Thursday 31st March 2022
(2 years ago)
Lords ChamberPolice, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 143-I Marshalled list for Consideration of Commons Amendments - (30 Mar 2022)
13:05 - Division on Motion C1 - Ayes: 177 / Noes: 138 - Motion C1 agreed.
13:18 - Division on Motion D1 - Ayes: 163 / Noes: 151 - Motion D1 agreed.
Baroness Williams of Trafford
That this House do not insist on its Amendment 58 and do agree with the Commons in their Amendments 58C, 58D and 58E in lieu.
“PACE etc powers for food crime officers
(1) In the Police and Criminal Evidence Act 1984, after section 114B insert—
“114C Power to apply Act to food crime officers
(1) The Secretary of State may by regulations apply any provision of this Act which relates to investigations of offences conducted by police officers to investigations of offences conducted by food crime officers.
(2) The regulations may apply provisions of this Act with any modifications specified in the regulations.
(3) In this section “food crime officer” means an officer of the Food Standards Agency who—
(a) is acting for the purposes of the performance by the Food Standards Agency of its functions under the Food Standards Act 1999 or any other enactment (including functions relating to the investigation of offences), and
(b) is authorised (whether generally or specifically) by the Secretary of State for the purposes of this section.
(4) The investigations for the purposes of which provisions of this Act may be applied by regulations under this section include investigations of offences committed, or suspected of having been committed, before the coming into force of the regulations or of this section.
(5) Regulations under this section are to be made by statutory instrument.
(6) Regulations under this section may make—
(a) different provision for different purposes;
(b) provision which applies generally or for particular purposes;
(c) incidental, supplementary, consequential, transitional or transitory provision or savings.
(7) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(8) In this section “enactment” includes—
(a) an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978, and
(b) an enactment comprised in, or in an instrument made under, a Measure or Act of Senedd Cymru.”
(2) In the Criminal Justice and Public Order Act 1994, after section 39 insert—
“39A Power to apply sections 36 and 37 in relation to food crime officers
(1) The Secretary of State may by regulations provide for any provision of section 36 or 37 that applies in relation to a constable to apply in relation to a food crime officer.
(2) Regulations under subsection (1) may apply any provision of section 36 or 37 with any modifications specified in the regulations.
(3) Regulations under subsection (1) may not apply a provision of section 36 or 37 in relation to a failure or refusal which occurred before the regulations come into force.
(4) Regulations under subsection (1) are to be made by statutory instrument.
(5) Regulations under subsection (1) may make—
(a) different provision for different purposes;
(b) provision which applies generally or for particular purposes;
(c) incidental, supplementary, consequential, transitional or transitory provision or savings.
(6) A statutory instrument containing regulations under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) In this section “food crime officer” has the meaning given by section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers).”
(3) In the Food Standards Act 1999, after section 25 insert—
“25A Obstruction of food crime officers
(1) A person commits an offence if the person—
(a) intentionally obstructs a food crime officer who is acting in the exercise of functions conferred on the officer by virtue of section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers),
(b) fails without reasonable excuse to comply with any requirement made of the person by such a food crime officer who is so acting, or
(c) in purported compliance with such a requirement provides information which the person knows to be false or misleading in any material particular or recklessly provides information which is false or misleading in any material particular.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine, or to both.
(3) In this section “food crime officer” has the meaning given by section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers).”
(4) In the Police Reform Act 2002—
(a) in section 10 (general functions of the Director General)—
(i) in subsection (1), at the end of paragraph (ga) insert “; and (gb) to carry out such corresponding functions in relation to officers of the Food Standards Agency acting in the exercise of functions conferred on them by virtue of—
(i) section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers), or
(ii) section 39A of the Criminal Justice and Public Order Act 1994 (powers for food crime officers: inferences from silence).”, and
(ii) in subsection (3), after paragraph (bd) insert—
“(be) any regulations under section 26E of this Act (food crime officers);”, and
(b) after section 26D insert—
“26E Food crime officers
(1) The Secretary of State may make regulations conferring functions on the Director General in relation to officers of the Food Standards Agency (the “Agency”) acting in the exercise of functions conferred on them by virtue of—
(a) section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers), or
(b) section 39A of the Criminal Justice and Public Order Act 1994 (powers for food crime officers: inferences from silence).
