women not been allowed to protest around the site of the missiles, and had they instead protested in Basingstoke, they would not have had the same impact.
Kit Malthouse
I understand the parallel that the hon. Lady is trying to draw with the Greenham Common women. I do not think that they were necessarily responsible for winning the cold war, although I do believe a woman—the then leader of our country—was. Does the hon. Lady understand that although the Greenham Common protest has passed into lore, it did not actually interfere with the operation of the base? Missiles came and went, the Americans flew in and out, and the base was supplied; there was no interference. Strictly in terms of the offence that we are talking about, the protesters did not commit an offence.
Sarah Jones
I think there was interference, in that they broke through the perimeter on several occasions.
Sarah Jones
Subsection (2) concerns road transport infrastructure. As I have mentioned, we already have laws to protect roads. Wilful obstruction of a highway comes with a fine, and the Government’s recent Police, Crime, Sentencing and Courts Act 2022 increased the maximum penalty for that offence from £1,000 to an unlimited fine and/or six months’ imprisonment. Earlier, the Minister made a remark about the Labour party’s position. To clarify, we tried to limit the scope of that piece of legislation so that it applied only to motorways and A roads, and not to very small roads, and we would have supported the provisions had the Government accepted our amendment. Given the changes made by the 2022 Act, we do not understand why clause 5 on transport infrastructure is necessary. As the Labour party has said all along, there are already laws to protect roads.
I turn to rail. Let us imagine that there is a Starbucks on a train station platform, and a group of children have chosen that platform on which to protest about the lack of corporation tax that Starbucks pays in the UK. It could be platform 4 in Taunton, which I imagine would be delightful today. It could be at London Marylebone—perhaps after the protest—or at platform 1 at Coventry; there are Starbucks franchises on all those platforms. Such protests would be legitimate, I believe. This speaks to the importance of the place and manner of protests.
It is busy at Taunton, and the protestors delay the driver in getting to his train by half an hour. Does that count as infrastructure being significantly delayed? They do not mean to block the driver; that was not their intention. Under the Bill, would the Minister consider those children, or the adult who is with them, to have committed a criminal offence? Such broad-brush legislation opens up all kinds of possibilities.
Kit Malthouse
I am sure that the hon. Lady will accept that protesting on a crowded railway platform, particularly if fast trains pass through it—she mentioned Tiverton Parkway—is quite dangerous, for other passengers and for the protesters. Does she not agree that there should be some way for us to control that kind of behaviour? Byelaws on the railway need to be obeyed.
Sarah Jones
There are byelaws, and there are others laws that could be used in that situation. My point is that two children protesting outside Starbucks might be considered to have committed an offence under clause 5.
On airports, we know from evidence that all the people who cut through the fencing surrounding Stansted airport and made their way to the Boeing jet were arrested. The police had the powers to deal with them and did. Once again, the right to protest is not absolute, but the Bill will prevent potentially peaceful protests.
There was an interesting debate about newspapers in one of the evidence sessions. The hon. Member for North West Leicestershire challenged David Dinsmore on whether his newspapers counted as national infra-structure. David Dinsmore argued that they did because of the importance of providing facts to a wide audience, especially during the pandemic. When challenged about the importance of social media—I get much of my news online, as I am sure many people do—David Dinsmore pointed to the elderly section of the population, who are less likely to get their news online or via Twitter. Their daily newspapers—whether tabloid or broadsheet, printed on pink or white paper, and ranging from the Daily Mail to The Guardian—are still important. That might well be the case, but let me quote from the clause:
“‘Newspaper printing infrastructure’ means infrastructure the primary purpose of which is the printing of one or more national or local newspapers.”
The definition of a “local newspaper”, however, is relatively broad: it must be
“published at least fortnightly and…in circulation in a part of England and Wales”.
A newspaper may include “a periodical or magazine”.
Let us explore that a little more. My purpose, again, is to test the limit cases of legislation. It is important to tease out the consequences and show up the broader inferences. To take the newspaper with the widest circulation in the country, just under 1 million people read the Daily Mail, and it is sold across the country. It is a national newspaper—of that there is no doubt. David Dinsmore said:
“Between The Sun and The Times, we would normally expect to sell about 2 million papers”
on a Saturday. He went on:
“We also print for The Daily Telegraph. We print some of the Daily Mail and some of the Financial Times, and we also deliver a direct-to-consumer service, although we do not print them, for The Guardian out of the Broxbourne site”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 46, Q96.]
He makes a fair argument for that printing press providing a national service of sorts.
What other publications are included, however? There are all manner of small newspapers, including the Leicester Mercury, the Bristol Post, the Oldham Advertiser and The Rochdale Observer. Does the Minister think that those fall under the definition of “key national infrastructure”?
What about slightly more esoteric publications? I have a staffer who reads the London Review of Books, which is published every two weeks; its printing is therefore protected under the clause. I do not believe that even my staffer would argue that its printing was of key national importance, however much they enjoy it. Does the printing of the Angling Times—circulation 25,878—come under the legislation, or the Horse & Hound or Cycling Weekly? The Minister is keen on shooting. Is he among the 21,303 subscribers to the Shooting Times, and would he defend its printing as being of key national importance? I produce those examples only to highlight what we see as the flaws in the clause.
The clause is an extension of clause 4, in that it provides the definitions of key infrastructure. As I said, we have issues with clause 4, and have already debated it. We believe that infrastructure needs protecting, and we hear the anger, irritation and upset when critical appointments are missed and delays felt, but we have problems with the scope of the clause, especially given that, as we have debated, it does not include other definitions, such as one for emergency workers. Much of the infrastructure listed in the clause is already protected in law under existing police powers, and there are loopholes and inconsistencies.
Kit Malthouse
The clause supports the new offence of interfering with the operation of key national infrastructure created by clause 4 by defining the categories of infrastructure in scope of the offence.
The offence will cover major roads, railways, airports, harbours, and downstream oil and gas infrastructure in England and Wales. It will also cover newspaper printing presses, onshore oil and gas exploration and production, and larger-scale onshore electricity infrastructure. Minor infrastructure such as undesignated roads and small-scale power stations will be out of scope, as will offshore infrastructure, because much of it lies outside our territorial waters.
We recognise, however, that protest tactics evolve, and that it is entirely possible that infrastructure currently out of scope will be targeted. We have therefore included a delegated power to allow the Home Secretary to amend the list of infrastructure in scope of the offence. That will ensure that the clause keeps pace with evolving protest tactics.
I do not know about you, Mr Dowd, but I am extremely pleased to know that, once the clause passes into law, the production and distribution of the Andover Advertiser in my constituency will be protected, because it is a weekly local newspaper. The hon. Member for Croydon Central is right that local newspapers have a valuable role to play. As she knows, that industry has evolved, such that lots of newspapers are printed in the same place—rare now is the newspaper that has its own presses—and protection of the promulgation of the views in printed matter is critical.
The Ottomans banned the printing press, because they felt that it would impact on their ability to rule their empire. Those who seek to smash the presses, or to delay them, or stop the views coming out of them, should be dealt with most severely. That is what we are attempting to ensure through clause 4, as added to by clause 5, which I commend to the Committee.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Thursday 16th June 2022
(1 year, 10 months ago)
Public Bill CommitteesPublic Order Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 16 June 2022 - (16 Jun 2022)
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Chair
Order. Before we begin I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during the sittings of this Committee, except for the water provided. Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes@parliament.uk or, alternatively, pass on their written speaking notes to the Hansard colleague in the room.
Clause 6
Powers to stop and search on suspicion
The Minister for Crime and Policing (Kit Malthouse)
I beg to move amendment 25, clause 6, page 8, line 23, at end insert—
“(ha) an offence under section (Offence of causing serious disruption by tunnelling) of that Act (offence of causing serious disruption by tunnelling);
(hb) an offence under section (Offence of causing serious disruption by being present in a tunnel) of that Act (offence of causing serious disruption by being present in a tunnel)”.
This amendment applies the stop and search powers in section 1 of the Police and Criminal Evidence Act 1984 to an offence relating to tunnelling under the new clause inserted by NC5 or NC6
The Chair
With this it will be convenient to discuss the following:
Government amendment 26.
Government new clause 5— Offence of causing serious disruption by tunnelling.
Government new clause 6— Offence of causing serious disruption by being present in a tunnel.
Kit Malthouse
It is a great pleasure to serve under your wise guidance, Mr Mundell, for our contemplation of this legislation today. The amendments make it clear that the protest tactic of building tunnels in order to disrupt legitimate activity while endangering the protesters themselves and the police and emergency services who respond will not be tolerated. The Committee heard last week how HS2 had been targeted on multiple occasions by people building tunnels that have caused enormous cost to the project, with three removal operations alone costing in excess of £10 million.
Even more recently, we have seen protesters from Just Stop Oil engaging in this dangerous and reckless activity at sites in Essex and Warwickshire. Aside from the costs, however, it is the risk of a fatality at one of the sites that concerns us most. Whatever hon. Members think about the merits of a particular cause and the right to protest, we can all agree that such an utterly reckless practice must not be allowed to continue.
Although the individuals may be willing to put themselves at risk, it is not acceptable that they endanger those who are called upon to remove them and repair the damage inflicted. The tunnels are often structurally unsound and poorly ventilated. In addition, the protesters resist removal, increasing the risks for those we ask to enforce the law. While removing protesters from the Euston Square tunnel, for example, HS2 reported that a protester removed part of the shoring, causing a tunnel to collapse on a contractor.
New clause 5 therefore creates a new offence of creating a tunnel, which will be committed when an individual causes serious disruption by creating a tunnel. Their action must cause, or be capable of causing, serious disruption to an organisation or two or more individuals—as we have seen in earlier clauses in the Bill—and the person must intend the tunnel to have a consequence or be reckless as to the consequence. To deter a committed cohort of protest tunnellers, the clause enables a maximum sentence of three years’ imprisonment and/or a fine. The clause also includes a reasonable excuse exemption, as have previous clauses.
New clause 6 is designed to cover those who occupy a tunnel as well as those who constructed it in the first place. They will be liable to a similar penalty of up to three years’ imprisonment and/or a fine. The threshold of serious disruption for this offence will be the same as in new clause 5. For both clauses, the tunnel has been defined as any excavation, whether it leads to a destination or is enough to permit the passage of an individual. We have also included in scope any extension or enlargement of existing natural or artificial excavations. The breadth of the definition will ensure that all stages of this dangerous tactic will be captured.
Government amendments 25 and 26 extend the Bill’s suspicion-based and suspicion-less stop and search powers to include equipment that may be used for creating or being present in a tunnel. It is clear that the police need powers to tackle tunnels proactively before they occur. Those two amendments, alongside new clause 7, which we will debate later, will allow the police to take the necessary preventive action against those they believe may be intending to tunnel, protecting the public from serious disruption.
Finally, the level of sentences for these new offences reflects the level of harm that tunnelling can cause. Not only do they cause significant disruption and cost millions of pounds to clean up, as we heard, but they place protesters and, critically, emergency workers at extraordinary risk of serious injury or death. We therefore think it is completely proportionate that the maximum sentences for these offences are as high as I have set out, for the reasons that I have set out.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to serve under your chairmanship again today, Mr Mundell.
We move on this morning to powers on stop and search. In this group, the Government are making changes, including to clause 6, through two amendments and two new clauses that deal with tunnelling, which follows the evidence we heard from HS2 about problems that were seen at its sites. It is interesting to note in the news today that an absolutely stunning Anglo-Saxon burial site has just been discovered on the HS2 route—140 people were buried with an amazing array of items. That is tangential, but interesting.
Sarah Jones
No, we cannot, as the Minister says. Government amendments 25 and 26 apply the stop-and-search powers of clauses 6 and 7 to the new offences related to tunnelling that are included in Government new clauses 5 and 6. These amendments will make it a criminal offence to cause serious disruption by creating and occupying tunnels; going equipped to create tunnels will also be criminalised. The changes include the proposed new maximum sentence, as the Minister said, of three years’ imprisonment and an unlimited fine.
I think we can all agree again today that the digging of these tunnels is incredibly disruptive and dangerous, and obviously hugely costly. As the Government’s note says, they are filled with lethal levels of carbon monoxide and carbon dioxide and the tunnels can become death traps, not just for those inside them and members of the public but for those who are required to undertake rescue operations.
HS2’s written evidence gives a clear picture of the danger and disruption, including:
“delay costs, policing, local authority costs, or the additional security costs to maintain a safe and secure compound once protestors have been removed. For a typical tunnel removal operation, HS2 Ltd employs specialists in soil composition, mine rescue, drone operation, health and safety, and paramedics. Protestors are either unaware of the danger of the situation they put themselves in, or have absolute faith in HS2 Ltd’s ability to extract them safely. The risk of a fatality occurring during a tunnelling protest is significant.
Protestors rely on HS2 Ltd’s contractors to monitor air quality, supply air and to remove human waste from the tunnels…During the Euston eviction operation, a protestor removed shoring that caused a tunnel to collapse on a rescue contractor. Whilst the latter incident caused only minor injury, the ongoing threat to the lives of HS2’s staff and protestors is clearly in evidence.
Air quality is often poor inside make-shift tunnels and sometimes…deadly. Deadly levels of carbon monoxide and dioxide were found in tunnels at Small Dean, for example, and the removal team had to provide an air supply to avoid the occupants being overcome and experiencing breathing difficulties. The provision of a constant air supply is not always possible as some ground conditions mean that there is a risk of further instability and risk of collapse being created if the soil is dried out by the provision of air. Tunnels can be extremely deep and are often inadequately shored creating a very real risk of collapse”.
Nobody has the right to put other people’s lives in danger with this kind of dangerous act. As we heard, the removal operation following tunnelling by protesters at Small Dean in Buckinghamshire in 2021 added more than £4 million to the cost of HS2.
The act of digging a tunnel by a group such as Just Stop Oil or those at HS2 in Euston is already a criminal act—we have had this conversation already. Like most of the offences introduced in this Bill, tunnelling is already covered by existing offences. Aggravated trespass with a prison sentence of three months and criminal damage with a prison sentence of up to 10 years could both apply here.
Kit Malthouse
The hon. Lady has raised the issue of the aggravated trespass offence on a number of occasions as a charge that can be used, so I asked my team to look at why aggravated trespass is not necessarily ideal. What we have found is that in a number of situations, not least with HS2, defendants against aggravated trespass in court claim that they are disrupting unlawful activity. That shifts the burden of proof on to, in this case, HS2 to prove that what it was doing was lawful. For example, at the Euston Square Gardens tunnel aggravated trespass was used, and HS2 was required to present to the court what work was being carried out on the land at the time the protesters were in the tunnel and show it was lawful. The case was dismissed by the judge on the grounds that no construction was being carried out on the land at the time. This failed to recognise that HS2 could not start substantive work on the land because protesters were in the tunnel. This specific offence will cover that.
I am sure the hon. Lady also recognises that a tunnel may cross between different ownerships of land and between public and private land. That legal complexity causes a problem. While I understand that she is cleaving to aggravated trespass in many of her oppositions to these clauses, actually, this issue of the protesters being able to reverse the burden of proof is hugely problematic. That is what we are seeking to address.
Sarah Jones
I thank the Minister for that substantial intervention. I would answer with the words of the police themselves on that very point. The National Police Chiefs’ Council lead in this area said of the Government’s plans to make it an offence to cause serious disruption by tunnelling—or be present in a tunnel or equipped for tunnelling—that:
“Whilst forces have experienced tunnelling in recent operations, we do not believe that a specific offence around tunnelling will add anything above and beyond our current available powers.”
I think that is really significant. The police have not asked for this offence, and they do not believe it is necessary at all. They believe the existing powers they have are enough to deal with these protests. This is a point we keep coming back to. We have talked through this. I will not read it out again, but I was looking for my list of all the other offences people can be charged with in different circumstances. The police have a raft of powers and say themselves that in this case they do not need these powers. They have broad catch-all ones such as breach of the peace and very specific ones with options for long custodial sentences to deal with and manage protests that are disruptive. Two key issues come up time and again with these new offences. They are either going to be difficult for the police to put in practice or they will make no different to the time it takes to deal with the disruption.
Kit Malthouse
Sorry, I should have been clear in what I said earlier. I heard the evidence by the National Police Chiefs’ Council lead. The problem is not necessarily the police’s ability to remove and charge those individuals. The problems, as I outlined in the example I used, come in the courts. The current suite of offences that are being incurred gives wriggle room for protesters to make this claim and reverse the burden of proof. I am sure the hon. Lady will agree that what happened at Euston Square was very dangerous, and I hope she agrees that an offence was committed, but at Euston Square they were able to avoid punishment for what they did by using this technicality.
Sarah Jones
I agree with the hon. Gentleman’s frustration, but I listen to the police when we look at what they need. They are saying that this will not help them. I would listen to them, and I would look at the existing powers. I want to read some more of the written evidence from the National Police Chiefs’ Council lead on public order and public safety, who states:
“A specific offence would likely not change how these are operationally handled as whatever the offence the practical safety considerations of dealing with people in tunnels would remain. There is current legislation, such as that contained in the Criminal Damage Act 1971, that creates offences of damaging property and having articles to damage property. With the associated powers of search these allow the Police to find articles or equipment intended to cause damage. An additional significant concern is that any specific offence relating to tunnelling would apply to private land. This again could place a significant responsibility on policing. We ask that if considered that this offence is restricted to public places.”
That was the NPCC highlighting a few concerns it has with the plans.
Clause 6 and new clause 5 seem to apply to tunnelling everywhere except
“to the extent that it is in or under a dwelling”,
so any offence to do with tunnelling applies to private land, even if it is under a dwelling—essentially, a place where people live. Take the example of protests taking place against a particular farmer for growing a crop in a private field that protesters oppose or for another matter. If the protesters tunnel under the private field, which could cause disruption and is annoying for the farmer, but it does not destroy the crops, what should happen? There are some complications in terms of the police concerns, which we need to bring to light here.
Chris Noble said in his oral evidence:
“this probably goes to the core of one of the key issues that police are keen to discuss within the Committee—the vast majority of that work is done by the landowners and private companies that are skilled and experienced within this work. While I have some dedicated resources allocated to that at present, if that responsibility was to significantly shift to policing, it would cost me… in the region of £80,000 a day to resource that. It would need significant officer resources, which clearly would need to come from elsewhere”.
That is crucial.
He said:
“The key… is not so much even, necessarily, an offence around tunnelling, because we may well have powers that, broadly speaking, exist to deal with it—we are keen to develop that conversation. The challenge is in preventing it in the first place, and then in how we can work with industry and landowners”
so we can
“potentially remove individuals more quickly.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 12, Q14.]
The challenge is how to prevent tunnelling. The new powers replicate powers the police already have, and we agree with the NPCC on a lot of their concerns.
The NPCC also raised concerns about the responsibility that the new offences will place on police. The Bill has drawn out a bit of conflict between the police and private companies, which is interesting. John Groves from HS2 said:
“Certainly, there is frustration from my team on the ground that the police are not more direct with some of the protesters”.––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 23, Q43.]
Then we have the police asking the Government to consider that this offence is restricted to public places. Surely the intention of Government legislation like this is to make the lives of the police and private companies building infrastructure easier. It is perhaps problematic when complications are raised on both sides. We need to be mindful of the position that this may put the police in, blurring the lines of public and private that we understand. Policing of protests is called public order policing for a reason: it is usually about protests happening on public land.
Kit Malthouse
I understand the argument that the hon. Lady is making, but I think we have accepted the principle that what these people are doing is not protesting. They are effectively committing a crime, and it is a well-established principle that regardless of whether a crime—for example, a burglary—is committed on public or private land, the police will apprehend, prosecute and investigate. Unless the hon. Lady is saying that tunnelling is a legitimate protest—notwithstanding the dangerous things that we have all talked about, and the cost—I do not understand her argument. Secondly, it is worth bearing in mind that regardless of whether the cost falls on HS2 or the police, it is falling on the taxpayer.
Sarah Jones
The point I was trying to make was to echo the concerns that the police have expressed about the expectation on them to go and do things on private land, the cost associated with that, and the need to deal with that issue. To reiterate, they have said that they think there are already suitable powers for them to stop people when they are committing a criminal act, which we agree tunnelling is. They have said they do not need this extra power. There is also criminal damage, which carries a sentence of up to 10 years in prison, so there are different forms of offences that we can look to.
With regard to the new powers, there is also the issue of training. According to the Police Foundation, over the seven years up to 2017-18, 33 forces reduced their budgeted spending on training in real terms by a greater percentage than their overall reduction in spending. Some 40% of police officers say they did not receive the necessary training to do their job, so I am concerned that many things in the Bill, particularly the new clauses, need to go along with properly resourced training to make sure that people understand and know what the new powers are. We have talked about the complexities of introducing new laws and expecting the police to understand them all many times before, not least with all the covid legislation.
Sarah Jones
I refer back to the fact that the police themselves do not share the hon. Lady’s view. In this case, what they are saying is perfectly sensible. I do not think anybody is saying that we want people to be tunnelling in dangerous situations and putting people’s lives at risk; nobody wants that. Everybody agrees that there should be criminal sanctions. That is not the point.
Moving to deterrents and whether this measure would act as one, companies like HS2 hope that it will. It said many times in evidence that it was not an expert on the legal side, but that it hoped the measures would be a deterrent. HS2’s written evidence refers to how it is pursuing the route-wide civil injunction. It reads:
“Whilst, if granted, it is hoped that the route-wide injunction will significantly reduce disruption to the project caused by trespass and obstruction of access, it is unlikely to eliminate the problem.”
HS2 also writes that civil injunctions
“serve as a relatively effective deterrent to unlawful (in the civil legal sense) activity by some groups of protestors”.
We will talk about injunctions later, but as HS2 says, it is a relatively effective deterrent—if not also expensive.
The Government will take ages to implement more offences. My hon. Friend the Member for Stockton North made a speech on Tuesday about the court backlog. If we are adding new and complex criminal offences, maybe we need to sort the court backlog and the record 708 days it takes on average from offence to completion of a case. That is an extraordinarily long period of time. The longest delay from offence to completion was in Bournemouth, which recorded waits of 23 months in 2021.
I will conclude my remarks at this point by reiterating that we think tunnelling is very dangerous and that it is a difficult issue. There are existing laws in place, and we do not think that these measures are the answer. Therefore, we are not entirely convinced by the Government’s arguments today.
Amendment 25 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Kit Malthouse
It is clear that police need the powers to proactively prevent criminal protest activity before it occurs. The hon. Lady has put great store by the evidence of the National Police Chiefs’ Council. She will recall it specifically saying that the ability to stop and search people in and around protests would be helpful, and in its report on the policing of protests, Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services argued that stop-and-search powers would improve the police’s ability to prevent serious disruption.
Clause 6 extends existing suspicion-led stop-and-search powers to a range of protest-related offences. 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 or the new offences of tunnelling and being present in a tunnel, which have been tabled as Government amendments to the Bill. Existing safeguards, including statutory codes of practice, body-worn video to increase accountability and extensive data collection will continue to apply to ensure that the police use stop and search in an effective and proportionate manner.
While I understand the concerns that have been shared about the expansion of stop and search widely in society, it is clear that these powers are required to allow the police to take the necessary action to prevent the small minority of determined protesters causing serious disruption. I commend the clause to the Committee.
Kit Malthouse
For the sake of accuracy, when I was Deputy Mayor for policing, stop and search increased. The hon. Lady is quite right that it decreased in the second half of the Mayor’s eight-year term. By then, we had got on top of the number of knife crime murders that were happening across London, not least in her constituency—although she was not the Member of Parliament then.
I want to address the issue of disproportionality. No one would deny that when stop and search is used for violence, there is disproportionality, particularly in London although not uniformly across the country. However, we are talking about stop and search in protest situations. For those numbers to show up in stop and search relies on the population in a vicinity of protest being disproportionately reflected demographically. I worry that in their desire to undermine the policy, the Opposition are conflating the two. There is no reason why people showing up to an Extinction Rebellion protest should be stopped and searched disproportionately compared with their demographic background, unless half the people who show up to the protest happen to be from a minority background. We would hope that the stop and search numbers would reflect the population coming to the protest.
The Opposition seem to think that the country is filled with police officers just waiting for their moment to stop and search us, or just looking for an opportunity to be difficult. The hon. Member for Bristol East spoke about the police wanting to be difficult, as if they ever want to be difficult. That indicates a lack of trust in the ability of our police to exercise, as my hon. Friend the Member for Dudley North said, exactly the kind of discretion that we ask them to use every day on the streets, whether in a protest environment or not. I know that the hon. Member for North East Fife has great experience of the fact that we rely on our police officers to use their discretion and judgment. In these circumstances, we are talking about suspicion-led stop and search. There have to be legitimate reasons why the police would stop and search somebody.
Kit Malthouse
Clause 7 builds on the Government’s plans to give the police the powers they need to prevent serious disruption at protests by introducing suspicion-less stop and search powers. The hon. Member for Croydon Central referred in her previous speech to both suspicion-led and suspicion-less stop and search.
Although the extension of suspicion-based stop and search powers, provided for by clause 6, will help the police to manage disruptive protests more effectively, it is not always possible in high-pressure, fast-paced protest environments for officers to form reasonable suspicion that individuals may be about to commit an offence. Clause 7 therefore introduces a suspicion-less stop and search power for the offences covered under clause 6.
If an officer of the rank of inspector or above believes that any of the specified offences may be committed in their police area and that individuals are carrying prohibited objects for the commission of those offences, officers may stop and search individuals and vehicles within the area specified by the senior officer, whether or not they suspect those individuals are carrying prohibited objects. If such items are found, the police may seize them.
These powers are modelled on existing suspicion-less stop and search powers available under section 60 of the Criminal Justice and Public Order Act 1994. The powers are well understood by the police, and emulating them prevents confusion between the powers and the complication of officers’ training. As with section 60, powers under clause 7 may not last longer than 24 hours unless an officer of superintendent rank or higher deems it necessary to extend them by a further 24 hours. Such an extension may happen only if senior police officers deem it necessary to prevent the offences in scope from being carried out or to prevent prohibited objects from being carried.
The hon. Lady criticised both suspicion-led and suspicion-less stop and search, and I hope I can allay some of her concerns. As with all stop and search powers, we believe, as she does, that no one should be stopped based on a protected characteristic, and there are safeguards to ensure these powers are used proportionately. This point was emphasised by Her Majesty’s inspector in the recent report on the policing of protests, in which he recognised that
“the proposed new power has the clear potential to improve police efficiency and effectiveness”
in managing protests, so long as they are
“subject to strong and effective safeguards”.
As the hon. Lady knows, we intend to amend PACE code A. We regularly review safeguards, and we now collect more data on stop and search than ever before. That data is posted online, enabling police and crime commissioners and others to hold forces to account. It is also important that communities hold PCCs to account through the electoral process, as I am sure she would agree.
We have responded to the “Inclusive Britain” report by saying that we intend to enhance the safeguards through the development of a national framework for scrutiny of stop and search by local communities, and through the consideration of any unnecessary barriers to the increased use of body-worn video. We also asked the College of Policing to update its stop and search guidance to ensure fair and proportionate use. The updated guidance, which is available to all forces, was published in July 2020 and provides best practice examples of community engagement and security. HMICFRS continues to inspect regularly on stop and search.
Sarah Jones
It is slightly worrying how the Minister talks about this differently from his own police. The NPCC and the College of Policing talk about it in a very different way. They say that stop and search is an important tool—on which we all agree—but that its implementation is disproportionate and lots of work needs to be done to fix that. The Minister seems to be saying that it does not need to be fixed. Perhaps he should talk to the NPCC, the College of Policing and those who put that report together to ensure that they are on the same page as him.
Kit Malthouse
Notwithstanding the hon. Lady’s patronising tone, I speak to the National Police Chiefs’ Council and senior police officers all the time. In fact, I have lived the stop and search journey for the last 14 years. I have probably spent more time than most talking to people in communities that are affected by violence and where stop and search is regularly utilised about its challenges and its efficacy in protecting people.
I repeat what I have said in the House: I have often been challenged during those 14 years on the disproportionality in the use of stop and search, but I have never been challenged on the disproportionality in the people who are killed with knives. No one has ever said to me that it is a total disgrace that the vast majority of those people are young black men. I would welcome that challenge and a proper set of solutions to that problem.
Sarah Jones
That is a completely unreasonable distinction to make. I have challenged the number of young black men who have been murdered in my constituency many, many times. Indeed, that is why I set up the all-party parliamentary group on knife crime and why I have worked on that exact issue ever since I entered Parliament. The two things are not comparable. Just because most victims of knife crime murders happen to be young black men in London, that does not mean that the majority of black people are criminals.
Sarah Jones
No, but I am saying that the two are not connected, and we cannot connect them. The victims are often young black people—I find that as awful as anybody else would, and I have campaigned to do something about it—but that is not the point. The point is that stop and search is disproportionate not because of the nature of crimes, and not because of the victims of crimes, but because it is disproportionate.
Kit Malthouse
I understand what the hon. Lady is saying, but there are complicated reasons why stop and search is disproportionate. Some of them are to do with geography, some with offence types, and some with the way that section 60 is used. I do not think that it is entirely cultural within the police.
There are other disproportionalities of concern. On cannabis possession in London, for example, which the hon. Lady mentioned, there is a strange disproportionality that does not, in my experience, reflect the pattern of cannabis use in London. We need to pay some attention to that. Having said that, I do not necessarily think that that problem and the solutions to it should be a barrier to using the stop-and-search power.
We heard clearly from the National Police Chiefs’ Council’s lead for public order that the use of stop and search—both suspicion-led and, in a fast-moving protest situation, suspicion-less—would be useful and enable police to get ahead of and prevent some of those offences. Indeed, I think I remember him saying that if police had those powers, it would result in less of an infringement on the rights of protestors. We therefore believe that the case has been made.
Sarah Jones
I will spend a bit of time of clauses 6 and 7 as they are the two important chunks that address suspicion-led and suspicion-less stop and search. The further stop-and-search clauses contain additional but less significant provisions.
Clause 7 addresses peaceful protest as if it were a social ill akin to knife crime, terrorism, serious organised crime or other situations in which people are stopped and searched. Section 1 of the Police and Criminal Evidence Act already allows officers to stop and search those whom they have reasonable grounds to suspect possess stolen or prohibited articles. For the purposes of section 1, prohibited articles include any item that has been made or adapted to be used to cause criminal damage. That would cover most of the scenarios that the Government are worried about.
The issue is that lock-ons, which we have debated and agreed have caused significant problems, are infrequent compared with protests as a whole. There might be a very large protest of 100,000 people, with 10 people or fewer trying to do something disruptive or illegal. That does not make the entire protest illegal; it makes those protestors unlawful. Our concern about the even broader extension of the powers, and the Bill more widely, is that we are not criminalising the criminals; we risk criminalising the vast majority of the people who want to protest and have their say on the issues of the day.
I am sure Matt Parr must be pleased, because we talk about him so much in Committee. The Minister is absolutely right that he agreed that the power could be a useful tool, but he listed a lot of concern in his report about how it would be implemented:
“Current suspicion-less stop and search powers for weapons…are intended to be used by the police to combat serious violence and the carriage of ‘dangerous instruments or offensive weapons’. Using a similar suspicion-less power to target peaceful protesters, who may cause serious (but non-violent) disruption, is a significantly different proposition. Given the potential ‘chilling effect’ on freedom of assembly and expression in terms of discouraging people from attending protests where they may be stopped and searched, we would expect any new suspicion-less powers to be subject to very careful scrutiny by the courts.
Such powers could have a disproportionate impact on people from black, Asian and other minority ethnic groups. We have repeatedly raised concerns about the police’s disproportionate use of stop and search in previous inspection reports…If and when contemplating the use of such powers in future, forces will need to carefully consider the demographic composition of the protest groups concerned. The importance of this issue should not be underestimated.
We would wish to see appropriate legal thresholds and authority levels set for authorising the use of the power, and the use of such powers monitored in a similar way to existing stop and search powers…When a person is stopped and searched, they may make an application for a written statement that they were searched. We would also wish to see high standards of training, vigilance and caution in the use of such a power”.
It is a well-used expression, but this is using a hammer to crack a nut. We do not want all the peaceful protesters to be hammered by the legislation when they are not doing anything unlawful.
Kit Malthouse
The clause makes further provision as to how police officers should authorise the aforementioned stop and search. It extends to the British Transport Police. It is self-explanatory.
Sarah Jones
Amendment 8, tabled by the hon. Member for Glasgow North East, is supported by me and the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), and we believe the clause should be struck from the Bill.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9
Further provisions about searches under section 7
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
The clause provides that anyone searched or who has their vehicle searched under the new suspicion-less stop-and-search powers is entitled to apply for a written statement from the police confirming that they have been searched. That is in line with the existing stop-and-search powers, and a number of forces will allow a person to do that electronically. It also allows the Home Secretary to make regulations, subject to the negative resolution procedure, governing the retention, keeping and disposal of prohibited objects seized by the police under these powers.
Sarah Jones
We agree with amendment 9, tabled by the hon. Member for Glasgow North East, and we would leave out the clause.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clause 10
Offence relating to section 7
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
Anyone who intentionally obstructs a constable exercising suspicion-less stop-and-search powers under clause 7 commits an offence, with a maximum penalty of one month’s imprisonment or a level 3 fine. That is in line with other stop-and-search powers.
Sarah Jones
We support amendment 10, tabled by the hon. Member for Glasgow North East, and we would leave out the clause. We do not support the measure. Liberty has suggested that a consequence of the offence is that it could be used to target legal observers who may be stopped and searched on their way to a protest for carrying items such as bus cards or for wearing an identifiable yellow bib. There are legitimate concerns that should be considered, so we do not support the clause.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Processions, assemblies and one-person protests: delegation of functions
Question proposed, That the clause stand part of the Bill.
Kit Malthouse
The clause reflects a request from the Metropolitan Police to reflect the differential rank structure with regard to the delegation of powers of authorisation such that an assistant commissioner in the Metropolitan Police can delegate the authorisation powers to a commander, which would be different from other forces in the rest of the UK, but it seems a sensible and proportionate measure, given the differential rank structure.
Sarah Jones
We have no issues with the clause. To quote Matt Parr in the evidence session:
“That strikes me as entirely pragmatic. If you look at the Met, the real expertise in public order tends to be at commander rank, rather than above, where people get a bit more generalist. The deep professional experts in London, in my experience, are the commanders. That strikes me as perfectly sensible.”––[Official Report, Public Order Public Bill Committee, 13 June 2022; c. 56-57, Q117.]
We agree.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Serious disruption prevention order made on conviction
Sarah Jones
I do not wish to add to what the hon. Lady has said, other than to say that we agree with the amendments.
Kit Malthouse
The amendments, I am afraid, are a deliberate attempt to water down the courts’ ability to place an SDPO on those who are intent on repeatedly disrupting the lives of others, as we have talked about a lot during our consideration of the Bill. Amendments 38 and 39 attempt to raise the burden of proof required for SDPOs from
“on the balance of probabilities”
to “beyond reasonable doubt”, in effect requiring the criminal rather than the civil standard of proof. Amendment 38 raises the burden of proof required when considering whether an offence constitutes a protest-related offence for the purpose of making a serious disruption prevention order. Amendment 39 does the same when a court considers whether a person has engaged, in the last five years, in previous behaviour that would qualify them for an SDPO.
The amendments would make it more challenging for a court to place an SDPO on prolific activists who engage in criminal or unjustifiable behaviour. As this is a court order, I see no issue with requiring the civil burden of proof. The Opposition have shown much enthusiasm for injunctions, which operate to a civil burden of proof, and the same burden would be required here. For the avoidance of doubt, for someone to be convicted for breaching an SDPO, the criminal burden of proof would apply.
Kerry McCarthy
I want to query the Minister’s use of the phrase “unjustifiable behaviour”. What would that cover?
Kit Malthouse
We have discussed the range of offences that offenders commit. In presenting the requirement for this order to a court, the police would have to make a case that a series of offences had occurred, or indeed that serious disruption had been caused by the individuals’ behaviour, to warrant this order. We will come on to the substance of those matters, and we can debate it at that point. For the reasons I have given, we do not agree with the amendment, and we hope that the hon. Member will withdraw it.
Wendy Chamberlain
This is a probing amendment to get the Government’s view on the matter. The Minister has made it clear that he thinks the civil burden is appropriate at this time, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Thursday 16th June 2022
(1 year, 10 months ago)
Public Bill CommitteesPublic Order Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 16 June 2022 - (16 Jun 2022)
The Committee divided: - Ayes: 7 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 6 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Tuesday 21st June 2022
(1 year, 10 months ago)
Public Bill CommitteesPublic Order Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 21 June 2022 - (21 Jun 2022)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Tuesday 18th October 2022
(1 year, 6 months ago)
Commons ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 18 October 2022 - large print - (18 Oct 2022)
16:31 - The House divided: - Ayes: 188 / Noes: 313 - Question accordingly negatived.
16:47 - The House divided: - Ayes: 186 / Noes: 311 - Question accordingly negatived.
17:01 - The House divided: - Ayes: 297 / Noes: 110 - Question accordingly agreed to.
17:14 - The House divided: - Ayes: 235 / Noes: 302 - Question accordingly negatived.
17:37 - The House divided: - Ayes: 283 / Noes: 234 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Minister for Crime, Policing and Fire (Jeremy Quin)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
Government new clause 8—Injunctions in Secretary of State proceedings: power of arrest and remand.
New clause 1—Guidance on locking on—
“The Secretary of State must by regulations issue guidance to police forces about the protest technique of locking on, which includes—
(a) examples of best practice, and
(b) detailed guidance on addressing new and developing forms of locking on.”
New clause 2—Consolidated protest guidance—
“(1) Within three months of Royal Assent to this Act, the Secretary of State must by regulations issue guidance which consolidates into a single source—
(a) the College of Policing’s authorised professional practice for public order guidance,
(b) the National Police Chiefs’ Council’s operational advice for protest policing, and
(c) the National Police Chiefs’ Council’s protest aide memoire.
(2) The Secretary of State must regularly review the guidance and, if appropriate, must by regulations issue revised consolidated guidance.
(3) The consolidated guidance must include specific updated guidance about the protest technique of locking on.”
New clause 3—National monitoring tool—
“(1) The Secretary of State must develop a consistent national monitoring tool, accessible by all police forces, to monitor the use of or requests for specialist protest officers across England and Wales.
(2) Data collected under this section may be used to evaluate capacity and demand for specialist protest officers across England and Wales.
(3) The monitoring tool must be accessible on a national, regional and local basis.
(4) The monitoring tool must include—
(a) examples of best practice from policing protests across the United Kingdom, and
(b) data on how many trained officers have been required for any protests during the period in which monitoring took place.”
New clause 4—Injunction to prevent serious disruption to effective movement of essential goods or services—
“(1) Upon an application by a person under subsection (4), an injunction may be ordered by a Judge of the High Court against ‘persons unknown’ in order to prevent a serious disruption to the effective movement of any essential goods or any essential services occasioned by a public procession or public assembly.
(2) The “persons unknown” may be—
(a) anonymous persons taking part in a public process or public assembly who are identifiable at the time of the proceedings; and/or
(b) persons not presently taking part in a public procession or public assembly protest but who will in future join such a public procession or public assembly.
(3) The conditions under which such an injunction may be granted are as follows—
(a) there must be a real and imminent risk of a tort being committed which would result in a serious disruption to the effective movement of any essential goods or any essential services;
(b) a method of service must be set out in the order which may reasonably be expected to bring the proceedings to the attention of the “persons unknown”;
(c) the “persons unknown” must be defined in the order by reference to their conduct which is alleged to be unlawful;
(d) the acts prohibited by the order must correspond with the threatened tort;
(e) the order may only prohibit lawful conduct if there is no other proportionate means of protecting the effective movement of essential goods or essential services;
(f) the terms of the order must set out what act(s) the persons potentially affected by the order must not do;
(g) the terms of the order must set out a defined geographical area to which the order relates; and
(h) the terms of the order must set out a temporal period to which the order relates, following which the order will lapse unless a further order is made upon a further application by the applicant.
(4) An applicant for an injunction to prevent serious disruption to effective movement of essential goods or services may be—
(a) a local authority with responsibility for all or part of the geographical area to which the proposed order relates;
(b) a chief constable with responsibility for all or part of the geographical area to which the proposed order relates; or
(c) a person resident in, or carrying on a business within, the geographical area to which the proposed order relates.
(5) A “serious disruption to effective movement of essential goods or services” includes a prolonged disruption to—
(a) the effective movement of the supply of money, food, water, energy or fuel;
(b) a system of communication;
(c) access to a place of worship;
(d) access to a transport facility;
(e) access to an educational institution; and
(f) access to a service relating to health.”
New clause 5—Definition of “serious disruption”—
“(1) For the purposes of this Act, ‘serious disruption’ means—
(a) significant delay to the delivery of a time-sensitive product to consumers
of that product, or
(b) prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a place of worship,
(v) an educational institution, or
(vi) a service relating to health.
(2) In subsection (1)(a) 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.”
New clause 6—Offences impeding emergency workers—
“(1) This section applies where—
(a) the court is considering for the purposes of sentencing the seriousness of an offence under sections 1 (Offence of locking on) or 3 (Obstruction etc of major transport works) of this Act, and
(b) the commission of the offence had the effect of impeding an emergency worker in exercising their functions, subject to the exception in subsection (2).
(2) The exception is that the emergency worker was exercising their functions in connection with the offence for which the person is being sentenced or in connection with any action which the court considers to be related to that offence.
(3) The court—
(a) must treat the fact mentioned in subsection (1)(b) as an aggravating factor (that is to say, a factor that increases the seriousness of the offence), and
(b) must state in open court that the offence is so aggravated.
(4) In this section, ‘emergency worker’ means—
(a) a constable;
(b) a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;
(c) a National Crime Agency officer;
(d) a prison officer;
(e) a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;
(f) a prisoner custody officer, so far as relating to the exercise of escort functions;
(g) a custody officer, so far as relating to the exercise of escort functions;
(h) a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services;
(i) a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);
(j) a person employed for the purposes of providing, or engaged to provide—
(i) NHS health services, or
(ii) services in the support of the provision of NHS health services, and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public.
(5) It is immaterial for the purposes of subsection (4) whether the employment or engagement is paid or unpaid.
(6) In this section—
‘custodial institution’ means any of the following—
(a) a prison;
(b) a young offender institution, secure training centre, secure college or remand centre;
(c) services custody premises, as defined by section 300(7) of the Armed Forces Act 2006; “custody officer” has the meaning given by section 12(3) of the Criminal Justice and Public Order Act 1994;
‘escort functions’—
(a) in the case of a prisoner custody officer, means the functions specified in section 80(1) of the Criminal Justice Act 1991;
(b) in the case of a custody officer, means the functions specified in paragraph 1 of Schedule 1 to the Criminal Justice and Public Order Act 1994;
‘NHS health services’ means any kind of health services provided as part of the health service continued under section 1(1) of the National Health Service Act 2006 and under section 1(1) of the National Health Service (Wales) Act 2006;
‘prisoner custody officer’ has the meaning given by section 89(1) of the Criminal Justice Act 1991.”