(2) Regulations under this section may, in particular—
(a) apply (with or without modifications), or make provision similar to, any provision of or made under this Part;
(b) make provision for payment by the Agency to, or in respect of, the Office or in respect of the Director General.
(3) The Director General and the Parliamentary Commissioner for Administration may jointly investigate a matter in relation to which—
(a) the Director General has functions by virtue of this section, and
(b) the Parliamentary Commissioner for Administration has functions by virtue of the Parliamentary Commissioner Act 1967.
(4) An officer of the Agency may disclose information to the Director General or to a person acting on the Director General’s behalf, for the purposes of the exercise by the Director General or by any person acting on the Director General’s behalf, of an Agency complaints function.
(5) The Director General and the Parliamentary Commissioner for Administration may disclose information to each other for the purposes of the exercise of a function—
(a) by virtue of this section, or
(b) under the Parliamentary Commissioner Act 1967.
(6) Regulations under this section may, in particular, make—
(a) further provision about the disclosure of information under subsection (4) or (5);
(b) provision about the further disclosure of information that has been so disclosed.
(7) A disclosure of information authorised by this section does not breach—
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
(8) But this section does not authorise a disclosure of information that—
(a) would contravene the data protection legislation (but in determining whether a disclosure would do so, the power conferred by this section is to be taken into account), or
(b) is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.
(9) In this section—
“Agency complaints function” means a function in relation to the exercise of functions by officers of the Agency;
“data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).”
(5) The amendments made by subsections (1) to (3) and any regulations made under provision inserted by subsections (1) and (2) bind the Crown.
(6) No contravention by the Crown of section 25A of the Food Standards Act 1999 (as inserted by subsection (3)) makes the Crown criminally liable; but the High Court may declare unlawful any act or omission of the Crown which constitutes such a contravention.
(7) That section applies to persons in the public service of the Crown as it applies to other persons.
(8) If the Secretary of State certifies that it appears requisite or expedient in the interests of national security that any powers of entry conferred by regulations made under provision inserted by subsection (1) should not be exercisable in relation to any Crown premises specified in the certificate, those powers shall not be exercisable in relation to those premises.
(9) In this section “Crown premises” means premises held or used by or on behalf of the Crown.
(10) Nothing in this section affects Her Majesty in her private capacity; and this subsection is to be interpreted as if section 38(3) of the Crown Proceedings Act 1947 (references to Her Majesty in her private capacity) were contained in this Act.”
“(za) section (PACE etc powers for food crime officers);”
“(da) section (PACE etc powers for food crime officers);”
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, with the leave of the House, I will also speak to Motions B and D.
Amendments 58C to 58E respond to the tenacious and clever campaign by the noble Lord, Lord Rooker, to confer appropriate police powers on the Food Standards Agency to enable it more effectively to tackle food crime. We have always been clear that we support the case, in principle, for conferring additional powers on the FSA, but we need to do this in a holistic way. The original Lords Amendment 58 did not deliver all the powers the FSA was seeking, nor did it provide for independent oversight of what are intrusive and coercive powers of the state. Amendments 58C to 58E remedy these omissions.
The amendments do four things. First, they will enable regulations to be made conferring relevant PACE powers on the FSA. Secondly, they will enable regulations to apply provisions in Sections 36 and 37 of the Criminal Justice and Public Order Act 1994 which relate to drawing inferences from a suspect’s failure to account for certain matters, such as their presence at a particular place. Thirdly, they create an offence of obstructing a food crime officer in the execution of functions conferred on them by regulations made under new Section 114C of PACE. Finally, they amend the Police Reform Act 2002 to bring food crime officers within the remit of the Independent Office for Police Conduct. Before exercising the various regulation-making powers provided for in these amendments, the Food Standards Agency will consult interested parties to ensure that we get the detail right and confer on food crime officers only those powers which are necessary and appropriate to their role. I trust these amendments will be welcomed by the noble Lord, Lord Rooker, and indeed the whole House.
I turn now to Amendment 72C, on which I will be as brief as possible because we have rightly dedicated much discussion to this topic and, as I have said before, the Government are pursuing a very broad programme dedicated to tackling violence against women and girls. Your Lordships will have seen that the Commons has spoken and, in doing so, has rejected the Lords amendment by a substantial margin and endorsed an amendment in lieu which firmly commits the Government to responding to the Law Commission’s recommendations related to adding sex or gender to hate crime laws. As I said in our last debate, the Government will also consult on whether to pursue a new public sexual harassment offence before the Summer Recess. Notwithstanding that, this House has signalled that it would like to see quicker progress, particularly on the matter of police recording. If noble Lords permit me, I will address this issue in further debates and in doing so, I hope I can provide reassurance that the Government are listening.
I want to reaffirm that the Government are pursuing the recording of hostility to sex, and that we take the commitment I made to do so during the debates on the Domestic Abuse Bill very seriously. I do intend to see that this work is accelerated, and that remains the case. I also expressed my regret in the last debate that we have not secured the pace of change that was rightly expected on this issue. The recording of sex hostility has proven—with the benefit of hindsight—more complex than parallel experiences we have undertaken with the recording of statutory hate crimes. For the sake of transparency, it is important that the Government are honest when things have taken longer than we might have expected or hoped, even if, as in this case, they are still moving in the right direction.
It would also be beneficial for the House if I outlined some of the challenges we have encountered, so as to assure noble Lords that the issues we are experiencing are technical but perfectly capable of resolution. The Government’s starting point is that we want to get the recording processes right and to do so in a way that delivers useful data. One of the principal quandaries we have been working through to this end is the blurred boundaries between this new recording category and other categories of hate crime. This manifests in contested—or, at the very least, widely confused—interpretations of sex and gender. I am sure that all noble Lords will be mindful of that. As such, this is an issue that crops up frequently in the very debates we have been having in this place. I hope that noble Lords can understand the importance attached to precision and clarity here. We do benefit from a statutory definition of sex, but, given the unique complexities, there is a risk that forces will have their own individual sense of what these terms mean. Therefore, we need to ensure consistency across the board.
We also need to acknowledge that the police already record hostility on the grounds of transgender identity, which means that there are issues to resolve as to the boundaries between different recording categories that do not apply to quite the same degree when recording most hate crimes. In many cases, the difference will be clear, but not always. The closest equivalent puzzle is regarding race and religion, where recording the actual characteristics of the victim—or, indeed, an interpretation of the often confused utterances of the offender—will produce very different answers as to the prevalence of certain hostility in society.
The matters are, of course, not insurmountable. We have resolved them in the past: where there is a conflict between two principles, such as whether a victim’s race or religion was targeted, we have successfully developed a working rule. In the case of race and religion, we tend to stress not what the actual characteristic of the victim is, but what the best available judgment suggests regarding the intent behind what the offender said or did. This will not always prove satisfactory to the victim, but it aims to paint a clearer, if imperfect, picture of the true levels of hostility that might exist in communities. When embarking on these new exercises, there is always a danger that we become bound up in striving for a degree of spurious rigour on data, whereas a common-sense judgment might point to the likely animus at the heart of the offender’s own, often muddled, beliefs. None the less, in this case we did wish briefly to pause and resolve these questions before embarking on a process which might result in less useful insights.
I hope that this provides a broad illustration of some of the difficulties we have encountered, and that it helps to illustrate the Government’s position on why legislation is immaterial to fixing them, particularly as we already have the legal powers we need. Whatever remaining questions we need to answer, I am confident that we will have resolved them in the next few months or, hopefully, sooner. I will certainly ensure that there is a renewed impetus in doing so.
Lord Rooker (Lab)
My Lords, I will be very brief. I say thank you, first, to the House for agreeing the amendment last Tuesday in such substantial numbers, because it sent a better message to the other place than the original vote, which was at 10 pm, and, secondly, to the Government.
The leaders of the FSA will say that these amendments are vital to its core mission and will make tangible benefits to the way that it can deal with food crime. I do not think that I ever claimed that my little amendment of 30 words would solve the problem; the proof of the pudding, of course, is that 1,300 words have come back from the Commons. I know the parliamentary draftsmen are good, but they did not do that last Wednesday. This shows the point: the Minister in the other place said, as the Minister has just said here, that there was no issue of principle between us. I notice, however, that Mr Malthouse spoke about the “unfortunate way” that we dealt with the matter in this place—well, I only know one way to deal with it, and that is within the rules, which is what we did.
It is worth saying that Alistair Carmichael, the Lib Dem—who represents the second-best constituency in the UK, I might add—said
“It tells something about the attitude of the Home Office and this Government in general to Parliament and the other place that for something as prosaic as this it has taken two rounds of ping-pong before the Government have been prepared to accept what was surely to the rest of the world blindingly obvious.”—[Official Report, Commons, 28/3/22; col. 637.]