New clause 9—Publication of data about use of stop and search powers—
“(1) The Secretary of State must publish data about the use of the stop and search powers under sections 9 and 10 within three years of—
(a) if sections 9 and 10 come into force on the same date, the date on which they come into force, or
(b) if sections 9 and 10 come into force on different dates, the later of those two dates.
(2) The data published under this section must include—
(a) the total number of uses of stop and search powers by each police force in England and Wales, including whether the powers were used on suspicion or without suspicion,
(b) disaggregated data by age, disability, ethnicity/race, sex/gender and sexual orientation of the people who have been stopped and searched, and
(c) data relating to the outcomes of the use of stop and search powers.”
New clause 10—Review of the use of stop and search powers—
“(1) The Secretary of State must appoint an independent reviewer to assess and report annually on the use of the stop and search powers under sections 9 and 10.
(2) In carrying out their review, the person appointed under subsection (1) must—
(a) consider the impact of the use of stop and search powers on groups with protected characteristics under the Equality Act 2010, and
(b) consult such civil society organisations as appear to the person appointed under subsection (1) to be relevant.
(3) The person appointed under subsection (1) must ensure that a report on the outcome of the review is sent to the Secretary of State as soon as reasonably practicable after the completion of the review.
(4) On receiving a report under this section, the Secretary of State must lay before Parliament—
(a) a copy of the report, and
(b) the Government’s response to the findings.
(5) The first report under this section must be completed no later than one year after the date provided for under section [publication of data about use of stop and search powers](1).”
New clause 11—Offence of interference with access to or provision of abortion services—
“(1) A person who is within a buffer zone and who interferes with any person’s decision to access, provide, or facilitate the provision of abortion services in that buffer zone is guilty of an offence.
(2) A “buffer zone” means an area which is within a boundary which is 150 metres from any part of an abortion clinic or any access point to any building or site that contains an abortion clinic and is—
(a) on or adjacent to a public highway or public right of way,
(b) in an open space to which the public has access,
(c) within the curtilage of an abortion clinic, or
(d) in any location that is visible from a public highway, public right of way, open space to which the public have access, or the curtilage of an abortion clinic.
(3) For the purposes of subsection (1), ‘interferes with’ means—
(a) seeks to influence,
(b) persistently, continuously or repeatedly occupies,
(c) impedes or threatens,
(d) intimidates or harasses,
(e) advises or persuades, attempts to advise or persuade, or otherwise expresses opinion,
(f) informs or attempts to inform about abortion services by any means, including, without limitation, graphic, physical, verbal or written means, or
(g) sketches, photographs, records, stores, broadcasts, or transmits images, audio, likenesses or personal data of any person without express consent.
(4) A person guilty of an offence under subsection (1) is liable—
(a) in the first instance—
(i) on summary conviction, to imprisonment for a term not exceeding 6 months,
(ii) to a fine not exceeding level 5 on the standard scale, or
(iii) to both; and
(b) on further instances—
(i) on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine, or to both, or
(ii) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, or to both.
(5) Nothing in this section applies to—
(a) anything done in the course of providing, or facilitating the provision of, abortion services in an abortion clinic,
(b) anything done in the course of providing medical care within a GP practice, hospital or other healthcare facility,
(c) the operation of a camera if its coverage of persons accessing or attempting to access an abortion clinic is incidental and the camera or footage is not used for any of the purposes listed in subsection (3), and
(d) a police officer acting properly in the course of their duties.”
New clause 12—Justice impact assessments for Wales—
“(1) Within six months of the passage of this Act, the Secretary of State must issue a justice impact assessment for any provision of this Act, or any regulations which have been made under this Act, which impact on matters which are devolved to Senedd Cymru.
(2) Within one month of the date on which they are made, the Secretary of State must issue a justice impact assessment for any regulations made under this Act which are not included in the assessment required under subsection (1) which impact on matters which are devolved to Senedd Cymru.
(3) The Secretary of State and the Welsh Ministers must jointly prepare and publish guidance on the implementation of the provisions on which justice impact assessments have been issued under subsections (1) and (2).”
New clause 13—Intentional harassment, alarm or distress on account of sex—
“(1) A person (P) commits an offence under this section if—
(a) P commits an offence under section 4A of the Public Order Act 1986 (intentional harassment, alarm or distress), and
(b) P carried out the conduct referred to in section 4A(1) of that Act because of the relevant person’s sex In this subsection ‘the relevant person’ means the person to whom P intended to cause, harassment, alarm or distress.
(2) For the purposes of subsection (1)(b) it does not matter whether or not P carried out the conduct referred to in section 4A(1) of the Public Order Act 1986 for the purposes of sexual gratification.
(3) For the purposes of subsection (1)(b) it does not matter whether or not P also carried out the conduct referred to in section 4A(1) of the Public Order Act 1986 because of any other factor not mentioned in subsection (1)(b).
(4) A person who commits an offence under subsection (1) is liable–
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court, to a fine or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years, to a fine, or to both.
(5) If, on the trial on indictment of a person charged with an offence under subsection (1), the jury find the person not guilty of the offence charged, they may find the person guilty of the basic offence mentioned in that provision.
(6) References in this section to P carrying out conduct because of another person’s (B’s) sex include references to P doing so because of B’s presumed sex.”
New clause 14—Harassment, alarm or distress on account of sex—
“(1) A person (P) commits an offence under this section if—
(a) P commits an offence under section 5 of the Public Order Act 1986 (harassment, alarm or distress), and
(b) P carried out the conduct referred to in section 5(1) of that Act because of the relevant person’s sex.
In this subsection ‘the relevant person’ means the person to whom P intended to cause, or caused, harassment, alarm or distress.
(2) For the purposes of subsection (1) it does not matter whether or not P carried out the conduct referred to in section 5(1) of the Public Order Act 1986 for the purposes of sexual gratification.
(3) For the purposes of subsection (1) it does not matter whether or not P also carried out the conduct referred to in section 5(1) of the Public Order Act 1986 because of any other factor not mentioned in subsection (1).
(4) A person who commits an offence under subsection (1) is liable—
(a) on summary conviction to a fine not exceeding level 5 on the standard scale;
(b) on conviction on indictment to imprisonment to a term not exceeding 6 months, or to a fine not exceeding level 5 on the standard scale, or to both.
(5) If, on the trial on indictment of a person charged with an offence under subsection (1), the jury find the person not guilty of the offence charged, they may find the person guilty of the basic offence mentioned in that provision.
(6) References in this section to P carrying out conduct because of another person’s (B’s) sex include references to P doing so because of B’s presumed sex.
(7) It is not a defence under this section for P to claim that they could not reasonably have foreseen that their behaviour may constitute an offence.”
New clause 15—Public inquiry into the impact of policing of public order on Black, Asian and minority ethnic people—
“Within six months of the date of Royal Assent to this Act, the Secretary of State must set up an inquiry under the Inquiries Act 2005 into the impact of the policing of public order on Black, Asian and minority ethnic people.”
New clause 16—Equality Impact Analyses of provisions of this Act—
“(1) The Secretary of State must review the equality impact of the provisions of this Act.
(2) A report of the review under this section must be laid before Parliament within 12 months of the date of Royal Assent to this Act.
(3) A review under this section must consider the impact of the provisions of this Act on—
(a) households at different levels of income,
(b) people with protected characteristics (within the meaning of the Equality Act 2010),
(c) the Government’s compliance with the public sector equality duty under section 149 of the Equality Act 2010, and
(d) equality in the different nations of the United Kingdom and different regions of England.
(4) A review under this section must include a separate analysis of each section of the Act, and must also consider the cumulative impact of the Act as a whole.”
New clause 17—Public inquiry into the policing of protests—
“Within six months of the date of Royal Assent to this Act, the Secretary of State must set up an inquiry under the Inquiries Act 2005 into the policing of public order and protests, including investigation of the use of—
(a) force,
(b) kettling,
(c) police horses,
(d) policing powers contained in the Police, Crime, Sentencing and Courts Act 2022, and policing powers contained in this Act.”
Amendment 3, page 1, line 4, leave out clause 1.
Amendment 28, clause 1, page 1, line 6, after “they” insert
“, without reasonable excuse, and using a device or substance that impedes detachment”.
This amendment, together with Amendment 30, would give effect to a recommendation of the Joint Committee on Human Rights by taking the burden of proving “reasonable excuse” away from the Defendant and make it an element of the offence. It would also narrow the meaning of “attach” to focus on the use of devices or substances that make removing the protester difficult.
Amendment 29, clause 1, page 1, line 10, leave out paragraph (1)(b) and insert
“that act causes, or is likely to cause, serious disruption to the life of the community, and”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by replacing the current threshold of serious disruption with a higher threshold based on serious disruption to the life of the community (defined in Amendment 32).
Amendment 30, clause 1, page 1, line 16, leave out subsection (2).
Amendment 31, clause 1, page 1, line 20, leave out
“the maximum term for summary offences”
and insert “three months”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by reducing the maximum penalty for the offence of locking on.
Amendment 32, clause 1, page 2, line 1, leave out subsections (4) and (5) and insert—
“(4) For the purposes of subsection (1)(a), in determining whether a person has a reasonable excuse, particular regard must be had to the importance of the right of peaceful protest in a democracy by virtue of Article 10 and Article 11 of the European Convention on Human Rights.
(5) For the purposes of subsection 1(b), “serious disruption to the life of the community” means a prolonged disruption of access to any essential goods or any essential service, including, in particular, 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.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by inserting an express requirement to have particular regard to the right to peaceful protest when considering whether an individual has a “reasonable excuse” for their actions when locking on. It also provides detail on the meaning of serious disruption to the life of the community.
Amendment 4, page 2, line 11, leave out clause 2.
Amendment 33, clause 2, page 2, line 13, leave out
“may be used in the course of or in connection with”
and insert “will be used in”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by narrowing the scope of this offence.
Amendment 5, page 2, line 20, leave out clause 3.
Amendment 6, page 3, line 23, leave out clause 4.
Amendment 7, page 4, line 19, leave out clause 5.
Amendment 8, page 4, line 35, leave out clause 6.
Amendment 34, clause 6, page 4, line 36, leave out subsection (1) and insert—
“(1) A person commits an offence if—
(a) the person obstructs the undertaker or a person acting under the authority of the undertaker—
(i) in setting out the lines of any major transport works,
(ii) in constructing or maintaining any major transport works, or
(iii) in taking any steps that are reasonably necessary for the purposes of facilitating the construction or maintenance of any major transport works, or
(b) the person interferes with, moves or removes any apparatus which—
(i) relates to the construction or maintenance of any major transport works, and
(ii) belongs to a person within subsection (5), and
(c) that act causes, or is likely to cause, significant disruption to setting out the lines of, the construction of or the maintenance of the major transport works affected, and
(d) the person intends their act—
(i) to obstruct the undertaker or person acting under the authority of the undertaker as mentioned in paragraph (a) or to interfere with or remove the apparatus as mentioned in paragraph (b), and
(ii) to have a consequence mentioned in paragraph (c) or are reckless as to whether it will have such a consequence.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by narrowing the scope of this offence to ensure it criminalises only conduct that would cause or be likely to cause serious disruption to major transport works. It would also introduce a requirement of intention or recklessness.
Amendment 35, page 5, line 9, leave out
“It is a defence for a person charged with an offence under subsection (1) to prove that”
and insert
“A person does not commit an offence under subsection (1) if”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by taking the burden of proving “reasonable excuse” or that the act was part of a trade dispute away from the Defendant and making it an element of the offence.
Amendment 36, page 5, line 14, at end insert—
“(2A) For the purposes of subsection (2)(a), in determining whether a person has a reasonable excuse, particular regard must be had to the importance of the right of peaceful protest by virtue of Article 10 and Article 11 of the European Convention on Human Rights.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by inserting an explicit requirement to have particular regard to the right to peaceful protest when considering whether an individual has a “reasonable excuse” for their actions.
Amendment 9, page 6, line 42, leave out clause 7.
Amendment 37, clause 7, page 7, line 5, leave out
“It is a defence for a person charged with an offence under subsection (1) to prove that”
and insert
“A person does not commit an offence under subsection (1) if”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by taking the burden of proving “reasonable excuse” or that the act was part of a trade dispute away from the Defendant and making it an element of the offence.
Amendment 38, page 7, line 10, at end insert—
“(2A) For the purposes of subsection (2)(a), in determining whether a person has a reasonable excuse, particular regard must be had to the importance of the right of peaceful protest by virtue of Article 10 and Article 11 of the European Convention on Human Rights.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights by inserting an explicit requirement to have particular regard to the right to peaceful protest when considering whether an individual has a “reasonable excuse” for their actions.
Amendment 39, page 7, line 18, leave out “to any extent” and insert “to a significant extent”.This amendment would give effect to a recommendation of the Joint Committee on Human Rights by narrowing the scope of the offence to prevent it sweeping up minor interference.
Amendment 40, page 7, line 22, after “means” insert “an essential element of”.This amendment would give effect to a recommendation of the Joint Committee on Human Rights by narrowing the meaning of “key national infrastructure” to exclude inessential elements of infrastructure.
Amendment 51, page 7, line 31, at end insert—
“(j) farms and food production infrastructure.”
Amendment 10, page 8, line 17, leave out clause 8.
Amendment 41, clause 8, page 8, line 24, leave out “or B”.
Amendment 42, page 8, line 27, after “Act)” insert
“, but excludes infrastructure that is not essential for the purposes of transporting goods or passengers by railway”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights to narrow the scope of the offence by narrowing the meaning of “rail infrastructure” so as to ensure the offence does not extend to interference with inessential elements.
Amendment 43, page 8, line 39, after “Act)” insert—
“(c) but excludes infrastructure that is not essential for the purposes of transporting goods or passengers by air”.
This amendment would give effect to a recommendation of the Joint Committee on Human Rights to narrow the scope of the offence by narrowing the meaning of “air transport infrastructure” so as to ensure the offence does not extend to interference with inessential elements.
Amendment 44, page 8, line 41, leave out “or in connection with”.
This amendment, together with Amendments 45 to 48, would give effect to a recommendation of the Joint Committee on Human Rights to narrow the scope of the offence, and reduce uncertainty, by narrowing what amounts to key national infrastructure.
Amendment 45, page 9, line 5, leave out “or in connection with”.See the explanatory statement for Amendment 44.
Amendment 46, page 9, line 20, leave out “or in connection with”.
See the explanatory statement for Amendment 44.
Amendment 47, page 9, line 35, leave out “or in connection with”.
See the explanatory statement for Amendment 44.
Amendment 48, page 10, line 1, , leave out “or in connection with”.
See the explanatory statement for Amendment 44.
Amendment 49, page 10, line 18, leave out
“‘newspaper’ includes a periodical or magazine.”
This amendment would give effect to a recommendation of the Joint Committee on Human Rights to narrow the scope of the offence by narrowing the meaning of “newspaper” so as to prevent it extending to any periodical or magazine.
Amendment 52, page 10, line 18, at end insert–—
“(16) “Farms and food production infrastructure” means—
(a) any infrastructure, used for the commercial growing of crops and horticultural produce or rearing of livestock for human consumption or as an ingredient in items for human consumption; or
(b) any premises on which items for human consumption are processed, produced, or manufactured for commercial purposes; or
(c) any abattoir.”
Amendment 11, page 10, line 20, leave out clause 9.
Amendment 12, page 11, line 1, leave out clause 10.
Amendment 13, page 12, line 29, leave out clause 11.
Amendment 14, page 13, line 9, leave out clause 12.
Amendment 15, page 13, line 33, leave out clause 13.
Amendment 16, page 14, line 6, leave out clause 14.
Amendment 17, page 14, line 15, leave out clause 15.
Amendment 1, page 18, line 7, leave out clause 16.
Amendment 2, page 20, line 15, leave out clause 17.
Amendment 20, page 22, line 11, leave out clause 18.
Amendment 21, page 23, line 12, leave out clause 19.
Amendment 22, page 24, line 12, leave out clause 20.
Amendment 23, page 25, line 20, leave out clause 21.
Amendment 24, page 26, line 9, leave out clause 22.
Amendment 25, page 27, line 1, leave out clause 23.
Amendment 26, page 27, line 8, leave out clause 24.
Amendment 27, page 27, line 26, leave out clause 25.
Amendment 53, page 29, line 33, leave out clause 26.
Amendment 54, page 30, line 28, leave out clause 27.
Amendment 55, page 31, line 8, leave out clause 28.
Amendment 56, page 31, line 23, leave out clause 29.
Amendment 57, page 31, line 30, leave out clause 30.
Amendment 58, page 32, line 10, leave out clause 31.
Government new schedule 1—Injunctions in Secretary of State proceedings: powers to remand.
Government amendment 50.
Jeremy Quin
I thank hon. Members who have joined us for this important debate today and I look forward to the lively discussion that we are bound to have over the course of the afternoon. Although there will inevitably be differences of opinion, which I will come on to, I hope we can all agree on the fundamental point that should be underpinning this discussion—namely, that it is completely unacceptable for a selfish minority to wreak havoc on the lives of people going about their daily business. I would like to open the debate by speaking to the amendments in the Government’s name, and I will respond to other amendments in my closing remarks.
I will also touch on new clause 11, which covers abortion clinic buffer zones. We totally endorse the sentiment behind the new clause, but I look forward to setting out in my summing up why measures in existing legislation combined with the growing use of public space protection orders—PSPOs—can be used and are effective.
Jeremy Quin
I think the hon. Lady will want to hear me out.
We recognise that this is a matter closely associated with issue of abortion, on which people have very strong views across the House. Therefore, as far as we are concerned, there will be a free vote on new clause 11. Members will hear the debate, and I will set out why the current legislation is proportionate and how PSPOs are increasingly being used and are increasingly effective, but this is a matter on which hon. Members will make their own judgment.
Before going further into the debate, it might be helpful if I briefly recap what the Bill does and does not do. This Bill does not criminalise the right to protest, as some hon. Members have said. The right to protest is a fundamental principle of our democracy, and that will never change. Any suggestion that we are intent on interfering with or watering down the right to protest peacefully is simply wrong.
What the Bill does is target acts that cause serious disruption, such as those that wreak havoc on our roads, disrupt thousands of journeys, cost the taxpayer millions and put lives in danger. It does this by giving the police the enhanced powers they need to respond to such disruption and better balance the rights of protesters with the right of the public to go about their daily lives.
I will now speak to Government new clauses 7 and 8, Government new schedule 1 and Government amendment 50. Some of the protest tactics we have seen in recent months have had significant consequences for the public. Protests such as those by Insulate Britain and Just Stop Oil have targeted fuel supply chains and created blockades. Indeed, hon. Members will be familiar with recent images of ambulances, fire services and cars carrying babies to hospital being blocked by the selfish actions of protesters in the name of Just Stop Oil. These tactics are not only seriously disruptive but dangerous.
We have heard the Opposition’s calls to ensure that injunctions are in place to prevent serious disruption, including through new clause 4 tabled by the hon. Member for Croydon Central (Sarah Jones). It is a pleasure to see her in her place, and I look forward to working with her across this Dispatch Box.
We have seen how effective injunctions can be, and we believe we can build on the current position in which only private persons and local authorities can pursue this legal remedy through the courts. That is why the Government tabled new clauses 7 and 8, new schedule 1 and amendment 50 to provide the Secretary of State with a specific mechanism to apply for an injunction where it is in the public interest to do so because the activity causes serious disruption to key national infrastructure, prevents access to essential goods or services, or has a serious adverse impact on the public. This will be accompanied by a power of arrest to support swifter enforcement action. This does not affect the right of local authorities or private landowners to apply for an injunction, but it gives the Secretary of State an additional way to act in the public interest where the potential impact is serious and widespread.
These measures will support better co-ordination between the Government, law enforcement, local authorities and private landowners in responding to serious disruptive behaviour. We know injunctions can play a major role in helping to constrain some of the tactics deployed and, as a result, can limit serious disruption. Although I understand the sentiment behind new clause 4, tabled by the hon. Member for Croydon Central, I do not think it achieves the change she seeks, as the law already enables private persons and local authorities to pursue an injunction where they can evidence harm to their rights or interests in civil law. The police already have a range of powers and avenues to manage protest and to act on criminal or antisocial behaviour.
I therefore encourage the hon. Lady not to press her new clause and to support Government new clauses 7 and 8, new schedule 1 and amendment 50.
Stella Creasy
I rise to support all the amendments in the name of the Labour Front Bench, and to speak to new clauses 11, 13 and 14.
I put on record my gratitude to the Minister for respecting the convention that issues around abortion are matters of conscience, and new clause 11 is about abortion because, let us be honest, nobody is praying outside the places where people go to have a hip operation. Nobody offers rosary beads or dead foetuses outside the places people go when they have an ankle injury. This is about women accessing a very specific form of healthcare.
This goes to the heart of the Bill. Whatever the Bill’s merits, it is about protest. At the point at which women are accessing an abortion, they have made a decision and they are not opening themselves up for a debate or further discussion. These women are often in a very vulnerable state, and they want to be able to access basic healthcare.
New clause 11 would not stop free speech on abortion, and it would not stop people protesting. I have regularly been subjected to protests, and new clause 11 would do nothing to stop the protests I have experienced from many of the people involved in this subject. New clause 11 simply says that people should not have a right to protest in another person’s face, and very often these protesters are right up in front of people, at a point when they have made a decision.
Joanna Cherry (Edinburgh South West) (SNP)
I rise to speak to the amendments in my name and the name of the hon. Member for Vauxhall (Florence Eshalomi), which arise from the legislative scrutiny of the Bill by the Joint Committee on Human Rights. They are amendments 28 to 31, 33, 34 to 36, 37 to 40 and 41 to 49, and also amendments 12 to 15, which appear first in the name of my hon. Friend the Member for Glasgow North East (Anne McLaughlin), and 1 and 2.
I remind hon. Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords, and we undertake scrutiny of the human rights implications of all Bills. I speak here in my capacity as the Chair of the Committee rather than in my personal capacity. I have great sympathy for new clause 11—similar measures are being taken in the Scottish jurisdiction—but, as my Committee did not have the chance to consider it, I will not be speaking about that new clause.
The Public Order Bill contains further significant changes to the law on public order in England and Wales, following on from those introduced in the Police, Crime, Sentencing and Courts Act 2022. It is obvious from my accent that I am a Scottish MP. Despite the fact that this law only applies in England and Wales, it is of interest to a lot of Scots, because they come to London to protest—I see the Minister laughing, but it is the truth, and many of us have been doing it for years, since before we were elected to this House.
Jeremy Quin
I welcome that. I am a firm believer that we are stronger together and a firm believer in the Union. I always welcome hearing the views of Scots people in London, and indeed of English people who wish to protest in Edinburgh.
Joanna Cherry
I suspect the Minister will still hear our views after we become independent, so I would not get too upset about that.
During the passage of the Police, Crime, Sentencing and Courts Bill, the Joint Committee looked very carefully at a large volume of responses and heard from two panels of witnesses about the issue of the public order provisions. The Minister has said the stated intention of the Bill is to strengthen police powers to tackle dangerous and highly disruptive protest, but we think the measures go beyond that, to the extent that we believe they pose an unacceptable threat to the fundamental right to engage in peaceful protest. That was the conclusion of the Committee’s report dated 17 June, in which we proposed the amendments that I am speaking to today.
Sir Bernard Jenkin (Harwich and North Essex) (Con)
I am grateful to have the opportunity to support new clause 11, which was tabled by the hon. Member for Ealing Central and Acton (Dr Huq). She has got into a bit of a scrape because she said something silly, but those of us who know her know that she is an extremely committed parliamentarian and very public spirited, and I hope that order will be restored in that department as soon as possible.
I also congratulate the hon. Member for Walthamstow (Stella Creasy) on new clause 11 and I thank my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) for supporting it. I note that SNP Members support the new clause, although I am not sure whether they will vote on it—they might decide that it is an English measure—but it is interesting that similar measures are being considered in Scotland.
I am grateful to the Minister for Crime, Policing and Fire, my hon. Friend the Member for Horsham (Jeremy Quin), who kindly saw me at short notice yesterday about this matter. The Government may well oppose this new clause. I hope they do not, but I know they are seized of the issue and are giving it consideration. I will listen very carefully to what he has to say about it later.
“Clinic harassment” is the term used to describe the presence outside abortion clinics of groups who seek to dissuade and deter women from accessing healthcare that is their right under our law. Many people would call them protests, but mere protest is not the purpose of the activity and the groups who organise them do not call them protests. It is not about politics or campaigning; it is about stopping individual women from accessing their legal rights. New clause 11 would simply introduce a statutory buffer zone around any location where abortion services or advice are provided, making it illegal to carry out such activities as those eloquently described by the hon. Member for Walthamstow.
We are told that the scale of the problem is small and does not require a national response. That is false. Every year, around 100,000 women are treated by a clinic targeted by these groups. In the last three weeks alone, at least 15 clinics across the country have had people outside, including clinics based in hospitals, GP surgeries and in residential areas. That has impacted hundreds of women’s care and psychological wellbeing.
We are also told that the police and councils already have powers to restrict harmful protests. If that is true, why are they still happening? The fact is that abortion providers have proactively tried to use all the laws suggested by the Home Office to stem the problem, but even where individual protesters and groups have been dealt with by the courts and local authorities, the presence outside clinics has not stopped.
Let us be absolutely clear: we are not debating the principle of whether these so-called protests should be banned; they already are banned in certain places, and the principle of that has been supported by the House. We are just asking whether the existing statutory arrangements—the public spaces protection orders—used by councils to introduce buffer zones around individual clinics are effective. Only five out of 50 targeted clinics are protected.
There are three issues relating to PSPOs: they create a random patchwork of protections, which is inadequate; they are expensive to introduce and very difficult to uphold in the courts; and crucially, they can be introduced only with evidence that harassment is taking place. I made this point to my hon. Friend the Minister last night, and it is a painful thing for him to have to accept, but it is the Government’s policy that women should be harassed outside abortion clinics before a PSPO can be issued. Can the House think of any other policy that requires women to be harassed before the Government or the local authority do something that is perfectly justified? That is an immoral basis for PSPOs.
Jeremy Quin
My hon. Friend makes a powerful point, as indeed he did yesterday evening. I was concerned and looked into the matter. The antisocial behaviour statutory guidance states that a PSPO can be made by a council if it is satisfied on reasonable grounds that the activity or behaviour carried out, or likely to be carried out, in a public space has had, or is likely to have, a detrimental impact. I hope that gives him some reassurance that if activity is anticipated and people are concerned that it may take place, there is a means whereby a PSPO may be taken out. He might not consider that a perfect scenario, but where an activity is foreseeable, action can be taken in advance.
Sir Bernard Jenkin
I say rather wryly to my hon. Friend, “Good try.” But it is not really adequate, is it? All our local authorities are under huge spending pressure and do not want to spend money on drafting orders and so on, so what local authority will be preoccupied with this problem unless there is a problem? The strength of the case for implementing a PSPO is supported by evidence of likelihood, which will only be evident if the activity has already happened. I am afraid that my hon. Friend the Minister has not really addressed the point, although I commend him for making a good attempt.
We are also told that these groups are only quietly praying and that there is no harassment involved. Well, the hon. Member for Walthamstow told us about what happens, and sometimes people attend in very large numbers.
My final comment on this may answer points that my hon. Friend the Minister will make later. I have been involved for years in discussions with the Home Office, and here I also thank my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) for the assiduous attention she gave us as she wrestled with this problem, which I know has vexed her. Although she never persuaded the Government to accept a previous amendment, the sincerity of her engagement with us was wonderful, and I am grateful. So finally, we are also told that our amendment contravenes protesters’ human rights. Well, I note that the Chair of the Joint Committee on Human Rights, the hon. and learned Member for Edinburgh South West (Joanna Cherry), does not think that is the case—albeit that the Committee has not actually considered this amendment.
We have to recognise that rights have to be balanced, and the exercise of one person’s rights are very often to another person’s detriment. We have to strike a balance, and my argument is that new clause 11 strikes the right balance. The amendment would not stop people sharing their opinions about the vexed issue of abortion. It balances the rights of people who oppose abortion with the rights of women to access healthcare confidentially and free from harassment and intimidation. It does not ban protest; it simply moves it down the road to preserve the space immediately outside the clinic for women seeking care, and for nurses and doctors providing that care. In Committee, when asked about this directly by the Minister, rights groups did not oppose new clause 11. Canada, Australia, Spain, Ireland, Northern Ireland and Scotland all have comparable laws in place or are in the process of introducing them.
I need not detain the House any longer. If the House does not support this amendment tonight, the argument will carry on until an acceptable means of protecting women exercising their legal rights is found. I am grateful to the Government for allowing a free vote on the matter, which is right and proper in the circumstances.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to follow the hon. Member for Congleton (Fiona Bruce), although I respectfully disagree with her position on this, and I will come to that shortly. I also welcome the Minister to his post.
I do not think anybody in this House was not deeply irritated by the sight of an ambulance having to turn around and go a different route because of protesters glued to the road, and I do not think there are many people in this House, when they saw protesters throwing soup at a van Gogh painting, who did not at least question whether that action had helped or hindered the cause of climate change. We all passionately believe in the right to protest, do we not? But we all understand that our fundamental freedoms are always balanced with the need to ensure business can carry on in its usual way.
That is why I thank the police for their response to the protesters who blocked the ambulance. They arrested 26 people for wilful obstruction of a highway and removed people glued to the road. Wilful obstruction is an offence that can carry a prison sentence. I also thank the police for the way in which they dealt with the incident in the National Gallery. Two people have been charged with criminal damage, which is an offence that can carry prison sentence.
Madam Deputy Speaker, you may ask yourself why, if the police were quick to respond, quick to arrest and quick to charge, we are debating a Public Order Bill to create a raft of new powers to tackle protest, after we have only just finished debating another Bill—the Police, Crime, Sentencing and Courts Act 2022—which has introduced another raft of new provisions against protest.
Jeremy Quin
Is the hon. Lady therefore fully satisfied that the powers that exist are fully complete and fully perfect in all respects? Is she satisfied that police officers will be taken from her constituency to police central London to guard the public from protests? Should we not be taking stronger action?
Sir Charles Walker (Broxbourne) (Con)
Over the past few days I have been accused of being tired, emotional, erratic, and, just to put the record straight, I am all of those things and more. I want to be clear: unlike some Members in this Chamber, I have no time for those people who block roads, throw soup, and make a general nuisance of themselves. They are agents against their own interests, as they repel normal ordinary people. Having said that, serious disruption prevention orders are not the answer. They leave me absolutely cold; in fact I would go so far as to say that they are absolutely appalling because there are plenty of existing laws that can be utilised to deal with people who specialise in making other people’s lives miserable.
I know there is a convention here that we do not read lists, but I hope, Madam Deputy Speaker, that I will be allowed to read a very short list just to set out the laws that already exist and have been covered by colleagues: obstructing a police officer, Police Act 1996; obstructing a highway, Highways Act 1980; obstruction of an engine, Malicious Damage Act 1861—we all remember that one —endangering road users, Road Traffic Act 1988; aggravated trespass, Criminal Justice and Public Order Act 1994; criminal damage, Criminal Damage Act 1971; and public nuisance, the Police, Crime, Sentencing and Courts Act 2022. There are also other laws. There is the Public Order Act 1986 that allows police officers to ban or place conditions on protest.
So the Government’s attraction to SDPOs demonstrates our own impotence as legislators and the impotence of the police as law enforcers to get to grips with the laws already in place and to enforce them. This is what we do now in politics: we have these machismo laws where something must be done, so we go out and do it, and that makes a good headline in The Daily Telegraph and The Times, but we do it and then very little happens, or if it does happen it is way over the top.
Jeremy Quin
My hon. Friend rightly compliments the police for routinely arresting and charging those who are responsible for wrongdoing. Does he agree that it is not an acceptable circumstance where 460 individuals have been arrested a total of 910 times for Just Stop Oil protests and that there is a difficult point of cumulation that we must accept?
Wendy Chamberlain
I rise to speak in support of several amendments, including new clauses 1 to 5, tabled by the official Opposition, and new clauses 9 to 14. I agree that there should be a free vote on new clause 11, to which I am sympathetic and which I will support. The speeches on it so far have been very powerful. I also wish to speak to new clauses 15 to 17—the hon. Member for Streatham (Bell Ribeiro-Addy), who is no longer in her place, spoke powerfully about them—and to the amendments tabled by the hon. and learned Member for Edinburgh South West (Joanna Cherry) on behalf of the Joint Committee on Human Rights, by the hon. Member for Glasgow North East (Anne McLaughlin) on behalf of the SNP, and by the hon. Member for Broxbourne (Sir Charles Walker).
I speak on behalf of my constituents who are concerned about what the Bill means for the right to protest. It might be argued that the Bill will not affect them directly, but like the hon. and learned Member for Edinburgh South West, I have constituents who will travel to England and Wales to protest. As I highlighted in my intervention about mutual aid policing arrangements, the Bill is likely to mean additional training requirements for Scottish officers deployed elsewhere, as at last year’s G7 meeting.
We have heard from many Members of this House with a legal background and training, but I believe I am the only former police officer in this debate; I do not see the other two hon. Members who I know were police officers. I am also the wife and daughter of former police officers—indeed, my husband was a senior public order commander—and I am the stepmother of serving police officers. I have policed demonstrations. It might have been some time ago, but I speak with some knowledge and direct experience.
Laws should be necessary, but as we heard in our Bill Committee evidence, the police already have the power to respond to protests; I am grateful to the hon. Member for Broxbourne for raising that point. Ideally, laws should not break our already stretched systems—that was an area of focus for me in Committee—but this law risks our police’s very ability to tackle day-to-day crime, which the Home Secretary says is a priority for the Government.
Regardless of rank, length of service or extent of training, the first officer to attend any incident—protest or otherwise—is the officer in charge until they are relieved of that duty. I say that not to denigrate, but to illustrate. That officer will have to determine whether there is a risk of serious disruption and, if so, whether an offence under the Bill or any other law is being committed. I am concerned that there is a risk of inconsistent application of the criminal law and a breach of the rule of law. I therefore support the official Opposition’s new clauses 1 to 5, which would ensure that the Bill’s provisions are applied appropriately.
It is not just me. The National Police Chiefs’ Council’s evidence to the Bill Committee suggested similar concerns, which would be at least partially addressed by some of the amendments, particularly those tabled by the hon. and learned Member for Edinburgh South West to implement the recommendations of the Joint Committee on Human Rights. I remain concerned that the police, particularly those in junior roles, may end up ill-equipped to make the judgment calls that the Bill requires.
Let us be clear: the police do not need this Bill to respond when protests cross the line. Where there is criminal damage or trespass, they already have the power to respond. However, if the Bill is passed with no amendments but the Government’s, all protest will effectively be frozen for fear of being caught by the legislation. Importantly, the Bill is also likely—I refer to the comments that the shadow Minister, the hon. Member for Croydon Central (Sarah Jones), made about policing in France and elsewhere—to freeze the police’s relationships with a wide range of activist groups, which involve constant dialogue to balance the facilitation of protests with the rights of others to go about their daily business. That dialogue happens all the time in all our communities and is something to be celebrated.
Jeremy Quin
I deeply respect the hon. Lady’s policing experience and that of her family, but she has implied that the Bill will allow the freezing of protests and an inability to protest, which is not the case. I think that, as a former police officer, she would recognise serious disruption. We are absolutely clear about this: a protest constitutes something that is really interfering with people’s way of life, preventing them from getting to work and engaging in their normal business.
Wendy Chamberlain
What I am trying to say is that the existing legislation already deals with those circumstances, and that, given that some of the Bill’s provisions mean that people need not even have done anything to be subject to them, there is a fear that it will prevent them from doing anything at all. I believe that the fact that our police service is grounded in policing by consent—unlike those in other countries whose police forces have evolved from more militaristic origins—is something to be celebrated.
If the police do not need the powers, if all that the Bill does is make it harder for legitimate protest to take place and if it restricts the right of citizens, I would argue that we do not need it at all. We should reflect on the fact that the Minister, in his opening remarks, claimed that the existing legislation was a reason for rejecting new clause 11.
Let me now raise another point, which I have touched on already. It is not about protecting the democratic rights of our citizens, but in many ways it is just as important, because it concerns the real impact on the capacity of the police service. In Committee I tabled a number of amendments, and although I have not tabled them again on Report, this is a key consideration.
When we pass poor legislation, we sometimes see the results in our constituency surgeries, but when it comes to legislation such as this, we will not be dealing with the outcomes directly. I believe that if the Government are confident that the Bill, in its current form, will do what it is intended to do, they should be comfortable with receiving reports from the College of Policing and from police forces about the capability and capacity of those forces to deliver the legislation—and that is before we even think about the huge backlogs in the criminal justice system. It will take some time for people to come before the courts in the context of this Bill.
The proposed new powers will require additional officer training. Sir Peter Fahy, the former chief constable of Greater Manchester Police, gave evidence to the Bill Committee. The simple fact is this:
“If there are not enough police officers trained to properly respond to protests and apply these new laws, that means that more people must be trained—training that costs thousands of pounds and means that officers are potentially in classrooms, not out on the street.”––[Official Report, Public Order Public Bill Committee, 16 June 2022; c. 191]
Chris Noble, the chief constable of Staffordshire Police, estimated that, under the current legislation, it takes an officer two or three weeks per year to keep up with necessary additional public order skills. The offences specified in the Bill will require significantly more training at the outset, at the least, and will mean even more days of actual policing lost at significant cost, with simply abstracts from core policing duties. Once the officers are trained, it is likely that deployment to protests will increase as a result of the Bill’s restrictions. Simply put, people cannot be in two places at once, and resources are limited. According to evidence given to the Committee, the arrest of a protester usually involves six officers. We will run out of police officers before we run out of protesters.
I know where I would rather the police were. I would rather see an officer making sure that the streets were safe for women and girls walking home at night, going after gangs and those working across county lines, stopping the scammers who target our elderly and vulnerable, working on counter-terrorism, and preventing organised crime. I ask colleagues to reflect on what they and their constituents really want when faced with the reality of these choices, which were made even more stark by the Chancellor when he stood at the Dispatch Box yesterday.
Policing by consent is one of the greatest attributes of our country, and it is something that I am passionate about. The Bill undermines that. Although we will support amendments that curb its worst excesses, I will continue to argue that the decision in the other place to remove these clauses when they were part of the Police, Crime, Sentencing and Courts Act 2022 was correct. I cannot support the Bill in its current form.
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am expecting four Divisions when the Minister resumes his seat.
Jeremy Quin
I hope that we will have fewer, Mr Deputy Speaker, and that hon. Members will be withdrawing their amendments during my remarks.
I start by thanking the hon. Member for Glasgow North East (Anne McLaughlin) and all hon. Members who have contributed to this lively debate. I know that all hon. Members treat this debate and these issues with the great seriousness and concern that they deserve. With the leave of the House, I will respond to some of the points made throughout the debate and to some of the key amendments.
I will start with the amendments in the name of my hon. Friend the Member for Broxbourne (Sir Charles Walker) and the hon. Member for Glasgow North East—appropriately—which seek to remove the serious disruption prevention orders from the Bill. My hon. Friend said that he was cold when he turned up today. I think he misheard me from a sedentary position; I merely said that he had certainly warmed up during his speech.
Our experience of some of the recent protests has shown that the police are encountering the same individuals who are determined to repeatedly inflict disruption on the public. For example, as of July this year, 460 individuals had been arrested a total of 910 times at Just Stop Oil protests, while during Insulate Britain’s campaign, 268 individuals were arrested a total of 977 times. It cannot be right that a small group of individuals can repeatedly commit criminal offences against our roads and railways, to name only a few places, and not face appropriate restrictions.
Jeremy Quin
I have lots of Members to cover, but I will of course give way.
Sir Charles Walker
The Minister is his usual charming self, but what we are talking about is putting ankle tags on people who have not been convicted of any crime. That just does seem way over the top.
Jeremy Quin
That would be a decision made by a court in very specific circumstances, and I do trust our courts to take appropriate action. They can only do so on the weight of evidence, and they are very used to taking these decisions. After all, there is a tried and tested process whereby injunctions can be sought and obtained to prevent a future harm. I do not think this is as radical as my hon. Friend is suggesting. However, I congratulate him on the points he made, even though I disagree with him, and also my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds) on his contribution to this point of the debate. I would love to prevail on my hon. Friend the Member for Broxbourne to withdraw his amendment, but I do not think that is going to happen, and I look forward to opposing it.
Turning to the hon. Member for Croydon Central (Sarah Jones), I spoke earlier in the debate about why we believe that injunctions are useful. We absolutely accept the point being made by the hon. Lady that they are appropriate when used properly, and that is why we have tabled our amendments. I think ours is a more competent and effective way of achieving our shared objectives.
On new clause 5, which seeks to define the meaning of “serious disruption” for the purposes of this Bill, I have to say that no two protests, nor the operational response required, are ever the same. Being too prescriptive risks the ability of the police to respond to fast-evolving protest tactics while also risking the exploitation of loopholes by those intent on causing as much disruption as possible. That is not to say that I dismiss the principle of this amendment. There is a balance to be struck between a definition that is broad and one that is prescriptive, so while I do not agree with the hon. Lady’s amendment, we will reflect further on its intent.
I turn now to perhaps the most vexed issue in today’s debate—namely, new clause 11, proposed by the hon. Member for Walthamstow (Stella Creasy). New clause 11 seeks to create 150-metre buffer zones outside abortion clinics in which all activity interfering with a person’s right to access abortion services would be prohibited. As the hon. Lady would accept, that is a blunt instrument. It is there to achieve an objective, but within those 150-metre buffer zones there could be houses and churches, and this would be a national decision covering the 150 metres around all clinics.
At the outset of the debate, I made it clear that, from the Government’s perspective, it is a free vote for members of our party. My good friend, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), said that this is a difficult issue to grapple with, and it is indeed difficult. However, I would like to make it clear that it is entirely possible to support totally a woman’s right to an abortion and to view protests outside abortion clinics as abhorrent while still believing that the current legislative framework provides an appropriate response.
Sir Bernard Jenkin
I think the Minister should now be persuaded, particularly as one of his predecessors, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), has now made it clear that she supports this amendment. It is time for the Government to say that we have to recognise that the present arrangements are not adequate, and we will be thinking about how to build on the arguments that have been presented in new clause 11. Just to rest on the status quo is not a sufficient response, however the Government vote today.