And it was something on which the Government agreed in principle anyway. The issue was parliamentary time. I know that there will be a consultation and that it will be several months, maybe even a year, before any of this comes into operation, but the fact is that parliamentary time is incredibly valuable. I know that, both as a troublesome Back-Bencher in opposition and as a Minister for 12 years: if you can get it, use it.
The Food Standards Agency issue in this Bill did not fit, but it fitted the Long Title. This is a classic example of where the use of that will save us enormous parliamentary time later on. It also makes the consultation that the FSA will do much more meaningful to the people who will be consulted, because Parliament has already done the primary legislation for it all. So I say thank you very much and I am very pleased with the outcome.
Lord Russell of Liverpool (CB)
My Lords, I speak to Motion B1. I thank the Minister for the way that she explained the Government’s view on this. Interestingly, we had a discussion in yesterday’s Cross-Bench weekly meeting about the diplomacy and constitutional sensitivity involved in ping-pong. There was a range of views; I will not say what they were but they were in fact quite moderate and very balanced, so we are conscious of the delicacy of pushing ping-pong too far. However, I think—I hope—that the Minister would accept that pushing this particular subject to the extent that we have has helped and provided some clarity, not only to those of us who have been pushing for it but to both Houses and, frankly, to the Minister and the ministerial team themselves, who I think were perhaps not fully aware of exactly what they had embarked upon when the commitment was made just over a year ago to make the police record this sort of data.
There were two objectives in going for yet another round of ping-pong. The first was to get reassurance that that commitment really was being followed through with vigour and a sense of direction and purpose. The second objective, which the Minister has just demonstrated, is for the Government to adopt a more open and frankly more honest explanation when they come across difficulties. We often promise to do things and then realise that they are slightly more complicated to carry out than we had imagined or realised at the beginning. But the best thing to do is to say so, because that builds trust, and one of the most important things in the dialogue about this is to do everything that we can to reinforce that trust and good will, particularly for women and girls at the moment who, all the evidence suggests, are not finding it easy to report crimes to anybody, let alone the police. It is incredibly important that we do everything possible to reinforce that trust and make them more willing to do so.
My contention is that the best way to do that is to be honest about what is going well and what is going less well, and what is working and what is not, rather than to pretend that this is all terribly important and one of our major priorities, while newspaper story after newspaper story and television documentary after television documentary tell us that it ain’t working in the way that the Government try to make us believe that it is.
So I welcome this new spirit of openness. I also welcome the fact that I landed the Minister and her Bill team with no fewer than 14 extremely detailed questions yesterday afternoon to consider. They come directly from the police forces that were earliest in starting to record this data, so they are informed by their experiences, good and bad, and their knowledge of some of the complications. I hope that she found those questions helpful because they get to the heart of some of the complexities that we are trying to deal with. The most important thing is that, when we get to the end of rolling this out, the data produced is reliable, accurate, and helpful to the police and to the Crown Prosecution Service, which is somewhat lagging behind in understanding how to use some of this data in informing prosecutions.
So I am grateful to the Minister and her team for responding positively. When the time comes, I will not test the opinion of the House, as I think we have achieved what we set out to do.
Lord Coaker (Lab)
My Lords, I will speak to a couple of the other Motions before I speak to Motion C1 in my name. I congratulate my noble friend Lord Rooker on securing the government amendment and moving the Government away from their position and coming forward with an amendment. I pay tribute to my noble friend Lord Rooker’s work: he has been an example to us all about how to change legislation. But, to be fair to the Government as well, it was good to see them responding sensibly to the points that my noble friend made; they deserve some credit for seeing sense.
On the important work that the noble Lord, Lord Russell, has done with the noble Baroness, Lady Newlove, and many others on misogyny and other associated issues, I say that he is another example to us all of how to give bring about change. The Minister’s comments at the Dispatch Box today show real progress with respect to that. All of us will want to see the progress that is made, and I was particularly struck by the way that the Minister said that she would keep the House updated. That is particularly important, and I thank her for that.
This is a hugely important issue. Many promises have been made over a number of years and perhaps now, given the horror of some of the things that have happened over recent times, maybe this is a sea-change moment when we will see real progress made—so I again pay tribute to the noble Lord, Lord Russell, and many others.