Jeremy Quin
I sympathise with the sentiment behind new clause 11. I hope we all agree that it is wholly unacceptable for women to feel harassed or intimidated when accessing abortion services. However, bearing in mind the size, scale and frequency of those protests, it is still our view that placing a nationwide blanket ban on protests outside all abortion clinics in England and Wales would be a blunt approach and disproportionate given the existing powers that can and should be used.
Stella Creasy
I know that the Minister is listening both to the testimony of previous colleagues and the sentiment across the House, but might the answer to this lie in the great institutions of this place, in that we should accept this amendment today and seek to further refine how it could work in the other place? We could today send a message to the other place that we will grapple with the issue and resolve it. The testimony from the hon. Member for Louth and Horncastle (Victoria Atkins), a former Home Office Minister, powerfully set out that this is a road to travel. The challenge in this place is that without those opportunities for scrutiny and further refinement, the status quo will remain, and what the Minister is hearing from across the House is that the status quo is not acceptable. Might that not be a way forward?
Jeremy Quin
My hon. Friend the Member for Louth and Horncastle mentioned the reviews that have been done: the review conducted in 2018 went into this in great depth and there has been further work since, and the hon. Lady referred to further work being done in relation to the Police, Crime, Sentencing and Courts Act 2022. That maintained the Government position that the current arrangements are still proportionate. There is legislation; the Public Order Act 1986 and the PSPOs provide those routes, and we continue to believe that is proportionate, but this is ongoing work and we need to continue to ensure that it is still proportionate. I will be reviewing and making certain that I understand fully the pattern of protests and the effectiveness and indeed the cost of PSPOs, and I will certainly make sure that that work is constantly refreshed if the House agrees we should maintain the current legislative environment.
There are existing laws to protect people from harassment and intimidation outside abortion clinics. The police have robust powers to deal with protests that obstruct access to clinics, and cause alarm, harassment or distress, and where protests cause harm, we expect the police and local authorities to work together at the local level to respond in a way that takes into consideration the local facts, issues and circumstances. In addition, local authorities already have powers to implement PSPOs; these can be introduced when a local authority is satisfied that protests are having, or are likely to have, a detrimental effect. We have seen increased use of these in recent weeks, with five local authorities imposing an order outside abortion clinics.
Fiona Bruce
Because some of our colleagues will not have been able to follow the whole debate, will the Minister confirm what I believe he is saying, which is that he personally will vote against new clause 11 this afternoon?
Jeremy Quin
It is a free vote and I will be voting against the amendment. I believe the powers and legislative environment we have are appropriate at the current juncture, and that is the position the Government have taken in the past. It is also the case that we continue to do work on this; I will continue to ensure that we are reviewing the scale of protests, the adequacy of the current legislative framework, and the effectiveness and cost of PSPOs. We need to maintain that work although I will be voting against the amendment this afternoon.
My hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) said that, if the new clause falls, he will not give up. I would have been surprised had he said anything else, and I would be surprised if the hon. Member for Walthamstow gave up if she lost the vote. As I said, we will continue to review and assess this area, but it is important to get it right. There are powerful arguments on both sides of the debate, as enunciated by my hon. Friend the Member for Congleton (Fiona Bruce), the hon. Member for Upper Bann (Carla Lockhart) and my right hon. Friend the Member for Gainsborough (Sir Edward Leigh), and, on the other side, the hon. Member for Walthamstow, my hon. Friend the Member for Louth and Horncastle and my right hon. Friends the Members for Romsey and Southampton North (Caroline Nokes) and for Harwich and North Essex. I have set out how, through the current legislation and PSPOs, a lot can be done. The House will determine whether it believes that to be insufficient.
I turn to new clauses 13 and 14 tabled, again, by the hon. Member for Walthamstow, who is a passionate campaigner on these issues. In last year’s “Tackling violence against women and girls strategy”, we confirmed that we are looking carefully at where there may be gaps in existing law and how a specific offence of public sexual harassment could address them. In the light of that work, just before summer recess, we launched a targeted consultation on whether there should be a specific offence of public sexual harassment and, if so, what it should look like. The hon. Lady knows that. The consultation closed in September, and we are grateful to her for sending us her comments. We are working at pace to analyse the responses and to determine the best way forward. I reassure her that, for example, her comments on foreseeability of intent are absolutely part of that consultation. What I cannot do—I am sorry to disappoint her—is give a commitment today on our next steps. That would not be appropriate until we fully analyse the consultation. I look forward to sharing our views with the House as soon as possible.
I turn to the several amendments tabled on the recommendations of the Joint Committee on Human Rights. Again, I thank the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the Committee for the vital work that they do in supporting parliamentary scrutiny, as was referred to by the hon. Member for North East Fife (Wendy Chamberlain) and my hon. Friend the Member for Ruislip, Northwood and Pinner. Amendments 28, 30, 35 and 37 aim to move the burden of proof for a reasonable excuse from the defendant to the prosecution for the relevant offences. As we made clear in our formal response to the Committee’s report, whether or not someone has a reasonable excuse for their actions is specific to each incident, and we see it as entirely appropriate that the defendant who committed the offence in the first place and has personal knowledge of those facts is required to prove them. Beyond that, our courts are experts in assessing whether an individual has a reasonable excuse for a multitude of criminal offences. I do not see the value in placing that burden on the prosecution.
Amendments 32, 36 and 38 seek to require the courts to have particular regard to articles 10 and 11 of the European convention on human rights when assessing whether someone has a reasonable excuse for offences. Courts and other public bodies are already obliged to act compatibly with ECHR, and we do not believe that it is necessary to repeat that obligation.
Finally, several amendments seek to narrow the Bill’s scope. I will not address each individual amendment. The Government believe that the scope of the offences is not only appropriate but proportionate to the serious disruption inflicted.
I turn to a couple of other amendments.
Jeremy Quin
I was about to turn to my hon. Friend. She tabled amendments 51 and 52, which would add farms and food production infrastructure to the list of key national infrastructure. That would significantly increase the scope of the Bill. As she is aware, there are some 216,000 farm holdings and 13,560 food and drink manufacturers—it goes on. However, I understand and am sympathetic to the point she made about the importance of food and food manufacture. I will take up with my colleagues in the Department for Environment, Food and Rural Affairs whether we need to look further at that area in the Bill, and I will share with her the results of that at pace.
Alicia Kearns
I thank my hon. Friend for recognising that the actions of vegan militias over the summer in disrupting milk supply chains were unacceptable. They hurt our farmers and our food security. When he tasks his officials and those of DEFRA to look at that, will he commit to meeting me in December and consider secondary legislation to protect our food producers and our food security?
Jeremy Quin
I am delighted to confirm that I will meet my hon. Friend in December and talk through our view with her, having discussed it. I am sympathetic to how food is an important aspect of our national resilience.
On stop and search, I am grateful to the hon. Member for Battersea (Marsha De Cordova) for tabling new clauses 9 and 10, and to the hon. Member for Streatham (Bell Ribeiro-Addy) for speaking to them so capably. The Home Office continues to publish extensive data on the use of stop and search to drive transparency. That will continue with the introduction of these new powers. As my predecessor did in Committee, I can assure the hon. Lady that data on the use of these powers will be collected and published. It will be broken down by age, gender and ethnicity and include the outcome of the search, as for existing stop-and-search powers. On the creation of an independent reviewer of the powers, I point the hon. Lady to the existing independent bodies, to which she referred, the IOPC and His Majesty’s inspectorate of constabulary and fire and rescue services, which will ensure that proper oversight of the powers is embedded in its inspections.
The Secretary of State for the Home Department (Suella Braverman)
I beg to move, That the Bill be now read the Third time.
The Public Order Bill reflects the Government’s duty to put the safety and interests of the law-abiding majority first. We are on their side, not the side of extremists who stick themselves to trains, glue themselves to roads, interfere with newspaper distribution, vandalise properties, disrupt the fuel supply, disrupt this Chamber, or block ambulances. The growing tendency of those with strong opinions to mix their expression with acts of violence cannot and will not be tolerated.
The most generous interpretation of the kind of characters who glue themselves to roads is that they are dangerously deluded, but in fact—much worse—many of them have the deranged notion that their ends justify any means whatever. In the eyes of the militant protesters, the everyday priorities of the hard-working, law-abiding, patriotic majority can always be disregarded in pursuit of their warped schemes.
These extremists stop people from earning a living, gaining an education or caring for a loved one in need. Ordinary people who are working, learning or caring are never deemed by the extremists as important enough to stand in the way of their plots and plans. No Government should fail in their duty to protect their citizens from such abuse, and this Government will always put the law-abiding majority first and foremost.
Marco Longhi
Does the Home Secretary agree that the police should consider the wider, cumulative impacts of protests on a local community, rather than a narrow, notional assessment, in isolation, of whether a serious disruption threshold has been reached? In other words, can we get the police to start locking them up, please?
Suella Braverman
My hon. Friend makes a very important point. Fundamentally, police and key partners should view the impacts of disruption cumulatively. The clock should not be reset every day and in each location; they need to look at the tactics in the round.
We need the police to act proactively, decidedly and diligently, so there are various factors that they need to include in their assessment of serious disruption. They need to consider the overall length and the time and impact on communities. They need to look at the disruption to a general area. They need to look at the police resources that have been drained by the action. They need to look holistically and actively at how they take action.
Gareth Bacon (Orpington) (Con)
Does my right hon. Friend agree that, given the strict limitation of police resources, the police should perhaps deploy those resources on dealing with the guerrilla tactics that are putting the people of London at risk of harm and less time policing pronouns on Twitter?
Suella Braverman
My hon. Friend raises an issue that is close to my heart, which is that we need our police officers—our brave men and women, the majority of whom are heroes, frankly, in this nation’s law enforcement and security—to be focusing on our priorities and the priorities of the law-abiding majority. Common sense policing means focusing on targeting and fighting the bad guys, fighting the criminals and stopping crime, not policing pronouns and not pandering to politically correct campaigns.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
Will the Home Secretary give way?
Suella Braverman
I will make progress, I am afraid.
No Government should fail in their duty to protect their citizens from such abuse, and this Government will always put the law-abiding majority first. In a democracy, we make policy through civilised debate and at the ballot box, not through mob rule and not by visiting chaos and misery on our fellow citizens.
Suella Braverman
I am afraid I do not have much time.
When I was the Attorney General, I went to court to establish that it is not a human right to commit criminal damage. The Court of Appeal agreed with me in the Colston statue case that serious and violent disorder crosses a line when it comes to freedom of expression. That is common sense to the law-abiding majority.
Since 1 October alone, the Metropolitan police have made over 450 arrests linked to Just Stop Oil, and I welcome this, but more must be done. That is why I welcome the fact that, today, Transport for London has succeeded in securing an injunction to protect key parts of the London roads network. That is an important step forward in the fight against extremists. However, these resources are vital and precious, and this has drained approximately 2,000 officer days at the Met already. Those are resources that are not dealing with knife crime and are not dealing with violence against women and girls.
I am afraid to say—and I will come to a close soon—that that is why it was a central purpose of the Police, Crime, Sentencing and Courts Bill, now an Act, to properly empower the police in face of the protests, yet Opposition Members voted against it. Had Opposition Members in the other place not blocked these measures when they were in the Police, Crime, Sentencing and Courts Bill, the police would have already had many of the powers in this Bill and the British people would not have been put through this grief. Yes, I am afraid that it is the Labour party, the Lib Dems, the coalition of chaos, the Guardian-reading, tofu-eating wokerati and, dare I say, the anti-growth coalition that we have to thank for the disruption we are seeing on our roads today. I urge Opposition MPs and Members of the other place to take this second chance, do the right thing, respect the rights of the law-abiding majority and support this Bill.
Madam Deputy Speaker (Dame Rosie Winterton)
There is very little time left. I call the shadow Home Secretary.
Tuesday 1st November 2022
(1 year, 5 months ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 18 October 2022 - large print - (18 Oct 2022)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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Lord Sharpe of Epsom
That the Bill be now read a second time.
Relevant document: 1st Report from the Joint Committee on Human Rights
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the duty of any Government is to protect the safety and interests of the law-abiding majority. This means working to prevent and reduce crime, giving the police the tools they need and ensuring that those who break the law face proportionate consequences of their actions. Fighting crime and keeping communities safe is at the forefront of the Government’s agenda. That is why we have invested £17 billion in policing. It is why we are running a police uplift programme that is well on the way to recruiting 20,000 additional officers, and why we introduced the Police, Crime, Sentencing and Courts Act, which received Royal Assent in April.
While that Act has given the police some of the tools they need better to manage disruptive protests, we were frustrated in our attempts to implement the full suite of measures needed to ensure that the public can go about their daily lives free from serious disruption or harm. The Public Order Bill therefore builds on the Police, Crime, Sentencing and Courts Act to bolster our ability to crack down on disruptive and dangerous tactics of the kind we are seeing deployed all too frequently.
Specifically, the Bill targets acts by a minority of people that cause serious disruption to the hard-working majority, such as those we have seen in recent months that have brought roads to a standstill, blocked emergency services and forced thousands of police officers away from the critical work of protecting their communities. In October alone, the Metropolitan Police made more than 650 arrests in relation to Just Stop Oil activity in London.
When speaking about some of this disruption, Metropolitan Police Commissioner Sir Mark Rowley noted that his force’s response over 11 days of protests had been the equivalent of more than 2,150 officer days. That, I am sure noble Lords agree, is a striking number. It encapsulates why it is so crucial that we act. The police perform a unique role in our society; theirs is undoubtedly a job with many different strands. These include public order, but it cannot be right that so much of their time and resources are taken up by tiresome and disruptive stunts that, far from advancing the protesters’ cause, serve only to infuriate everyone else.
Peaceful protest is a fundamental part of our democracy. We will never agree on everything, which is why vigorous but sensible debate is something we hold so dear. What we cannot and should not accept is a situation in which the lives and livelihoods of decent, law-abiding citizens are impeded by the actions of a selfish and reckless few. The public are fed up with what they see happening day after day, and who can blame them? It is now up to us, as parliamentarians, to act in their best interests and get this crucial Bill on the statute book.
I will now speak to the measures set out in the Bill. First, the Bill introduces a new criminal offence of locking on, accompanied by a further criminal offence of going equipped to lock on, criminalising the tactic of intentionally causing disruption by locking on to busy roads, buildings or scaffolding. Locking on is as risky as it is disruptive, endangering not only the protesters but the police removal teams. I was therefore pleased to hear the leader of the Opposition confirm last week that his party would press ahead with tougher prison sentences for protesters who glue themselves to roads.
Secondly, the Bill introduces a new criminal offence of tunnelling, being present in a tunnel and going equipped to tunnel, making it clear that the protest tactic of building and occupying tunnels in order to disrupt legitimate activity will not be tolerated. HS2 has been targeted on multiple occasions with tunnels that have caused enormous cost to the project, with three removal operations alone costing in excess of £10 million. But it is not just about the costs. Tunnelling is dangerous and reckless, endangering not just those who occupy the tunnels but the responding emergency workers. We cannot wait to act until someone is seriously injured or worse.
Thirdly, the Bill establishes new offences for obstructing major transport works and interfering with key national infrastructure, reflecting the serious impact of such acts and our determination to tackle them. I have already touched on some of the disruption to projects such as HS2. HS2 estimates that sustained protester action has led to additional costs to the project of more than £146 million, an amount projected to rise to £200 million by the end of next year. The offence of obstruction of major transport works therefore ensures that all stages of construction and maintenance will be protected from disruptive action, while the key national infrastructure offence will ensure that our major transport networks, energy and fuel supplies are protected.
The new offences in the Bill are accompanied by an extension of stop and search powers for police to search for and seize articles connected to protest-related offences such as locking on and tunnelling.
Lord Bellingham (Con)
I absolutely agree with what the Minister says about the police being given these new powers, which are long overdue, but does he agree that once they have them, it is incredibly important that they use them? There have been examples of the police—not the Met but other forces—adopting a “softly, softly” approach that has encouraged the people who have been locking on and causing disruption.
Lord Sharpe of Epsom (Con)
I agree, of course, with my noble friend and I am sure we will come on to that subject in some detail later.
In its report on the policing of protests, His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services concluded that stop and search powers will improve the police’s ability to prevent serious disruption, and we agree. I want to be clear to noble Lords that existing safeguards around the use of stop and search powers, including statutory codes of practice, use of body-worn video to increase accountability and extensive data collection will continue to apply.
Next, the Bill lowers the rank of officer to whom the commissioners of the City of London and Metropolitan police forces can delegate powers to prohibit or set conditions on protests. The rank is being lowered from assistant commissioner to commander. This retains senior level involvement but will allow the most senior officers more time to focus on the challenges that the Metropolitan Police Service faces. It will bring London forces into line with forces across England, Wales and Scotland, whose chief officers can already delegate their powers to the commander-equivalent rank of assistant chief constable. The Bill also extends to the British Transport Police and Ministry of Defence Police existing powers to manage public assemblies in Part II of the Public Order Act 1986.
The Bill contains two other measures, as well as an addition from the other place. First, it establishes a new preventive court order, the serious disruption prevention order, which may be sought either on conviction or following an application by a chief police officer. This is targeted at protesters who are determined to repeatedly inflict disruption. The courts will be able to place conditions on individuals to prevent them engaging in criminal acts of protest and causing serious disruption time and time again. These conditions could include curfews or electronic monitoring but, most importantly, they will be for the courts to decide, not the Government. The threshold for the imposition of these orders is appropriately high and I trust our police and courts to impose them only where necessary.
The second measure provides a Secretary of State with a specific mechanism to apply for an injunction in relation to protest activity that causes, or threatens to cause, serious disruption to key national infrastructure, or to access to essential goods or services. An injunction could also be sought where the protest activity has, or is likely to have, a serious adverse impact on public safety. This does not affect the right of local authorities or private landowners to apply for an injunction but gives a Secretary of State an additional route to act in the public interest where the potential impact is serious and widespread. For example, a Secretary of State could have applied for an injunction on behalf of the various local authorities affected by the recent Just Stop Oil protests that obstructed roads across London.
Finally, on a free vote with cross-party support, an amendment was inserted into the Bill by the other place on Tuesday 18 October. Clause 9 establishes buffer zones around abortion clinics where interference with people accessing or providing abortion services would be an offence. The Government will consider how to implement and deliver this amendment. Noble Lords may have seen a Written Ministerial Statement which I issued last week, in which I indicated that I was presently unable—before introduction—to sign a statement of compatibility with the European Convention on Human Rights. I would particularly welcome your Lordships’ engagement on this clause.
I conclude my opening remarks by saying that there are inevitably differences of opinion, which we will come to consider throughout the course of this debate. But I hope all noble Lords recognise that blocking ambulances, preventing cars carrying sick children from passing, or damaging artworks is completely unacceptable, whatever the cause. That sort of behaviour is not only breathtakingly selfish; it pulls the police away from the people and places that need them the most. This cannot continue. I beg to move.
Lord Frost (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady Bennett, particularly today. I fear that we are probably not destined to agree on very much in our debates in this place, but I hope that she will not be too embarrassed to hear that I agree with her on the importance of free debate and protest, even on unpopular causes. It is important to maintain that, and it is a principle through which I look at the Bill.
I support the general principle of the Bill. It seems unarguable that there have been changes in the methodology of protest, from a range of campaigners, that deliberately aim at the disruption of everyday life. We have seen that in many ways, as noble Lords have mentioned. But the Bill includes new and significant powers, of a novel kind in some cases. Noble Lords may remember that I resigned from the Government last year rather than support the then “plan B” measures and restrictions on civil liberties that would have come with a further coronavirus lockdown. From the experience of the pandemic, we have seen just how easy it is to create, expand or distort powers for purposes that were not originally intended. So we have real-life experience of this, and we should keep that in mind—it has not been said much in this discussion so far, but we all lived through it.
So if we are to avoid such problems, it is important to be clear—I think and hope that the Government are—about what we are trying to achieve. I suggest that the correct principle is that the right to protest and persuade is fundamental and must be protected, but intimidation and anything more than incidental disruption of the rights of others to go about their lawful business, particularly with novel and aggressive tactics, ought not to be allowed. We must apply this principle whatever the circumstances, whether it is fracking, an abortion clinic or anything else. My worry about some aspects of the Bill is that this principle may not be fully followed.
I will make three brief points. First, Clauses 1 to 8 of the Bill create a series of specific powers that would certainly stop some of the disruptions that we have seen over the last year or two, such as blocking the Dartford bridge, oil refineries and so on. I am certainly willing and ready to accept the Government’s judgment that extra powers are needed to deal with those situations. However, in line with the principle I set out, it is important, as the Joint Committee on Human Rights notes, to look carefully at the drafting, which may be a bit loose, and to avoid the risk of inadvertent consequences. It is also not clear that the powers would stop some of the things that we have seen, such as blocking roads in central London, throwing paint over paintings and so on. As has been said, existing powers cover those situations, and they should be used with more determination than we have seen so far. Otherwise, the risk—I hope we will not get into this situation—is that next year, we will have another Bill creating specific offences of throwing paint over a painting and so on. We need to avoid that, and the authorities need to be determined to use the powers that they have, with new powers being limited to specific, defined and novel situations.
Secondly, like others, I have concerns about Clause 20, on SDPOs made “otherwise than on conviction”. I think—and, again, our experience in the pandemic is part of this—that it is fundamentally unacceptable in a free society to restrict individuals’ free movement or right to protest, to free speech, to carry particular items and so on, without them having been convicted of an offence in a court of law. I find it particularly problematic that people should have to wear electronic tags without conviction—where people have been caught and convicted, that is a different matter. But Clause 20 is quite widely drawn and carries the risk of making it too easy for the authorities not to worry about actually catching and convicting but simply to use an SDPO. It seems to carry the risk of a slippery slope for the convenience of the Executive. I note that, in their response to the JCHR, the Government do not make a very strong defence of this provision. If there is a defence, I would like to hear it—perhaps the Minister could say more on that at the end.
Thirdly, as the Minister noted, Clause 9, on abortion clinics, was added in the other place and was not part of the Government’s original thinking. I am a little surprised that the Government allowed it to be subject to a free vote, because the issue is clearly not about abortion services themselves but about the right to protest and persuade. Here, the distinction I made between persuasion and intimidation needs to be maintained, and I am not sure that Clause 9 does that. I have no difficulty with subsections (3)(c) or (3)(d), but it cannot be right for this Parliament to make it illegal if someone, for example, “seeks to influence”, “persistently … occupies” or
“informs or attempts to inform”,
in subsections (3)(a), (3)(b) and (3)(f), respectively. That is true whether it is in the vicinity of an abortion clinic or anywhere else.
I sense, from comments made by Ministers here and in the other place, that they feel that they are on uncomfortable ground and are looking for help on this subject. I am sure that there will be amendments in this area and hope that the Government will give them a fair wind.
Finally, the Government themselves note that Clause 9 is incompatible with the ECHR. Many commentators and the JCHR argue that the same is true of other areas of the Bill. I do not know about that. For me, that is interesting but not decisive; I do not base my concerns on that argument. I believe that this Parliament should be able to protect the civil liberties of people in this country without outside help. Its record over the last two to three years has been, shall we say, mixed in this respect. To conclude, I hope that the Government will look carefully at these points of detail of specific concern and make it easier for those who think—as I do—that we should be able to wholeheartedly support a more carefully worked-through and acceptable version of the Bill.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for their contributions throughout this debate. I will endeavour to respond to the points that have been made. For the record, I refute the assertion that this is some sort of battle in the culture war, not least because I am fond of tofu.
The noble Lord, Lord Ponsonby, has just asked for a list of the various Bills. I commit to write on that, and will obviously study Hansard carefully. If I miss the specific questions of any other noble Lord, I will also write on those, but I will endeavour to get to all of them.
A number of noble Lords, including the noble Lords, Lord Coaker, Lord Paddick and Lord Beith, and the noble Baronesses, Lady Chakrabarti, Lady Jones and Lady Blower, have argued that the Bill will have a chilling effect and cause peaceful protesters and bystanders at protests to be criminalised. I respectfully disagree and say that that is not the case. The right to protest peacefully, as my noble friend Lord Sandhurst just noted, is a fundamental part of democracy and that will never change. Protesters can continue to have their voices heard but, as my noble friend Lord Hailsham noted, they will not be allowed to wreak havoc on the lives of others while doing so.
At this point I would like to quote the chief constable for Essex Police, Mr Harrington, who said recently that
“concerns about the climate—however real—cannot justify actions that seriously disrupt and endanger the lives of others”.
I would agree with that, much though I share the concerns of those climate protesters. I think most of the House shares those concerns and the Government, as has been argued on many occasions in this Chamber, are doing a lot of work on the subject.
A number of noble Lords brought up the fact that they believe the Bill to be incompatible with the European Convention on Human Rights. We have been clear that we believe the measures in the Bill are compatible with the ECHR in the main, with the exception of Clause 9; namely the rights to freedom of expression, assembly and association. However, these rights are not absolute. They do not extend to wreaking havoc on the lives of others.
Several noble Lords, including the right reverend Prelate the Bishop of St Albans, the noble and learned Lord, Lord Hope, the noble Lords, Lord Paddick and Lord McAvoy, and my noble friend Lord Frost have argued that there are existing powers for the police to use and that the Bill is therefore unnecessary. I respectfully say that recent events demonstrate that this is not the case. As helpfully explained by the noble Lord, Lord Hogan-Howe, we have seen instances where the current legal measures are insufficient to prevent serious disruption or to hold disruptive protesters to account, even in cases where disruption has incurred unjustifiable costs of over £10 million.
In response to the point made by the noble Lord, Lord Paddick, about new and evolving tactics by protesters I will this time quote chief constable Chris Noble from the NPCC, who said:
“There have been some very novel … and highly disruptive tactics; that is reflected on the contents page of the Bill”.
He subsequently said that protesters
“are very aware of some of the legal gaps, inadequacies and shortcomings”.—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 5.]
It is worth pointing out that Chris Noble leads at the NPCC on protests.
I turn to the arguments made by noble Lords including the noble Lords, Lord Coaker and Lord Paddick, the noble Baroness, Lady Chakrabarti, and the noble Lords, Lord Beith and Lord Anderson, regarding the stop and search powers contained in the Bill. Stop and search powers will enable the police to proactively tackle highly disruptive protest offences by searching for and seizing items which are made, adapted or intended to be used in connection with protest-related offences, such as glue, chains and locks. Stop and search can also act as a deterrent by preventing offenders carrying items for protest-related offences in the first place, because of the increased chance of being caught.
Concerning the suspicionless powers, we believe these are necessary and reflect the operational reality of policing these protests. In the fast-paced context of a protest, it can be challenging to assert the appropriate level of suspicion needed for a suspicion-led search. In addition, the use of suspicionless stop and search is not inconsistent with the right to engage in peaceful protest, as it would be targeted only at preventing the guerrilla tactics employed by some. HMICFRS has also recognised the need for the police to be granted suspicionless powers to stop and search for articles connected with protest-related offences and, at the Bill’s oral evidence session, HM Inspector Matt Parr reaffirmed his support for these measures.
I also seek to assure noble Lords that existing safeguards for the stop and search powers that are already in place, such as body-worn video and PACE codes of practice, will continue to apply to stop and search powers provided for in the Bill. It is worth pointing out that the Home Office publishes extensive data on the police’s use of stop and search, in the interests of accountability, and will expand this publication to the use of the new powers provided for in this Bill.
I turn to the concerns about the serious disruption prevention orders raised by noble Lords, including the noble Lords, Lord Beith, Lord Coaker, Lord Paddick, Lord Foulkes, Lord Anderson, Lord Hendy and Lord Skidelsky, the noble and learned Lord, Lord Hope, the noble Baroness, Lady Chakrabarti, and my noble friend Lord Frost. Noble Lords have raised particular concerns about the orders made “otherwise than on conviction”. Serious disruption prevention orders are a proportionate way of dealing with those who cause serious disruption and misery to others. I assure the House that they cannot be arbitrarily imposed on innocent individuals.
SDPOs are used only where there is evidence of two or more instances where the individual has been convicted of a protest-related offence, breached a protest-related injunction or committed, caused or contributed to another specified protest-related activity. Importantly, it is for our independent judiciary to decide whether to impose an SDPO. They are to be used only where the courts find clear evidence that an SDPO is absolutely necessary to prevent an individual engaging in prohibited activity. The threshold for the imposition of these orders is therefore appropriately high, and I trust our police and courts to impose them only where necessary.
I turn to the arguments made by the noble Lords, Lord Anderson and Lord Hogan-Howe, regarding the inclusion of a definition of “serious disruption” in the Bill. As noble Lords will be aware, no two protests are ever the same and being too prescriptive risks the ability of the police to respond to fast-evolving protest tactics, while also risking the exploitation of loopholes by those intent on causing as much disruption as possible. The notion that courts and the police interpret terms in English and Welsh law is a principle that we have long relied on to ensure that those who enforce the law are not limited by instances that a definition will not be able to capture. Nevertheless, I recognise that a clear definition could bring benefits and I recognise the strength of feeling expressed on this issue today, so I will reflect further on it. I will write to the noble Lord, Lord Anderson, on his other two questions, if that is acceptable.
Throughout this debate, many views have been expressed by noble Lords regarding the insertion of Clause 9 by the other place. As the Minister there said, Clause 9 is a “blunt instrument”, and the Government believe that it would not be proportionate in its current form. However, I note that the proponent of the clause, the Member for Walthamstow, accepted that it would need to be refined in this place. I therefore stress that this measure will not prevent people expressing their views; it will prevent protesters doing so only near women accessing abortion services.
Furthermore, as noble Lords will be aware, Clause 9 meant that the Government were unable to issue a statement of compatibility with the European Convention on Human Rights upon the Bill’s introduction to this House. However, the Government accept the view of the other place that the existing powers are inadequate to deal with the problem—but we cannot accept Clause 9 in its current form. However, I am happy to say yes on all three of the specific concerns of the noble Baroness, Lady Sugg, about this. I invite interested noble Lords to engage and work with us on this to deliver a workable solution.
As I expected, this has been a lively and thought-provoking debate. This is clearly an issue of significant interest and importance. But the fact is that we have a responsibility to act and update our laws to reflect changing tactics. The Government will not stand by while decent hard-working people have their lives and livelihoods disrupted; we will put the law-abiding majority first. I commend the Bill to the House.
Wednesday 16th November 2022
(1 year, 5 months ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 61-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (16 Nov 2022)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Ponsonby of Shulbrede (Lab)
My Lords, I shall open by thanking the noble Lord, Lord Paddick, for setting the scene and the background to this group of amendments. I agree with the way that he set out the history of this group of amendments. I also thank my noble friend Lady Chakrabarti for the way she set out her amendments and commented on the other amendments. I agree with her assessment that the Bill, as drafted, is vague and broad—and that it is vague and broad in a dangerous way. I agree with those central points.
Throughout the Bill, a number of clauses state that it is a defence for a person charged with an offence under the clause to
“prove that they had a reasonable excuse”
for their actions. As we have heard, the JCHR flagged this as a reverse of the burden of proof, so that rather than the prosecution having to prove that a person’s actions were done without a reasonable excuse and so were unlawful, it is for the defendant to prove, after they have been charged, that they had a reasonable excuse for their actions. This is in contrast to an offence such as obstruction of the highway, which we have just heard about, where the prosecution must prove that the defendant did not have lawful authority or excuse for their actions. For the new locking-on offence, the burden of proof would be on the defendant to show that he or she had a reasonable excuse.
Such a reverse burden of proof may be inconsistent not only with Articles 10 and 11 but with the presumption of innocence—a central principle of criminal justice and an aspect of Article 6 of the ECHR and the right to a fair trial. This is because requiring the defendant to prove something, even on the balance of probabilities, may result in a conviction despite there being an element of doubt, and it is hard to see why a reverse burden is necessary or appropriate in this case. The noble Lord, Lord Anderson, gave the example of a bladed article and the reverse burden of proof in that context. It is of course a defence I am very familiar with as a sitting magistrate in London. It is of course right that the court will take its own view on whether the reverse burden of proof is reasonable in these circumstances.
I agree with the point made by my noble friend Lady Chakrabarti that the better situation is that a police officer, when considering whether to charge, at that point takes into account whether there is a reasonable excuse, rather than it being subsequently resolved in a court case—although I also acknowledge the legal point made by the noble Lords, Lord Carlile and Lord Anderson, that it is not always simple to distinguish between the two. Nevertheless, the point is that the police officer should take into account a potential reasonable excuse defence before deciding whether to charge.
To summarise this debate, two noble Lords made points that I thought were particularly resonant. The noble Lord, Lord Carlile, asked whether this was speciality legislation for ever more exotic offences that can be extremely annoying to the general public. As many noble Lords have said in this debate, there is existing legislation to deal with those offences, and there is scepticism that the police are feeling able to use the legislation that is already within their power. The noble Lord, Lord McDonald, challenged the Minister to give examples of the gaps in the existing laws: in fact, he defied the Minister to go ahead and give those examples.
I also want to comment briefly on my noble friend Lady Blower’s speech on Amendment 60, which of course I agreed with. I also agreed with the point made by the noble Lord, Lord Balfe, that in the case of industrial action it should not be a reasonable excuse. The offences should never be charged in the first place. It is the same point, in a sense, that the potential use of a reasonable excuse should be taken into account right at the beginning of the process rather than once you get to a court case.
Although the amendments focus on particular detailed provisions in this Bill, I think a challenge has been laid down to the Minister to give examples and to say why this is necessary when we have a plethora of laws which are being used. The demonstrators on the M25 have moved on partly because of the sentences that have been given to them, so what is the necessity of pursuing this legislation?
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords who have spoken in this debate, to which I have listened carefully. Before I turn to the specific amendments in the group, I shall start by setting out the case for Clauses 1 to 8 and why I disagree with the general thrust of many of the amendments that we are going to discuss today that seek to make these offences less effective.
Before I do that, I shall go on to a couple of general points. The noble Lord, Lord Paddick, said that this House had already rejected these measures, but one of the main criticisms that noble Lords made during the passage of the Police, Crime, Sentencing and Courts Bill was that the measures had not been debated in the House of Commons. The elected House has now had an opportunity to scrutinise this legislation and vote on the Government’s proposals and has supported its move into the House of Lords.
A number of noble Lords mentioned compatibility with the ECHR. I reaffirm that it is the Government’s view that the measures in this Bill are compatible with the ECHR, namely the rights to freedom of expression, assembly and association. However, these rights are not absolute. They do not extend to wreaking havoc on the lives of others. Of course, however, as with all existing public order powers, the police will absolutely need to act compatibly with the human rights of protesters when using those powers.
Lord Foulkes of Cumnock (Lab Co-op)
It appears from his general introduction that the Minister is going to proceed with this Bill. Surely, in the light of the overwhelming view on both sides of the House that existing legislation is entirely adequate—with one slight hesitation from the noble Lord, Lord Horam—it is a waste of the Minister’s valuable time and this House’s time to proceed with this. Will he now quickly have a rethink and withdraw this Bill?
Lord Sharpe of Epsom (Con)
Well, I thank the noble Lord for that, and the answer is, of course, no.
Lord Foulkes of Cumnock (Lab Co-op)
That is a very clear answer. I wonder whether the Minister could give, perhaps, a sentence or two of explanation as to why he does not think that it would be a wise move to withdraw this Bill, since all its aspects are already covered by existing legislation.
Lord Sharpe of Epsom (Con)
My Lords, it is reasonable to say at this point that we are about to have two days of quite detailed explanation on that, so I am afraid that that is as far as I can go on this.
Returning to the more general points that have been made so far in this debate, particularly as to why the police need these powers, what existing powers they have, and so on and so forth, we will be returning to this in a much later group, and I intend to speak in much more detail on it. From a general point of view, recent protests were clear that they had as their aim the intent of causing as much disruption as possible through the use of what can only be described as guerrilla tactics. These measures give the police the proactive powers necessary to respond to these dangerous and disruptive tactics quickly. We are going to work closely with our partners in the police to ensure that they have the support and resources in place that they need to use these powers.
Again, as my noble friend Lord Horam remarked, too often we have seen protesters acquitted on grounds of technicalities or get penalties that do not reflect the harm that they have caused to others. We want simple, stand-alone offences that ensure that those who cause this level of disruption and misery can be convicted and receive a penalty proportionate to the harm that they have caused. I will return more specifically to the legislation in a later group; I hope that will be acceptable.
To give one example of this type of behaviour, just two Just Stop Oil activists climbed the suspension cables of the Queen Elizabeth II bridge in the early hours of 17 October this year. They caused its closure for more than 36 hours. Once discovered, the Essex Police attended and closed the carriageway so that officers could safely leave their vehicles in an attempt to engage with the activists. It was later advised by National Highways to keep the road closed for the safety of the protesters, road users and responding partners. The closure of the carriageway meant that the entirety of the clockwise traffic from Essex to Kent that usually utilises the QE2 bridge had to be diverted through the east bore of the Dartford Tunnel, halving the usual counter-clockwise Kent-Essex traffic capacity that would normally use all the tunnels at the Dartford crossing. This had a number of knock-on impacts in terms of the emergency services and local communities and businesses. I am sure that we are all familiar with what those were.
The noble Lord, Lord Paddick, raised a hypothetical example of a landowner in respect of a tunnel.
Lord Paddick (LD)
Before the Minister continues, can he point to which part of this Bill would be deployed against the two Just Stop Oil activists who climbed on the QE2 bridge?
Lord Sharpe of Epsom (Con)
Well, we are about to go into a good deal of discussion about things such as serious disruption, key national infrastructure and so on, which form essential parts of this Bill. I am not a policeman, but I imagine that the police are perfectly capable of utilising those aspects of the Bill.
I come to the hypothetical example of the landowner that the noble Lord raised earlier. It is worth pointing out, in relation to the entire Bill, that the threshold is “serious disruption”. In the case that the noble Lord outlined, that is clearly not the case, so there would be no case.
I move on to the measures in Clauses 1 to 8. As well as the measures we will discuss next week, the police will have the proactive powers necessary to respond quickly to these dangerous and disruptive tactics.
I turn to the specific amendments in the group. Amendments 1, 7, 8, 24, 28, 29, 35, 39, 40, 55 and 59, in the names of the noble Lords, Lord Paddick, Lord Anderson of Ipswich, Lord Skidelsky and Lord Coaker, and the noble Baroness, Lady Chakrabarti, seek to move the burden of proof for a reasonable excuse from the defendant to the prosecution, making it a key element of the offence. We will debate the subjects that the noble Baroness, Lady Blower, raised with regard to trade disputes in the fourth group today, so I will defer specific answers to those questions until the debate on that group.
Whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, so we see it as entirely appropriate that the defendant, who has committed the offence in the first place and has personal knowledge of these facts, is required to prove them. It is also the case that the burden of proof resting on the individual is not a novel concept. There are multiple offences where this is the case, including—as the noble Lord, Lord Anderson, pointed out—the defence of good reason for possessing a bladed article in a public place under Section 139 of the Criminal Justice Act 1988.
The noble Baroness, Lady Chakrabarti, raised the example of linking arms. Of course linking arms itself is not an offence; it is an offence and applicable only if the act
“causes, or is capable of causing, serious disruption to … two or more individuals, or … an organisation”.
Groups of protesters linking arms and obstructing roads or buildings can cause just as much disruption as those who use other equipment to lock on. For example, it is not right that groups of people who glue themselves to roads may fall under this offence but those who link arms and cause just as much disruption do not.
On the question from the noble Lord, Lord Anderson, on why the burden of proof being on the defendant is in the public interest, we have seen people cause so much serious disruption and then continue to burden the prosecution with more and more requirements to prove things. Surely it is right that, where people have caused this kind of disruption, they should demonstrate that they had a reasonable excuse.
With these offences, the prosecution will still need to prove all the elements of the offence to the criminal standard of proof, including that the act
“causes, or is capable of causing, serious disruption”,
as I just explained, and that the defendant intended or was reckless as to serious harm disruption. For those reasons, I respectfully disagree with the amendments.
Lord Sharpe of Epsom (Con)
Again, we will come back to that in some detail in the debate on a later group. The amendments have been grouped thematically today so there will be a bit of overlap, for which I apologise. For now, I respectfully disagree with these amendments and ask that they not be pressed.
Lord Carlile of Berriew (CB)
Will the Minister at some point explain to us why Section 78 of the Police, Crime, Sentencing and Courts Act 2022, introduced by this Government, does not meet exactly the requirements discussed in this Bill? It is not an ancient Act of Parliament but a new one, and it seems to me to fit the bill proportionately.
Lord Sharpe of Epsom (Con)
I commit to doing that in the debate on a later group.
Lord Paddick (LD)
Can the Minister address the issue of people being arrested and detained, and being allowed to deploy a reasonable excuse defence only once charged, as opposed to someone not committing an offence if they have a reasonable excuse, which is the normal process with most legislation?
Lord Sharpe of Epsom (Con)
My Lords, I think I have gone into reasonable detail on the reasonable excuse situation, so I will rest my comments there for now.
Lord Paddick (LD)
I am sorry to disagree with the Minister, but he addressed the issue of whether the burden of proof was on the prosecution or on the defence. He did not address, in any shape or form, police being allowed to arrest and detain people and their being allowed to deploy the reasonable excuse defence only once charged.
Baroness Hamwee (LD)
If the Minister is going to come back to my noble friend, could he do so in this Chamber? That question is absolutely fundamental to the discussion on the Bill. To have the answer in writing, available in the Library if one goes to look for it, is in our view not adequate.
Lord Paddick (LD)
This is Committee, so we are allowed this sort of debate. I want to reinforce what the noble Lord, Lord Carlile, said about Section 78 of the Police, Crime, Sentencing and Courts Act. It says:
“A person commits an offence if … the person … does an act, or … omits to do an act that they are required to do by any enactment or rule of law … the person’s act or omission … obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and … the person intends that their act or omission will have a consequence mentioned in paragraph (b)”.
That covers, completely and perfectly, the people on the gantry of the QEII Bridge. The maximum sentence for that activity is up to 10 years in prison. None of the provisions in this Bill goes anywhere near 10 years in prison. Why do the Government not rely on existing legislation rather than creating all these other offences?
Lord Sharpe of Epsom (Con)
My Lords, I think I have already gone into that. As I say, the Bill creates another set of offences designed to deal with evolving protests, but I will come back on the specific point about the PCSC Act.
Baroness Chakrabarti (Lab)
My Lords, I am almost speechless. I do not blame the Minister, but those briefing him really need to consider what we have been discussing today; we are talking about the rights and freedoms of people in this country, and it is a very serious issue.