We support Motion D1, in the name of the noble Lord, Lord Paddick. It is crucial in opposing the Government’s noise provisions as it removes the proposed noise trigger for public assemblies. On the wider question of police powers to put conditions on static protests, this new version of the clause proposed by the noble Lord responds to the concerns raised by Ministers and proposes a compromise in line with the JCHR—but I will leave the noble Lord to say more about his own Motion D1 and I look forward to hearing it.
My Motion C1 maintains our previous position that the noise trigger should be removed in full. Our Amendments 73 and 87 remove the Government’s proposed noise trigger, which would allow the police to put conditions on marches or one-person protests which get not “noisy” but “too noisy”. The Government have still not made the case that the power is proportionate, and the more we ask, the less they seem to know about how it could possibly work in practice. For example, the government Amendments 73C and 87H on “serious unease” show that the Government are still in a hole and still digging in recognising that there are problems with the definition of what “too noisy” means.
To indulge noble Lords for just a few minutes, the new subsection inserted by Clause 56(5) has the wording that
“it may cause such persons to suffer serious unease, alarm or distress.”
The Government propose to take out “serious unease”: that is the compromise. We welcome the word “unease” going, but, of course the Government have also taken out “serious”, so we now have a situation where they have lowered the threshold as a compromise—which is a ridiculous point to arrive at and just the shows the confusion.
As noble Lords know, it is really important to read the background notes to all of this. I thought that I must be reading an old version, but it is dated 28 February 2022, so it is updated. The policy paper is entitled Police, Crime, Sentencing and Courts Bill 2021: Protest Powers Factsheet. The Minister in the other place said that it did not matter that “serious” was missed out, because actually everyone knows that it still means serious, even though it has been taken out of the Bill. So I refer to the background. The policy paper was published by the Government on 28 February. I will use it as an example of the hole that the Government are in in trying to define “too noisy”. They cannot do it. There are breaches of the peace as it stands already—but anyway, let me read this:
“This power can only be used when the police reasonably believe that the noise from the protest may cause serious disruption to the activities of an organisation or cause a significant impact on people in the vicinity of the protest. ‘Impact’ is defined as intimidation, harassment, serious unease”—
which will be taken out, which is fine, but the Government’s own background paper says
“serious alarm, or serious distress with the police then having to consider whether the impact is significant.”
So the background policy paper published by the Home Office is now out of step with the amendment that the Government propose to the Bill. “Serious” is no longer there, so, instead of having “serious unease” and in the same sentence “alarm or distress”—in other words, “serious unease, serious alarm or serious distress”—that has been taken out.
Now I am not an expert on these things, but I would say to noble Lords that I would expect in court that serious distress would be more serious than just distress. Now I am not a genius, but I am also sure that if I were in a court and said that it is serious alarm, that would be a higher threshold than alarm. I may be wrong: I leave that to others to judge. But that is the compromise that the Government have come forward with.
In other words, to come forward with me saying all the things that I will come on to in a minute about other things, they are saying, “We’ve got to say something else, Coaker will be off again”. Well, I am, because it does not make sense. I am using humour to demonstrate a really serious point. By legislating in this way the Government show that they do not know what they are doing on “too noisy”. Instead of retreating in a managed, orderly way, they are panicking—“What do we do? How do we do something? We’ve got to say something”—and they come up with this in such haste that they do not think it through properly and they take the word “serious” out, as well as “unease”. I just say to noble Lords, “It just goes on”.
Of course, we then had the famous double-glazing incident, which many noble Lords said to me afterwards could not be true. I just referred them to the guidance. They went away and read it and said, “Goodness me, it does say double-glazing.” I thought the Government might retreat on double-glazing. For those noble Lords who were not here, for it to be too noisy, there are certain thresholds the Government have laid out, so we can understand what “too noisy” may be. So, for example, it says
“A noisy protest outside an office with double glazing may not meet the threshold”.
So, I posed the question that, therefore, what you would need to do if you were having a demonstration and were going to make a lot of noise would be to look at the street, or the area you were going to be in, and look for double-glazing. You could make sure, because if you were demonstrating in a street with double-glazing, you would be fine, even if you made too much noise. However, if you went down an older street that did not have double-glazing, then you would be in trouble.
I had to read it a few times. I actually read it to my wife and said, “Have I misread this?” She said no. But it is such a serious point: this is what we are asking the police to use. In demonstrations in future, the police will be asked to consider whether a demonstration is too noisy on the basis of the number of houses that have double-glazing. Unbelievable.