I thank all noble Lords who have participated in this debate on the first group. I particularly thank the noble Lord, Lord Paddick, for, as always, bringing his policing expertise as well as his parliamentary skills to the debate. I also thank him for mentioning Charlotte Lynch, the LBC journalist who was arrested last week beside the M25 with a valid press card and with a microphone that was clearly branded with the name of her broadcaster. She offered her press card to the police, who then slapped handcuffs on her. They took her mobile phone from her and started scrolling to see who she might have been speaking to. Perhaps she had been tipped off about the protest by protesters; that is what journalists do in a free society. She was subjected to a body search and taken to Stevenage police station. She was detained in the police station in a cell with an open toilet and a simple bed for five hours, and was eventually let go without a police interview. Records show that they arrested her for the offence of “conspiracy to cause a public nuisance”. That happened under the existing law.
Now, without addressing concerns about incidents of that kind, and in the wake of what happened to Sarah Everard and all the crises there have been in public trust in policing in this country, the Government are proposing this suite of new offences—yet the Minister has not been able to identify the gap that those offences are supposed to address. That is a matter of considerable concern—a concern which was mentioned by almost every speaker in this debate, with the exception of the noble Lord, Lord Horam, and the Minister himself. The noble Lord, Lord Horam, called for clarity in the law, but I am afraid I was not totally clear which provisions or amendments he was addressing.
The noble Lord, Lord Anderson of Ipswich, gave a master class on issues of burdens of proof and reverse burdens, which are sometimes used in law. However, I remind the Minister that, when they are used in law, it is in relation to very tight offences that are problematic per se, such as carrying a blade or point in a public place. Most members of the public understand that that is not innocent activity; it is incumbent on somebody to explain why they needed to be carrying that knife in the street. That is not the case with carrying a bicycle chain or linking arms with a friend. That is innocent activity per se that is rendered criminal in certain circumstances, and so it is particularly dangerous to flip the burden of proof. Further, on the point made by the noble Lord, Lord Paddick, it is essential that the person should be able to say to the police officer before they are arrested—not seven hours later, in Stevenage police station—that they have a legitimate reason for what they have done. I ask the Minister to think about Charlotte Lynch when he reflects on the powers that he is being asked to justify by others in this Chamber.
Lord Sharpe of Epsom (Con)
My Lords, I once again thank your Lordships for all the contributions made in this debate. We turn to a series of amendments which seek to raise the threshold for the corresponding offences. Amendments 2 and 4 target the lock-on offence; Amendments 25 and 26 target the tunnelling offence; Amendments 36 and 37 target the offence of being present in a tunnel; and Amendment 54 targets the offence of obstruction of major transport works.
Before I deal with some of the questions concerning those amendments, I will just say two things. First, on the subject of the suffragettes, I entirely agree with the distinction the noble Baroness, Lady Fox, made between the protesters we see now and the suffragettes. Secondly, while we are slightly off the subject, I will make a few comments about the journalist who was arrested, who has been referred to twice. Clearly, the arrest of journalists lawfully reporting on events should not have happened—I want to make that very clear. I understand that an independent investigation into the arrests has been commissioned by the relevant police force. However, we do not agree that more powers will lead to further arrests of journalists: the issue lies with the training of journalists—a subject to which we will return.
Lord Sharpe of Epsom (Con)
The training of police— I am sorry.
The scope of the offences is drafted as such to ensure that all kinds of behaviour that protestors engage in to cause misery and disruption can be captured. Amendments 2 and 4 would mean the offence would not account for situations where, for example, a person has locked on to a dangerous structure but is removed by the police before maximum disruption can be inflicted. Amendments 25 and 26 would mean the offence would not account for situations where, for example, a person has started creating a tunnel but is removed before maximum disruption can be caused. Amendments 36 and 37 would not account for situations where, for example, a person is present in a tunnel with the intent to cause serious disruption but is removed by the police before the tunnel can reach the designated area where maximum disruption can be inflicted.
Amendment 54, tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Ludford, seeks to add a threshold of causing “significant disruption” to the offence of interfering with key national infrastructure. I am not sure whether the amendment should say “serious” disruption rather than “significant” disruption, as I note that the JCHR’s own explanatory statement stated the former. That would echo the threshold for other offences in the Bill. If Amendment 54 is intended to add a threshold of serious disruption, I would argue that while we assess that it is right for the lock-on offences and certain other protest-related offences to include serious disruption within their scope, we do not see it as necessary here.
As I have stated already, protestors have been able to cause huge damage to major projects such as HS2. While much attention has been focused on how protest activity across HS2 sites causes massive disruption to the project, protestors have also engaged in many more minor disruptive acts, such as disrupting ecological surveys, damaging construction vehicles or blocking access points to construction sites. While some of these acts may not meet the threshold of serious and/or significant disruption, they still have a significant impact on the project and its costs. The Government view such actions as serious and completely unacceptable criminal activity. The offence as drafted seeks to deter individuals from targeting these projects while giving the police powers that are more sufficient in order to respond.
Before I get onto the amendments dealing with serious disruption, I accepted the invitation of the noble Lord, Lord Carlile, to read Section 78, and I will have a go at answering. Because many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, it has been asked why, in light of that, we need to introduce the measures in the Bill. The fact is that we are not solely interested in the process on the M25: the Bill was conceived before Just Stop Oil protesters were dangling off gantries. There are other unjustifiable protests, such as those targeting HS2, which I have just discussed. The criminal offences in the Bill extend to private land; currently, those who lock on or tunnel are only committing aggravated trespass, which carries a relatively low sentence. As it is a broad offence, I am sure that many here in the Chamber today would not welcome the sentences for aggravated trespass being increased. Finally, the pre-emptive measures in the Bill will improve the response to criminal protest. They were in fact conceived following discussion with the Metropolitan Police Service on what would have improved their response to Extinction Rebellion-style protests.
Amendments 3, 6, 17, 23, 27 and 38, all seek to provide a definition of serious disruption. I thank all noble Lords for these amendments, particularly the noble Lord, Lord Anderson—although I note that he is potentially deserting his—for our constructive engagement so far. I also thank the noble and learned Lord, Lord Hope of Craighead, for his thoughtful contribution to this debate.
I assure the House that I absolutely recognise the benefits that a clear definition of serious disruption could bring. However, we have faced some difficulties when trying to define serious disruption. That is because being too prescriptive in our definition risks creating a loophole which would provide those intent on causing as much disruption as possible an opportunity to evade arrest and prosecution. I would also say that, as drafted, some of these amendments offer a narrower definition of serious disruption than the Police, Crime, Sentencing and Courts Act provides for under
“serious disruption to the life of the community.”
None of that is to say that I dismiss the principle of these amendments. There is a balance to be struck between a definition which is too broad and one which is too prescriptive. We will consider these amendments in detail to ensure that they accurately reflect the disruption that the Government seek to target while providing clarity to the police and others, as many noble Lords have mentioned, and we will continue to work with all interested noble Lords on this important matter.
Lord Hope of Craighead (CB)
Is there a prospect of the Minister coming up with definitions in time for Report, to prevent us having to discuss this all over again? It would be a great help if he could come forward with his definitions, if he is going to proceed along this line.
Lord Sharpe of Epsom (Con)
I will certainly endeavour to—I can make no promises. I am sorry: the noble Lord, Lord Ponsonby, asked me about recklessness, which I forgot to answer. The definition of reckless is to capture those for whom we cannot prove that they intended to cause disruption but who were clearly happy to cause it. I hope that clarifies the matter to some extent. For now, I ask the noble Lord to withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this debate. The noble and learned Lord, Lord Hope of Craighead, made some very important points. He is a member of the Constitution Committee. He said that convictions for these offences could lead to more serious consequences such as serious disruption prevention orders and that some of the conditions that could be imposed under those orders are quite draconian, such as 12 months of electronic tagging. He made the important point that because the offences are very different in nature, there should perhaps be a tailored definition of serious disruption depending on what offence we are talking about.
The noble Lord, Lord Carlile of Berriew, made a very important point about creating ambiguity between the provisions in this Bill and Section 78 of the Police, Crime, Sentencing and Courts Act 2022. The Minister’s attempt to explain why Section 78 could not be relied on does not hold water. He started talking about offences of aggravated trespass and having low sentences, but Section 78 has a far more serious penalty than any of the offences contained in the provisions here, so I do not understand why we need new offences that have serious sentences attached to them when Section 78 can provide much stiffer penalties than any offence in this Bill. That does not seem to make any sense.
The right reverend Prelate the Bishop of Southwell and Nottingham made an important point about places of worship. The noble Lord, Lord Hain, made an important point too. I greatly respect the role that he played in overturning apartheid in South Africa, but I am not sure he can say with confidence that what he did amounted to serious disruption when we do not have a definition of serious disruption in the Bill. The noble Baroness, Lady Fox, supported by the Minister, talked about suffragettes and how they were very different from the protesters at this time, but that was not the point I was making. My point was that suffragettes locked on and the Government are saying that this new offence of locking on is a response to new tactics employed by protesters. Well, that is what the suffragettes did. That is the only point I was trying to make.
As for nothing being done, the police have been arresting stop oil protesters even before they have caused serious disruption. They have been arresting them for conspiracy to cause public nuisance. Whether it is for causing public nuisance under the famous Section 78 or highway obstruction, for which they can now be sent to prison, protesters are being remanded in custody by courts which are not confident that they would not go on to repeat the offences for which they have been arrested. Some of them have been sentenced to prison for highway obstruction. So I do not think it is the case that the police are not doing anything, or that existing legislation cannot be used effectively by the police.
The noble Lord, Lord Anderson, supported the idea of tailored definitions, hence his wavering, if I can put it that way, in terms of his own amendment. The noble Lord, Lord Macdonald of River Glaven, reinforced the point about clarity and predictability. People need to know whether they are going to break the law if they do something, which is why we need these definitions.
The infamous Section 78 of the Police, Crime, Sentencing and Courts Act talks about serious harm, rather than serious disruption, but it is defined in the Act. So, if the Government can define serious harm in that Act, why can they not define serious disruption in this legislation? The noble Baroness, Lady Blower, talked about what the Minister said in the other place about there being a definition of serious disruption under the Public Order Act 1986. I agree with the noble Baroness that it is out of date and dubiously applicable in the circumstances set out in this Bill. Even the noble Lord, Lord Hogan-Howe, talked at Second Reading about the importance of clarity, and police witnesses at Committee stage in the other place said that as much precision as possible is desirable, yet the Minister seems completely ambiguous about whether the Government are going to define serious disruption in the Bill in response to the question asked by the noble and learned Lord. The noble Lord, Lord Ponsonby of Shulbrede, said that the National Police Chiefs’ Council is in favour of the definition of serious disruption to the life of the community put forward by the Joint Committee on Human Rights, so surely there is at least a lead for the Government to follow.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have taken part in this shortish debate. I have already spoken about the damage and disruption that these offences can cause. Narrowing the scope of these offences, as the amendments in this group seek to do, would restrict the ability of the police to stop individuals from causing unjustifiable amounts of disruption and harm.
Before I get on to the amendments, I agree entirely with the noble Lord, Lord Coaker, about the scrutiny that this Bill deserves in this Chamber. I was merely clarifying an earlier point when I referred to its passage through the other place.
Amendment 5 provides a definition for the term “attached” in reference to the locking-on offence. We are fundamentally interested here in the disruption caused. The range of equipment used for locking on is extensive and ever changing. So, aside from bike locks, chains, cable ties and glue, police have also seen sophisticated devices that have been deliberately designed to be difficult and time-consuming to remove. Arm tubes involve protesters putting their arms through pipes containing concrete, steel or other materials that can either be released by the protester at will or require the police to use machinery to cut them free. Sometimes, such devices are designed to inflict harm on anyone who tries to remove them, placing the police in harm’s way. These devices are constantly evolving and designed to waste as much police time as possible. Given this, equipment that could be used in the course of, or in connection with, a locking-on offence is in scope. This could include locks and chains and large objects used to lock on, such as the bamboo structures that have featured in many protests. Specific equipment is not listed in the legislation as protesters can easily create new methods of locking on. Instead, referring to the act of locking on, and the serious disruption it causes, ensures this clause will remain relevant going forward.
Amendments 18, 19, 20, 48, 49, 51, 52, 53, 73, 74, 75, 76 and 77 seek to remove those acts which are taken “in connection” with these offences. I recognise the sentiment behind these amendments, but it is our view that it is vital that the full range of disruptive tactics that can be, and frequently are, deployed are captured to ensure our major transport works are protected.
With respect to the tunnelling offence, removing “in connection” would mean that those who carry items that are not strictly necessary for the construction or occupation of a tunnel are not in scope of this offence. The aim of the tunnellers is to cause disruption by delaying their removal for as long as possible. To achieve that, they will often create obstructions that will include, for example, coils of wire mesh and even nooses attached to the tunnel’s door to tie around their own necks. Items to make these are not themselves necessary for the commission of the other tunnelling offences, but I am certain that many in the House would agree that anyone carrying these items for these purposes should be in scope of the offence.
To use the obstruction of major transport works as an example, as I have already said, while many noble Lords will be familiar with the larger-scale protester action, many will be less familiar with the more minor acts of disruption that can start before construction even begins. Whether that is disrupting ecological surveys, removing or interfering with apparatus that is needed for construction, or blocking access to construction sites, all have a significant impact and can cause significant delays and additional costs to these works. For that reason, the scope of the offence is drafted as such to ensure all highly disruptive action are included in the scope.
Amendment 65, tabled by the noble Lords, Lord Coaker and Lord Paddick, and the noble Baroness, Lady Fox, seeks to narrow the scope of the offence of interfering with key national infrastructure to include only those who interfere to a “significant” extent rather than “any extent”. Again, I understand the core sentiment behind this amendment, but I would like to remind noble Lords that the types of infrastructure regarded as key national infrastructure are those that this Government have identified as playing a vital role for the nation. This is also the infrastructure that is being targeted by protest groups who are intent on causing disruption of any kind. As such, it is important that key national infrastructure is protected using the existing threshold of the Bill.
In a similar vein, Amendments 66 and 67 seek to narrow the scope of what it means to prevent the use of, or operation of, key national infrastructure, so that it only refers to instances where significant delay is caused for the use or operation of the targeted infrastructure. As I have touched on already, there are many circumstances beyond significant delay that should be captured within this offence. For example, should protesters successfully reduce the output of oil from an oil terminal but not delay its delivery, we could still see heating switched off as supplies dry up. We therefore see it as wholly necessary that the full range of disruptive behaviours and acts are captured.
Amendment 68 and 78, tabled by the noble Baroness, Lady Chakrabarti, would replace “newspaper printing infrastructure” with the term “communications” in the list of key national infrastructure on the face of the Bill. The list of key national infrastructure is based on sites that protesters have or are likely to target through their current tactics. Therefore, we do not believe it is necessary to add “communications”, as defined by the noble Baroness, into the list of key national infrastructure at present. However, as the noble Baroness will know—and we will definitely come to consider this in group six—the Bill does contain a delegated power that will allow us to amend this list as tactics and infrastructure evolve.
Amendments 70, 71, 72 and 79 seek to narrow the scope of the interference with key national infrastructure offence by altering the definitions provided for in Clause 8, including by removing B roads from the list of infrastructure in scope or by narrowing the definition of “printing presses”. The scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8. Some B roads are lifelines for small towns and villages, and we see it as entirely right they should be included. Printing presses have been included to protect the distribution of print media and news. There are many publications which serve that purpose which are not newspapers.
Finally, I would probe noble Lords on what they deem as “essential” and “inessential” elements of infrastructure. Many elements that some deem inessential, such as signs along railways and roads, provide important information to train and car drivers and may be necessary to ensure the high standards of safety we expect in this country.
For those reasons, I disagree with these amendments and ask that they be withdrawn.
Lord Beith (LD)
Can the Minister help the Committee by saying how he would answer this question, and if he has asked himself this question? If he were one of the people carrying something that a constable challenged him for—maybe the padlock that I talked about earlier that a young couple were going to put on a bridge, or maybe a packet of cable ties—what would his answer be to the constable who challenged him? Does he think it would result in him not being charged?
Lord Sharpe of Epsom (Con)
My Lords, these things are judged on a case-by-case basis. It would depend entirely on where I was, what I was doing and also the intention as described in Clause 2 of the Bill.
Lord Harris of Haringey (Lab)
My Lords, I listened with great interest to the Minister’s reply to the Committee’s discussion on this. Could he explain why, rather than trying to define all these activities—this happening, that happening and this piece of equipment and so on—has he not sought to do it in terms of intent, and a requirement that before an offence is committed intent to cause disruption is demonstrated?
Lord Sharpe of Epsom (Con)
That is captured. As I say,
“A person commits an offence if they have an object with them in a place other than a dwelling with the intention that it may be used in the course of or in connection with the commission by any person of an offence under section 1”.
Lord Coaker (Lab)
On this issue of intent, Clause 6 creates a criminal offence of obstructing “major transport works” but the Constitution Committee notes that unlike Clause 1, 3, 4 and 7, intent or recklessness are not required for an act to constitute an offence under Clause. Can the Minister explain why?
Lord Sharpe of Epsom (Con)
Not at this point, I will have to write to the noble Lord.
Lord Paddick (LD)
Bearing in mind the number of amendments, I worked out that the Minister spent 17 seconds per amendment in his response. I gave the example of a mobile phone that ended up on railway tracks interrupting national infrastructure and whether that was within the scope of the Bill. Does the Minister feel that his response has been comprehensive enough, on the very detailed questions he’s been asked?
Baroness Jones of Moulsecoomb (GP)
I thank all noble Lords who have contributed to this debate. I have really enjoyed it and I think we are expecting some better answers in the future. The Minister said something about probing us on what we thought, but it is our job to probe him about what this legislation means. So far, it is not coming out very well.
Personally, I hope it gets thrown in the rubbish bin because, quite honestly, we are spending an awful lot of time and energy debating it when we know it is awful. It is not as if we can see a glimmer of hope that it might solve some problems. The Minister talked about the damage and disruption that these protesters are doing. In fact, the Government have done more damage and disruption to our social fabric than XR, Insulate Britain or Just Stop Oil could ever do. They have had 12 years and made the most horrendous mess.
Getting back to the Bill, the Minister did not answer my question about “attach”. I still do not know what “attach” means. I am happy to wait and hear a longer answer, if he has one, on another occasion.
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.
Lord Murray of Blidworth (Con)
Certainly, and I thank the noble Baroness for her question. It is important that we have clarity because this is clearly a very important point. In the Bill, the pursuit of lawful and legitimate industrial action constitutes a lawful exercise of that right and is not criminalised. However, that provision in the Bill does not read across, if you like, to all the other offences, and in particular is not found in any tunnelling offence. That is the point where I differ from the speech the noble Lord, Lord Coaker, gave moments ago. The reason for that—
Lord Paddick (LD)
I am very grateful to the Minister for giving way. He just said that, in other parts of the Bill, somebody engaged in a trade dispute is not criminalised by the offences contained in this Bill. However, we had a discussion in the Minister’s absence about the fact that it was a reasonable excuse defence once charged. In other words, somebody engaged in a trade dispute could be arrested, detained and charged by the police, which I would describe as being treated as a criminal, and it is only at the point after a charge and an appearance at a court that this defence is available. I guess that the Minister is technically right, in that somebody is not criminalised until they are convicted by a court, but we are really arguing semantics here. So the way that the Minister expressed himself—saying that, effectively, somebody involved in a trade dispute would not be in danger from the provisions of the Bill—is not actually accurate.
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.
Baroness Blower (Lab)
I just seek some clarification. In response to the speech I made earlier about picketing, and since there is no intention in Amendment 60 to expand picketing, or any rights in relation to picketing, is the Minister therefore saying that, on everything that has been permitted by law in terms of picketing—which is already hedged with quite a lot of regulation and requirements—there is no intention in this Bill to make any alteration to the lawful carrying out of picketing in furtherance of a trade dispute? I believe that is what I am hearing the Minister say, and I hope that is the case.
Lord Murray of Blidworth (Con)
Can I confirm with my officials and write to the noble Baroness in respect of that point? My understanding is that that is so, but I want to check that before I confirm.
Lord Judge (CB)
While the Minister is conferring with his officials, can he suggest to them that they look at Clause1(1) and put in some new words? After
“A person commits an offence if”,
he should add “without reasonable excuse”, if (a) they do this, (b) they do that and (c) they do the other. Then he should get rid of subsection (2).
Lord Murray of Blidworth (Con)
I hear what the noble and learned Lord says, and I will certainly ask them.
I think that I had reached Amendment 61. It similarly seeks to strengthen the defences available. As I have said already, whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, and we see it as entirely appropriate that the defendant, who committed the offence in the first place and has personal knowledge of those facts, is required to prove them.
I turn lastly to Amendments 56 and 62, which seek to make it an explicit requirement for the police and courts to pay regard to Articles 10 and 11 of the ECHR when determining whether someone has a reasonable excuse for the offences of obstructing major transport works and interference with key national infrastructure. Although I understand the sentiment behind the amendment from the noble Lord, Lord Paddick, I do not see it as being necessary. It is of course right that the courts and other public bodies are already obliged to act compatibly with the ECHR by reason of the provisions of Sections 6 and 7 of the Human Rights Act 1998. Therefore, there is already legislative protection for the consideration of such rights, and it is not necessary to repeat that in this Bill.
Lord Paddick (LD)
Can I just seek clarification on what the Minister said earlier about tunnels not constructed by protesters and people causing serious disruption in those tunnels? My understanding is that the Minister is saying, “Don’t worry, trust the police.” I know that that is what the legislation says about someone causing serious disruption in a London Underground tunnel, maybe London Underground workers operating a picket line in a tunnel constructed by London Underground: “Don’t worry about it, the police are reasonable people; they wouldn’t use the law in that way and, at the end of the day, the courts wouldn’t convict.” However, as the journalist who was trying to report on a protest found—the case that the Minister started his remarks with—we are still faced with the possibility of being arrested and detained for five hours by the police and of the police being unreasonable; that is by their own admission now. It seems an onerous experience for a completely innocent person to go through that, and to have to rely on the fact that, at the end of the day, the courts will not convict them, when they have been completely innocent from the start.
Lord Murray of Blidworth (Con)
I thank the noble Lord for his intervention. The short answer is that these cases are always going to be fact-specific. If there was a serious disruption in a London Underground tunnel, I suspect that there would potentially be many offences being committed other than those under this Bill. As my noble friend Lord Sharpe has already said, this situation will be considered and we will come back to the noble Lord. I invite the noble Baroness to withdraw her amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, I thank all noble Lords who have contributed. I enjoyed the critique of reasonable defence from the noble and learned Lord, Lord Hope, and I was delighted that the noble and learned Lord, Lord Judge, has come into the debate. However, I ask both of them not to be helpful to the Government—I just want to vote against everything in this Bill and they are making it difficult.
Wednesday 16th November 2022
(1 year, 5 months ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 61-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (16 Nov 2022)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I thank noble Lords for that short debate, and I particularly thank the noble Baroness, Lady Chakrabarti, for her warm welcome to this Committee. It has been a fascinating exercise to conduct my first Committee stage.
The general intention of this group of amendments is to reduce the maximum fines and the maximum sentences listed in Clauses 1 to 8. The maximum fines and sentences attached to these offences reflect, in the view of the Government, the serious harm and disruption that can be caused by these actions. It may be helpful if I set out just one example of that harm for the Committee. During the targeted and reckless activity by Just Stop Oil in August 2022, protesters dug two tunnels in an attempt to disrupt access to an oil terminal in Essex. This particularly dangerous protest tactic not only disrupted the operation of the terminal but had a knock-on impact on many others. First, it led to full and partial road closures impacting the public, local and private businesses and the council. Secondly, it resulted in ambulances and fire and rescue services being on standby due to the risk of collapse in the tunnel, thereby impacting on availability of those emergency services. Thirdly, it consumed a huge amount of police resources in responding to the operation, impacting on the police as well as the public, as officers had to be diverted from other duties.
Given this example and countless others, the maximum sentences and fines set out in the Bill are not only proportionate to the harm and disruption caused but necessary. It is worth saying that these are maximum sentences and it is plainly not the case that every person convicted under these offences will be given these sentences and penalties. Indeed, it is right to say that the maximum penalties are used only in the most egregious cases. The courts will consider the appropriate penalty in each case and, in response to the point made by the noble Lord, Lord Paddick, they will be considered on a case-by-case basis. For these fundamental reasons, I therefore respectfully disagree with these amendments and ask that Amendment 12 be withdrawn.
Lord Paddick (LD)
Will the Minister address the issue that the noble Lord, Lord Ponsonby of Shulbrede, and I raised about how consistency in the levels of fines being imposed, particularly by lay magistrates’ Benches, will be achieved when there is absolutely no guidance in the legislation on the level of fine that should be imposed?
Lord Murray of Blidworth (Con)
It is, of course, frequently the case in legislation that there is no guidance on the face of the Bill as to the likely sentences that are imposed. It is very common for there to be sentencing guidelines formulated in the usual way by the judiciary. No doubt that is what will happen in relation to these offences. As I am sure the noble Lord, Lord Ponsonby, will agree, these are the guidelines to which prosecutors routinely refer the court before the court passes sentence.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to all noble Lords who have participated in this all-too-sparse and short, but very important, debate about maximum sentences for new offences that are incredibly controversial. To address the Minister’s response directly, I am concerned that a briefing pattern is developing in the course of this Committee, where the Minister is given an example of something that protesters did that caused a lot of disruption and harm and so on, but we have yet to really understand why existing criminal law is not capable of addressing that. What is not being offered to the Committee—and perhaps not being advised to Ministers—is where the need is, given the scale of the public order statute book as it is. Within that, specific to this group, we are not being given a picture of where these offences sit in the hierarchy of criminal offences and criminal sentences.
Instead, we are being given a story about something outrageous that some protesters did and told that this is why the whole Bill is justified. We really need to get into a bit more specificity when we are playing with the criminal statute book and potentially sending people to prison or bankrupting them and so on. That is no disrespect to the Minister, his noble friend, his colleagues, or even his advisers. What is more traditional—certainly in this place—is that when offences are offered, and sentences to go with them, we are given a picture of where they sit within the current ecosystem of the criminal law; then we can really drill down into both the formulation of the offence and the sentence. People who disagree with me and, perhaps, welcome the offences, can nonetheless improve them and make sure that they are proportionate in their formulation and sentencing.
That has not happened in this debate, and it really must happen for us to do our duty as a Committee. That really must start to happen during the passage of this Bill, and it certainly will have to happen on Report. Concerns about incarceration, bankruptcy and maximum sentences, as well as fundamental concerns about the formulation of the offences themselves and even prior concerns about the need for them, are going to keep coming, group after group, in this Committee, and they will come again as we go down the road of consideration. I hope, therefore, that Ministers will take that in good part. For the time being, I beg leave to withdraw.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, once again, I thank all noble Lords for their contributions to the debate this evening. It has been a very lively and thoughtful discussion generally. I look forward—I think—to continuing to discuss these important issues next week. I first reassure the noble Baroness, Lady Chakrabarti, that I do not think she is rude. I may not agree, but I think the position she is coming from is highly principled. I also say to the noble Lord, Lord Coaker, that I do not think we have failed when it comes to definitions. We have committed to take that matter away and it is ongoing work.
The amendments in this final group take issue with the some of the offences listed in Clauses 1 to 8. Clause 1 is a key part of the Government’s plan to protect the public from the dangerous and disruptive protest tactic of locking on. Recent protests have seen selfish individuals seek to cause maximum disruption by locking themselves to roads, buildings, objects and other people. This has seen traffic disrupted, public transport delayed and the transport of fuel from terminals grind to a halt—to name just a few examples. Such tactics cause misery to the public, with people unable to access their place of work or their schools, or to attend vital hospital appointments.
I turn next to Clause 2, which is inextricably linked to Clause 1. During fast-moving protest situations, the police must be able to take necessary proactive action to prevent lock-ons occurring. Along with the associated stop and search powers, which the Committee will scrutinise later, this new offence will allow the police to prevent lock-ons before they occur and deter others from considering doing so.
Lastly, Clause 5, along with Clauses 3 and 4, is designed to make clear that the protest tactic of building tunnels to disrupt legitimate activity will not be tolerated. I am afraid there is a degree of repetition here, but projects such as HS2 have been targeted on multiple occasions by tunnels which have contributed to an enormous cost of £146 million to the project. Aside from the cost, these tactics are enormously reckless, putting not just protesters themselves at risk but those called upon to remove them and repair the damage inflicted.
There is one further amendment in this group: Amendment 69, in the name of the noble Baroness, Lady Chakrabarti, which seeks to remove the delegated power for the Secretary of State to amend, add or remove the list of infrastructure in the legal definition of “key national infrastructure”. Throughout the debate, we have heard about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power that will allow us to respond effectively to emerging threats. But I reassure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.
Before concluding tonight’s debate, I will respond to speeches made by many noble Lords, but specifically the noble Lords, Lord Paddick, Lord Coaker and Lord Carlile of Berriew, and the noble Baroness, Lady Chakrabarti, about the necessity of the powers taken in the Bill. I have spoken about the three key general differences between the Bill and existing public order offences and legislation. First, it is about sentencing lengths; secondly, it is about offences that take place on private land; and, thirdly, it is about introducing more pre-emptive powers, providing the police with the ability to stop serious disruption before it happens.
It would be appropriate to acknowledge at this point that some of the commentary from the police is a little contradictory. Chief Constable Chris Noble, the National Police Chiefs’ Council lead on protests, said:
“There have been some very novel—without giving them any credit—and highly disruptive tactics; that is reflected on the contents page of the Bill. If we look across the breadth of protest organisations and groups, we see that they are very aware of some of the legal gaps, inadequacies and shortcomings; that is very clear from their engagement with police, as well as their tactics.”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 5.]
Of course we work with the police, and we will obviously continue to do so.
I will try to address some of the key existing offences that have been mentioned and talk about how the Bill differs and builds on these important offences. I turn first to Sections 12, 14 and 14ZA of the Public Order Act 1986, as amended by the Police, Crime, Sentencing and Courts Act 2022, which allows the police to place necessary and proportionate conditions on public assemblies and processions to prevent certain harms occurring—namely, serious disruption to the life of the community. These powers are for the safe management of large protests where many people assemble or march. They do not provide the police with the means to tackle non-violent direct action of the sort that Just Stop Oil engages in.
I turn now to public nuisance and obstruction of the highway offences. We are pleased to have put the public nuisance offence on to a statutory footing, and noble Lords are quite right that it can be used to deal with some of the highly disruptive protests that we have seen recently. As the noble Lord, Lord Coaker, indicated, both these and other criminal offences are currently being used to arrest and charge Just Stop Oil protesters.
But we have to remember that there are offences that can cause serious disruption but do not meet the threshold for the public nuisance offence, which is extremely high. At the moment, such protesters manage to find loopholes to get acquitted or are subject to low penalties. These new offences are therefore essential to give the police the powers that they need to deal with these offenders. Although many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, these offences do not necessarily apply to tactics such as those that have targeted HS2 Ltd. Therefore, new criminal offences covering tunnelling and locking on are necessary.
I turn to the offence of aggravated trespass, which criminalises intentionally obstructing, disrupting or intimidating others carrying out lawful activities on private land. The maximum penalty is three months’ imprisonment or a £2,500 fine, or both. This broad offence captures many activities that trespassers, protesters or others may engage in. The maximum penalty is not proportionate to the seriousness of some of the tactics used by protesters, which can put lives at risk. This is a broad offence that covers many non-protest behaviours, and it would not be appropriate to increase the maximum sentence for it. Therefore, new criminal offences that apply to private land are needed: locking-on, tunnelling and infrastructure-related offences.
I turn to stop and search. Section 1 of the Police and Criminal Evidence Act 1984 allows a constable to search individuals whom they reasonably believe are carrying something that could be used to commit specific criminal offences, including criminal damage. Furthermore, the police can search individuals after having arrested them. For example, after arresting Just Stop Oil protesters for conspiracy to commit public nuisance, the police searched their car and seized items suspected to be used in the course of the offence.
Finally, the noble Lord, Lord Paddick, queried the necessity of the measures given that HS2—which has experienced significant protest action at huge cost, as we have discussed many times—was able to secure a nationwide injunction. We agree that injunctions can be helpful for preventing the types of serious disruption we have seen, which is why we have introduced our own measure which provides a specific mechanism for a Secretary of State to seek an injunction against protest activity where it is in the public interest to do so. However, this is only one piece of the puzzle and we have seen from the M25 protests that injunctions do not necessarily stop people breaking the law.
I have tried to set out how the measures in the Bill will bolster the police powers to respond more effectively to disruptive and dangerous protests, to protect our key national infrastructure and major transport works from interference, and to better balance the rights of protesters with the right of the general public to go about their lives free from serious disruption and harm. For those reasons, I respectfully ask noble Lords not to press their amendments.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords for sticking it out and will try to be brief, given the hour. I am also particularly grateful to the Minister for reminding me that I did not speak to my Amendment 69, which, as he rightly said, would remove the ability to change the criminal offence of interfering with national infrastructure by adding further infrastructure. I stand by my concern that this kind of thing should not be done by way of secondary legislation, because it has such a profound effect on the rights and freedoms of people in this country to dissent peacefully. It would be very easy to abuse that power and it is not appropriate for secondary legislation. We will no doubt return to issues of powers of that kind at a later stage.
Once more, I must thank the noble Lord, Lord Carlile of Berriew, for pointing out what the courts are having to grapple with: a burgeoning statute book with more and more offences, which police forces must deal with too. This menu of potential powers and offences just gets bigger by the year. The idea that, every time there is an innovative or novel protest, something must be done and there will be a new offering of legislation is not a coherent way to operate the rule of law in a constitutional democracy. Lots of dangers will come from this.
I take the point about the police service not speaking as one on any of these issues, and maybe it should not. I was particularly grateful to the noble Lord, Lord Paddick, for pointing out, as a former police officer, that there is quite a strength of police opinion and scepticism about the powers in the Bill. I was also grateful to him for reminding me that the offence of going equipped for locking on is, in a way, even worse than the offence of locking on. Locking on is incredibly broad, as I think the Minister accepted in some of his earlier responses. Yes, linking arms is sometimes terribly disruptive too, but going equipped for locking on is a proper thought crime and one of the reasons I am particularly concerned about that offence. It is a thought crime that is supportive of a crime that is, in itself, incredibly broad and will, theoretically, capture some activities that some people think are just natural to humans and innocent.
I was grateful to the noble Baroness, Lady Hamwee, for addressing a very important process point. I totally understand the need for Ministers to write to noble Lords later, particularly in answer to the Questions we have each day. However, writing later should not be a central tactic of defending and promoting a Bill that has been some time in gestation. I was grateful to the Minister and his colleagues for coming up with a little more about the existing statute book in the latter part of this evening, but that will require a lot more examination. I know that noble Lords in Committee will be reading Hansard very carefully tomorrow and there will be more to discuss about that.
Ultimately, there are some protesters who, rightly or wrongly, care so much about the climate catastrophe, race equality, Brexit or whichever other issue that they are prepared to go to prison. There are some in that category for whom there is no new offence that will prevent their actions. So be it; that is life.
What I am concerned about, with the ever expanding public order statute book, are the people who are not in that category and who will get caught up in this kind of thing, as happened last week to the journalist who was detained for, in total, about seven hours, with five in a police cell, just for reporting on the protests. When you keep adding to police powers, adding to the public order statute book and catching more and more innocent activity, more injustice will follow. It will not be about catching the people who we all agree are going too far sometimes—and who are prepared to go too far for their cause; that is their conscience. There will be more and more innocent bystanders—journalists, people from racial minorities—who get caught up in this very broad blank cheque that noble Lords and Ministers are proposing to hand to the police. The police are from us; they are a part of our community and are imperfect as we are. It is not fair to hand this blank cheque to them and, when it goes wrong, to blame them. We have that on our conscience if we pass these powers.
Tuesday 22nd November 2022
(1 year, 5 months ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 61-II(a) Amendment for Committee (Supplementary to the Second Marshalled List) - (21 Nov 2022)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for his closing words; as the noble Lord, Lord Paddick, said, “No pressure”. I thank all noble Lords for their impassioned contributions to what has obviously been a very substantive debate.
Clause 9 seeks to establish buffer zones outside abortion clinics in England and Wales to ensure that persons accessing or providing abortion services are free from harassment or intimidation. As the Committee will be aware, this clause was inserted into the Bill on the basis of a free vote in the other place. I will not get involved in second-guessing the motivations of those who voted, but the result was 297 votes in favour to 110 votes against. As I have said before, and I am very happy to say again, the Government respect the will of the House of Commons.
It is obviously clear—today’s debate makes it even clearer—that there are very strong views on both sides of the argument. Many noble Lords want the clause to become law, and many want to alter or to delay it. Amendments 80 to 97—tabled by the noble Baronesses, Lady Hoey, Lady Fox, Lady Watkins, Lady Barker and Lady Hamwee, my noble friend Lady Sugg, the noble Lords, Lord Ponsonby and Lord Beith, and the right reverend Prelate the Bishop of St Albans—all seek to make an array of changes to Clause 9, be that by raising the threshold for the new offence or by seeking to clarify the clause in some way.
Amendments 98 and 99 tabled by the noble Lord, Lord Farmer, seek to introduce buffer zones pending the outcome of
“a consultation … to determine if there has been significant change in”
protests “outside abortion clinics since” the Government’s last review. Amendments 87 to 93 look to ensure that only activities relating to abortion services within a buffer zone constitute an offence, while Amendments 88, 96 and 97 seek to ensure that activities within private dwellings and places of worship are exempt. Amendments 80 to 82 seek to provide a person within a buffer zone with the opportunity to defend their actions and
“to strengthen the burden of proof required to establish an offence.”
As I said before, I thank all noble Lords for their interest and ideas to amend the existing clause in its current form, particularly their well-intentioned attempts to tighten what was described in the other place by the Minister as a “blunt instrument”. It remains the Government’s view, based on legal advice, that this amendment does not meet our obligations under the European Convention on Human Rights and would require a Section 19(1)(b) statement to be provided. That said, after having been brief, I am now even more keen to meet noble Lords in the coming days, and I encourage them to meet me so that we may discuss the next steps for the clause. For now, I invite noble Lords not to press their amendments.
Baroness Sugg (Con)
Does my noble friend the Minister agree that the clause as inserted by the other place calls for universal zones around all clinics in England and Wales?
Lord Sharpe of Epsom (Con)
I say again to my noble friend—I have said it before, and I am happy to say it again—that the Government respect the will of the House of Commons.
Baroness Fox of Buckley (Non-Afl)
My Lords, I thank all Members of the Committee for a wide range of speeches, ensuring that we have covered a lot of ground on this important issue. Contributions have been thoughtful, sometimes tetchy but largely civil; it is important to have these arguments out. I listened to what everybody said, and one thing I noted was that all speakers on all sides have condemned the harassment and intimidation of any woman going into a clinic or a hospital for an abortion. It is important that we note that we have that in common, because sometimes it can be presented as though people who are against Clause 9 are indifferent to the intimidation or harassment of women. Everybody has said that it is wrong; this is a question of how you deal with it.
The dispute is also about exactly what happens outside clinics. We have heard the clash of narratives in the contributions that I referred to, which makes the call for a new review from the noble Lord, Lord Farmer, all the more appealing. Indeed, the noble Baroness, Lady Sugg, herself suggested—backed up by the reply to me from the noble Baroness, Lady Barker—that the situation has got a lot worse since 2018, and particularly very recently. That is disputed by people so, for the clause to have legitimacy, maybe we need a public discussion to get the evidence—that would be important.
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.
Baroness Blower (Lab)
I invite the Minister to comment on the remarks that I and the noble Lord, Lord Beith, made at Second Reading, which my noble friend Lord Coaker referenced.
If a police officer attempts to stop and search a woman who clearly knows that she is not carrying anything unreasonable, given what the police themselves said about how single women walking alone at night might respond to this, there is every chance that a suspicionless stop and search could result in the woman—young or old—obstructing a police officer in the course of his or her duty. I did not hear the Minister respond to that. It is a very significant concern. It would be a concern anyway but it is an aggravated one, given what the Metropolitan Police and other authorities have said in the light of what we know only too well happened previously.
Lord Sharpe of Epsom (Con)
Obviously, I understand where the noble Baroness is coming from, but asking an officer for proof of identity is not in and of itself an obstructive thing to do. That is very clear.
Baroness Blower (Lab)
If I might just press the point: of course, if the young woman has the presence of mind to simply ask for proof of identity, that may very well not be obstruction, but she may be frightened by this and seek to move away or to respond in some other way, but not to assault the police officer. I just see that there is a danger in this situation, and I am not hearing anything that I could tell women who are asking me about what we are doing in the Public Order Bill so that they do not need to have any concern about suspicionless stop and search. We heard before about it being perfectly reasonable to respond in such a way that you can categorically assure yourself that a person is a police officer. Frankly, I have never seen a police identity badge, so I do not know what they look like. The previous Metropolitan Police Commissioner talked about flagging down buses if you are not happy about what is going on. I want to press the Minister on this point, because although I absolutely accept that asking to see a badge is not necessarily chargeable with obstruction, other things could befall.
Lord Paddick (LD)
Before the Minister responds, he may also wish to think very carefully about what he said about these powers not being exercisable by officers in plain clothes. I am prepared to apologise to the Committee for misleading it when I say that these powers alter Section 1 of PACE, which has nothing in it about an officer having to be in uniform to exercise powers of stop and search. So what the Minister said about these powers not being exercisable unless the officer is uniformed is not true.
Lord Sharpe of Epsom (Con)
If I am incorrect I will most certainly correct my statement. That was the information that I was given. If it is incorrect in any way, I will of course come back and apologise. It was inadvertent if that is the case.
I think we are getting slightly off topic, but I say to the noble Baroness that the Minister certainly appreciates that women and girls can feel very vulnerable, particularly at night, and I understand the level of hassle. However, a road where one is likely to be alone is not likely to be subject to the Section 60 power, so we are in the realms of the hypothetical to some extent. I accept and understand the concerns that have been raised, but I reiterate that it is everyone’s right to ask a police officer for identification, and I believe that under the suspicionless basis the officer has to be wearing uniform, but I will confirm that later with the Committee, certainly if I am incorrect. I do not have an answer for the noble Baroness, Lady Jones, so I will have to write to her.
Lord Paddick (LD)
My Lords, I thank all noble Lords who have participated in this debate. The noble Baroness, Lady Jones of Moulsecoomb, questioned the area in which suspicionless stop and search could be operated. Marches that occur in central London traditionally start at Marble Arch, go down Park Lane and sometimes through Oxford Street and Regent Street. The number of people who could be subject to suspicionless stop and search as the result of that sort of demonstration is mind boggling.