I thought the Government would retreat, and then it somehow got into the Times, and it must have been a great headline for the Government—they must have been really pleased—
“Police and crime bill: Noisy protests to be silenced by double glazing inspections.”
That was the headline in the Times of 25 March, if noble Lords missed it. That must have made interesting reading in the Home Office. I would have liked to have been the Minister going to report to the Home Secretary on that. “Who signed it off?” was the question I always asked. I thought the Home Office would retreat, but no. So that is the headline for the article: the double- glazing.
I stress again that I am trying, through humour, to make a really serious point about how noisy is too noisy. So, here we go again. I do not know about noble Lords, but I would have retreated. I am sure the Minister would have retreated as well, had it been up to her—I will leave her to answer that—but instead, listen to this, from the Times.
“The Home Office defended the guidance, insisting that it was one of many considerations that the police may have to take into account … ‘It is perfectly reasonable to suggest the type and construction of a building targeted would impact on the level of outside noise that penetrates through’.”
So we are now getting into the thickness of walls—old buildings, sound-proofed or not—and so it goes on. We have gone from double-glazing to the thickness of walls as to where we can demonstrate.
I highlight again that definition bedevils legislation—I accept that—but we have to be really careful with “too noisy”. Where will it apply? This is something that needs proper investigation. Other hypothetical situations where the “too noisy” provisions would not apply, as well as where there is a lot of double-glazing, would be where a protest
“only lasts a short amount of time”.
You can make as much noise as you want as long as it only lasts a short amount of time. The guidance says that
“the same amount of noise over several days”
might be an issue. So, if you do it for six days, you are all right, but if you do it for several days, you have a problem.
Then listen to this:
“A noisy protest in a town centre may not meet the threshold”.
So the towns are going to be excluded from the “too noisy” provisions. Again, how are the police going to decide what a town centre is? It does not include London, presumably, because that is a city, but does it include a suburb of a city? If it goes into the suburbs of London, is that a town centre? In Nottingham, we call lots of the suburbs “towns”. What is a town centre? It does not apply there. Somebody said to me, “I thought the Government’s levelling-up agenda was about including towns”, but a noisy protest in a town centre may not meet the threshold.
I have given those examples of the guidance the Minister has had to show that the Government are in real trouble on “too noisy”. What the Government are asking us to do is to pass a piece of legislation that has a provision in it that is unworkable, ill-defined, illogical and will not work. That is not the job of legislators. There is controversy, there is difficulty, there is difference of opinion, but silliness and ridiculous legislation is not acceptable.
I just say to finish, before I move to Motion C1, that I know and accept that the Government do not want to ban protest—it is ridiculous to suggest that the Government are against any protest; I do not believe that. Nor do I believe that the Government really want to undermine the ability of people to protest, but I do say this: we should erode that right, even with the application of certain conditions, only with very serious care.
Many people, including me, have protested time and time again, and conditions have been put on those marches. A number of noble Lords have been in Governments that have been the victims of massive demonstrations—I am talking about legal ones. No Government in the past have ever sought to restrict demonstrations on the basis that they make too much noise. Margaret Thatcher did not do it; John Major did not do it; David Cameron did not do it; Theresa May did not do it; why on earth are we doing it now? It will not work; this condition is anti-democratic and it sends a signal to people that is unacceptable. It is an infringement of people’s democratic right to protest and we should reject it again.
Lord Paddick (LD)
My Lords, Motion D1 is in my name, but I shall take the Motions in order. On Motion A, we are pleased the Government have decided to give the Food Standards Agency the Police and Criminal Evidence Act powers that it is seeking.
On Motion B, we do not see the Government’s amendments in lieu, Amendments 72C and 72D, to be any kind of concession, in that the Government are duty-bound to respond to the Law Commission report on hate crimes in any event. We support the noble Lord, Lord Russell of Liverpool, in his Motion B1, Amendments 72E and 72F, that police forces should be forced to record or flag offences aggravated by sex or gender by means of primary legislation set out in the Bill as this is the only practical way to ensure 43 autonomous chief constables comply.
I am not quite sure about the Minister’s arguments about the complexity around sex and gender: in relation to hate crime, it matters not whether the victim is somebody born a woman or is a trans woman, only whether the assailant believed that the victim was a woman and was motivated by hatred of women. I fear the Government are just looking for excuses. Having said that, misogyny is a problem in the police and in society as a whole, and we do need urgent action. With the noble Lord, Lord Russell of Liverpool, the noble Baroness, Lady Newlove, and Stella Creasy MP on the case, progress may be slow, but it is inevitable.