In his real-world experience as adviser to the police on these issues, the right reverend Prelate the Bishop of Manchester talked about these powers being invariably used disproportionately. The Minister has said nothing to reassure the Committee that the powers will not be used disproportionately, with the damage that will be caused to the reputation, trust and confidence in the police.
The noble Lord, Lord Coaker, made the valid point that the powers can be used against children. Public nuisance is such a wide offence. I also raised the offence of being present in a tunnel. How can someone go equipped to be present in a tunnel? There was no answer about that.
Before this, there were two elements to suspicionless stop and search. The Minister talked about Section 60 of the Criminal Justice and Public Order Act, which is to do with serious violence. The other was Section 44 of the Terrorism Act, which the Conservative Government repealed because it was being used disproportionately. The Government withdrew suspicionless stop and search in relation to terrorism because they considered that its impact on trust and confidence in the police was disproportionately negative. It does not exist any more in relation to terrorism, but this Government want to introduce it in relation to people exercising their lawful right to protest.
The Minister made no reference to what HMIC said was likely to be a chilling effect on people exercising their human rights under Articles 9, 10 and 11. There was not a word about this, even though HMICFRS raised it. There was nothing about the disproportionate impact on minority communities. Minority communities and young people are more likely to be engaged in protest because they do not feel that the parliamentary process represents their views. As the noble Lord, Lord Coaker, said, we will return to these issues on Report. I am sure we will vote on them.
Lord Sharpe of Epsom (Con)
My Lords, I should like to clarify my remarks about uniforms. Section 60—which is what I was talking about—applies only to officers in uniform. Section 1 powers can apply to all officers.
Lord Paddick (LD)
Can the Minister clarify whether these powers—not Section 60 powers—to stop and search people in relation to protests can be exercised by officers in plain clothes?
Lord Sharpe of Epsom (Con)
As I think I explained, we are basing these powers on Section 60.
Lord Coaker (Lab)
Is the Minister telling this Chamber that a plain clothes officer in the middle of Lambeth, Manchester, Newcastle or Cardiff can stop a car without suspicion, without anybody knowing that there is a suspicionless stop and search operation going on?
Lord Sharpe of Epsom (Con)
Our intention is to mirror the approach used in Section 60. I said that very clearly earlier. I have already explained its geographical extent.
Lord Paddick (LD)
Can the Minister point to the part of the Bill that says that suspicionless stop and search powers are restricted to officers in uniform?
Lord Coaker (Lab)
This is extremely serious. It is exactly the point that the noble Lord, Lord Paddick, is making and what we are trying to clarify. When can a non-uniformed officer use these powers and when can they not?
Lord Sharpe of Epsom (Con)
I apologise to the noble Lords, but I have nothing more to say on the subject. I have tried to explain how this relates to the Section 60 powers. Our intention, I say again, was to mirror that approach.
Baroness Blower (Lab)
This is of very great significance; not just to me, not just to women, but to everyone who is trying to understand the Government’s intention with this legislation and in what position people will find themselves. Does the Minister not agree that, if it is the Government’s intention that only uniformed police officers may exercise these powers—frankly, I do not think that they should do so either—then that should be made explicit in the Bill, as there is clearly the possibility of ambiguity?
Lord Sharpe of Epsom (Con)
I am grateful to my noble friend for pointing out that Clause 11(6) says:
“This section confers on any constable in uniform power … to stop any person and search them or anything carried by them for a prohibited object.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, Amendment 145 in the name of my noble friend Lord Coaker is a probing amendment which would require the Secretary of State to review the use of injunctions for protest-related activity. This is to probe how injunctions are used, what their effects are, how they interact with police powers and responsibilities, and the problems facing their use, such as securing them within a reasonable timescale. The purpose of the amendment is for the Secretary of State to set out a review of injunctions in the widest sense.
We also heard from my noble friend Lady Chakrabarti about her Amendments 114 and 115, which would create safeguards against corruption and abuse. They would require the Secretary of State to publish the reasons for any decision not to consult, the results of any consultation, any representations made to the Secretary of State as to a proposed exercise of the power, an assessment of why other parties should not finance their own proceedings and assessments of why any proceedings have been brought by the Secretary of State at public expense rather than by private companies. Such publication would occur each time an exercise of the power is considered and annually on an aggregate basis so that we can look at the overall effect.
My noble friend Lady Blower, who like me is not a lawyer, expressed incredulity about the situation, which I share. As a layman, it seems to me that the Clause 17 provisions give the Home Secretary powers to bring civil proceedings against protesters at public expense. This is a surprising set of circumstances, and my noble friend’s amendments are trying to get the Government to justify that on a continual basis, which seems entirely reasonable.
Amendments 110, 111 and 112 are also in this group. This clause provides that the Secretary of State can use new injunction powers where they reasonably believe the conditions under the clause are met. These amendments would delete “reasonably believes” and strengthen it to
“has reasonable grounds for suspecting”.
Amendment 113 would provide that the Secretary of State may bring civil proceedings under this clause only if it is not reasonable or practicable for a party directly impacted by the activity to do so.
I move on to Amendment 114. The clause provides that, before bringing proceedings under it, the Secretary of State must consult “such persons (if any)” that they consider appropriate. This amendment would require the Secretary of State to publish the reasons if they do not consult, the outcome of any consultation, representations made to the Secretary of State and a reason why the Secretary of State should bring the proceedings at public expense, rather than another party.
As the Minister has heard, there is substantial scepticism about many aspects of Clause 17. There are a number of amendments here seeking to probe the Government’s intentions, and we may well return to this at a later stage. I look forward to hearing the Minister’s response.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, recently we have seen protestors blocking key national infrastructure, potentially causing delays to the supply of goods and services. Clause 17 provides a Secretary of State with a specific mechanism to apply for an injunction in civil proceedings where it is in the public interest to do so, and where the effect of the activity is to cause serious disruption to key national infrastructure, or to access to essential goods or services, or to have a serious, adverse impact on the public.
Contrary to the speeches that we have heard from noble Lords opposite, there is no constitutional dubiety about such a measure. This provision will support better co-ordination between government, law enforcement, local authorities and private landowners in responding to serious disruptive behaviour. You may say, contrary to that which the noble Baroness, Lady Blower, said earlier, that these provisions mean that the hypothetical man on the Clapham omnibus might actually make it to Clapham, rather than being delayed by roadblocks caused impermissibly by protestors.
The proposal does not affect the right of local authorities or private landowners to apply for an injunction themselves, but gives a Secretary of State an additional route to act—urgently in some cases—where the potential impact is serious and widespread, and where there is a clear public interest to intervene. I seek to reassure noble Lords who have raised concerns regarding this measure that it will ultimately be a matter for the courts and our judges to consider whether or not to grant an injunction application. All that this provision does is simply to allow a Secretary of State to bring a claim and to apply for an injunction; ultimately, the decision on whether or not the injunction is made is one for the judge. As we always would, there would be careful consideration of any such application made by a Secretary of State, and that would involve careful consideration of the evidence provided by the Secretary of State in support of an application for an injunction. This is the ultimate legal safeguard on the use of the powers in Clauses 17 and 18.
As to the point made by the noble Baroness, Lady Blower, I again reiterate that this measure provides an additional mechanism for a Secretary of State to intervene. This device would be most beneficial where protest activity targets multiple sites, and transcends local boundaries and the property of multiple entities. In such circumstances the potential impact would clearly be widespread, and the clear public interest would therefore be that injunctive proceedings are taken by the Secretary of State, rather than a series of separate private entities. It is not in every scenario that the Secretary of State’s power to seek an injunction would be utilised, and there is no doubt that the prevailing situation would remain, and businesses would have a major role to play in obtaining their own injunctions.
Turning to Clause 18, where an injunction has been granted by a court, with a power of arrest attached, the powers will support the police in taking action earlier to respond to those who engage in disruptive and dangerous forms of protest. Enabling the court to attach a power of arrest to such injunctions is key to allowing the police to act more quickly to prevent the disruption escalating. Where there is no ability for a power of arrest to be attached to the injunction, the applicant may be able to apply to the court for an arrest warrant where they believe that the perpetrator has breached the provisions of an injunction, as is the case for injunctions secured by private entities and natural persons. However, this creates an additional step in the process of enforcement which can affect the pace at which disruptive behaviour can be curtailed. As such, the power of arrest provision in Clause 18 can prove to be a highly important tool in the available responses to prevent serious disruption happening in the first place.
Baroness Jones of Moulsecoomb (GP)
My Lords, before the Minister resumes his speech, may I ask him about a word he used? I do not know if I misheard—and I have quite a good vocabulary—but I think he used the word “dubiety”. Does that mean dubiousness?
Baroness Jones of Moulsecoomb (GP)
Right, I will add that to my vocabulary.
Lord Murray of Blidworth (Con)
I thank both noble Baronesses for their interventions. Turning to the question about transparency, we will certainly engage on that, and I appreciate it. It is always important that government actions are transparent. It is clearly an important public principle, and on that we agree.
As to corruption, in this context, it is really not a terribly likely hypothetical scenario. I say that because, if one were an ignoble baron seeking to pursue an injunction to preclude some sort of serious disruption, it is unlikely that the cost of pursuing an injunction would be sufficiently high to warrant seeking the assistance of the Secretary of State in bringing that injunction. It would be more likely that such costs would be borne by the company or person themselves, given the urgency and the much larger costs incurred by the disruption occurring. While I accept that there is a hypothetical concern, therefore, I find it unlikely in reality that such an envisioned scenario would eventuate.
I thank the noble Lord, Lord Paddick, for tabling Amendment 116. Let me start by saying that I, again, recognise the sentiment in this amendment. It is important that the Government intervene only in matters that are serious and proportionate to the public interest. However, I wish to remind noble Lords that causing nuisance or annoyance to the public can have a far-reaching impact when it occurs on a widespread scale. The recent protests targeting the M25 have shown just that. Furthermore, while a Secretary of State may apply for the power of arrest to be attached to an injunction, it is for the courts to decide whether or not this is an appropriate measure.
Finally, I turn to Amendment 145, tabled by the noble Lord, Lord Coaker. Again, I understand and have considered the need for scrutiny and transparency, as I touched on earlier, and therefore I entirely understand the logic of the tabling of that amendment. None the less, it is the Government’s view that while a review is not needed to ensure that activity relating to these provisions is necessary, it is important that transparency is carefully considered, and I will ensure that that is done.
There are already several clear provisions in the Bill that serve to ensure that the use of these powers by a Secretary of State will be subject to scrutiny and safeguards. As has already been noted, of course, in Clause 17(5) there is a requirement for consultation as may be appropriate ahead of initiating civil proceedings. Moreover, as we have already touched on, civil proceedings can be issued in the interest of the public only when it is considered expedient to do so in the judgment of the judiciary hearing the claim. As I have already committed to the noble Baroness, Lady Chakrabarti, I will nevertheless consider what further clarity could be provided on the circumstances in which a Secretary of State might seek to initiate such proceedings. I therefore invite the noble Lord to withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this debate. If I can try and get the sense of the House, we on this side feel that this is constitutionally dubious, potentially providing opportunities for corruption, and that it is a very serious step to allow the Secretary of State to apply for an injunction to prevent a protest. On the government side, the Minister thinks it is reasonable if lots of people are affected—different organisations, private and public—and that it would be expedient for the Secretary of State to represent all parties and apply for an injunction on their behalf. Therefore, there is a clear difference of opinion as to whether we are satisfied that there are sufficient safeguards, as opposed to the Minister being satisfied that is the case. As the Minister reflects on what the noble Baroness, Lady Chakrabarti, said, we too will reflect on what the Minister has said, and we will no doubt return to this on Report. In the meantime, I beg leave to withdraw Amendment 110.
Tuesday 13th December 2022
(1 year, 4 months ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 61-III Third marshalled list for Committee - (9 Dec 2022)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Coaker (Lab)
I will respond to the noble Lord. If I, in any way, gave the impression that I underestimated the significance or seriousness of what happened to Charlotte Lynch, that was certainly not my intention. I hope that most noble Lords can see the vehemence with which I support doing something about what happened to Charlotte Lynch and using that—if that is the right way of putting it—as a way of ensuring that the Government respond in a way that protects journalistic freedom across our country, whatever the circumstances.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, before I begin responding to the debate, I start by thanking the noble Lord, Lord Paddick, for his most gracious apology, which I am obviously very happy to accept. I also acknowledge that the debate in question was long, free-ranging and somewhat tortuous.
I thank all noble Lords for their contributions on Amendments 117 and 127A. I completely agree with much of the sentiment that has been expressed when speaking to the amendments, tabled by the noble Baroness, Lady Chakrabarti, and to which the noble Baronesses, Lady Boycott and Lady Jones, and the noble Lord, Lord Paddick, have added their names. As I made clear during the debate on the first day in Committee, I share the concerns about the recent arrest of journalists reporting on the Just Stop Oil protests on the M25. The Government are absolutely clear that the role of members of the press must be respected. It is vital that journalists can do their job freely and without restriction, so I agree completely with the noble Baroness, Lady Boycott, and my noble friend Lord Deben, that it is a vital part of our democracy that journalists must be able to report without fear or favour.
On the specific case of the arrest and detention of the journalists at Just Stop Oil’s M25 protest, I was pleased to see the independent review into the arrest and detention of the journalists that concluded on 23 November. The statement issued by Hertfordshire Constabulary confirmed that the arrests were not justified and that, going forward, changes in training and command would be made. It acknowledged that it was the wake-up call to which the noble Lord, Lord Coaker, referred. The review has proposed a series of recommendations which Hertfordshire Police has confirmed it is acting on. They include:
“A further review to ensure that any Public Order Public Safety officers and commanders who have not yet carried out the College of Policing National Union of Journalists awareness training are identified and do so within 30 days; Directions to ensure that all commanders have immediate access to co-located mentors”,
to the policemen who are logging activity,
“and public order public safety tactical advisors throughout operations”
and:
“An immediate operational assessment of the number and experience of the Constabulary’s cadre of Public Order Public Safety commanders.”
I hope that the noble Baroness was somewhat reassured by that statement and the confirmation from the constabulary that it clearly got it wrong in that case, as well as the mitigations in place to ensure that it does not happen again.
In answer to the noble Lords, Lord Faulks and Lord Coaker, the police make mistakes. We agree that it was wrong, but we do not legislate for instances where it was clearly a false arrest and, therefore, unlawful.
More widely, I seek to assure noble Lords that the police cannot exercise their powers in any circumstance unless they have reasonable grounds to do so. It is highly unlikely that simply recording a protest creates sufficient grounds for the use of powers. The College of Policing’s initial learning curriculum includes a package of content on dealing effectively with the media in a policing context. In addition, the authorised professional practice for public order contains asection on the interaction of the police with members of the media, including the recognition of press identification.
Both the noble Baronesses, Lady Fox and Lady Boycott, referenced SDPOs, to which we will return later. The noble Baroness, Lady Boycott, specifically asked whether attending two or more events might give cause to one. The answer is no, because they would not be causing or contributing to serious disruption. However, as I said, that is a debate to which we will return.
Therefore, I support the sentiment behind the noble Baroness’s amendment, but I do not think that it is necessary and respectfully ask her to withdraw it.
Baroness Chakrabarti (Lab)
Before the Minister sits down, and with my real thanks for the sentiment that he expressed, does he concede that public order powers in general are cast in broad terms? Charlotte Lynch was arrested for the offence of conspiracy to cause a public nuisance—a fairly broad concept—and a number of broad police powers and offences in the Bill are triggered by an undefined concept of serious disruption.
Does the Minister also concede that senior voices in policing have said that journalists who give the oxygen of publicity to protests are part of the problem? By giving publicity, they are feeding the fuel of serious disruption. I know that the Minister disagrees with that proposition but, given that there has been so much performative legislation, and that there is apparently disagreement in the policing world about what is and is not feeding a serious disruption, why would the Government not take this modest step to ensure that no one should be arrested for the primary purpose of preventing their reporting of protest?
As a point of clarification, the difference between Amendments 117 and 127A is not the class of people they cover; it is the class of activity that is being reported on. Amendment 127A is an improvement on my poorer drafting of Amendment 117 because it refers to reporting protests themselves and not just the policing.
Lord Sharpe of Epsom (Con)
I agree with the noble Baroness that I do not agree with the proposition she just outlined from senior police officers. Having said that, I have not read those particular comments and cannot comment on the specifics. I go back to what I was saying earlier: it is not lawful to detain journalists simply there monitoring protests; it is against the law. The police made mistakes in these cases. As I said earlier, we agree it was completely wrong.
Lord Deben (Con)
Before my noble friend sits down, the fact is that what he says is true, but something has happened and therefore we have to react to it. For the Government to say that it is not necessary to do this does not mean that they need not to do it, if noble Lords see what I mean. It does not help for the Government to say that it is all okay because it was illegal. It happened and we know that it has happened on several occasions. It is also true that there appears to be among sections of the police a feeling that journalists make things worse rather than do their job. In those circumstances it is no skin off the Government’s nose just to say, “Right, we will put this in and that will make people feel happier and it will make us able to say to foreigners, ‘Look, we actually got this in the law. Not generally, but particularly, because it happened. Why don’t you do the same thing?’”
I do not understand this Government not taking easy steps that do not harm anybody. Just do it and do not constantly say, “Oh well, it’s all right.” It is not and we should do it.
Lord Sharpe of Epsom (Con)
I have to say to my noble friend: I hope I was not giving the impression that I was saying that it was all right, because it was not. I have acknowledged that it was wrong and the police made mistakes in this particular case. But, to go back to the point I made in response to the noble Lord, Lord Coaker, we do not legislate for instances where it was clearly a false arrest and therefore unlawful.
Lord Paddick (LD)
Will the Minister confirm that neither in his remarks nor apparently from what he said was the response of Hertfordshire police, was there any reference to the unauthorised detention of the journalist at the police station? The first thing that would have happened at the police station is that the journalist would have been asked to turn out their pockets, including their press pass, and yet they were still detained for five hours. What do Hertfordshire police and the Government say about a sergeant not at the scene of the protest authorising the detention?
Lord Sharpe of Epsom (Con)
Obviously, I defer to the noble Lord’s expertise on matters custodial, but—I am flying solo a little bit here—I imagine that, whatever the erroneous reasons given for the arrest, the custodial sergeant or whoever was in that position felt that some investigation was required.
Lord Coaker (Lab)
Does the noble Lord not realise how disappointing his response is in many ways? As the noble Lord, Lord Deben, just said, what happened in Hertfordshire was a real challenge to us to respond to something which seems to threaten journalistic freedom to report on protests. All of us are saying that, for the Government to turn round and say, “Don’t worry: it was a rare occurrence and it won’t happen again—no need to worry” with a shrug of the shoulders is just not the sort of response that one would hope to get from the Government. As I said, I do not believe we live in a totalitarian state, but every now and again a challenge emerges which threatens to undermine aspects of our democracy, and in this case it is journalistic and broadcasting freedom.
I think that we, certainly I, would expect the Government to reflect on what the movers of the amendment said and on some of the many moving speeches, including from my noble friend Lady Symons, and whether there is a need for the Government to act in order to protect one of the cherished freedoms that we have. I think that is what people in this Chamber—if I read again what the noble Lord, Lord Deben, said; the noble Baroness, Lady Boycott, made the point through her amendment; and I have tried to do it through the words that I have said—are expecting from the Minister, rather than simply, “Well, it was just one of those things that happened and it won’t happen again.”
Baroness Jones of Moulsecoomb (GP)
Very briefly, what concerns me about this—well, lots of things concern me—is that the police, including the custody sergeant, should have known it was an illegal arrest, but they must have thought they could get away with it. That really irks me. It is the thought that the police were so high-handed, and that is why it has to be explicit so that they cannot in any sense claim ignorance of the law.
Lord Sharpe of Epsom (Con)
My Lords, in answer to the noble Lord, Lord Coaker, I am getting a strong sense of how disappointing I am being, but it is also very fair to say that I have been completely unequivocal in sharing completely his concerns about the protection of our democracy and institutions. As I said earlier, it is a vital part of democracy, and I would expect and also demand, that protests are reported on fairly and freely. Of course I am sorry that the noble Baroness is irked, but I cannot second-guess what the police were thinking and I will not stray into that territory.
Baroness Boycott (CB)
My Lords, I thank the Minister for his reply to all the wonderful speeches, and I thank many noble Lords for speaking tonight in support of the amendment that the noble Baronesses, Lady Chakrabarti and Lady Jones, and the noble Lord, Lord Paddick, and I put forward.
What I want to say very much reflects what the noble Lord, Lord Coaker, was saying. I would call this the Government’s “bad apple” defence, which at the moment gets deployed all over the shop, whether we are talking about a single police officer who accosts a young woman at night with bad consequences or about a single police station in Hertfordshire. This is not about a bad apple; as the noble Lord, Lord Paddick, said, this is about a systemic situation, and as the noble Lord, Lord Deben, said, this has happened and it is now happening a lot more.
I suspect, although I am quite happy for your Lordships to disagree with me, that this is a lot to do with the climate and the feeling of people in a desperate situation who do not know what else to do. They end up gluing themselves to the road and they are seen as something extreme. That does not matter: it is still a protest, however annoying and nuisance making it is, and we can all debate that—but it is another debate. This is about the right to protest and the right of journalists to go to that protest and report on it. Journalists report on what human beings do. They report on people, what motivates them and what they care about, and what people are prepared to glue themselves to a road for or to padlock themselves to, or to climb Nelson’s column or whatever it happens to be.
The noble and learned Lord, Lord Hope, made the point about monitoring things across the world. We send journalists to monitor whether African countries are having free elections. How can we stand here and say that that is a good idea if, at the same time, someone reporting on a climate protest is chucked in jail? She was in a cell with a tin bucket as a lavatory for five hours. We are not talking about a quick slap on the wrist and “I’ll write you a letter later and send you a 30 quid fine”. This was a serious thing and it happened. We are therefore obliged to do something about it.
I come back to the “bad apple” defence. It is used by this Government over and over. They cannot use it in this instance and hope to hold their heads up high, or for people in this House to let them get away with it—we will not. I, the noble Baroness, Lady Chakrabarti, and others will bring this back on Report. We will work on the amendment, but it will fundamentally be the same. I am very grateful to all noble Lords who supported it. I beg leave to withdraw the amendment.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
I thank noble Lords. The public order measures in the Police, Crime, Sentencing and Courts Act 2022 have only just come into force, so, in the Government’s view, it is far too early to consider whether they should be repealed. These measures were debated at length during the passage of the Act, and the police have barely had the opportunity to make use of these new powers to manage public processions, assemblies, single-person protests and protests in the area outside Parliament. I therefore ask the noble Baroness to respect the democratic process and allow these measures to continue to be part of the statute book. It is no doubt clear that, as we have seen, the public continue to be able to protest as before since the commencement of the Police, Crime, Sentencing and Courts Act 2022.
I will not dwell long on the amendment lowering the maximum penalties for wilful obstruction of the highway. This House was clear in its position that the increase in sentences was appropriate, and I doubt that that position has changed in the last six months.
Amendment 123 would repeal the statutory offence of public nuisance and reinstate the common-law offence. In doing so, it would allow courts to place custodial sentences beyond the current 10-year maximum in the statutory offence. This would also have the effect of removing the reasonable excuse defence. I worry that this amendment undermines the benefits of the statutory offence, as recommended by the Law Commission.
I turn to the question asked by the noble Lord, Lord Coaker, on double glazing—I want to say, “for complete transparency”, but perhaps I should not. Parliamentarians asked for practical examples of when the power would and would not be used. This example is in the guidance to illustrate that the threshold is subjective, depending on its impact on people or organisations, which is why there is no decibel threshold.
When debating the measure covered by Amendment 123 during the passage of the PCSC Act, Parliament spoke at length about the meaning of “annoyance”. The Law Commission’s written evidence to the Public Bill Committee on this said:
“Annoyance in the context of nuisance is a legal term of art that does not connote merely feeling annoyed. It requires ‘a real interference with the comfort … of living according to the standards of the average man’”.
In common law, “annoyance” and “inconvenience” were already within the consequence element of the common-law offence.
Amendment 127, tabled by the noble Lord, Lord Coaker, probes the use of the powers to prevent noise from public processions, and presumably assemblies and single-person protests, from causing harm. I am sure that the noble Lord is aware that the Government are legally required to table a report on the operation of these new powers to manage public processions, assemblies and single-person protests by 28 June 2024. In the meantime, I can inform him that I am not aware of the new powers relating to noise being used—but I remind the House that the use of conditions on protests and other gatherings is relatively infrequent. The noble Lord, Lord Coaker, asked about instances of the noise provision being used. As I say, there is no record of the police using this power.
For the reasons I set out, I invite the noble Baroness to withdraw her amendment.
Baroness Jones of Moulsecoomb (GP)
Did the advice’s definition of “discomfort” really use the word “man”, so it does not apply to women? Is that real?
Lord Murray of Blidworth (Con)
I was quoting from the Law Commission’s written evidence, which referred to the
“standards of the average man”.
In that context, as in many legal documents, the word “man” implies “mankind”.
Baroness Jones of Moulsecoomb (GP)
I suggest that legal sources need to brush up on equality these days—that is ridiculous.
With my amendments, I was trying to give the Government the opportunity to see that the legislation they have brought in is extremely unpleasant and repressive. I wish I had done a little more homework, like the noble Lord, Lord Coaker, and highlighted some of the ridiculous things in the Act. He highlighted a real deficit in the Government’s reading of legislation and their concentration on these things, which let such things through. There was a lot of laughter in the Chamber when the noble Lord, Lord Coaker, presented that part of the Bill, as it was. I argue that the drafting of some of these Bills is absolutely appalling, and that highlights it. I will of course withdraw my amendment, but this Government are awful.
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords for the amendments in this group. I turn first to Amendment 126, which would require the College of Policing to publish guidance consolidating the public order authorised professional practice and NPCC and college operational advice for public order policing. The Government would be required to lay the consolidated guidance before Parliament and the guidance would need to be reviewed annually and updated when appropriate.
The noble Lord’s explanatory statement clarifies that this builds on a recommendation from His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to the College of Policing. For the benefit of the House, when giving oral evidence to the Public Bill Committee, His Majesty’s Inspector Matt Parr has said of policing’s response to the report that it was
“the most professional and thorough response”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 55.]
he had seen to a report that he had done.
The college has drafted a new public order public safety authorised professional practice that is in the final stages prior to consultation, which precedes publication. A draft version will be published for consultation by public order practitioners by the end of December and the college plans to publish the final version in early 2023.
To provide further reassurances to all those present who have shown interest in public order guidance, noble Lords will perhaps allow me to detail some of the work that the college has undertaken beyond the authorised professional practice to improve public order training.
On guidance, the college publishes regular bulletins, including on changes to processes, legislation and new training products. Its summary guide to the Police, Crime, Sentencing and Courts Act has been circulated to all forces and widely shared with officers involved in policing public order and protest. This guidance reiterates the need for a balanced approach with a reminder of the recent HMICFRS conclusion that
“the police do not strike the right balance on every occasion. The balance may tip too readily in favour of protesters when – as is often the case – the police do not accurately assess the level of disruption caused, or likely to be caused, by a protest.”
In April, the college drafted the National Police Chiefs’ Council’s Protest Operational Advice Document, which reiterated the need for a rapid response to disruptive disorder. The document aims: first, to support consistency of decision-making and engagement with stakeholders; secondly, to signpost guidance, legislation, key legal decisions, policies and practice which may assist in the policing of protest, thereby promoting public safety, preventing or reducing crime, disorder and/or terrorism to support overall public safety; and, thirdly, to assist decision-makers in achieving outcomes which support the exercise by peaceful protestors of their rights under Articles 8, 9, 10 and 11, while striking the appropriate balance between those rights and the rights of others affected by protest. This is being reviewed by the college, which aims to publish the revised version in February 2023.
On training, over the last six months the college has rolled out significant changes to protestor removal training. This used to be a very niche skill with very few people trained to a high level, but this meant the response was slow. The college has since developed new, quicker training for simpler lock-ons, which has meant a substantial improvement in the speed of the police response to these. I could go on, but I think I have made the point. The college is a professional organisation that is proactive in response to protests to ensure that officers are trained to the highest possible standards. It does not need a legislative stick to make them do so. That is why the Government do not support this amendment.
I thank the noble Lord, Lord Coaker, for specifying that Amendment 144 is a probing amendment to query the demand for, and the capacity of, specialist protest officers across police forces. I presume by “specialist protest officers” the noble Lord is referring to both public order trained officers and officers trained in the removal of protesters who lock on. For the benefit of the House, it is worth clarifying that, for the most part, protests are non-violent and are managed effectively by general patrol officers. When there is a risk of violence, officers with additional specialist public order training are deployed.
On specialist public order trained officers, the NPCC has set a national requirement of 297 police support units across England and Wales, alongside 75 in London. A police support unit consists of one inspector, three sergeants and 18 constables as well as three drivers. On level 3, which is basic public order training, the NPCC has set a requirement for 234 basic deployment units.
On the question from the noble Lord, Lord Coaker, on specialist officers, the NPCC has identified a national requirement for 108 officers trained in debonding protestors, 189 officers trained to remove protestors and another 189 who are trained to remove protestors from complex environments such as height. The noble Lord also asked about non-specialist officers. They are deployed to respond to peaceful protests and all have level 3 public order training.
The noble Lord, Lord Paddick, asked me about specials. Peaceful protests would seem to me to be well within the abilities of volunteer police officers—indeed, I have seen it in my own service overseas. He also mentioned cuts. I am afraid I am going to disappoint him by saying that we are well on the way to the 20,000 police uplift that was promised. I will also of course say that the nature of protests has changed and, therefore, so has the nature of policing, as reflected in much of this Bill.
Lord Paddick (LD)
I am sorry to interrupt the Minister and am grateful to him for giving way. I have seen evidence that special constables are being trained to level 2 and being issued with specialist equipment, so I am not talking about special constables trained to level 3, as the noble Lord suggested.
The noble Lord gave a whole series of numbers. The National Police Chiefs’ Council has decided that there should be specified numbers of level 3 and level 2-trained units of one, three and 18—one inspector, three sergeants and 18 constables—as the requirement nationally. To what extent have police services fulfilled those requirements? The indication that the Minister gave was that that is the target that the National Police Chiefs’ Council has given, but to what extent have police forces been able to fulfil that target?
Lord Sharpe of Epsom (Con)
I am afraid that I do not know the answer. I will write to the noble Lord with the detail. Regarding the specials, as long as they are trained, surely that is the point.
Chief officers are responsible for demonstrating that they can appropriately mobilise to a variety of public order policing operations at a force, regional and national level in accordance with the national mobilisation plan. The College of Policing sets consistent standards across England and Wales to ensure consistency across forces, allowing officers from different forces to operate in tandem when deployed to other force areas.
The required capacity for public order capabilities is informed by the assessment of threats, harm and risk from the National Police Coordination Centre, as agreed by the National Police Chiefs’ Council. Officials and Ministers in the Home Office regularly probe the National Police Coordination Centre on its confidence that forces can respond to disorder. At present, it assesses that forces are able to meet current protest demands. Forces have been able to use public order resources to respond to incidents including the awful disorder in Leicester in August and September, as well as Just Stop Oil’s recent disruptive campaign on the M25.
Amendment 142A seeks to ensure that statutory guidance issued under Clause 30 is subject to the affirmative scrutiny procedure, rather than the negative procedure, as the Bill currently allows. This follows a recommendation from the Delegated Powers and Regulatory Reform Committee, as explained by the noble Lord, Lord Rooker, and the noble Baroness, Lady Meacher. I thank the committee for its consideration of the Bill. I hope, but am afraid I doubt, that noble Lords will forgive me for echoing the arguments made in the Government’s response here. SDPOs do not represent a new concept. Successive Governments, dating back at least to 1998 and the creation of anti-social behaviour orders in the Crime and Disorder Act, have legislated for civil preventive orders of this kind, which can impose restrictions on liberty, backed by criminal sanctions. Many of these preventive order regimes include similar provision to that in Clause 30 for the Secretary of State to issue guidance which was not subject to the draft affirmative scrutiny procedure. Guidance issued for serious violence reduction orders is subject to the negative scrutiny procedure. Having said that, I listened very carefully to the speech by the noble Lord, Lord Rooker, and I will write to him with an attempt to unravel some of the discrepancies that he mentioned.
We therefore see it as entirely appropriate that the guidance is subject to the negative scrutiny procedure and respectfully encourage noble Lords not to press their amendments.
Lord Coaker (Lab)
My Lords, the last remark the Minister made, about writing to my noble friend Lord Rooker, was useful. Reflecting in the letter on the comments by the noble and learned Lord, Lord Thomas, might be helpful as well.
I will focus on my own amendment. I thank all noble Lords who contributed on it. The reason for it was the need for co-ordinated and updated guidance. I am grateful to the Minister for saying that the updated guidance will come at the beginning of 2023.
You can see why there is a need for clarification. An article in the Daily Telegraph just yesterday, quoting the chief constable of Greater Manchester, Stephen Watson, said:
“criticism of officers by the public for being too slow to clear the protesters was ‘not an unreasonable judgment’.”
He went on to say:
“The public has seen us reacting too slowly, less assertively than they would have liked.”
That is the second-most senior police officer in the country saying that the police should have acted more quickly with respect to the protesters. He goes on—and I am not a trained police officer, just reflecting on what the chief constable said in a national paper:
“I think fundamentally, if people obstruct the highway they should be moved from the highway very quickly. The so-called five stage process of resolution can be worked through”
quickly. He goes on, and here is the point that the guidance needs to clarify. Is the chief constable of Greater Manchester right, or are the other officers? The article says that his argument is that
“officers spent too much time building a ‘copper-bottomed’ case for prosecuting people for offences such as public nuisance rather than arresting them for the lesser crime of obstruction.”
I do not know whether that is right or wrong, but somewhere along the line there needs to be clarification through the guidance package, which we hope will come at the beginning of 2023. It should say that, to deal with protests quickly and robustly but according to the law, these are the options available in coming to any decision. The chief constable of Greater Manchester is clearly saying that the police could have done better by using the lesser offence of obstruction. Is he right or wrong? The guidance may be able to sort that out for us. I beg leave to withdraw the amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by echoing what the noble Lord, Lord Paddick, said: all the arguments in all the amendments could become redundant if we support not putting Clauses 19 and 20 in the Bill. The strength of feeling demonstrated through this short debate leads me to believe that that may well be what we vote on when we come to Report.
I forget whether it was my noble friend Lady Chakrabarti or the noble Lord, Lord Skidelsky, who referred to this as copy-and-paste legislation. I think it was the noble Lord, Lord Skidelsky, who gave the analogy of chicken coops being moved around to replicate these civil injunctions. But perhaps the most powerful speech we have heard was from the noble Lord, Lord Anderson, who gave six examples of SDPOs being tougher than TPIMs, which really caused me to sit back and reflect on the meat of what we are dealing with here today.
My noble friend Lady Chakrabarti said she has always been against what she called quasi-injunctive orders—civil orders—going all the way back to ASBOs. This caused me to reflect, as a magistrate, on which of those orders I deal with when I sit in courts. I deal with some of them: football banning orders, knife crime prevention orders and domestic violence protection orders—I think most noble Lords who have taken part in this debate think DVPOs are an appropriate use of civil orders. But, of course, the list goes on. That is really the point my noble friend makes: there are a growing number of these civil orders that, if breached, result in criminal convictions.
To repeat what I said, here we are meeting a very extreme situation in which people planning to get involved in protest or to help people do so can potentially be criminalised for that activity. The nature of the potential offence being committed is different.
The noble Lord, Lord Paddick, went through in detail, for which I thank him, the nature of the injunctions in Clauses 19 and 20, so I will not go through all that again, but I will make one point that he did not make. We are concerned that there does not seem to be any requirement for the person involved to have knowledge that the protest activities were going to cause serious disruption. That lack of a requirement of knowledge is a source of concern for us.
In the debate on the previous group, my noble friend Lord Rooker and the noble Baroness, Lady Meacher, spoke about the comments of the Delegated Powers and Regulatory Reform Committee, and my noble friend quoted from them. The noble Lord, Lord Beith, spoke about the Secretary of State issuing guidance to chief police officers and how that could go down a road whose potential political implications, in a sense, I prefer not to think about.
I will quote briefly from other committees which have reflected on this legislation. First, the Joint Committee on Human Rights has said:
“Serious Disruption Prevention Orders represent a disproportionate response to the disruption caused by protest. They are likely to result in interference with legitimate peaceful exercise of Article 10 and 11 rights. The police already have powers to impose conditions on protests and to arrest those who breach them. Other provisions of this Bill, if passed, will provide the police with even greater powers to restrict or prevent disruptive protest.”
Another committee, the Constitution Committee, said:
“The purposes for which a Serious Disruption Prevention Order can be issued are broad. They can be issued not only to prevent a person committing a protest-related offence but also to prevent a person from carrying out activities related to a protest. Such a protest need cause, or be likely to cause, serious disruption to only two people. This gives the orders a pre-emptive or preventative role. Furthermore, ‘protest-related’ offence is not adequately defined in this part of the Bill nor … is ‘serious disruption’. This undermines legal certainty. We recommend that the meaning of ‘protest-related offence’ is clarified more precisely.”
The Minister has a big job on his hands to try to convince any Member of this Committee that he is on the right track. The amendments in my name—the clause stand part amendments—are the quickest way to put this part of the Bill out of its misery.
Lord Sharpe of Epsom (Con)
My Lords, there are notices to oppose within this group, so it may help if I start by addressing serious disruption prevention orders as a whole, before turning to amendments to the clause. SDPOs will target protestors who are determined to repeatedly inflict disruption on the public or those who simply wish to go about their daily lives. Our experience at recent protests has shown that many police are encountering the same individuals, who are determined repeatedly to inflict disruption on the public.
It cannot be right that a small group of individuals repeatedly trample on the rights of the public without let or hindrance. Yes, many are arrested, but after paying small fines or serving short or suspended sentences, they are free to reoffend. This measure would, following the consideration and permission of the courts, allow for proportionate and necessary restriction or requirements to be placed on individuals to prevent them causing harm.
Additionally, in some cases, individuals choose to not get their hands dirty. They go around the country speaking to young people who are determined to make the world a better place—not to encourage them to study and seek out a career to better the planet, or even to enter politics to enact change; instead, they encourage them to commit criminal offences, alienate the public from their cause and jeopardise their opportunity for a career that will actually make a difference. Why should these individuals, who contribute to serious disruption, be permitted to behave as they do without consequence?
This is why SDPOs are needed, as drafted. They will provide an alternative, non-custodial route to prevent those who have a track record of trampling on the rights of others from doing so. The threshold for the imposition of these orders is appropriately high and I trust our courts to impose them only where necessary.
The noble Lord, Lord Paddick, asked about the HMICFRS conclusion. The report from the policing inspectorate considered only orders which would always ban an individual from protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption. Depending on the individual circumstances, this may mean that the court will not consider it necessary to stop individuals attending protests.
Amendments 128, 129 and 130 would raise the evidential threshold for SDPOs to the criminal standard. I am sure that many who support these amendments also support the civil courts approving injunctions against protesters. These are made on the civil burden of proof against large numbers of people, including “persons unknown”. SDPOs are made against single known individuals.
A number of noble Lords asked why SDPOs can be granted using a civil standard of proof, including the noble Lords, Lord Paddick and Lord Skidelsky, the noble and learned Lord, Lord Brown, and the right reverend Prelate the Bishop of Chelmsford, among others. The use of the civil standard of proof is not a novel concept for preventive orders. Football banning orders, for example, use the same standard of proof to help prevent violence or disorder at or in connection with any regulated football matches. By using a civil standard of proof, courts will be allowed, following due consideration, to place prohibitions or requirements they consider necessary to prevent an individual causing disruption.
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.
Lord Sharpe of Epsom (Con)
What I hope I said is that our expectation is that the provisions in the Bill will improve the ability of the police to “remove and deter protesters”, thereby alleviating some pressure on the police.
Baroness Chakrabarti (Lab)
That is very helpful. I agree with the Minister that police officers—we have a fine one in this Committee—and police forces should not be treated with a broad brush, but, and noble Lords will perhaps forgive me if I say it, nor should peaceful protesters. Hence, the question raised by the noble Lord, Lord Paddick, and hence the bulk of criticism of this entire draft legislation in this Committee. It is an unhappy privilege to be perhaps the last speaker in this Committee; I think I was the first. I am grateful to the Minister for his fortitude and courtesy. He wants to rise again.
Lord Sharpe of Epsom (Con)
I just want to clarify that I mean criminal protesters.
Baroness Chakrabarti (Lab)
I am grateful to the Minister but, of course, if the Government are able to keep expanding the definition of criminality, that does not give much cause for comfort about protecting peaceful dissent. I am none the less grateful to the Minister for his fortitude and courtesy throughout this three-session Committee. I hope that he and his colleagues will understand that what he has heard over these days and hours is very serious cross-party concern about these measures, reflected in vast sections of the country. I have no doubt that, after a good break and, I hope, a happy Christmas of reflection, colleagues will be back and some of these matters will definitely be put to the vote. With that, I beg leave to withdraw the amendment.
Monday 30th January 2023
(1 year, 2 months ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 82-I Marshalled list for Report - (26 Jan 2023)
17:09 - Division on Amendment 1 - Ayes: 243 / Noes: 221 - Amendment 1 agreed.
18:35 - Division on Amendment 8 - Ayes: 221 / Noes: 224 - Amendment 8 disagreed.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Davies of Gower (Con)
My Lords, I just gently remind the House of the rules of debate on Report, which say:
“On Report, no Lords Member may speak more than once to an amendment, except: the mover of the amendment”.
Intervening repeatedly on other Members is not really in keeping with the rules of debate on Report.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, at Second Reading and in Committee there was much discussion on the meaning of “serious disruption”, and many noble Lords spoke to the need to provide a clear definition in the Bill. I thank all noble Lords who have participated in what has been a fascinating debate. At Second Reading, I agreed with many of the comments made by your Lordships and committed to take the matter away. What we are debating today is the matter of thresholds, as all noble Lords who spoke noted. The debate is not about whether these measures ban protests: quite simply, they do not, and I thank the noble Lord, Lord Coaker, for his comments emphasising that fact. We are trying to ascertain the point to which protesters can disrupt the lives of the general public. This Government’s position is clear: we are on the side of the public.
I thank the noble Lord, Lord Coaker, for tabling his amendment, which provides a definition of “serious disruption” for offences in the Bill. I agree with the purpose of his amendment but do not believe that the threshold is appropriate. The Government want to protect the rights of the public to go about their daily lives without let or hindrance. I do not believe that his amendment supports this aim; therefore, I cannot support it. I make no secret of what the Government are trying to do. We are listening to the public, who are fed up with seeing, day after day, protesters blocking roads: they make children late for school; they make people miss hospital appointments; and they make small businesses struggle. Any change in law must address this, and I do not believe that the noble’s Lord’s proposed threshold does.