On Motion C, the so-called noise trigger in relation to processions, it is very difficult to follow the noble Lord, Lord Coaker, on that issue, but we agree with his Motion C1 that the noise trigger should not be part of the Bill in relation to processions or static protests, as I will come to in a moment in relation to Motion D. As the noble Lord, Lord Cormack, said when we last considered it, these measures are not sensible or practical. I may be incorrect, but it seems to me that the larger the protest, the more popular the cause, the more likely the protest is to be noisy and therefore the more likely it is to be banned. Only a very unpopular cause, which is not going to be as noisy, will go ahead, if we are not careful.
As Liberty has pointed out in its useful briefing, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, the body whose report is relied on by the Government to justify the measures in Part 3, did not examine or support the establishment of a noise trigger. In evidence to the Joint Committee on Human Rights, the National Police Chiefs’ Council lead for public order did not reference or advocate for a new power based on the noise that protests generate. I repeat, outside London—where the chief police officer and her deputy are appointed by the Home Secretary—the majority of police forces said police officer numbers were the limiting factor in effectively policing protests, not a lack of legislation.
On my Motion D1, Amendments 80J and 80G, we continue to be concerned about what the then Conservative Home Secretary said about the difference between processions and assemblies when the original public order legislation was debated in the other place. He believed that giving the police the power to ban an assembly would be an excessive limit on the human rights of assembly and freedom of speech.
Lord Cormack (Con)
My Lords, I intervene briefly, partly because the noble Lord, Lord Paddick, was kind enough to refer to an earlier speech that I had made. I congratulate the noble Lords, Lord Coaker and Lord Russell, who have been able to move things forward in an acceptable way, but I think there comes a point where this House has to have very real regard for its constitutional position vis-à-vis the other place. We were justified in asking the other place to think again and, I believe, justified in asking it to think yet again.
I was approached last week by two Conservative Back-Benchers—I will not name them—and they were keen that we should give them another opportunity to think again, which we did. But the fact is that they have not thought again, not by a majority. Some may have changed their votes, but they did not change the position of the other place. It is my reluctant view, particularly on the noise issue, which I think is rather preposterous, that we should now yield to the other place, but if ever a Bill called for post-legislative scrutiny to examine closely how it plays out on the streets and in the public squares, this is it. I hope there will be a proper opportunity to keep these matters under review, but we should have a mind for our constitutional position, and have regard for the fact that we are not the elected House and there is a point beyond which we should not go.
Baroness Fox of Buckley (Non-Afl)
My Lords, I think the noble Lord, Lord Cormack, is right to raise the important point about our constitutional obligations. I am tentative about what I am going to say because I am anxious not to act in defiance of an elected Chamber, not just for constitutional reasons but because democracy is very valuable, and we should have modesty in relation to our role in this place. However, I do feel that, at the very least, the Government are obliged to untangle some serious confusion about why the legislation in relation to protest is even necessary.
When it was originally introduced, there were grandiose claims that this was the Government responding to public concerns—a real clamour from the public—about dealing with new forms of protest. It is true that there has been a lot of anger in the public realm about new forms of protest. Anybody who objected to the amendments tabled by the Government was dismissed as “ignoring voters’ concerns”—just by objecting, in effect, they were being anti-democratic. Yet now the Minister comes back here and suggests that, in relation to the noise trigger, for example, it is a just a modest update of the law and it will not be used very often. It seems to me that the original motivation for these clauses has been lost, and we have ended up with a disproportionate and unnecessary commitment by the Government to deal with a non-problem.
There is perhaps some confusion because earlier this week, as people will have read in the newspaper, a mum was banned from driving for what was described as “nudging” some Insulate Britain protesters. She was trying to get her 11 year-old to school and was exasperated that the protesters would not move, and that the police were not acting to remove them. There was some popular backlash to the fact that this driver was the person who was prosecuted, and at a meeting I talked to people who said, “Well, the mum is not guilty of dangerous driving. The problem here was the failure of the police to police the protest.” They went on to say, “At least the Government are acting and bringing in a new law that will deal with this sort of thing.” When I explained the nature of the new laws that were being brought in, in relation to noise and static assemblies, they said, “What’s the good of that? That won’t deal with the problem of the mum and the motorway and the protester”, and they are right.