In this vein, I turn to the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, which also provide a definition of “serious disruption”, but for the specific offences of locking on, tunnelling and causing disruption by being present in a tunnel. His amendments follow the judgment handed down by the Court of Appeal following the Colston statue case. The court found that the right to protest does not extend to acts of criminal damage that are violent or where the damage is to more than a minor or trivial degree:
“We cannot conceive that the Convention could be used to protect from prosecution and conviction those who damage private property to any degree than is other than trivial.”
We agree with the judiciary and believe that this threshold should be consistent across the statute book. Although the court concerned itself with the matter of damage to private property, the same principles apply to obstructing the public from enjoying their right to go about their business without hindrance. That is why the Government support the noble and learned Lord’s amendments; I am very pleased we were able to surprise him in that regard. They provide a threshold for “serious disruption” that is rooted in case law. I thank him for tabling this amendment and, indeed, for explaining it in such a detailed and precise way. It provides both clarity to the law and a threshold that addresses the public’s frustration with disruptive protests.
I will now speak to government Amendments 48 and 49. The Commissioner of the Metropolitan Police Service has asked for further legislative clarity on police powers to manage public processions and assemblies. These powers are conferred by Section 12 of the Public Order Act 1986 for processions and Section 14 for assemblies. They allow the police to place reasonable and necessary conditions on protests to prevent specific harms from occurring. One of these harms is
“serious disruption to the life of the community”.
These two amendments provide clarity to this phrase for both Sections 12 and 14. The noble Lord, Lord Paddick, was quite right in anticipating that I would be quoting Sir Mark Rowley, who said:
“I welcome the Government’s proposal to introduce a legal definition of ‘serious disruption’ and ‘reasonable excuse’. In practical terms, Parliament providing such clarity will create a clearer line for police to enforce when protests impact upon others who simply wish to go about their lawful business.”
These amendments, supported by the police, prioritise the rights of the law-abiding majority. First, they carry over the noble and learned Lord’s definition of “serious disruption”. Secondly, they define the meaning of “community”. Thirdly, the police may consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly. In answer to the comments of the noble Lord, Lord Paddick, that these are too complicated, I say that the Home Office will work closely with the NPCC and the College of Policing to ensure that appropriate guidance and training are developed. Mirroring the definition of the noble and learned Lord, Lord Hope, will provide consistency across the statute book. As I have said, this is welcomed by the police. I point out that the definition specifies that the disruption is caused by physical means only.
The noble Lord, Lord Coaker, raised in the Policy Exchange paper the use of “minor” in the definition. These amendments protect the daily activities of the public; it is clear that the public are fed up with the disruption caused by protesters, and that is what these amendments address. Many protests that do not disrupt the lives of others occur on a regular basis. The noble Lord, Lord Hogan-Howe, made a very good point: that we should not allow the protesters themselves to determine the scale of disruption. Many protesters are able to express themselves and place pressure for change without blocking roads.
Currently the term “community” is undefined. The police should be able to use their powers to protect anyone who is detrimentally impacted by serious disruption from protests, not just those who live, work or access amenities where the protest occurs. The police must consider the absolute disruption caused to the public, as opposed to the disruption relative to what is typical for an area. The measure will give officers the confidence that they can use to respond to disruptive protests, even in areas routinely subject to spontaneous disruption such as traffic jams. To prioritise the rights of the public, the amendment allows the police to consider the cumulative impact of protests and separate protests. It is wrong that the public must repeatedly put up with disruptive protests, in part because each time there is a new protest, the police must consider the level of disruption afresh and in isolation from what has previously happened and what may be planned. If multiple protests cumulatively ruin the daily activities of a community, they must be considered collectively. Following from this, if the police are to manage the collective impact of protests, they must be able to apply the conditions on separate but connected protests. For example, a large protest campaign made up of multiple small protests that disrupt a large area should be subject to blanket conditions. Allowing the police to consider the cumulative impact of protests by requiring them to manage each individually complicates the operational response unnecessarily. Collectively, these measures will allow the police to protect the public from the disruptive minority who use tactics such as blocking roads and slow walks. The public are clear that they want the police to protect them from these tactics. In turn, the police have asked for clarity and law to confidently and quickly take action and make arrests where appropriate. The Government have listened to both, and I hope this House does the same and supports the amendment.
I will speak collectively to the amendments tabled by the noble Lord, Lord Paddick. These measures do two things to the locking-on and tunnelling offences. First, they lower the threshold of the offence so that acts capable of causing serious disruption are not in scope. Secondly, they alter the mens rea so that only intentional acts, and not reckless ones, are in scope of the offence. It is clear that the public do not want to see police officers sit by while criminal protesters disrupt their lives; lowering the threshold would mean that the police will have to do so. Why should an officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause serious disruption to the public? As for the mens rea, as I have said already, the Government are concerned with the disruption caused to the public. It does not matter whether it is caused recklessly or intentionally; what matters is the impact it has on people’s daily lives. For all these reasons, I encourage all noble Lords to support the amendments in the name of the noble and learned Lord, Lord Hope, and those by the Government and reject the others.
Baroness Butler-Sloss (CB)
Can the Minister deal with the issue of “be capable of causing” as opposed to actual disruption?
Lord Sharpe of Epsom (Con)
I did deal with that when I was talking a little about the tunnelling and locking-on offences. Why should the officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause, or be capable of causing, serious disruption to the public? Certainly in terms of tunnelling, I think that is very clear.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, clearly, I intend to shed some light. The noble Lord, Lord Coaker, has generated a lot of heat on the purpose of “reasonable excuse”. I begin by thanking the noble and learned Lord, Lord Hope, for tabling his amendments. These exclude protest as a reasonable excuse for the criminal offences within the Bill. We would say that this amendment is consistent with the reasoning of the Court of Appeal in the Colston case in relation to the criminal damage allegations that were at issue in that case.
These amendments implement the Constitution Committee’s recommendation that instances of “reasonable excuse” in the Bill are defined. I thank the committee for its thoughtful analysis in this regard, which has helpfully informed much of today’s debate. The amendments from the noble and learned Lord also follow from the Supreme Court’s recent judgment that a lack of reasonable excuse in criminal offences is not necessarily incompatible with the European Convention on Human Rights. The noble Lord, Lord Faulks, has set out a compelling case for these amendments, so I will try to refrain from repeating the same points. Similarly, the noble Lord, Lord Wolfson, has very cogently set out the case for these amendments, and I will not repeat the points he made.
In summary: the Government support these amendments. They are necessary to ensure that these criminal offences serve their purpose. The entire reason we are legislating is to make it clear that locking on, tunnelling, and disrupting infrastructure are illegitimate tactics of protest. Now that we are satisfied that it is compatible with the European Convention on Human Rights to carve out protest as a reasonable excuse for these offences, we should do so. Parliament should make it explicitly clear that protest is not of itself a reasonable excuse for these offences. Not doing so will simply lead to protracted litigation in the courts. This much is clear from the Supreme Court’s decision in the Northern Ireland abortion clinics case.
Following from the noble and learned Lord’s amendments, the Government have tabled two more. The first similarly carves out protest from the offence of public nuisance. I take the opportunity to remind the House that the former common-law offence did not have a reasonable excuse for the offence at all. One was included in the statute on the recommendation of the Law Commission. Similarly to the offences within this Bill, and keeping in line with recent case law, we should now carve protest out of the offence.
The second amendment carves protest out of the lawful excuse for the offence of wilfully obstructing the highway. However, recognising that the offence is a low-level one, we do not carve it out in its entirety. Instead, the amendment removes protest from the reasonable excuse only where “more than” serious disruption is caused. The hope was to ensure consistency in the law; we sought to replicate the same proposed threshold of “serious disruption” in this offence. Therefore, protesters will still be able to obstruct highways to a certain degree. This, in the Government’s view, strikes the right balance between the rights of the public and the rights of protesters—an exercise that the noble Lord, Lord Sandhurst, rightly reminded the House is a fundamental part of the consideration of human rights.
Despite the definition proposed by the noble and learned Lord, Lord Hope, now not standing part of the Bill, there is still a need to clarify the circumstances in which obstructing a highway is not a legitimate exercise of one’s Article 10 and 11 rights. I would expect the precise wording to be settled as the matter is debated further by Parliament, and in such a manner as to ensure consistency and clarity for protesters, the police and the courts.
On the question from the noble Lord, Lord Deben, on the impact of such an amendment on a march such as that against the Iraq war, which we saw under the Blair Administration: under Section 3 of the Human Rights Act, this measure will still have to be read compatibly with the ECHR—a point the noble Lord, Lord Wolfson, made. Therefore, the point at which arrest and prosecution would be a proportionate interference with people’s Article 10 and 11 rights depends on the circumstances of each protest.
My noble friend Lord Sandhurst has tabled a similar amendment to those of the noble and learned Lord, Lord Hope, and the Government.
Lord Deben (Con)
I do not think I understand what my noble friend is saying. Is he saying that a march against the Iraq war would be acceptable? After all, it was about current issues. Very few issues were more current at the time. How would people know in advance that it would be acceptable? That is quite important, too.
Lord Murray of Blidworth (Con)
The reasonable excuse defence arises only once there has been a decision by the police to prosecute. The fact of the march itself is something that the authorities would have to judge, and they would have to do so in accordance with their obligations to act lawfully and in pursuance of their obligations under the Human Rights Act, including those under the provisions of that Act.
I return to the amendment from the noble Lord, Lord Sandhurst, which seeks to remove protest from the reasonable and lawful excuses of all criminal offences. While I appreciate the elegance of addressing the protest as a reasonable excuse question in one fell swoop and agree with the sentiment behind it—and find interesting the research in the Policy Exchange paper—I cannot support the amendment. Some offences, such as minor obstruction of the highway or the most minor of damage, such as that caused by water-soluble paints or dyes, can be a legitimate exercise of Article 10 and 11 rights.
The burden of proof was debated at length in Committee. The government position remains that the burden of proof should rest on the defendant. They are aware of all the facts pertinent to their case. As I made clear in Committee, it is not a novel concept for the burden of proof to rest on the individual.
I turn to the amendments in the name of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. These take issue with the reasonable excuse defence and seek to shift the burden of proving such a defence for the criminal offences from the defendant to the prosecution, making it a key element of the offence. Amendment 35, tabled by the noble Baroness, Lady Chakrabarti, also adds
“support for … a trade dispute”
to the protected activities of acts
“wholly or mainly in contemplation or furtherance of a trade dispute”
under Clause 7. The government position remains that the burden of proof should rest on the defendant. While I understand the sentiment, Amendment 35 is not necessary as we assess that support for a trade dispute would already be captured under the defence.
I also want to address one of the criticisms that was made in Committee, which I believe has inspired some of the amendments of the noble Lord, Lord Paddick. As I made clear in Committee, the reasonable excuse defence resting on the individual does not, and would not, mean that those suspected of committing the offences would be arrested and charged without consideration of whether or not they had a reasonable excuse for their actions. With regard to the arrests, Code G of the Police and Criminal Evidence Act 1984 states that the use of the power of arrest requires the belief that an individual is committing, has committed or is about to commit an offence, and that the arrest is necessary.
With regard to charging decisions, the Crown Prosecution Service has to consider whether there is a realistic prospect of conviction at trial, and whether the suspect has a reasonable excuse will factor clearly in that decision-making process. This obligation on Crown prosecutors is set out in the Crown Prosecution Service’s Code for Crown Prosecutors in paragraphs 4.6 and 4.7. Any reasonable excuse defence that a suspect may have will be considered as part of these processes.
Finally, I have considered the proposal in the amendment from the noble Baroness, Lady Chakrabarti, to include support for a trade dispute as a reasonable excuse. I do not believe that it is necessary, as an act in support of a trade dispute is, in essence, in furtherance of one and therefore already in scope of the defence. As with the last group, I encourage all noble Lords to support the amendments from the noble and learned Lord, Lord Hope, and the Government and to reject the others.
Lord Paddick (LD)
The Minister said that the Northern Ireland Supreme Court case shows that the amendments are consistent with the European Convention on Human Rights. I made the point that the proportionality test that the Supreme Court made in that case was on the basis that the convention rights were restricted only within 150 metres of an abortion clinic and not outside that, whereas these amendments would apply universally and therefore, in my judgment, are disproportionate. The Minister did not address that issue.
Lord Murray of Blidworth (Con)
I entirely understand that that is the noble Lord’s view. The test of proportionality will, of course, be decided on the facts of each case as it arises, which will be matters that will feed into the decisions taken by the police and CPS in the charging process.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords who spoke in an incredibly thoughtful debate—your Lordships’ House at its best, if I may say so. Noble Lords will forgive me if I do not mention everyone, for obvious reasons of time, but I am particularly grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for explaining that sometimes reverse burdens make sense when the criminality is just so obvious, such as carrying a bladed article in public, but that linking arms is generally not thought of as the same kind of criminality.
I am also grateful to the noble and self-deprecating Lord, Lord Paddick. He may not be a lawyer, but he is certainly a better lawyer than many of us lawyers would be police officers, I suspect. His brilliant exposition of the Northern Ireland case in particular, including by way of his last intervention, demonstrates that Ziegler is not dead. As we have heard from many noble Lords in this thoughtful debate, protest is not a trump card; it will not always be a reasonable excuse for criminality. But sometimes it might be. It is not irrelevant to these matters. Good law is about rules and discretion and, without the right amount of discretion, injustice will follow.
Most of all, I am grateful to the noble Lord, Lord Deben, because it was his particular thought experiment that made me most concerned about a mass demonstration such as the one on Iraq—but it could be on another subject under another Government in future. We are talking about a mass demonstration where, quite deliberately, the police do not run around arresting everybody; they use their discretion in the public interest not to do so, so as not to cause a very hazardous situation to human beings and public order, or because they simply would not be able to arrest a large number of people.
In my development of the thought experiment from the noble Lord, Lord Deben, instead of just not arresting people and just ensuring that people are safe, certain police officers arrest only a certain type of person—say, only people in wheelchairs, or only women, who are easier to arrest, or, dare I say it, only people of a certain race. If those people alone were then prosecuted and were not permitted to argue a reasonable excuse that they were just on the demonstration like everybody else, I suggest that a grave injustice would follow. The fact of the protest is never a trump card, but sometimes it is highly pertinent.
I shall not press the amendments in my name to a Division, because I have decided, on the basis of this debate, that the priority in the time that we have is to vote against the government amendments, which is what I would urge all those concerned about this to do.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment and the amendments in the name of Lord Sharpe of Epsom at page 4, line 14 and page 4, line 15 provide that the offence in Clause 4 may be committed only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.
Lord Sharpe of Epsom
“(5A) In this section “relevant tunnel” means a tunnel that was created for the purposes of, or in connection with, a protest (and it does not matter whether an offence has been committed under section 3 in relation to the creation of the tunnel).”Member's explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 3, line 28.
Lord Sharpe of Epsom
Member's explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 3, line 28.
Monday 30th January 2023
(1 year, 2 months ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 82-I Marshalled list for Report - (26 Jan 2023)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a wide-ranging and fascinating debate, and some would say that this may be the House of Lords at its best.
I shall first address the amendments moved by the noble Baroness, Lady Morrissey. She has come late to the party, and I have to say that I think that her amendments have suffered for that reason. Her amendments have not been tested against the Human Rights Act in any way; we do not know what the House of Commons would think about them, and we do not know what the Supreme Court would think about them. Of course, that is in contrast to Amendment 45, where we have a good view of the House of Commons’ likely view, as well as that of the Supreme Court, and as far as we know it is HRA compliant. So I think the noble Baroness has difficulties with her amendments.
The noble Lord, Lord Farmer, spoke to his Amendment 44 and spoke about the lack of use of public space protection orders. I thought that we heard very effectively from the noble Lord, Lord Hogan-Howe, about how public space protection orders had not in practice been put to any great use. In fact, the noble and learned Lord, Lord Etherton, in his speech also explained why they were not suitable for protecting individuals, as opposed to the rights of groups. But I have to say that I think that the noble Lord, Lord Farmer, betrayed himself at the end of his speech when he spoke about the lack of evidence of public disorder, which he prayed in aid for having a review. I have to say that I am not thinking about public order —I am thinking about the individual women who are going to get these services and are being intimidated through cruel protest, in many ways.
I turn to the amendment from the noble Baroness, Lady Sugg, to which I also have my name. I pay tribute to her for all the work that she has done on this matter; I know that she has been in constant discussion with Members of the other place and the Government, and this really is as good a chance as we have to get something on the statute books in good time. As I say, I pay tribute to her. I am also pleased that the noble Lord, Lord Beith, has welcomed these efforts.
One of the most influential speeches was from the noble Lord, Lord Hogan-Howe, who talked about the practicalities of policing a 150-metre zone and local authorities being reluctant to put in place public space protection orders. He also talked about the ingenuity of protesters potentially being able to get around the amendment of the noble Baroness, Lady Morrisey. That was perhaps one of the most influential contributions this evening. I hope that the noble Baroness tests the opinion of the House and I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I echo other noble Lords who said that this has been a wide-ranging and fascinating debate. As has been referenced and as noble Lords will be aware, through a free vote in the other place, Clause 9, which establishes buffer zones outside abortion clinics in England and Wales, was added to the Bill by 297 votes to 110. I said during the Second Reading of the Bill and in Committee that the Government will respect the will of the House of Commons.
At the time of introducing this Bill in the House of Lords, I signed a Section 19(1)(b) statement under the Human Rights Act 1998. This was because, at the time, we believed it was more likely than not that Clause 9 would be found to be incompatible with the European Convention on Human Rights. We have considered this again following the Supreme Court’s judgment in relation to the Abortion Services (Safe Access Zones) Bill in Northern Ireland. We now believe that Clause 9 is more likely than not to be compatible with the convention. However, we must be clear that while we can draw some parallels between Clause 9 and the Bill in Northern Ireland in relation to the balance of rights, they are not directly comparable. In particular, the threat levels from protests are different in Northern Ireland and the Northern Ireland Bill does not cover private property. It is also worth noting that the legislation in Northern Ireland is not yet in force. There have been no prosecutions, so it is difficult to make any assessment regarding enforceability of the Bill in Northern Ireland.
Clause 9 was described at the time in the other place as a “blunt instrument”, as others have noted. There is always a balance to be struck between the rights of protesters and the rights of others to go about their daily business free from harassment and disruption, as we have heard debated in relation to many of the other clauses of this Bill. People’s rights to gather, express their views and practise their religious beliefs are protected under Articles 9, 10 and 11 of the European Convention on Human Rights. People’s rights to privacy in accessing healthcare services are protected under Article 8. All these rights are qualified, and it can be appropriate to infringe on them sometimes—for example, to protect other rights or prevent crime.
The Government committed to work with noble Lords across both sides of this debate to make Clause 9 clearer and more enforceable. I thank those noble Lords who took the time to meet me and discuss this issue, and I can assure them that all views were taken into careful consideration and constructive conversations were had on all sides.
The Government have decided to step back and will take a neutral stance during this debate. I committed, as I said earlier, at this Dispatch Box to respect the will of the House of Commons, and I think the best way to do that is to allow the House of Lords to express its will. This clause will undoubtedly be tested in the courts. But this evening, we are offering a free vote to noble Lords on the Government Benches—although I cannot speak for the other Benches—so that noble Lords can vote with their conscience on where the balance of rights should lie.
The Government believe that all the amendments on the Order Paper today would more likely than not be found to be compatible with the European Convention on Human Rights. With that, it is now for the House to decide which amendment, if any, they wish to support.
Baroness Morrissey (Con)
Given that, even if my amendments were passed, the whole clause would be overturned by a majority of support for either Amendment 44 or Amendment 45, I will save a few minutes of your Lordships’ time and beg leave to withdraw the amendment.
Tuesday 7th February 2023
(1 year, 2 months ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 82-II Second marshalled list for Report - (3 Feb 2023)
16:21 - Division on Amendment 47 - Ayes: 284 / Noes: 209 - Amendment 47 agreed.
16:40 - Division on Amendment 48 - Ayes: 240 / Noes: 254 - Amendment 48 disagreed.
16:54 - Division on Amendment 50 - Ayes: 239 / Noes: 248 - Amendment 50 disagreed.
17:39 - Division on Amendment 54 - Ayes: 283 / Noes: 192 - Amendment 54 agreed.
18:22 - Division on Amendment 56 - Ayes: 259 / Noes: 200 - Amendment 56 agreed.
18:35 - Division on Amendment 63 - Ayes: 247 / Noes: 192 - Amendment 63 agreed.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
Lord Sharpe of Epsom
“Imposing conditions on public processions: serious disruption(1) Section 12 of the Public Order Act 1986 (imposing conditions on public processions) is amended as follows.(2) After subsection (2) insert—“(2ZA) In considering for the purposes of subsection (1)(a) whether a public procession in England and Wales may result in serious disruption to the life of the community, the senior police officer may have regard to the cumulative disruption to the life of the community resulting from—(a) the procession,(b) any public procession in England and Wales within subsection (2ZB), and(c) any public assembly in England and Wales within subsection (2ZE).(2ZB) A public procession (“Procession A”) is within this subsection if it was held, is being held or is intended to be held in the same area as the area in which the procession mentioned in subsection (2ZA)(a) (“Procession B”) is being held or is intended to be held.(2ZC) In subsection (2ZB) “area” means such area as the senior police officer considers appropriate, having regard to the nature and extent of the disruption that may result from Procession A and Procession B. (2ZD) For the purposes of subsection (2ZB), it does not matter whether or not— (a) Procession A and Procession B are organised by the same person,(b) any of the same persons take part in Procession A and Procession B,(c) Procession A and Procession B are held or are intended to be held at the same time, or(d) directions are given under subsection (1) in relation to Procession A.(2ZE) A public assembly is within this subsection if it was held, is being held or is intended to be held in the same area as the area in which the procession mentioned in subsection (2ZA)(a) is being held or is intended to be held.(2ZF) In subsection (2ZE) “area” means such area as the senior police officer considers appropriate, having regard to the nature and extent of the disruption that may result from the assembly and the procession.(2ZG) For the purposes of subsection (2ZE) it does not matter whether or not—(a) the assembly and the procession are organised by the same person,(b) any of the same persons take part in the assembly and the procession,(c) the assembly and the procession are held or are intended to be held at the same time, or(d) directions are given under section 14(1A) (imposing conditions on public assemblies) in relation to the assembly.(2ZH) In considering for the purposes of subsection (1)(a) whether a public procession in England and Wales may result in serious disruption to the life of the community—(a) all disruption to the life of the community—(i) that may result from the procession, or(ii) that may occur regardless of whether the procession is held (including in particular normal traffic congestion),is to be taken into account, and(b) “the community” means any group of persons that may be affected by the procession, and it does not matter whether or not all or any of those persons live or work in the vicinity of the procession.”(3) In subsection (2A) (examples of serious disruption)—(a) before paragraph (a) insert—“(za) it may, by way of physical obstruction, result in the prevention of, or a hindrance that is more than minor to, the carrying out of daily activities (including in particular the making of a journey),”,(b) in paragraph (a), for “a significant delay to” substitute “the prevention of, or a delay that is more than minor to,”, and(c) in paragraph (b), for “a prolonged disruption” substitute “the prevention, or a disruption that is more than minor,”.(4) After subsection (3) insert—“(3A) Subsection (3B) applies where—(a) a public procession is being held or is intended to be held in England and Wales,(b) it appears to the senior police officer that there is a connection between the procession and—(i) one or more other public processions that are being held or that are intended to be held in England and Wales, or(ii) one or more public assemblies that are being held or that are intended to be held in England and Wales, (c) the senior police officer reasonably believes that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession mentioned in paragraph (a), and(d) the senior police officer reasonably believes—(i) in relation to a procession mentioned in paragraph (b)(i), that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession, or(ii) in relation to an assembly mentioned in paragraph (b)(ii), that one of the conditions in section 14(1)(a) to (b) is met in relation to the assembly.(3B) The senior police officer may—(a) give directions under subsection (1) in relation to—(i) the procession mentioned in subsection (3A)(a), and(ii) any procession mentioned in subsection (3A)(b)(i) in relation to which the condition in subsection (3A)(d)(i) is met, and(b) give directions under section 14(1A) in relation to any assembly mentioned in subsection (3A)(b)(ii) in relation to which the condition in subsection (3A)(d)(ii) is met.(3C) Directions given in accordance with subsection (3B) may impose the same or different conditions in relation to different processions and assemblies.(3D) In subsections (3A) and (3B) “the senior police officer” means—(a) where the public procession mentioned in subsection (3A)(a) is being held, the police officer responsible for managing the police response to the procession, and(b) where the public procession mentioned in subsection (3A)(a) is intended to be held, the chief officer of police.(3E) A direction given by a chief officer of police by virtue of subsection (3D)(b) must be given in writing.””Member’s explanatory statement
This new Clause amends section 12 of the Public Order Act 1986 (imposing conditions on public processions) to make provision about when a public procession in England and Wales may result in serious disruption to the life of the community. The amendments also allow for conditions to be imposed in relation to connected processions and assemblies.
Lord Sharpe of Epsom (Con)
My Lords, we now turn back to government Amendments 48 to 51, which relate to the definition of serious disruption within Sections 12 and 14 of the Public Order Act 1986 and the reasonable excuse defence with regard to the offences of wilful obstruction of the highway and public nuisance. These were debated by the House last week, so I intend to keep this brief.
Your Lordships will recall the compelling speeches made by the noble and learned Lord, Lord Hope, in defence of the amendments he had tabled. I am sure I speak for many in expressing regret that his amendments were so narrowly defeated. The Government’s amendments follow the noble and learned Lord’s by proposing many of the same amendments for other aspects of public order legislation.
In summary, government Amendments 48 and 49 alter the definition of serious disruption in Sections 12 and 14 of the Public Order Act 1986. They do this by, first, carrying over the definition of “serious disruption” suggested by the noble and learned Lord, Lord Hope. Secondly, they define the meaning of “community”. Thirdly, they will enable the police to consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Fifthly and finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly.
Government Amendments 50 and 51 are similarly inspired by the reasonable excuse amendments from the noble and learned Lord, Lord Hope. Amendment 50 carves protest out of the offence of public nuisance, while Amendment 51 carves protest out of the lawful excuse of the offence of wilfully obstructing the highway. However, recognising that the offence is a low-level one, we do not carve it out in its entirety. Instead, the amendment removes protest from the reasonable excuse only where more than serious disruption is caused.
The Government’s amendments represent sensible, pragmatic changes that not only respond to a request from the Commissioner of the Metropolitan Police Service for further legislative clarity on the police’s powers to manage public processions and assemblies but bring aspects of public order legislation into line with recent case law. I would therefore like to test the opinion of the House.
Lord Sharpe of Epsom
“Wilful obstruction of highwayIn section 137 of the Highways Act 1980 (penalty for wilful obstruction), after subsection (1) insert—“(1ZA) Subsection (1ZB) applies where—(a) a person wilfully obstructs the free passage along a highway, and(b) the obstruction causes or is capable of causing serious disruption to two or more individuals or an organisation.(1ZB) The fact that the person wilfully obstructed the free passage along the highway as part of or in furtherance of a protest on an issue of current debate does not constitute a lawful excuse for the purposes of subsection (1).(1ZC) For the purposes of subsection (1ZA) an obstruction causes “serious disruption” if it prevents, or would hinder to more than a minor degree, the individuals or the organisation from carrying out their daily activities.””Member's explanatory statement
This new Clause amends section 137 of the Highways Act 1980 (penalty for wilful obstruction of the highway) to provide that where a person wilfully obstructs the free passage along a highway and that obstruction causes or is capable of causing serious disruption, the fact that they did so as part of or in furtherance of a protest on an issue of current debate does not constitute a lawful excuse.
Lord Coaker (Lab)
My Lords, we support the amendment moved by my noble friend Lady Chakrabarti and if she divides the House, we will support her in the Division Lobbies. As the noble Lord, Lord Cormack, said, a free press is the hallmark of a democratic society; we should remind ourselves of that. In doing so, I reflect again on the really important point made by my noble friend. The amendment is not concerned with the police using their powers proportionately, where appropriate, if criminal behaviour is taking place. It states:
“A constable may not exercise any police power for the principal purpose of preventing a person from observing or otherwise reporting on a protest”.
It is not saying that there is carte blanche for anybody who is observing to do anything they want around a protest, to exploit it for their own reasons and to conduct criminal activity, or that it would prevent the police doing anything about that; far from it. It seeks to allow reporters and others to observe and report to the wider public, to different sections of the country and beyond, who may not even be there or understand what the protest is about. That is important, and this must be an unfettered, protected power. That is why we support the amendment, which is extremely important, among the many other extremely important amendments we are discussing today.
Lord Sharpe of Epsom (Con)
My Lords, I apologise for my slightly tardy arrival.
Amendment 54, tabled by the noble Baronesses, Lady Chakrabarti and Lady Boycott, and the noble Lord, Lord Paddick, seeks to establish a specific safeguard for journalists and bystanders during protests. It follows the wrongful arrest and detention of the LBC journalist Charlotte Lynch in November. May I reassure the House that it is not okay? I agree with the noble Baroness, Lady Jones, that it is absolutely not okay to arrest a journalist who is doing their job.
I thank the noble Baroness, Lady Chakrabarti, for tabling this amendment, and agree with the need for journalists and innocent bystanders to be adequately safeguarded during protests. The Government are clear that the role of members of the press must be respected. It is vital that journalists be able to do their job freely and without restriction. I agree with the noble Baroness, Lady Fox, the noble Lord, Lord Coaker, and my noble friend Lord Cormack that a free press is the hallmark of a civilised society.
The police can exercise their powers only in circumstances where they have reasonable grounds to do so. Hertfordshire Constabulary has accepted that its wrongful arrests of journalists on the M25 were unlawful. Noble Lords will be aware that an independent review was conducted into Hertfordshire Constabulary’s arrest of journalists during the M25 protests. With your Lordships’ indulgence, I will go into a little of the detail on that. Cambridgeshire Constabulary’s report specifies that:
“The power of arrest is principally governed by PACE 1984 and to be lawful, the arrest must be necessary by reference to statutory powers set out within PACE 1984. Code G provides additional rules and guidance on the use of the power of arrest. Of particular relevance to this operation, it is important to observe the judgement laid out following O’Hara v Chief Constable of Royal Ulster Constabulary 1996—an officer cannot exercise the power of arrest based on instruction from a superior officer. In order to satisfy the requirements under section 24 of PACE 1984, the superior officer must convey sufficient information in order for the arresting officer to develop reasonable grounds.”
I went into that in some detail because Section 24 —“Arrest without warrant: constables”—is very clear. A constable may arrest without warrant
“anyone who is about to commit an offence; anyone who is in the act of committing an offence; anyone whom he has reasonable grounds for suspecting to be about to commit an offence; anyone whom he has reasonable grounds for suspecting to be committing an offence. If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.”
Under those criteria, I struggle to see how the primary purpose of being a journalist, which the noble Baroness, Lady Chakrabarti, referred to, and reporting on a protest, would ever constitute reasonable grounds.
Going back to the Cambridge case, the constabulary also specified that code G of PACE 1984 gives some separate guidance on necessity criteria:
“The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person.”
It is very clear. We are all protected by those rules and that includes journalists. The review revealed that the issue was one of training and proposed several recommendations to fix this, including ensuring that all public safety officers and commanders carry out the College of Policing and National Union of Journalists awareness training. The constabulary has promptly implemented these recommendations. This is not an issue of law but one of training and guidance, which is already being addressed.
Lord Garnier (Con)
My Lords, PACE is nearly 40 years old. Is not the training completed?
Lord Sharpe of Epsom (Con)
My noble and learned friend makes a very fair point, but the College of Policing and the National Union of Journalists awareness training is a little more recent than the 40 year-old PACE codes.
The College of Policing’s initial learning curriculum includes a package of content on effectively dealing with the media in a policing context. In addition, the authorised professional practice for public order contains a section on the interaction of the police with members of the media. This includes the recognition of press identification. It should also be noted that it is entirely legitimate for a police officer to inquire why an individual may be recording at the scene of a criminal offence if they deem it appropriate. We do not want to suggest that this is unlawful.
In light of those factors, while I completely understand the direction and purpose of the amendment, we do not support it because we do not deem it to be necessary. These defences are already covered in law.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to all noble Lords who have spoken in this short but vital debate. Once more to respond to the noble Lord, Lord Hogan-Howe, who I am not sure has read the amendment—
Lord Ponsonby of Shulbrede (Lab)
My Lords, to be clear at the outset, we will support Amendment 56 in the name of the noble Lord, Lord Anderson, and I will not divide the House on Amendment 59. I shall speak to Amendment 63, which is tabled in my name and has cross-party and Cross-Bench support.
I welcome the positive move that the Government have made on SDPOs, particularly removing electronic monitoring and limiting an SDPO’s renewal to only once to take into account some of the concerns raised in this House and the other place. Despite this, it remains my view that it is necessary to pursue the wholesale removal of Clause 20. It is simply not proportionate, necessary, Human Rights Act-compliant or good value for money to introduce a power to allow serious disruption prevention orders to be given without a conviction being made.
This is not just my view. The Joint Committee on Human Rights agrees that Clause 20 would interfere
“with legitimate peaceful exercise of Article 10 and 11 rights”
and that:
“The police already have powers to impose conditions on protests and to arrest those who breach them.”
Amnesty International also agrees, saying that Clause 20 is “wholly disproportionate”, restricting
“the exercise of a fundamental right of peaceful assembly based on past conduct and there is no requirement that the past conduct be of a serious nature.”
The Metropolitan Police Commissioner also agrees, confirming this week that “policing is not asking for new powers to constrain protests”.
Experts agree that, since the police already have the powers they need and since this new power would threaten the fundamental right to assemble peacefully, the Government would be wise to think again on this matter. The UK cannot condemn authoritarian regimes cracking down on protests and at the same time celebrate the bravery of protests such as the umbrella movement or the white paper protesters. I will divide the House on Amendment 63, and I hope the Government will use this opportunity to remove this harmful provision.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have contributed to this shortish debate. This group contains notices to oppose, so I will start with those amendments which take issue with serious disruption prevention orders as a whole. The feeling expressed by noble Lords when speaking to these amendments is clear, but I do not support the full removal of these provisions, and it is important that I make clear the reasons why.
Peaceful protest is a fundamental part of our democracy, but causing serious disruption under the guise of a protest is not. Why should protesters who are determined repeatedly to inflict serious disruption continue to be allowed to do so, especially when their actions impact those who simply wish to go about their daily lives, and potentially risk the safety of our emergency services? SDPOs will give the police and the courts the powers that they need proactively to prevent protesters causing serious disruption, time and again. Those protesters found in breach of an SDPO will be liable for arrest, meaning that the police will not need to stand by until an act of protest-related serious disruption has already taken place before they can act.
Some will argue that many of these protesters are already arrested, but a small group of individuals who have been arrested during disruptive protest action have reoffended soon after. To deter this small group of individuals, SDPOs provide an alternative, non-custodial route to prevent those who have a track record of causing serious disruption in the name of protest. SDPOs will prevent protesters causing harm by subjecting them to proportionate and necessary restrictions or requirements. Such restrictions might involve stopping a protester who has previously locked on carrying an item that would assist them doing so again or require a protester, for example, to report to a police officer at the time when a planned protest is due to take place. I should make it clear that it will be up to the courts to consider what measures are put in place on a case-by-case basis to ensure that they are both proportionate and necessary.
In Committee, concerns were raised that SDPOs are a harsh and intrusive way of preventing serious disruption. However, it is important to make it clear that a prohibition or requirement of a preventive order is much less intrusive than a prison sentence, which is a potential consequence of some of the protest-related offences that can lead to an SDPO.
Many noble Lords have asked whether anybody at a protest could be subject to an SDPO. As I hope I made clear in Committee, only those who have committed protest-related offences, breached a protest-related injunction or caused or contributed to protest-related activities on at least two occasions would be considered for an SDPO. It is for the courts to decide whether someone’s actions caused or contributed to serious disruption at a protest and meet the threshold of an SDPO.
In answer to my noble friend Lord Hailsham’s question, I say that the person potentially subject to an order may present evidence so, yes, the court may consider evidence from the person potentially subject to an SDPO and may adjourn proceedings if the person does not appear for any reason. I should also clarify that Clause 20(6) states:
“On making a serious disruption prevention order the court must in ordinary language explain to P the effects of the order.”
Therefore the person would need to be present.
Viscount Hailsham (Con)
I interpreted that subsection to mean that the statement could be in writing if the person did not attend. Is that correct?
Lord Sharpe of Epsom (Con)
I will need to clarify that but, given the other things that I have said, it would imply—I stress “imply”—that the person needed to be there, but I will come back on that point.
I also stress that those who make their voices heard without committing offences or causing serious disruption would not be affected.
The evidential threshold of SDPOs was also the subject of discussion. I am sure that many noble Lords support the courts’ imposition of injunctions which are made on the civil burden of proof and ban large numbers of people protesting in certain locations, including, on occasions, “persons unknown”. The burden of proof is the same for SDPOs, and they are made against known individuals whose actions have shown that an order is necessary.
Noble Lords also raised the question of how SDPOs will be enforced. As I hope I conveyed in Committee, it will ultimately be for the courts to place necessary, proportionate and enforceable conditions on protesters subject to an SDPO and for the police to exercise any powers of arrest in relation to breaches. However, I assure the House that the Government will be setting out statutory guidance for SDPOs to aid the police and courts in due course.
The use of SDPOs is critical when equipping the police with powers to ensure that they can take proactive steps against prolific protesters. So in removing SDPOs fully from the Bill, we will continue to see the police struggle to get ahead of those protesters who are hell- bent on repeatedly inflicting serious disruption.
The noble Lord, Lord Paddick, mentioned the HMICFRS’s comments about banning orders not being compatible with human rights, but the report from the policing inspectorate considered only orders that would always ban an individual protesting. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related crimes and serious disruption, so depending on the individual circumstances this may mean that the court will not consider it necessary to stop individuals attending protests.
Nevertheless, as I made clear when we discussed these measures in Committee, I recognise the strength of feeling expressed by your Lordships. In that vein, I turn to the amendments tabled by the noble Lord, Lord Anderson. I thank him for his continued engagement on this Bill as a whole. His amendments all seek to amend the SDPO regime in some way, be it limiting the trigger events for an order, limiting the maximum duration of an SDPO, limiting the requirements that can be imposed on an individual or amending some of the guidance that is to be issued by the Secretary of State concerning these measures. We still believe that SDPOs are an important and useful tool for stopping repeat protesters committed to causing disruption. For this reason we regrettably cannot support the amendments proposed, which we assess amount to a substantial dilution of the Bill’s effectiveness. However, we recognise the sentiment behind them, as well as the other concerns raised, which is why I committed to take the matter away.
As a result of that consideration, the Government have tabled amendments which seek to allay some of the concerns expressed by your Lordships. We have tabled an amendment which removes the electronic monitoring provisions from the Bill, meaning that no individual subject to an order would have the requirements and prohibitions imposed monitored electronically. This was a particular concern of your Lordships, and we have responded accordingly. The second amendment reduces the relevant period of past conduct which is considered for SDPOs from within five years to within three years. The final amendment addresses a criticism made by your Lordships concerning the renewal of an order. Indeed, many noble Lords expressed concerns that an order could be continuously renewed. The amendment we have tabled therefore addresses this by setting a limit on the number of times an order can be renewed to only once. It is the Government’s view that these amendments represent a substantive offer and address the main criticisms of SDPOs. I encourage all noble Lords to support the amendments in the Government’s name and to reject the others in this group.
Lord Anderson of Ipswich (CB)
The Minister will recall that I described my Amendments 57 and 61 as clarificatory. It seemed to me that the Government must surely have not intended that a second or subsequent SDPO made in respect of the same person could be founded on trigger events that had already been taken into account for the purposes of a previous SDPO. I understand that the Minister does not accept my amendments, but can he at least clarify that that is the Government’s understanding of the Bill?
Lord Sharpe of Epsom (Con)
I can clarify that that is the Government’s understanding.
Lord Anderson of Ipswich (CB)
I am grateful to the Minister for that and for his engagement throughout this process. I am also grateful to all noble Lords who have spoken in this debate, in particular to the noble and learned Lord, Lord Hope, for his extremely pertinent points on the three sub-paragraphs that my Amendment 56 would remove from Clause 19, and to the noble Viscount, Lord Hailsham, for the broader point, which I tried to make as well, that those sub-paragraphs capture conduct that is simply too remote to justify the imposition of such a draconian order.
Very fairly, the noble Viscount made the point, echoed by the Minister, that a magistrate asked to make these orders under Clause 20, for example, must think it “necessary” for certain purposes—he noted the strength of that word. The noble Viscount is right about that, of course, but I simply ask the Government to have in mind, as I am sure they do, that the purposes for which it can be necessary are expressed very broadly indeed. For example, if you look at Clause 20(4)(c), you see that it can be necessary to prevent a person
“causing or contributing to … the carrying out by any other person of activities”.
One has all the same, very indirect language that I seek to remove by Amendment 56.
My amendments leave the police with a completely workable system to deter the small group of individuals who, in the Minister’s words, are hell-bent on repeating serious disruption; there can surely be no doubt about that. Both my amendment and the amendment relating to Clause 20 are too modest to impact on that objective. That is less than some of us would have wished, and I am sure the Government and the House of Commons will be well aware of that when it goes back to them, if these amendments are carried.
I have sympathy with the noble Lord, Lord Paddick, who does not think that my Amendment 56 goes far enough. I would love to have seen other amendments put to the vote, but I am told that politics is the art of the possible. I think the noble Lord agrees that this amendment is a great deal better than nothing and that this improvement will be greater still if Clause 20 can be removed from the Bill. I would like to test the opinion of the House on Amendment 56.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment omits the provision in Part 2 of the Bill that provided for a serious disruption prevention order to include a requirement for a person to submit to electronic monitoring of their compliance with such an order.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
“(8A) The court may not renew a serious disruption prevention order more than once.”Member’s explanatory statement
This amendment provides that a serious disruption prevention order may not be renewed under Clause 28 more than once.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 26, line 12.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom that leaves out Clause 23.
Tuesday 21st February 2023
(1 year, 1 month ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 102-I Marshalled list for Third Reading - (20 Feb 2023)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Ponsonby of Shulbrede (Lab)
My Lords, we too support all the amendments today. I open by thanking the noble Baroness, Lady Sugg, for all her work on this matter; I know that she has worked tirelessly between both Houses and both sides of this House. I am glad that we have reached this point and, to that extent, I agree with the noble Lord, Lord Cormack.
I reiterate what the noble Lord, Lord Paddick, said: plenty of Christians support the amendments and there are a number I know who would take exception to people describing them as somehow not as good Christians as those who wish to protest by praying within 150 metres of an abortion clinic. It is perfectly clear that you can pray wherever you like, but outside 150 metres of an abortion clinic.
I would like to reinforce the points made by the noble Lord, Lord Anderson, who talked about the strength of the votes at earlier stages of the Bill. He highlighted stop and search and SDPOs, and the strength of support from across the Cross Benches, including from many very senior former judges. I hope that when the Minister wraps up, at this stage or the next, he says something or gives us some hint about how far the Government will go in recognising the concerns that this House has expressed.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, subsequent to Report and ahead of today’s Third Reading, the Government have brought a number of clarificatory technical amendments.
First, during the debate on Report on 7 February, the noble Lord, Lord Anderson, asked for clarification, as he has referred to, that a second or subsequent serious disruption prevention order made in respect of the same person could not be founded on trigger events that had already been taken into account for the purposes of a previous order. I confirmed that that was indeed the Government’s intention. In this spirit, the Government have today brought an amendment clarifying that position within the legislation. I hope noble Lords are satisfied with that legal clarity and I thank the noble Lord for his remarks.
Finally, on Report, your Lordships voted to remove from the Bill Clause 11 on suspicionless stop and search, and Clause 20 on serious disruption prevention orders made otherwise than on conviction. As a result, the Government have brought tidying amendments that are consequential to those amendments. I will not speculate further on what may happen later.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 11 (powers to stop and search without suspicion).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 11 (powers to stop and search without suspicion).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 11 (powers to stop and search without suspicion).
Lord Sharpe of Epsom
“(c) P’s conduct mentioned in paragraph (a) has not been taken into account when making any previous serious disruption prevention order in respect of P.”Member's explanatory statement
This amendment clarifies an uncertainty in the Bill regarding the conditions for making a serious disruption prevention order. It clarifies that a previous conviction or breach may not be taken into account if that conviction or breach has already been taken into account in respect of the making of any earlier serious disruption prevention order.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the removal at Report stage of what was clause 20 (serious disruption prevention order made otherwise than on conviction).
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom that leaves out Clause 13.
Lord Sharpe of Epsom (Con)
My Lords, perhaps I may detain the House a little longer to mark the end of this Bill’s passage through your Lordships’ House. It has been a wide-ranging debate, with much scrutiny across three days of Committee and two days of Report.
I must express the Government’s disappointment at the removal of some very important measures, the aim of which was to support the police in better responding to the sort of disruption which has been impacting the public going about their daily lives. Those amendments will now be considered in the other place and we will no doubt be debating them again soon.
Notwithstanding that, I want to take this opportunity to recognise the contributions of those who have supported me in steering the Bill through the House. I pay particular tribute to my noble friends Lord Murray of Blidworth and Lord Davies of Gower. I also express my thanks to noble Lords on the Government Benches for giving this Bill the scrutiny that the public expect. I thank the Front Bench opposite for its engagement on the Bill, accepting that there have been some areas of disagreement between us. I expect nothing less, of course, of these noble Lords. The noble Lords, Lord Coaker and Lord Ponsonby, and the noble Baroness, Lady Chakrabarti, have been passionate advocates for their causes throughout this process.
Tuesday 7th March 2023
(1 year, 1 month ago)
Commons ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: Commons Consideration of Lords Amendments as at 7 March 2023 - (7 Mar 2023)
18:12 - The House divided: - Ayes: 116 / Noes: 299 - Question accordingly negatived.
18:30 - The House divided: - Ayes: 281 / Noes: 236 - Question accordingly agreed to.
18:43 - The House divided: - Ayes: 286 / Noes: 235 - Question accordingly agreed to.
18:55 - The Committee divided: - Ayes: 285 / Noes: 231 - Question accordingly agreed to.
19:08 - The House divided: - Ayes: 280 / Noes: 232 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Minister for Crime, Policing and Fire (Chris Philp)
There is some factual confusion about this, and I am grateful for the opportunity to clear that up. In the other place, the Lords made an amendment to clause 19, which said that the orders could be made without a conviction. The Government accept that amendment—we do not seek to overturn it—and we accept that a conviction is required before an SDPO can be made. Clause 20 is rather misleadingly titled, because it implies that an SDPO can be made without a conviction. If Members read the clause, however, they will see, now that we have accepted the amendment to clause 19, that it applies to circumstances in which there has been a conviction and the police wish to apply to the court for an SDPO at a later date, which will still be after a conviction has been made, so we have conceded the point that my hon. Friend is making. It is rather confusing because the title of clause 20 is a bit confusing, but we have conceded that point.
Joanna Cherry (Edinburgh South West) (SNP)
I will confine my comments to the amendments that touch on the recommendations of the Joint Committee on Human Rights, which I chair. We did not look at the debate on abortion buffer zones because that was not part of the original Bill, so I will not comment on that. In general terms, some of the points made by the right hon. Member for South Holland and The Deepings (Sir John Hayes) could be carried across. I could very well ask of him why, if that is what he so clearly believes, he would support a power to stop and search without reasonable suspicion? So it cuts both ways.
However, I will confine my comments to support for Lords amendments 1, 6 to 9, 20, 21, 23, 27, 28, 31, 32 and 33, which can basically be grouped into suspicion and stop and search, serious disruption prevention orders, and the meaning of the phrase “serious disruption”. I will speak to the Joint Committee’s report on our legislative scrutiny of the Bill, which was published on 8 June last year. It was a unanimous report of our cross-party Committee, which of course contains both MPs and peers.
The right to peaceful protest is a cornerstone of our democracy, which should be championed and protected rather than stifled. The Joint Committee concluded that while the stated intention behind the Bill was to strengthen police powers to tackle dangerous and highly disruptive protest tactics, its measures went well beyond that to the extent that we feel the Bill poses an unacceptable threat to the fundamental right to engage in peaceful protest. We have heard speeches about the historic basis of that right, and of course it is also protected in modern times under article 10 of the European convention on human rights, which deals with freedom of speech, and article 11, which deals with freedom of association.
In our report, we recommended that the power to stop and search without reasonable suspicion should be removed from the Bill. Other hon. Members have spoken about that in some detail. Basically, what we said was that the power to stop and search without reasonable suspicion inevitably gives rise to a risk of arbitrary or discriminatory use, and that it is disproportionate and inconsistent with the right to engage in peaceful protest. As we heard from other hon. Members, the police themselves said it is counterproductive and I do not understand that it is a power the police actually want as a whole. Lords amendments 6 to 9 take that out of the Bill, and I think that should be supported by this House.
Chris Philp
I am extremely grateful to the hon. and learned Lady for giving way. On a point of clarification, clause 11, prior to amendment by the Lords, states that although an individual does not have to be subject to suspicion before an officer can activate this section, the officer has to “reasonably believe” that a number of offences may be committed. So it is not a wholly unconstrained power to search. That reasonable suspicion in clause 11(1) does have to be engaged.
Joanna Cherry
I am not sure the Minister is right about that. I think what he is trying to say is that the police officer could have a highly subjective view prior to stopping, and a highly subjective view is not a reasonable suspicion. We took all these matters into account in our report.
Joanna Cherry
The Minister must know that we are still bound by the European convention on human rights. Clearly, from what the Home Secretary said earlier this afternoon, some Government Members are trying to find a pretext to take us out of the convention, but we are still bound by it just now. The Minister must know that in order to interfere with freedom of assembly or freedom of association, under article 11 the interference has to be lawful, necessary and proportionate. What my hon. Friend just described is not lawful, necessary and proportionate.
Joanna Cherry
The Minister will get to speak at the end. I do not want to take up too much time as I have already spoken for five minutes and I do not want to upset Madam Deputy Speaker. The Minister can take the tenor of the comments so far across the House, including from the Government Benches. People are not happy about the power to stop and search without reasonable suspicion. The cross-party Committee of MPs and peers shared that unhappiness.
Ian Paisley
I will make this point, and then I will give way.
We are all aware of the Bible story about Daniel daring to pray and being put in jail—
Chris Philp
The Government are not saying anything about this matter. It is a free vote, and there is no Government position on the “buffer zone” amendment.
Ian Paisley
I look forward to the Minister joining me in the Lobby this evening.
Whenever we walk into the Palace of Westminster, we walk beneath a massive portrait of Moses by Benjamin West. We walk through St Stephen’s Hall, and what is St Stephen’s Hall? It is a church. We walk over the catacombs under which is another church. We come to this place—to the “mother of Parliaments”—and debate a piece of legislation that essentially says, “If you dare to pray in a certain part of this Christian nation, in silence, you will be arrested.”
Chris Philp
The Government accept that protection for journalists might helpfully be set out, and that is why Government amendment (a) to Lords amendment 17 will substantively do what the Lords request, albeit in slightly different language.
Wendy Chamberlain
I am pleased to hear that.
If Lords amendment 1 is disagreed to and Government amendment (a) to it is passed, I would disagree with the broadening of the definition of “serious disruption”. Whatever the Government may think of protesters, they are not terrorists, and applying similar legislation where no offence is committed is simply wrong.
Chris Philp
As I said in my earlier intervention, the Government have accepted that serious disruption prevention orders can only be handed out by a court, following a conviction. The title of clause 20 is somewhat confusing, but we have accepted the point that there must be a conviction first.
Wendy Chamberlain
I am grateful to the Minister for that clarification, but the point I made while he was not in his place still stands: this is confusing. We are presenting confusing legislation to police officers to apply and potentially to take away people’s liberty accordingly.
Policing needs to be done with consent. This is knee-jerk legislation, as I have said throughout, to replace powers that already exist and that the police say they can utilise now. It also prevents the important discussions that take place between protest groups and police officers; we are going to create a chilling effect not only on the right to protest, but on the relationships that help us to enable legitimate protest. I think that is why the Lords rejected these clauses outright in their previous guise in the Police, Crime, Sentencing and Courts Act 2022. The Lords have attempted to ameliorate the worst excesses of this Bill, and I will certainly vote in support of keeping the Lords amendments in place.
Sarah Jones
I completely agree. Having talked to the police for nearly three years in this role, I know that they want clarity. The amendment provides not clarity but unbelievable confusion, whereas a 150-metre zone provides clarity, and that is what the police want.
The Bill remains an affront to our rights. The Government’s own impact assessment shows that it will not have much effect. It is our job as parliamentarians to come up with laws that solve problems and really work. The Bill does not do that, so the Opposition will vote against the Government tonight. We agree with the Lords, and I urge every Member to look to their conscience and do the same.
Chris Philp
As always, it is a great pleasure to follow my constituency neighbour, the hon. Member for Croydon Central (Sarah Jones). She has faced a number of Policing Ministers in her time, and I hope she faces many more during what I hope will be a very long tenure as shadow Minister.
We have heard some extremely thoughtful and well-considered contributions from both sides of the House on quite profound issues, touching as they do on conscience, free speech and a woman’s right to choose in relation to an abortion, as well as slightly more prosaic questions on policing protests. The objective of the Bill is to better balance the rights of individuals to protest—which this Government respect—with the rights of individuals to go about their daily lives without suffering from disruption. Those include the rights of parents to get their children to school, of people to get to hospital for vital treatment and of people to go to work without having their way impeded.
We have seen so many protests impeding the rights of the law-abiding majority, particularly in the latter half of 2022. There were 10-mile tailbacks on the M25. People glued themselves to roads in London and it took a long time to remove them. In December, we saw protesters walking slowly down streets, deliberately trying to cause as much disruption as possible—not so much exercising the right to protest as seeking to make a point by deliberately inconveniencing their fellow citizens. That is not something that this Government support, which is one reason why we are now legislating. The Metropolitan police have confirmed that between October and December last year they spent 13,600 officer shifts policing such protests, at a cost of nearly £10 million. That is time and money that would be much better spent elsewhere.
Sir Julian Lewis
Will the Minister confirm something for the sake of clarity? In the past, major peaceful demonstrations such as anti-nuclear demonstrations have blocked roads, but it was done with the permission of the police. That would continue, would it not?
Chris Philp
Yes, it would. My right hon. Friend pre-empts my next point, which I think an Opposition Member raised earlier. Where a protest has been authorised and licensed in advance by the police, of course these provisions will not be engaged. Protests such as the Iraq war protests aimed at the former Labour Government would, of course, be licensed. Protests against this Government would no doubt be licensed as well and could properly be held.
The hon. Member for Hemsworth (Jon Trickett), who I see is back in his place, made a point about whether the Bill could be used to disrupt strike action. I draw his attention and that of the House to the Bill’s original clauses 6 and 7, which as a result of the Lords amendments have been renumbered as clauses 7 and 8. Subsection (2)(b) of each clause makes it clear that it will be a defence to offences under the Bill that the act in question was undertaken
“in…furtherance of a trade dispute”,
so trade union protests and anything to do with strikes are exempted from the provisions of the Bill.
I think that the definition we have set out is reasonable. The police have asked for it, the former Deputy President of the Supreme Court supports it, it backs up the case law and I strongly commend it to the House.
Lords amendments 2, 3 and 4 deal with tunnelling. They are clarificatory amendments, making it clear that the offence of causing serious disruption by being present in a tunnel, as defined by clause 4, is committed only if the tunnel has been created for the purposes of a protest. Lords amendments 10 and 16 relate to some clarifications involving the British Transport Police which we think are important. Lords amendments 6,7, 8, 9 and 36 pertain to so-called suspicionless stop and search.
Sir John Hayes
Before my hon. Friend moves on to this subject, will he give way?
Chris Philp
In just a moment.
As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) correctly said in an intervention, these so-called suspicionless stop and searches can only take place in the absence of personal suspicion, when an officer of the rank of inspector or above believes, or has reason to believe, that in the next 24 hours a number of offences may be committed in the locality. That reasonable belief is required before any suspicionless stop and search can take place, and even then it is time-bound to a period of 24 hours. We think that that is proportionate. We have heard some views from the police and, in particular, from the His Majesty’s inspectorate of constabulary, which has said: “On balance, our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency and effectiveness in preventing disruption and making the public safe.” So this is something that HMIC has supported.
Stuart C. McDonald
I think we all accept that suspicionless stop and search can be triggered quite rightly, for example if there is a danger of terrorism, but the Bill now allows it to take place when, for instance, there could be a danger that someone somewhere might commit a public nuisance or lock themselves to a fence. That could lead to hundreds or even thousands of suspicionless searches, which is surely disproportionate.
Chris Philp
I do not accept that. When there is a reasonable suspicion that in the next 24 hours offences may be committed which may themselves have a profoundly disruptive effect on members of the public, it is reasonable to prevent that. Let me point the hon. Gentleman to the example of the protests on the M25 last November, when a 10-mile tailback was caused. I suggest that preventing that would be a reasonable thing to do.
Lords amendment 17 deals with the question of journalists. As I have said previously, although the law as it stands does protect journalists—in fact, an apology rapidly followed the arrest of the journalist in Hertfordshire —the Government accept that clarification and reaffirmation of journalistic freedom is important, so we accept the spirit and the principle of the amendment. We have improved the wording slightly in our amendment in lieu, but we accept that journalists need special protection.
Lords amendments 18, 19 and 20 deal with serious disruption prevention orders. There has been some confusion over this, on both sides of the House, so I will reiterate the point for the purpose of complete clarity. The Government have accepted the point made in the Lords that a conviction is required before a serious disruption prevention order can be made. That is a significant concession. However, we do not accept Lords amendment 20, because clause 20—as formerly numbered —simply allows for an application to be made at a time after conviction, but a conviction must previously have taken place. We have therefore tabled an amendment in lieu.
I think it important to emphasise that there will be a free vote on buffer zones, at least on the Government side, because it concerns an issue of conscience, namely abortion. There is no Government position on this matter, and Members will vote according to their consciences. We have heard Members on both sides of the House speak about this issue passionately and with conviction.
Sir John Hayes
I hear what the Minister says about that, and he has heard the strong opinions expressed from this side of the Chamber in favour of the freedom to pray silently. Speaking personally and for the guidance of the House, will he tell us whether he will be supporting the amendment tabled by my hon. Friend the Member for Northampton South (Andrew Lewer), which allows free and silent prayer?
Chris Philp
My right hon. Friend is putting me on the spot a little bit. I would like to reiterate that the Government are neutral on this position. It is a free vote and there is no Government position, and in my capacity as a Government Minister I do not have a view. Obviously, as a Member of Parliament, I will be voting as an individual on this question. I do think, speaking personally, that women should be free to use these services without intimidation or harassment, which is why I voted for the amendment from the hon. Member for Walthamstow (Stella Creasy) when it was first tabled, but I do not think the amendment moved by my hon. Friend the Member for Northampton South undermines that, particularly given the words in proposed subsection (3B), which say that prayer
“shall not, without more, be taken to”
influence a person’s decision. So, personally, I will vote for that, but I emphasise again that the Government do not have a position and this is a free vote. We have heard some extremely thoughtful, well-considered, well-argued and sincerely held views on both sides, and Members will no doubt make up their own minds. up.
Stella Creasy
I respect the fact that the Minister has his own personal opinion. For the avoidance of doubt, can he confirm to the Chamber that this legislation, as amended in the Lords, is compliant with the European convention on human rights and that it does not criminalise praying but sets out boundaries for where it should occur?
Chris Philp
I think we will ultimately have to defer to the Attorney General, but my understanding is that the legislation, as amended by the Lords and if amended by my hon. Friend the Member for Northampton South’s amendment, would in both cases be compliant with the European convention on human rights. Indeed, it is our opinion that the entire Bill is consistent with the European convention on human rights.
I think I have probably spoken for long enough—[Interruption.] Did someone say, “Hear, hear”? This Bill strikes the right balance between protecting the right to protest and making sure that our constituents can go about their day-to-day business without unreasonable hindrance, that parents can get their children to school, that patients can get to hospitals and that people can get to their place of work. That is the right balance, and I commend the Government amendments to the House.
Question put, That amendment (a) to Lords amendment 5 be made.
Tuesday 14th March 2023
(1 year, 1 month ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 116-I(a) Revised Version of Motion B2 (Supplementary to the Marshalled List) - (14 Mar 2023)
16:23 - Division on Motion A1 - Ayes: 222 / Noes: 233 - Motion A1 disagreed.
17:19 - Division on Motion B2 - Ayes: 242 / Noes: 196 - Motion B2 agreed.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Sharpe of Epsom
That this House do not insist on its Amendment 1 and do agree with the Commons in their Amendment 1A in lieu.
“Meaning of serious disruption
(1) For the purposes of this Act, the cases in which individuals or an organisation may suffer serious disruption include, in particular, where the individuals or the organisation—
(a) are by way of physical obstruction prevented, or hindered to more than a minor degree, from carrying out—
(i) their day-to-day activities (including in particular the making of a journey),
(ii) construction or maintenance works, or
(iii) activities related to such works,
(b) are prevented from making or receiving, or suffer a delay that is more than minor to the making or receiving of, a delivery of a time-sensitive product, or
(c) are prevented from accessing, or suffer a disruption that is more than minor to the accessing of, any essential goods or any essential service.
(2) In this section—
(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them;
(b) a reference to accessing essential goods or essential services includes in particular a reference to accessing—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a transport facility,
(v) an educational institution, or
(vi) a service relating to health.”
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, with the leave of the House, I shall speak also to Motion C.
Amendment 1 provides a definition of “serious disruption” which is the trigger for a number of offences and powers contained in the Bill. As I explained when this was first considered on Report, the Government do not believe that the amendment is appropriate. First, it does not read compatibly with the measures in the Bill—a point made by several of your Lordships during that debate. Secondly, it does not set an appropriate threshold for what constitutes serious disruption, which is why, on Report, the Government supported the definition proposed in the amendments tabled by the noble and learned Lord, Lord Hope of Craighead. The Government have brought an amendment in lieu to more closely align the definition with that proposed by the noble and learned Lord and to address these two issues. The new proposed threshold is rooted in case law from both the Court of Appeal and the Supreme Court. It now has the support of the other place.
The noble Lord, Lord Coaker, has tabled Motion A1, which replaces the “more than minor” threshold in this amendment with “significant”. I will paraphrase the noble and learned Lord, Lord Hope of Craighead, who, when this was debated on Report, expertly argued why “more than minor” was an appropriate threshold. There is no question that minor disruption is not only acceptable but is a constituent part of the right to protest. However, when disruption exceeds this, the police should intervene. The use of “more than” implements this concept in law, which is why the Government continue to support the formulation of the noble and learned Lord. We encourage your Lordships to support Amendment 1A.
Motion C relates to journalists. This group concerns Amendment 17, which seeks to establish a specific safeguard for journalists and bystanders during protests. It is in response to the unlawful arrest of the LBC journalist, Charlotte Lynch, and others by Hertfordshire Constabulary in October 2022. The Government are clear that the role of members of the press must be respected. They should be able to do their job freely and without restriction. However, we remain of the view that the amendment is unnecessary. The police may exercise their powers of arrest and powers to maintain public order and public safety only in limited circumstances specified in law. Therefore, there is no need whatever for carve-outs of circumstances where these powers cannot be used.
However, we recognise the strength of support for this amendment. Sometimes there is a need to send a signal as to the values and principles we stand for; this is one of those times. That is why the Government brought forward an amendment in lieu in the other place. It accepts the principle of the amendment while also minimising the risk of unintended consequences. We make it explicit that the police may still use their powers on those reporting and observing protests when it is necessary and lawful to do so. The police must still be able to exercise their powers on journalists and observers who break the law or who put public safety at risk.
Amendment 17A was supported by the other place, including by the Opposition Front Bench. I hope that it will now also be accepted by your Lordships’ House. I beg to move.
Lord Paddick (LD)
My Lords, with the leave of the House, before I start, I thank all noble Lords from all sides of the House, the doorkeepers, the attendants, the security and the police officers, who have shown such kindness towards me following the sudden, unexpected and so far unexplained death of my husband. I am very grateful.
As the Minister and the noble Lord, Lord Coaker, have explained, the definition of “serious disruption” underpins the entire Public Order Bill. It is an element of many of the new offences and the trigger for the use of new draconian police powers, which we will debate in the next two groups. The police asked for clarity, as there was no definition of “serious disruption” in the Bill that originally came to us from the other place, and we joined forces with His Majesty’s Official Opposition to provide a reasoned and reasonable definition of “serious disruption” that gave clear guidance to the police—Lords Amendment 1—which was agreed by this House. The Commons disagreed with our amendment and substituted Amendment 1A as an amendment in lieu.
On the point made by the noble Lord, Lord Wolfson of Tredegar, about the problem with ambiguity around the word “significant”, the fact is that the original amendment this House passed had examples clearly explaining to the police what we meant, so that ambiguity was not there in the original amendment passed by this House.
Instead of defining “serious disruption” as causing
“significant harm to persons, organisations or the life of the community”,
which would include, for example, preventing an ambulance taking a patient to a hospital, the Government have substituted, as we have heard,
“more than a minor degree”
for “significant harm”. With the greatest respect to the noble and learned Lord, Lord Hope of Craighead, and to address the concerns of the noble and learned Baroness, Lady Butler-Sloss, I will repeat what I said on Report: on a spectrum of seriousness, “minor” is at one end and “serious” is at the other. I say that as a former police officer speaking about how the police might interpret the legislation. For example, a minor injury is a reddening of the skin, and a serious injury is a broken limb or inflicting a fatal injury. My interpretation, as a former police officer, of what is being said in the Bill is that disrupting to
“more than a minor degree”
cannot reasonably be said to be “serious disruption”; it is far too low a threshold. While I understand that the noble and learned Lord wanted to establish a threshold—the exact point at which the law would be broken—our argument is that that point is far too low. We therefore support Motion A1 in the name of the noble Lord, Lord Coaker, and we will support him if he decides to divide the House on his Motion A1.
I join the noble Baroness, Lady Chakrabarti, in saying that I am grateful to the Minister for Amendment 17A, mentioned in Motion C, which we support. It is right to protect observers of protests from being prevented from carrying out their work by the police.
Finally, I thank the noble Baronesses, Lady Chakrabarti and Lady Fox of Buckley, for their kind words about my public service, but I reassure the House that this is not my valedictory speech.
Lord Sharpe of Epsom (Con)
My Lords, again, I thank all noble Lords for participating in this debate and for the scrutiny they continue to bring to bear on these important measures.
Before I get on to the amendments, the noble Lord, Lord Coaker, asked about the Government’s intentions for Section 73 of the PCSC Act. For the benefit of the House, Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act contain delegated powers which allow the Secretary of State to amend the definitions of
“serious disruption to the life of the community”
and
“serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession”
for the purpose of Sections 12 and 14 of the Public Order Act 1986.
Lord Sharpe of Epsom
That this House do not insist on its Amendments 6, 7, 8, 9 and 36 to which the Commons have disagreed for their Reasons 6A, 7A, 8A, 9A and 36A.
Lord Sharpe of Epsom (Con)
My Lords, your Lordships’ Amendment 6 and the related consequential amendments remove the power to stop and search without suspicion from the Bill. While I recognise the strength of feeling expressed by noble Lords when considering these amendments during Report, the Government cannot accept the removal of the suspicionless stop and search powers from the Bill. The other place has also disagreed to these amendments for their reasons 6A, 7A, 8A, 9A and 36A. I therefore respectfully encourage the noble Lord, Lord Paddick, to reflect on Motion B1, which seeks to overturn this wholly and which I do not think appropriate.
Suspicionless stop and search is a vital tool used to crack down on crime and protect communities, and we see it as entirely appropriate that these measures be extended to tackle highly disruptive protest offences. These are much needed proactive powers. Large protests are fast-paced environments where it is difficult for the police to reach the level of suspicion required for a suspicion-led search. The police should not have so sit by idly where there is a risk that someone will commit a criminal offence, and this is why suspicionless stop and search powers are necessary.
This view is shared HMICFRS, which found that suspicionless search powers would act as a deterrent and help prevent disruption and keep people safe. I want to be clear that the power to conduct a suspicionless search does not mean that anyone at a protest will be at risk of being searched without suspicion. The vast majority of protests in this country are peaceful and non-disruptive. These powers will be used only in the exceptional circumstances where it is likely that people at a protest will go on to commit criminal offences that cause serious disruption to others.
I also want to assure your Lordships, as I have sought to do throughout the passage of this Bill, that the safeguards on existing stop and search powers will apply to these powers, both for suspicion-led and suspicionless stop and search, and that includes body-worn video and PACE codes of practice. The Home Office also publishes extensive data on the use of stop and search to drive transparency. We expect the police to operate in a legitimate, fair and transparent manner, which includes decisions surrounding their use of this power.
The noble Lord, Lord Coaker, has tabled Motion B2. I want to remind the House that the power to conduct a suspicionless stop and search in a public order context will only be used in limited cases where a police officer of or above the rank of inspector reasonably believes that protest-related offences will occur and therefore authorises its use. In such cases, suspicionless stop and searches are limited to a specified locality for a specified period, but no longer than 24 hours. This can be extended for a further 24 hours to a maximum of 48 hours by an officer of or above the rank of superintendent, but it cannot be in place for more than 48 hours.
The reason why we have set out the thresholds and time limitations in this way is that we wanted to keep the legislation as consistent as possible for officers who will be using suspicionless stop and search powers. The amendments put forward by the noble Lord, Lord Coaker, would set a higher authorisation threshold for suspicionless searches than if officers are searching for a weapon, and limit the initial window that officers would have to use these powers, which has the potential to confuse officers with the well-established Section 60 legislation that we have discussed previously.
Suspicionless stop and search can be authorised only if specific protest-related offences are likely to be committed. These are the offences in this Bill and the offences of obstructing the highway and public nuisance. As the offence of public nuisance is committed so frequently by those who use disruption as a protest tactic, it is nonsensical to remove it from the list of relevant offences. Doing so would completely undermine this power.
The Government recognise that communication is a fundamental element of building trust and confidence between the force and the community it serves. As good practice, most forces already communicate their Section 60 authorisations, and I know that communities appreciate knowing detail on the geographical area, time limits and the background of the issue. Therefore, although I am sympathetic to the final proposed new subsection in the proposed amendment, which would establish in statute a requirement for the force to communicate when the powers are used, I do not think we want to introduce an inconsistency between the Section 60 legislation framework, which does not carry a communication requirement, and the proposed powers in the Bill. I therefore ask that your Lordships’ House does not insist on these amendments.
The Deputy Speaker (Baroness Watkins of Tavistock) (CB)
I must inform the House that if Motion B1 is agreed to, I cannot call Motion B2 by reason of pre-emption.
Motion B1 (as an amendment to Motion B)
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have partaken in another fruitful debate. It has long been the Government’s view that suspicionless stop and search powers are necessary and much-needed proactive powers for tackling highly disruptive protest offences. This view remains unchanged.
I will endeavour to answer some of the points that were raised. First, on why, in its report into the policing of protests HMICFRS concluded:
“On balance, our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency and effectiveness in preventing disruption and making the public safe”.
It is worth reiterating that last point “making the public safe”.
On the disproportionate use of the powers with people of colour, nobody should be stopped and searched because of their race. Extensive safeguards, such as statutory codes of practice and body-worn video exist to ensure that this does not happen. The Home Office publishes extensive data on police use of stop and search in the interests of transparency and will expand this publication to the use of the new powers provided for in this Bill.
On the subject that was just under discussion about the appropriate level of officer who may authorise a suspicionless stop and search, I take the points that noble Lords have made about Section 47A, but this replicates existing powers within Section 60 of the Criminal Justice and Public Order Act 1994, as I said in my opening remarks. Wherever possible, to ensure consistency, officers of inspector or higher may give an authorisation for up to 24 hours. Any extension must be made by an officer of superintendent rank or higher and no authorisation can last for more than 48 hours.
With regard to the geographical extent of a no-reasonable-suspicion stop and search order, it is for police forces to determine how and, indeed, whether to communicate the geographical extent of a search order under Section 60. This will also be the case for the new suspicionless powers in the Bill. Forces are no longer required to communicate that a Section 60 order is in place, but many continue to do so, where they judge it operationally feasible. Obviously, that in itself helps to deter criminals and enhance community trust and confidence. It is common for forces to use their social media channels or websites to communicate the extent of a Section 60 order.
I do not think there is a great deal more I can usefully say or add. I therefore invite the noble Lords, Lord Coaker and Lord Paddick, not to press their amendments.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this debate, particularly the noble Lord, Lord Coaker, for his comprehensive and convincing explanation of his Motion B2, and the noble and right reverend Lord, Lord Sentamu, who, from his personal experience and from the experience of the people he works with and has talked to and whose experiences he has shared, has said that we should listen very carefully. I thank the noble Lord, Lord Hogan-Howe, who feels that Clause 11 should not be part of the Bill but, regrettably, as I said before, probably accepts, as do I, that constitutionally we cannot take it out at this point.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 17 and do agree with the Commons in their Amendment 17A in lieu.
“Exercise of police powers in relation to journalists etc
(1) A constable may not exercise a police power for the sole purpose of preventing a person from observing or reporting on a protest.
(2) A constable may not exercise a police power for the sole purpose of preventing a person from observing or reporting on the exercise of a police power in relation to—
(a) a protest-related offence,
(b) a protest-related breach of an injunction, or
(c) activities related to a protest.
(3) This section does not affect the exercise by a constable of a police power for any purpose for which it may be exercised apart from this section.
(4) In this section—
“injunction” means an injunction granted by the High Court, the county court or a youth court;
“police power” means a power which is conferred on a constable by or by virtue of an enactment or by a rule of law;
“protest-related breach”, in relation to an injunction, means a breach which is directly related to a protest;
“protest-related offence” means an offence which is directly related to a protest.”
Lord Sharpe of Epsom (Con)
My Lords, I have already spoken to Motion C. I beg to move.
Lord Sharpe of Epsom
That this House do not insist on its Amendments 20, 21, 23, 27, 28, 31, 32 and 33 and do agree with the Commons in their Amendments 33A and 33B in lieu.
“(c) P’s conduct in relation to each occasion mentioned in paragraph (a) has not been taken into account when making any previous serious disruption prevention order in respect of P.”
Lord Sharpe of Epsom (Con)
My Lords, your Lordships’ Amendment 20 removes Clause 20—“Serious disruption prevention order made otherwise than on conviction”—entirely from the Bill. The Government listened carefully to the concerns expressed by this House regarding the conditions that could be considered when applying an order to an individual. That is why the Government have accepted the Lords amendment tabled by the noble Lord, Lord Anderson of Ipswich. Making this change means that an order could be given only on the basis that an individual has been convicted of a protest-related offence or been found in contempt of court for a protest-related breach of an injunction on at least two occasions. I believe that this is the issue with which your Lordships were most concerned, so we listened and we acted.
We still believe it is important that the police have the opportunity to apply for an order at a later point following conviction. Without this measure, it would not be possible to place an order on individuals who have already been found guilty of multiple protest-related offences until they reoffend and are convicted of yet another offence. Removing the ability to impose an SDPO otherwise than on conviction undermines this proactive element. That is why we disagreed with Lords Amendment 20 and tabled amendments in lieu, which reintroduce this clause but tailor the list of conditions, so that upon application an order can be made only where individuals have been convicted of protest-related offences or breaches of injunctions, thereby aligning this with the Lords amendment tabled by the noble Lord, Lord Anderson of Ipswich.
There has been some confusion about the nature of this clause, quite possibly due to its title, which should more accurately be defined as “Serious disruption prevention order made on application”. I assure noble Lords that we will look to make that change following the passage of the Bill.
For the avoidance of doubt, updated Clause 20 will not allow an order to be applied to an individual without a conviction. It will simply allow for an order to be made by a magistrates’ court on application by a relevant chief officer of police at a later point following two or more convictions.
The noble Lord, Lord Ponsonby, has tabled Motion D1, which, with respect, I cannot support. To be subject to a SDPO, a person must be convicted of two protest-related offences or found in contempt of court for breaching two protest-related injunctions. Being found guilty by a court for these acts inherently means that their conduct was beyond a genuine expression of their right to protest. Additionally, it creates an inconsistency between this provision and SDPOs made on conviction, which have already been accepted by Parliament. With that in mind, I respectfully ask that the noble Lord does not move his Motion.
Motion D1 (as an amendment to Motion D)
Lord German (LD)
My Lords, we on these Benches accept that the amendments have been made in the Commons but are still concerned that they do not go far enough. Taking the matter back to the beginning, the bar set on which people can be convicted or the orders can eventually be issued is based on the balance of probabilities. That matter was the source of a great deal of discussion in this House. A bar has been set which is basically non-evidential, because no evidence has to be proven of what has happened. Any amendments which would raise that bar just above a zero threshold are to be commended.
Having made the orders less draconian and brought them in line with the terrorism prevention and investigation measures, the SPDOs are to be imposed on protesters, taking away their rights to freedom of speech and freedom of expression, on the balance of probabilities. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported, in its review of public order policing, that it doubted that these orders are workable, even with a breach of the order occurring. A person attending a protest peacefully, in breach of an SPDO, is unlikely to be treated by the court in the same manner as a potential terrorist. Courts would look at the effect of an order and measure that against the breach of human rights legislation, and, in the end, the effect of an order breaching a person’s human rights could well override the effect of the order.
As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights, but only if a court was satisfied, on the balance of probabilities, that depriving people of their human rights on the weakest of evidential tests was sufficient. Therefore, there is an expectation that the courts would use a breach of human rights legislation to override the effect of the SPDO.
In seeking to raise the bar from zero—the bar is sitting on the floor, as no evidence is required—these amendments at least provide an evidential activity. They require an officer to have observed the evidence behind the requirement. The requirement in the amendments before us may not be sufficient, but it certainly lifts the bar, in relation to evidence, off the floor. In fact, we need to help police officers. Police officers may be faced with situations without evidence, such as listening to somebody’s hearsay about a protester. Alternatively, they may have it in their mind that possible action will take place if they assume that a protester, who is standing peacefully and undertaking a peaceful activity, could well jump across the road, lie on the ground and stop the traffic. In those cases, they would not have any evidence that the person was about to conduct themselves in a dangerous manner, so it would be effective to introduce provisions for that. This set of amendments could provide for those matters, but, as I have said, in a very limited way.
As the noble Lord will not press his amendment to a vote, it seems to us that the Government have to consider how the courts will deal with these matters when they are placed before them, when we have human rights legislation guaranteeing freedom of speech, freedom to join together with others and freedom of expression. When all those rights are being harmed, what will the courts say and are the Government sufficiently ambitious that they think that their evidence based on these rules will give the human rights opinion any credence whatever?
Lord Sharpe of Epsom (Con)
My Lords, again, I am grateful to both noble Lords for their thoughtful and considered contributions to this debate. As I have already detailed, the Government listened carefully to your Lordships’ concerns regarding the serious disruption prevention order measures. Orders will now be applied only where individuals have been convicted of protest-related offences or breaches of protest-related injunctions on at least two occasions.
The noble Lord, Lord German, argued that serious disruption prevention orders contravene the European Convention on Human Rights. They do not. The right to protest is fundamental and despite sensationalist claims such as that, that will not change. These orders will ensure that individuals who deliberately cause serious disruption more than twice will face justice. Articles 10 and 11 of the ECHR set out that everyone has the right to freedom of expression, assembly and association. However, these rights are not absolute and must be balanced with the rights and freedoms of others.
I hope your Lordships will be satisfied that the Government have responded with a very significant offer that addresses the key concerns expressed throughout the passage of this Bill. The Bill will better balance the rights of protesters with the rights of individuals to go about their daily lives free from disruption and address the ever-evolving protest tactics we have seen employed by a selfish minority of protesters. Blocking motorways and slow walking in roads delays our life-saving emergency services, stops people getting to work and drains police resources. The British people are rightly fed up with it and are demanding action from their lawmakers.
It is time for this Bill to become law. I thank the noble Lord for saying that he will withdraw his Motion.
Wednesday 22nd March 2023
(1 year, 1 month ago)
Commons ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: Commons Consideration of Lords Message as at 22 March 2023 - (22 Mar 2023)
15:15 - The House divided: - Ayes: 296 / Noes: 229 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Minister for Crime, Policing and Fire (Chris Philp)
I beg to move, That this House disagrees with Lords amendments 6B to 6F.
The Bill is about giving the police the tools they need to tackle the highly disruptive protest tactics that we have seen in recent months, which have blocked ambulances, delayed passengers making important journeys, stopped children getting to school and prevented patients from receiving critical medical care. We have seen our capital city, London, being held to ransom. It cannot be right that a selfish minority committed to causing as much disruption as possible continue to get away with it. These actions are not only impacting the public, but diverting the police away from the communities they serve; in October and November last year, something like 10,000 hours of Metropolitan police time were taken up. That is why the Bill is so important.
We have had some back and forth with the other place, but there is now only one remaining issue to resolve between us. It concerns the power to stop and search without suspicion, which has been extended through the Bill to enable the police to search for and seize articles related to protest activities. It is worth saying that, before that power can be exercised, it requires a police officer of the rank of inspector or above to have a “reasonable” belief that a number of offences may be committed in the area concerned. It further requires that officer to believe that the conditions being imposed, and the authority to carry out these searches, are necessary to prevent the commission of offences. Moreover, the power lasts for only 24 hours and is capable of extension for another 24 hours at the most. Therefore, the power is to be used only where it is reasonably suspected an offence may be committed, only where it is believed to be necessary, and only for a time-limited period. Those are important restrictions on the way the power can be used.
Stop and search is a vital tool used to crack down on crime and protect communities. We see it as appropriate, in the face of large, fast-paced environments where it can be difficult for the police to reach the level of suspicion required for a suspicion-led stop and search, for them to have this power available as well.
Jim Shannon (Strangford) (DUP)
I am old enough to remember when a policeman used his initiative and intuition to suspect that a crime was probable, or could be caused or had been caused. Does the Minister feel that the Bill ensures that a policeman can still use his initiative to ensure that those who are carrying out crimes can be detained with the suspicion of cause, rather than without evidence?
Chris Philp
My hon. Friend makes a good point. Police will often suspect that crimes may be committed, but in a particular case an individual may not reach the suspicion level and, in those circumstances, these rules will apply. I completely agree with his point.
Kit Malthouse (North West Hampshire) (Con)
Can the Minister confirm, as an illustration, that, if a demonstration is about to take place by a group who use a particular tactic—gluing themselves to the road, for example—the police may use this power to intercept individuals with glue in their pockets, before they carry out an activity such as gluing themselves that occupies enormous amounts of police time, often puts them and police officers in danger, and causes enormous inconvenience? In those circumstances, will the police be able to use this power to get ahead of the problem?
Chris Philp
The way my right hon. Friend puts it is good. It is in exactly those circumstances, where the police are concerned that one of the specified crimes may be committed, that they can use this power. Those crimes are specified in clause 11(1), and include offences under section 137 of the Highways Act 1980—that is wilfully obstructing the highway—offences under section 78 of the relatively new Police, Crime, Sentencing and Courts Act 2022, which involve
“intentionally or recklessly causing public nuisance”,
and various offences under the Bill, which include causing serious disruption by
“tunnelling…being present in a tunnel… obstruction etc of major transport works”,
interfering with critical national infrastructure, as well as “locking on”, which I think is the point made by my right hon. Friend.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
This was raised the last time we had this debate, but the Minister mentioned the crime of nuisance. The threshold for that is incredibly low. An inspector could be concerned that there was a chance that someone would commit this offence by being seriously annoying or inconveniencing somebody, and then we let loose suspicionless stop and search of hundreds, potentially thousands, of people, for no further reason than that. Is that not a ludicrously low threshold for triggering these search powers?
Chris Philp
I am not sure I entirely agree. The offence of intentionally or recklessly causing public nuisance is set out in section 78 of the Police, Crime, Sentencing and Courts Act 2022, and I do not accept the characterisation of that offence as simply a minor one. Causing huge inconvenience to other members of the public is not something that this House should treat lightly, particularly as we have seen examples in recent protests of ambulances not getting through, and of people unable to get their children to school or to attend medical appointments. I am not sure I accept that characterisation.
A number of changes have been proposed in Lords amendments 6B to 6F. They first propose a higher level of authorisation for suspicionless searches. By the way, the other place is not disputing the principle; it is simply seeking to change some of the thresholds, one of which would involve changing the authority level in a way that would be inconsistent with the use of searches under section 60 of the Criminal Justice and Public Order Act 1994 in other contexts.
Another change relates to the time periods. As Lord Hogan-Howe, a former commissioner of the Metropolitan police, pointed out, the use of the power has to be practical and reducing the time threshold to just 12 hours would limit the ability of police forces to use these powers in a meaningful way. We should take seriously the opinion of the noble Lord who used to be the Met commissioner.
The changes proposed in the other place would also require a chief superintendent to provide authorisation for this matter, when an inspector is acceptable under the existing section 60. I think that overlooks the urgency and speed with which these protests can unfold, and the speed at which decisions need to be made. It also has potential to cause confusion if there is a different level of seniority here, compared with the well-established section 60.
Finally, the amendments proposed in the other place would set out in statute a requirement for the forces to communicate the geographical extent of an order. The Government recognise that communication of any power is important for understanding and transparency. I am aware that most forces already communicate their section 60 authorisations—I have seen that happen frequently in Croydon and it is gratefully received when it happens. But, for consistency, it is important to keep these new powers as close as we can to existing legislation, although the Government encourage forces to communicate any use of this power, in the way they already do for a section 60 order, where it is operationally beneficial to do so. There is a lot to be said for consistency, which is why I respectfully encourage Members of this House to gently and politely disagree with the other place in their amendments 6B to 6F.
Sarah Jones (Croydon Central) (Lab)
Stop and search is a crucial tool, as we all agree. Its normal usage is based on intelligence around a crime or a potential crime, based on proper suspicion, and applied for the right reasons. In our country, we use stop and search with suspicion to look for weapons, drugs and stolen property. Under particular circumstances, we use suspicionless stop and search—a section 60, as we call it—to search people without suspicion when a weapon has been used, or where there is good reason to believe there will be a serious violence incident. The Government are introducing suspicionless stop and search for potential protests, an overreach of the law that the police have not asked for and which pushes the balance of rights and responsibilities away from the British public.
Yesterday, we debated Baroness Casey’s report into the Metropolitan police. It is an excoriating report that, among much else, calls for a fundamental reset in how stop and search is used in London. I was pleased to hear the Prime Minister today accept all the findings and recommendations in the report. The report states:
“Racial disparity continues in stop and search in London. This has been repeatedly confirmed in reports and research. Our Review corroborates these findings.”
It is ironic that the day after the report was published the Government are trying to pass laws that risk further damaging the relationship between the police and the public by significantly expanding stop and search powers way beyond sensible limits.
Kit Malthouse
The hon. Lady says these measures may damage relations with the public. The vast majority of the public feel very strongly that their lives have been severely impacted by these protests, so giving the police the tools to get ahead of them may in fact command widespread public support, notwithstanding the issues of protest. I wonder what her solution might be to the problem of people who persistently come to protests and glue themselves to all sorts of surfaces, thereby causing enormous disruption to other people’s lives, disproportionate to the issue they are protesting about.
Sarah Jones
I thank the right hon. Member for his intervention. We do not disagree on some of the struggles here—we never have. We have never said that it is not a problem in terms of major infrastructure, getting around the country and so on. Our argument has always been, first, a series of existing laws is in place that enables the police to do their job. Secondly, the use of injunctions could have been made easier—we put that case forward in earlier stages of the Bill—so that we could get ahead of some of these problems. But fundamentally, we disagree with the premise that extending these powers, which are used at the moment for serious violence, to this loose definition of potential protest is helpful, or anything the police will necessarily want or use.
Clause 11 will introduce wide-ranging powers for the police to stop and search anyone in the vicinity of a protest, including any of us who happen to walk through the area. The Government’s knee-jerk reaction to introduce sweeping powers that will risk further damaging policing by consent is not the way forward. Members in the other place passed very sensible changes to raise the threshold for the powers in clause 11 to be used. To the Minister’s point that they are not disputing the principle, they have already disputed the principle—we have had that argument and they have, rightly, as is their role, moved on. So they are trying to contain what they think are the problems with these measures. All we ask is that the Government accept these sensible minor tweaks to clause 11.
Lords amendments 6B to 6F would raise the rank of the officer able to authorise the power to stop and search without suspicion for a 12-hour period to a chief superintendent. The Minister argued that we need consistency. I do not accept that argument. There are all kinds of different levels of all kinds of different things across the law that we can all understand. Because this is a more significant intervention for potentially a lesser crime, the amendment is relatively reasonable.
Lords amendment 6C removes “subsection (ii)”, which means the power could be used for the anticipation of “causing public nuisance” such as merely making noise. Without this change, every time music is played outside Parliament anyone could be stopped and searched without suspicion. Baroness Casey suggests that
“as a minimum, Met officers should be required to give their name, their shoulder number, the grounds for the stop and a receipt confirming the details of that stop.”
Lords amendment 6F would insert:
“The chief superintendent must take reasonable steps to inform the public when the powers conferred by this section are in active use.”
That is important because communication failures are a common factor in problematic stop and searches.
A recent report from Crest Advisory, examining the experience of black communities nationally on stop and search, found that 77% of black adults support the use of stop and search in relation to suspicion of carrying a weapon. So, in the poll, the black community absolutely agrees that we need the power to stop and search. But less than half of those who had been stopped and searched felt that the police had communicated well with them or explained what would happen. That less than half of those who had been stopped and searched felt that the police had communicated well to them or explained what would happen shows how important it is to make sure people are communicated with when these strong and impactful powers are used by the police. If we imagine that in the context of clause 11, where anyone can be stopped, including tourists who might have got caught up in a crowd and not know what is going on, there is a risk of a chaotic invasion of people’s rights to go about their business.
We have discussed previously and at length the definition of “serious disruption”. The Minister considers it
“more than a minor degree”.
Would being stopped and searched for simply walking through Parliament Square when a protest is taking place disrupt his day more than a minor degree? The suspicionless stop and search powers being applied to protests are extreme and disproportionate. We have raised many times in this House the warnings from former police officers that they risk further diminishing trust in public institutions.
After the devastating Casey report, it is hard to see how public trust in the Metropolitan police could suffer more. Ministers were unable to offer any solutions to bring the reforms we desperately need in policing, but they could at least try not to pass laws that would risk making trust and confidence in the police even worse. Clause 11 will create powers that risk undermining our Peelian principles even further. When Ministers say that it would only be in very unusual circumstances that the powers would be used, I want to stress, why bother? Why bother, when to deal with disruptive protests the police could already use criminal damage, conspiracy to cause criminal damage, trespass, aggravated trespass, public nuisance, breach of the peace and obstruction of the highway? The Minister knows I could keep going. Many protestors have been fined and many have gone to prison using those powers. Thousands of arrests are already made using existing powers, but the Bill is apparently justified by an impact assessment that says it will lead to a few hundred arrests only. The powers are there for the police to use.
Disruptive protests have a serious impact on infrastructure and on people’s ability to go about their daily lives. Over the course of the passage of the Bill, we have spent many hours on new ways to ensure the police have all the levers they need. We tried to introduce sensible amendments on injunctions. The Government’s response to the problem is a totally disproportionate headline-chasing response that is, depressingly, what we have come to expect. Gone are the days when the Government were interested in passing laws that could fix problems or make things better. The truth is that the Government’s disagreement with the sensible narrowing amendments from the other place will create more problems than it will solve. I urge the Government to think again and to back these common-sense amendments from the other place.
Kit Malthouse
I am grateful to my right hon. Friend. What he says is incorrect. At the time, we were dealing with a huge spike in knife crime in London, which was disproportionately reflected in the black community. Young black men were dying on an almost daily basis and, sadly, the vast majority of the perpetrators were also young black men. There was definitely a campaign to try to eliminate weapons from within that community, which worked. In 2008, 29 young people were killed in London, and by 2012 that was down to eight, so the campaign was successful. During that period and up to about 2016, confidence in the Metropolitan police rose to an all-time high of 90%, including rising confidence among minority communities in the capital. I am afraid that my right hon. Friend’s basic premise is not correct.
Mr Davis
I have allowed my right hon. Friend to make his point, but the simple truth was that the reason for the Home Secretary of the day curbing stop and search was concern about its impact on ethnic minorities. He is also right that the biggest number of victims of knife crime came from ethnic minorities, so I take his point. My answer to him—and the general concern here—is that bad policing is not improved by bad law, which is what I think this is.
That brings me to the Casey report. The hon. Member for Croydon Central was right to cite the criticism of the Metropolitan police. The report said that there were numerous examples of stop and search being carried out badly. There were examples where officers
“justified carrying out a search based on a person’s ethnicity alone”.
That should not apply under any circumstance. There were examples where officers
“Had been rude or uncivil while carrying out a search”
and
“had used excessive force, leaving people (often young people) humiliated, distressed, and this damaged trust in the Met”.
Those are all bad things from our point of view.
We all want—I include the Opposition—the disgraceful trend in modern demonstrations brought to an end. It is designed not to demonstrate but to inconvenience—there is a distinction. But the Bill is a heavy-handed way of doing that. The Minister tried to say that the Lords had accepted the principle. They had not. What they have sought to do with these amendments is leave the tool in the hands of the police but constrain it in such a way that it is used more responsibility.
The Lords amendments will change the level of seniority required to designate an area for suspicionless search from inspector to chief superintendent or above. Whatever Lord Hogan-Howe says, that is not a crippling amendment. Changing the maximum amount of time for which an area can be designated from 24 hours to 12 hours is not crippling but practical. While my right hon. Friend the Member for North West Hampshire was doing his job in London, I was on the Opposition Benches as shadow Home Secretary, dealing with a number of Metropolitan Police Commissioners. That is a perfectly practical change. Changing the level of seniority required to extend the authorisation by a further 24 hours to chief superintendent is, again, a practical change.
We talk about suspicionless stop and search. What does that mean? It means the right to stop and search innocent people who have no reason to be stopped and searched whatsoever. We are handing the discretion to a police force that has been called upon to reset its approach to stop and search. The Government are doing almost precisely the opposite of what Casey is calling for. The final amendment states:
“The chief superintendent must take reasonable steps to inform the public when the powers conferred by this section are in active use.”
Those are all practical changes. The smart action of the Government is to accept them, carry on and try to improve on the Metropolitan police that we have today.
Wendy Chamberlain (North East Fife) (LD)
It is three in a row, as I agree and associate myself with the remarks of the previous speakers. It is important to look at the Lords’ amendments in the light of yesterday’s Casey report. Throughout my involvement with the Bill, I have always tried to look at it as a former police officer, although not a former Metropolitan Police Commissioner. I have always tried to think about the Bill from the perspective of the police officers who will be required to carry out the powers in it, and from the capacity perspective—the capacity of officers to go and do these duties and to be trained to carry them out.
On the first point, I refer to page 86 of the Casey report, which states:
“The lack of comprehensive workforce planning and prioritisation…throughout this report also makes for a weak approach to learning and development. Officers regularly said that they had to keep their own records and that they were not held centrally.”
Can the Met say how many officers it has currently trained in public order, whether in basic command units doing aid training or in tactical support groups? When the Bill is enacted and police come to court, the defence will ask officers what training they had in these powers, so that is a valid point.
The second bit is about capability. If officers have not attended the training but are then abstracted to attend a protest, do they actually have the skills at all? I want to pick up on page 131 of the report, which mentions tactical support groups and their use across London. It states:
“While they can be tasked to carry out policing functions in a BCU area, they are not accountable to the BCU chain of command. This can undermine a BCU’s attempts to own its very extensive patch, and to be fully accountable for policing there, both to the Met and to the public.”
It goes on to say:
“We were told that specialist teams tended to have rigid attitudes to their style of policing. ‘TSG come here not knowing the area…they come late, allegedly go to the gym on job time…they annoy the community, and arrest people who probably didn’t need to be arrested anyway… My colleagues think it suppresses crime. I don’t think it’s worth the community upset, it poisons the relationship with the community.’”
Those comments have been made by some of the core teams that will be enacting these powers.
My third point goes back to the comments I made last time we discussed these Lords amendments. Whether a police officer is attending an incident or a spontaneous protest, and whether they are a police constable attending by themselves or taking directions from a silver public order commander in relation to a planned protest, they are still exercising those powers and making those decisions. We must look at the stress placed on police officers who are juggling all those multiple demands. Again, I refer to page 90 of the Casey report:
“The reality of policing means that most of the time, police officers are in threat perception and threat management mode.”I suggest that when people are policing in those kinds of modes, the strain they are under means that making good decisions, potentially about complex legislation, becomes more challenging.
I agree with the comments have been made about clause 11 being removed in its entirety; indeed, my colleagues in the other place continued to support that. We also support the new amendments that we are considering. In terms of arguing whether they are reasonable or not, I say this: they reflect the safeguards and the BUSS—best use of stop and search—scheme, which was introduced in 2014 and scrapped by the former Home Secretary in May 2022. What is proposed in the amendments has previously been utilised by the police, so I do not see why they cannot continue to do so.
Chris Philp
I do not wish to repeat everything I said at the beginning, but I want to pick up on one or two points made in the course of this short debate. The first point relates to policing’s position on this power. The shadow Minister, my constituency neighbour the hon. Member for Croydon Central (Sarah Jones), said that the police had not been calling for this. I politely draw her attention to what was said by His Majesty’s inspectorate of constabulary and fire and rescue services, which is run by a former chief constable:
“On balance, our view is that, with appropriate guidance and robust and effective safeguards, the proposed stop and search powers would have the potential to improve police efficiency and effectiveness in preventing disruption and making the public safe.”
I do not want to reiterate yesterday’s extensive debate about the Casey report, which has been referred to, but I will say one or two things about the use of stop and search in that context. First, when I discussed stop and search with Sir Mark Rowley, the commissioner, a few days ago, he pointed out that between 350 and 400 knives are removed every month from London’s streets using stop and search. I think that is an extremely important contribution to public safety.
In her report, Baroness Casey referred to academic research from the United States that found that the use of stop and search led, on average, to a 13% reduction in crime. For the sake of balance, it is important to keep those points in mind.
It is fair to say that a very small proportion of stop and searches result in complaints. That has been the case particularly since body-worn cameras have been used, because the officer knows that when conducting a stop and search the whole thing is being recorded. Some of the bad practice that may have been prevalent 10 or 15 years ago is much less likely to occur when both parties are aware that the stop and search is being recorded.
Rehman Chishti (Gillingham and Rainham) (Con)
Of course stop and search has a role to play, but it has to be applied appropriately and under the right criteria. As a barrister who has prosecuted and defended cases, and having been a member of the Home Affairs Committee, may I ask the Minister a question specifically about stop and search? How many individuals from diverse communities who have been stopped should not have been stopped in the first place? We need to have that data to know how to look at legislation moving forward. At the end of the day, we have to carry communities with us and ensure there is appropriate community cohesion. What is the figure?
Chris Philp
In whatever context, stop and search has to be done in a respectful and appropriate way. That is why body-worn cameras are so important. As I pointed out a moment ago, only a tiny fraction of stop and searches result in a complaint these days.
To conclude, we have recently seen protesters use tactics, often covertly, that are deliberately and exclusively designed not to protest as a way of communicating a message, but to cause intentional disruption to other members of the public going about their daily business, including children trying to get to school and patients trying to get to hospital. These well-designed and proportionate measures will help the police protect the public and allow them to go about their daily business, while also allowing the right to protest. Therefore, I respectfully invite colleagues to disagree with Lords amendments 6B to 6F.
Question put.
Tuesday 28th March 2023
(1 year ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 123-I Marshalled list for Consideration of Commons Reason - (27 Mar 2023)
16:25 - Division on Motion A1 - Ayes: 246 / Noes: 201 - Motion A1 agreed.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Sharpe of Epsom
That this House do not insist on its Amendments 6B, 6C, 6D, 6E and 6F to which the Commons have disagreed for their Reason 6G.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the Public Order Bill is about giving the police the tools they need to tackle the highly disruptive protest tactics we have seen in recent months which have blocked ambulances, delayed passengers from making important journeys and held the capital to ransom. We have had a fruitful debate over the course of the last few months about the contents of the Bill. Your Lordships have undoubtedly given the Bill the scrutiny the British public want and expect, and important compromises have been made along the way which I hope have satisfied the House. I do not intend to detain noble Lords for longer than necessary by repeating those debates. The British people are fed up with inaction and it is time that the Bill became law.
As your Lordships will be aware, this House voted to amend Clause 11—
“Powers to stop and search without suspicion”—
in a variety of ways. As I explained when those amendments were first considered, we cannot support them. This has been reiterated by the other place, and it is why we have brought Motion A. The amendments, among other things, vary the timescale and authorisation threshold for the powers, thereby creating inconsistency with the Section 60 stop and search powers which the Bill’s measures are modelled on.
I understand the argument put forward by the noble Lord, Lord Coaker, in seeking these changes—that by limiting the scope of the power you can attempt to address the disproportionality attached to it—but as the noble Lord, Lord Hogan-Howe, pointed out during the previous debates, this power “has to be practical”. With respect, I cannot see how not establishing parity with existing Section 60 powers supports that, with the unintended consequence likely to be confusion for the officers who will be using them.
Turning to Motion A1 in the name of the noble Lord, Lord Coaker, which seeks to further alter the Bill’s powers to stop and search without permission, first, I remind the House about the legal framework that already exists for all stop and search powers. Under Section 3.8 of PACE Code A, the code of practice for powers to stop and search, officers have to give their name or identification number, police station to which they are attached and grounds for every search. These criteria are also covered in the “GOWISELY” mnemonic drilled into every officer.
Secondly, concerning the requirement for police forces to establish a charter on the use of powers, it is our view that this would cause unnecessary burden on police forces and officers. Plenty of long-established safeguards already exist for stop and search powers. Additionally, we have supported the National Police Chiefs’ Council in its publication of national guidance on the use of body-worn video. This includes encouraging forces to share footage with external scrutiny groups to support transparency and reflective practice and learning.
On the reporting on the use of stop and search powers, I reassure all noble Lords that the Home Office already publishes an annual statistical bulletin. This outlines in detail the information gathered during each stop and search incident. This reporting will be conducted for the use of the new stop and search powers, both suspicion-led and suspicionless, so I would argue that such a measure is unnecessary.
Finally, on publishing a statement giving reasons for the use of powers, as I said in our last debate, the Government recognise that communication on their use is a fundamental element of building trust and confidence between a force and the community it serves. The majority of forces, including the Metropolitan Police Service, already communicate their Section 60 authorisations, and I know that communities appreciate knowing detail on the geographical area, time limits and justification for the authorisation. Those forces will continue this practice for these new powers. Nevertheless, I recognise the merits that establishing this communication requirement in statute could bring. I commit now, on the Floor of the House, that the Government will amend PACE Code A to require that, where it is operationally practical to do so, forces communicate the extent of the area authorised for the suspicionless stop and search, the duration of an order and the reasons for the order.
The Home Office already publishes an annual statistics bulletin which analyses the data from forces across England and Wales. We will also amend PACE Code A to place data collection within the legislative framework. This will include a breakdown of both suspicion-led and suspicionless searches, cross-referenced with protected characteristics such as age, sex and ethnicity. I hope that will satisfy the noble Lord, Lord Coaker, and—respectfully—persuade him to withdraw Motion A1.
The other place voted to disagree with this House’s previous amendments to Clause 11. This matter has been considered and the other place has expressed its will. I believe it is now time that this Bill becomes law.
Motion A1 (as an amendment to Motion A)
Lord Dear (CB)
My Lords, I had not intended to speak in this debate today, but I find myself totally in agreement with the noble Lord, Lord Coaker, and with the last remark about Lord Scarman. I worked very closely with him in 1981 and after that and agreed wholeheartedly with his findings then. They are still good today.
The noble Baroness, Lady Meacher, spoke very eloquently and I found myself nodding all the way through her speech. I agree entirely with what she said and will not weary this House by repeating those very wise words, save to say that I think that this is the wrong time for this projected policy. What we need now is temperate and measured policing and this is not going to help that. I support the noble Lord, Lord Coaker.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for another fruitful debate. As I said at the beginning, this Bill has undoubtedly been given the scrutiny the British public want and expect.
Before I go on to more substantive remarks, I should say that I fully support the Casey report. The Government and the Met Police have taken this report very seriously. Guidance on the use of stop and search is statutory and is set out in PACE. It is the law. That is the place for it, as the noble Lord, Lord Hogan-Howe, pointed out, if nothing else to ensure consistency. There are safeguards and considerable scrutiny of stop and search and I will come back to that.
The noble Lord, Lord Coaker, and others will no doubt accuse me of semantics but as my noble friend Lord Sandhurst reminded us, these powers relate to serious disruption—ambulances should not be stopped from getting to hospital, as the leader of the Opposition has pointed out in the past.
On the comments from the noble Lord, Lord Paddick, about the effectiveness of stop and search, I was reminded of a pack that I still have in my folder. I was giving some statistics yesterday, and every knife seized through stop and search, I think, is a potential life saved. In 2021-22, stop and search removed around 14,900 weapons and firearms from our streets and resulted in almost 67,000 arrests. I appreciate that we are on a slightly different subject, but none the less this is an important and powerful illustration that, used appropriately, stop and search can work.
Recent protests have been clear in their aim of causing as much disruption as possible through the use of guerrilla tactics. These measures give the police the proactive powers necessary to respond to those dangerous and disruptive tactics quickly. We will work closely with our partners in the police to ensure that they have the support and resources in place to use these powers.
I have heard what the House has said about the potential disproportionality involved in this and we acknowledge that nobody should be stopped and searched because of their race. Extensive safeguards such as the statutory codes of practice to which I have referred and the use of body-worn video exist to ensure that this does not happen. The Home Office publishes extensive data on police use of stop and search in the interest of transparency and we will expand the publication to the use of the new powers provided for in this Bill, as I have already outlined.
I referred to GOWISELY earlier, which is a mnemonic. This follows, and frankly supports, many of the recommendations from the noble Baroness, Lady Casey. I will go through them. The G stands for grounds for the search. These are the minimum bits of information which should be given to the person detained for the purpose of the search. O stands for the object of the search. W is for the warrant card to be shown to the person searched. I is for the identity of the officer—that is usually the officer’s name unless the officer thinks that giving their name would put them in danger, in which case an identification number can be given. S is the station to which the officer is attached. E is the entitlement to a copy of the search form. L is the legal search power being exercised. Y means that you, the officer, must tell the person stopped that they are being detained for the purpose of the search.
The noble Lord, Lord Morgan, referred to the situation in Paris. As I understand it, much of that is a consequence of the activities of the gendarmerie, which is not a police force with any equivalent in this country.
Lord Baker of Dorking (Con)
Would the Minister answer a question? In a situation where there is a protest preventing traffic, which is very grave and serious, and there are two people young people involved in it, if the police decided to use their power to strip and search, what would they expect to find on those two young people?
Lord Sharpe of Epsom (Con)
My Lords, we are debating stop and search. I am not quite sure where strip and search came into this, I am sorry.
Baroness McIntosh of Hudnall (Lab)
With respect to the Minister, that was not an entirely adequate answer. He was probably quite clear on what the noble Lord, Lord Baker, was asking him.
That said, the Minister has relied very heavily in what he has said to the House this afternoon on existing protocols that the police are expected to use. We have just been told through the Casey report, using very recent evidence, that those protocols are substantially ignored by the police. Does he have an answer for that?
Lord Sharpe of Epsom (Con)
I apologise if I misunderstood my noble friend. I was basing my answer on the fact that a report was published yesterday by the Children’s Commissioner that specifically related to young people and strip search. If I misunderstood, I apologise. With regard to stop and search, I would argue that all the criteria for establishing the cordon and the area and so on would mean that the circumstances described by my noble friend would be highly unlikely.
With regard to the Casey report, as I have already said, both the Government and the Met police are taking it very seriously. These are rules that we expect to be followed.
Lord Coaker (Lab)
My Lords, I thank the Minister for his response and also thank all noble Lords who have participated in this further discussion between us on this incredibly important matter. For the avoidance of doubt, I will be testing the opinion of the House on my amending Motion A1.
At the very beginning, I said to the Minister that one of the things he would do in his remarks was send up smoke. What did he do in his reply? He sent up smoke. What on earth has praying in aid that 14,900 weapons were seized under existing legislation got to do with the legislation we are currently debating? I am delighted that 14,900 weapons have been seized under stop and search powers—as every single Member in this Chamber will be—but they are nothing to do with suspicionless stop and search under Clause 11; I guess they are probably to do either with stop and search with reasonable suspicion, or with Section 60 suspicionless powers, where needed. I said that I support those powers, and I suspect that nearly everybody, if not everybody, here supports them. What I object to, and what is wrong, is using that to somehow speak against my amendments, because it is irrelevant: we are talking not about weapons or terrorism but about protests and using suspicionless stop and search with respect to protests.
I say to the noble Lord, Lord Sandhurst, that we lost the debate about taking Clause 11 out: it is in the Bill. So the things that he wants to do—confiscate without suspicion various objects that are used for protest—are not what this debate is about: people continue to be able to do that. We lost that debate: we agreed it here, but it was put back in in the other place, and, given that we respect the will of the elected House, I revised what we were doing to seek to mitigate. That is what my amendment seeks to do: to mitigate this further. It does not stop it in any way.
However, I say to the noble Lord, Lord Sandhurst, that the bigger problem is that the police do not have the confidence to use the existing powers to do the things he wants. Nobody in this House supports the protests we have seen on our streets in the last couple of years. But the Government put up this sort of mirage of “This is what people who oppose what we are suggesting are for”. So people who are for the sort of amendment I am talking about are somehow on the side of protesters who are stopping ambulances, or on the side of people who want to take protests too far. That is a nonsense. What I am against is allowing the unmitigated use of Clause 11 without the safeguards needed.
Every single report from the inspectorate, the police complaints authority or whoever says that, if you are going to use this sort of power, which is the most severe power you can give the police, to stop people without suspicion going about their lawful business—that is the power you are going to give to these people—you have to build in safeguards. My contention is that, even with the concessions that the Minister made, the Government’s safeguards are not sufficient and need to be in the Bill. Why do I say that? I use the evidence in the Casey review. I do not just make it up and say, “Oh, that’d be a good idea”; I use the evidence from somebody who has researched and understood this, talked to people, been out to communities, and said, “This is what needs to be included. If you don’t, you risk carrying on with some of the problems that we’ve got”. The noble and right reverend Lord, Lord Sentamu, talked about disproportionality, and my noble friend Lady Lawrence and others with experience of this are here. The disproportionality is, frankly, a scar on our society, and now we are now going to extend that suspicionless power, with all that that may entail, without the necessary safeguards in the Bill.
It is not people like you and me who will be stopped and searched; it will be some of the most deprived people in some of the most difficult communities, who already have problems with trust and confidence in the police. We have the opportunity here, through the Casey review, to draw a line in the sand and set the agenda to support our police by saying that we will help them regain the trust and confidence they need. But we cannot do that if the Government are hiding behind saying, “Oh well, we are in favour of getting weapons off the street and stopping these awful protests”. We are all in favour of that, but this is an overreach of legislation which will potentially have very serious consequences for our society.
My amendment simply seeks to mitigate the impact of the suspicionless stop and search power. I agree with the noble Lord, Lord Paddick, that it should not be in the Bill anyway, but, as we have lost that argument, all we are seeking to do is to mitigate its impact. That is a perfectly sensible and reasonable thing to do.
I finish by saying that we are giving our police the most severe power that they can be given: suspicionless stop and search. Just by walking down the street, you could be stopped and searched. We have said that the power is fine with respect to terrorism—but even there we have mitigated it—and we accept that it is fine if it stops murder, gang warfare and all those sorts of things. But it is a totally different set of circumstances to talk about using suspicionless stop and search for protests. That is a step too far and, as such, we should at least mitigate its impact by supporting the amending Motion I have put forward.
Monday 24th April 2023
(12 months ago)
Commons ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: Commons Consideration of Lords Message as at 24 April 2023 - (24 Apr 2023)
18:27 - The House divided: - Ayes: 270 / Noes: 200 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Minister for Crime, Policing and Fire (Chris Philp)
I beg to move,
That this House disagrees with Lords amendments 6H and 6J.
The Public Order Bill is about giving the police the tools they need to tackle the highly disruptive protest tactics we have seen in recent months, and indeed today, which have blocked ambulances, delayed passengers making important journeys, prevented children from getting to school and patients from getting to hospital, and at times held the capital city to ransom. I do not wish to detain the House for any longer than necessary, because we have debated this Bill numerous times in recent months and it has undoubtedly been given the scrutiny the British people want and expect. It is time for that delay to end and for this Bill to become law.
The other place has once more voted to amend clause 11, the power to stop and search without suspicion—although it is worth saying that that power can only be used if a police officer reasonably believes that certain protest-related offences will happen in the very near future, so it is not a power that can be used wholly arbitrarily. It is most disappointing to see that vote after this elected Chamber disagreed with their Lordships in their last amendments.
As my noble colleague explained in the other place, it is our view that the changes are unnecessary. First, a legal framework already exists for all stop-and-search powers. Under section 3.8 of Police and Criminal Evidence Act 1984 code A, the code of practice for powers to stop and search, police officers have to give their name or identification number, the police station to which they are attached and grounds for every single stop and search, essentially replicating the proposal in their Lordships’ motion 6H. Those criteria are covered in the GOWISELY mnemonic drilled into every police officer.
Secondly, it is our view that the requirement for police forces to establish a charter on the use of powers would cause unnecessary burdens on police forces and officers, something the Opposition have been concerned about throughout this Bill’s passage. Plenty of long-established safeguards already exist for stop-and-search powers. Additionally, we have supported the National Police Chiefs’ Council in its publication of national guidance on the use of body-worn video, which includes encouraging forces to share footage with external scrutiny groups to support transparency and reflective practice and learning.
On reporting on the use of stop-and-search powers, I would like to reassure the House that the Home Office already publishes an annual statistical bulletin, which outlines in detail the information gathered during each stop-and-search incident. That reporting will be conducted for the use of the new stop-and-search powers, both suspicion-led and suspicionless.
Finally, on publishing a statement giving reasons for the use of powers, as the Government reiterated in the other place, we recognise that communication on the use of these powers is a fundamental element of building trust and confidence between a force and the community it serves. The majority of forces, including the Metropolitan Police Service, already communicate their section 60 authorisations, and I know that communities appreciate knowing the details of the geographical area, time limits and justification for the authorisation. Those forces will continue that practice for these new powers.
Nevertheless, as the noble Lord Sharpe of Epsom committed to in the other place, the Government will amend PACE code A to require that, where it is operationally practical to do so, forces must communicate the extent of the area authorised for the suspicionless stop and search, the duration of an order and the reasons for that order. This Government commit to the spirit of what their Lordships are asking for, in their proposed new subsection (9D) of clause 11, through amendments to PACE code A. We will also amend PACE code A to place data collection within the legislative framework. It will include a breakdown of both suspicion-led and suspicionless searches cross referenced with protected characteristics such as age, sex and ethnicity.
I hope that those clear commitments—made in this House and in the other place, and reiterated here today—will satisfy hon. Members. Making changes to PACE code A is the right way to address those issues. The amendments to PACE code A will ensure consistency across all stop-and-search powers and allow for a full and robust consultation with external stakeholders, providing the right balance between tackling disruptive protesters and protecting the rights of each citizen where the powers are used. For those reasons, I hope that the House will agree with the Home Secretary in respectfully disagreeing with their Lordships’ amendments 6H and 6J.
Sarah Jones (Croydon Central) (Lab)
I rise to speak against the Government’s motion to disagree with Lords amendments 6H and 6J, which we support.
The amendments seek to do two things: first, to instruct officers to give their name, badge number and reason for stopping anyone they search under the new suspicionless stop-and-search powers, and secondly, to compel all police forces to set up a charter—which they would have to consult on, publish and independently evaluate—on the use of their suspicionless stop-and-search powers. To be clear, the amendments have nothing to do with patients not getting to hospital; nothing to do with blocking roads; nothing to do with whether stop and search without suspicion actually takes place. They are to do with the manner in which suspicionless stop and search is conducted.
The amendments are direct recommendations from Louise Casey’s report—although she would go further and apply them to all stop and searches. Baroness Casey’s review of the standards of behaviour and internal culture of the Metropolitan Police Service is a 300-page tour de force. The Home secretary welcomed the review and said:
“Accepting Baroness Casey’s findings is not incompatible with supporting the institution of policing and the vast majority of brave men and women who uphold the highest professional standards.”—[Official Report, 21 March 2023; Vol. 730, c. 165.]
The Prime Minister said:
“There needs to be a change in culture and leadership, and I know that the new Metropolitan commissioner will no doubt reflect on the findings of Louise’s report, but is already making changes and that's right, because what was happening before is simply shocking and unacceptable.”
He is right. Officers right across the Met are desperate to see those improvements put in place and action taken to rebuild the confidence of Londoners.
Labour tabled Lords amendments 6H and 6J to clause 11 to help put into legislation some of the improvements recommended by Baroness Casey, and it is very disappointing and surprising that the Government have tabled a motion to disagree. Clause 11 brings wide-ranging powers for the police to stop and search anyone in the vicinity of a protest, including anyone who happens to be walking through the area. The Government’s proposals risk further damaging the delicate relationship between the police and the public by significantly expanding stop-and-search powers to a protest context.
We agree that stop and search is a really important tool. The Minister has said on many occasions that stop and search is important for looking for weapons, and of course, we absolutely support that. We support suspicionless stop and searches—or section 60s—when serious violence, or terrorism, has occurred. But it is important to reflect that we are talking about using the suspicionless stop-and-search power not for terrorism or serious violence, but for protests—it is about searching for glue, a padlock, a microphone or a speaker. That will not have been agreed by the chief superintendent but by an inspector, because the Government rejected our amendment to make that change. Really, clause 11 should have been removed from the Bill, but we are not here to debate whether we should have suspicionless stop and search because that debate has concluded. Today, we are debating sensible, important changes to the Government’s clause to insert some safeguards into a wide-ranging power and mitigate some of its potential adverse impacts.
Chris Philp
Why do the Opposition object to implementing some of the key elements of the Lords amendments in PACE code A, where most regulations relating to this issue already sit? They can be updated relatively easily if necessary, so is not PACE code A the right place to do this? In relation to Louise Casey’s recommendation, she did not specify that these changes should happen in primary legislation. We are doing these things, just in PACE code A.
Wendy Chamberlain (North East Fife) (LD)
I return to trust, which is the basis of policing by consent. We need trust in the police, not just so that when people pick up the phone they get assistance, but from an intelligence perspective as well. One concern that I have had consistently throughout the debate on the Bill is that, in eroding that trust, we will fail to get the intelligence that we need in order to prevent some of the offences that the Government are attempting to stop via the Bill.
The Minister has pointed out the additions to the PACE code, but I wonder whether, if those in the other place had not persisted in their course in relation to suspicionless stop and search, we would have got that climbdown from the Government. I agree with the right hon. Member for Haltemprice and Howden (Mr Davis) that we need this provision on the face of the Bill. The reality is that when we look separately at section 60 searches—again, this is from the Casey report—it does not appear that a sudden surge in use had any effect on the underlying trend.
I have deep concerns that if the Government are successful in disagreeing with the Lords amendments today, which I suspect they might be, we will miss the opportunity of the Casey report and, several years from now, we will be standing in this place debating the fact that—we told the House so—stop and search does not work.
Chris Philp
I do not want to rehearse at great length points I have made previously, but I reiterate in response to the shadow Minister, the hon. Member for Croydon Central (Sarah Jones), that the Government believe that these powers, which are to be used in limited circumstances, are necessary pre-emptively to prevent people who are going equipped to disrupt the day-to-day lives of fellow citizens, whether it is with equipment to allow them to lock on to pieces of critical national infrastructure, to glue themselves to roads or to climb up gantries and attach themselves to equipment over the M25. They go equipped—it is an intentional, planned activity—and there are occasions when it will be necessary for the police to conduct stop and searches where they reasonably believe that a crime may be committed, even when no suspicion attaches to a particular individual.
I reiterate my point that the substance or key points of the amendments either are covered or will be covered by PACE code A. In relation to Lords amendment 6H, as I said, the officer giving their name and their badge number, the details of the stop they consider relevant and the grounds for the search are already covered by paragraph 3.8 of PACE code A. It is in there already, and officers do it already. In relation to issuing a statement giving the reasons for these particular powers, we will make sure that PACE code A sets that out even more clearly. The amendments have either been implemented already, or we are committed to implementing their substance and spirit using PACE code A.
Why are we using PACE code A, rather than putting the amendments in the Bill? First, it is for consistency. These sorts of conditions are set already in PACE code A, and we want to be consistent with how things operate already. Furthermore, when setting out guidelines, it is generally better to use instruments such as PACE code A or regulations, because where changes or updates are needed, it is much easier to do that by amending secondary legislation, guidelines or codes of practice, rather than by going back and amending primary legislation, which can happen only infrequently.
Those are the reasons we have taken the approach we are taking. There is a good rationale for that, and I therefore urge the House to join the Home Secretary in respectfully disagreeing with their lordships on Lords amendments 6H and 6J.
Question put, That this House disagrees with Lords amendments 6H and 6J.
Wednesday 26th April 2023
(12 months ago)
Lords ChamberPublic Order Act 2023 Read Hansard Text Amendment Paper: HL Bill 131-I Marshalled list for Consideration of a Commons Reason - (25 Apr 2023)
This text is a record of ministerial contributions to a debate held as part of the Public Order Act 2023 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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Lord Sharpe of Epsom
That this House do not insist on its Amendments 6H and 6J to which the Commons have disagreed for their Reason 6K.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I thank all noble Lords for their engagement throughout the passage of this Bill. As I have already said, the Bill has undoubtedly received the scrutiny that the British people would want and expect, and it is only right to acknowledge that, through the scrutiny of this Chamber, important compromises have been made along the way.
I do not wish to detain noble Lords for longer than necessary. We have debated the contents of this Bill scrupulously and there remains just one disagreement. It is still the Government’s position that we do not support the changes proposed by your Lordships to Clause 11 on the power to stop and search without suspicion. This has been reiterated by the other place, which voted to disagree with your Lordships’ Motions 6H and 6J. Our position has been, and remains, that these changes are unnecessary.
As I mentioned in the previous debate, I remind noble Lords that a legal framework already exists for all stop and search powers. Section 3.8 of PACE Code A requires an officer conducting a search to give the following information to the person being searched: that they are being detained for the purposes of a search; the officer’s name and the name of the police station to which the officer is attached; the legal search power that is being exercised; the grounds for the search; and that they are entitled to a copy of the record of the search and can ask for this within three months from the date of the search. I have already committed, as has the Policing Minister in the other place, to amending PACE Code A to further improve transparency of the use of all stop and search powers. We will make it a requirement to communicate the extent of the area authorised for the suspicionless stop and search, the duration of an order and the reasons for the order where it is operationally practical to do so.
There is a good reason for these changes to be made to PACE Code A and not to the Public Order Bill, which is consistency. We want these changes to apply across the board to all stop and search powers, not just those being debated today. Placing them in the Bill would create one rule for stop and search for protests and another for stop and search for other purposes. This would inherently complicate officers’ training, increasing the chance that these powers are misused. I am sure that all noble Lords agree that this is something we must minimise.
I would also like to reassure all noble Lords that amending PACE Code A does not deny these changes to the principle of stop and search-appropriate scrutiny. Changes to the code require a full consultation with external stakeholders, such as the APCC, MOPAC, the NPCC, the Bar Council, the Law Society and others on the proposed changes and must be brought back to the House for us to consult upon before they are enacted into law.
Finally, on the requirement for a charter, it remains our view that this would be unnecessarily burdensome. The legislation already makes it clear when these powers can be used, and this is bolstered further by the additional requirements for the use of stop and search contained within PACE Code A. This will provide the right balance between tackling these disruptive protesters and protecting the rights of each citizen when these powers are used, so I call on all noble Lords not to insist on their amendments and to pass the Bill as presented. I beg to move.
Lord Paddick (LD)
My Lords, the Minister said that there is only one disagreement remaining. He was, of course, referring formally to what the House as a whole disagrees about; but we on these Benches have opposed police stop and search in relation to protest from day one, as any stop and search power will have a chilling effect on those wishing to exercise their rights to freedom of expression and freedom of assembly. These are fundamental human rights that are even more important to those who feel excluded from the parliamentary process, such as black and other minority-ethnic people. These groups are less likely to be registered to vote, less likely to have the correct form of voter ID even if they are registered to vote, and more likely to be stopped and searched by the police. Black people, for example, are between seven and 17 times more likely to be stopped and searched by the police than white people, depending on whether the power used is with or without suspicion. That is despite the legal safe- guards the Minister referred to.
The Commissioner of the Metropolitan Police, in response to the Baroness Casey Review, accepts the fundamental need to reset relationships between the police and the public, especially on the back of the findings of racism, misogyny and homophobia. Sir Mark Rowley acknowledges the past tendency of the police to impose tactics, rather than collaborate with, listen to and engage with communities. That is exactly what the noble Baroness, Lady Casey of Blackstock, said needed to happen, and the wording of the Lords amendment that we should insist on today is taken exactly from the Baroness Casey Review.
On the one hand, we have the Commissioner of Police for the Metropolis and the noble Baroness, Lady Casey of Blackstock, both pulling in one direction, wanting stop and search to be based on collaboration, listening and engaging. On the other hand, we have this Government pulling in the other direction, rejecting the Lords amendment that would require police forces to draw up a charter on the use of stop and search, in consultation with local communities. This House should insist on the implementation of the recommendations of the Baroness Casey Review and not reject them.
I understand that some noble Lords have been concerned about the precise wording of the amendment. But as the commissioner has found to his cost, not accepting the exact wording of the Baroness Casey Review can result in diverting attention away from actually getting on and doing things instead of debating the meaning of words. However, with other important votes to come this afternoon, and without the support of the Labour Opposition, we appear to have reached the end of the road.
Baroness Jones of Moulsecoomb (GP)
Just for the record, I am absolutely furious about the Bill. I think the Government have panicked. It is unworthy of any Government who think freedom of speech is important. Shame on you all.
Lord Sharpe of Epsom (Con)
My Lords, I thank almost all noble Lords for their contributions to another fruitful debate. As I have already said, there is no doubt that the Bill received the scrutiny it deserves. I will not go on at great length, but noble Lords have raised the subject of the Casey review. To remind the House I point out that the review said that, as a minimum, Met officers should be required to give their name, their shoulder number, the grounds for the stop and search and a receipt confirming the details of the stop. As I outlined in my opening remarks, it is fairly clear that our amendments to Section 3.8 of PACE Code A go beyond that. I accept the point the noble Lord made about the face of the Bill, but PACE codes are statutory.
The noble Lord, Lord Coaker, asked about the data that we will collect. I refer to a previous debate and reiterate what was said then:
“The Home Office already publishes an annual statistics bulletin which analyses the data from forces across England and Wales. We will also amend PACE Code A to place data collection within the legislative framework. This will include a breakdown of both suspicion-led and suspicionless searches, cross-referenced with protected characteristics such as age, sex and ethnicity”.—[Official Report, 28/3/23; col.131.]
The British public are rightly sick of the disruption that has been caused by a very selfish minority and expect the Government to act. That is what this Bill does, and it is time for it to become law.