Despite reservations, I support the noble Lords, Lord Coaker and Lord Paddick, in the amended amendments that they have brought back, taking on board the modest comments that have been made. I think that these anti-protest clauses are being mis-sold to the public, who, when it is explained to them, do not see any connection between their clamour and these clauses being brought in by the Government.
If there is an issue with protest, it is possibly that the police have not consistently policed protests that have happened over the last few years with the powers that they have, and there is public concern about that. It seems to me that both these clauses, as illustrated by the points made from the Front Bench, will make the police’s job even more complicated and will compromise them politically because they will be accused of subjective interpretations of what is “too noisy” and what is the threat of a static demonstration. I think the Government will inadvertently help to politicise the police, and make the situation of protests more confusing, and they are not doing what I think they originally wanted to do, which was to assure the public that their concerns about new forms of protest would be honoured in legislation. These parts of the Bill do nothing useful for anyone.
Lord Deben (Con)
My Lords, I do think that we ought to consider carefully what my noble friend Lord Cormack said, but it might lead one to a different conclusion. This House is increasingly treated as if it does not really matter at all. The Government are not taking seriously very simple suggestions, when making them is our job—suggestions to make Acts work properly. Today we have had an example of what the Government can do. I thought the noble Lord, Lord Russell, put that extremely well. The Government have recognised that the sensible, continuous pressure of the House of Lords has brought them to make alterations—not exactly as the noble Lord would like, but a good way in that direction. It is notable that it has taken us all this time to do it.
What worries me—I say to my noble friend Lord Cormack that this is a serious constitutional matter—is that the deal works only if the House of Lords believes that its debates and discussions are useful and taken into account by government. What I have seen here is wholly different. This is nothing to do with my noble friend Lady Williams; it is to do with the Government as a whole. When I was Secretary of State, I would say to my Lords Minister, “These are the five things I need. Those are the 10 things I’d like to have, but if their Lordships produce good arguments for other things, then you must give way to them, because that is the purpose”. What Lords Minister today is able to do that? Yet that was the deal; that was why we were here. This is a really serious issue. It is no good the Government saying in the end, “Well, we’ll just use the majority in the House of Commons to shut you up”, when the arguments we have been bringing forward are not great arguments of state or great arguments which clash; they are about making the law work.
The other change that has taken place in the House of Commons is that Members there do not debate these Bills any longer. They do not have the hours that we used to have. When I was a Member of that House, we used to have to have 100 hours of debate before you could get a guillotine. Now we do not have to have anything like that; guillotines are automatic. So if this House does not do its job and discuss these things in detail, they will not be discussed at all. That is the constitutional issue we face today.
I will address only the one thing which I think is very clear. It is incomprehensible to have a law which gives the police the right to stop a protest because it might be too noisy. The Notes of course make it ludicrous. I am very worried about the domestic arrangements of the noble Lord, Lord Coaker, if the only thing he can discuss with his wife is the laws as presented by this Government. If I started to discuss those with my wife, I think my domestic arrangements would be very unsuitable. I merely say that the reason you go on a protest is to draw attention to something. The noble Lord rightly said, and I think I said it myself when I intervened previously, that the more popular the cause, the more likely it is that there will be noise. If I had a protest about the unfair treatment of chihuahuas, I might not get many people with me and I probably would not be stopped—but a protest on, for example, the unsatisfactory dealings with Ukrainians coming to this country might raise huge numbers. Do the chihuahuas get a campaign but the Ukrainians do not—and who makes that decision?
Lord Cormack (Con)
I am most grateful. My noble friend makes a very powerful speech and makes it very sensibly. However, I would just point out that, at the time he was giving instructions and saying, “There are five things I want, but others I’ll give way on”, the House of Lords was a very different place. It had a massive, built-in hereditary Tory majority.
Lord Deben (Con)
I do not think that helps the issue. All that says is that we are a different place because Parliament has decided that we should be. I am not sure that we are necessarily a better place; I would not like to draw attention to that. I am merely saying that we are a place and that we are here to make certain kinds of decisions. I have more sympathy for my noble friend the Minister than I do for almost any other Minister and I admire her enormously—which is why I really find this difficult. I really wanted to be able to say today that I support the Government, but I cannot, as somebody who came into this House saying that I would concentrate on Europe—that has been difficult—the environment and human rights. One of the first human rights is that I can walk with lots of other people to say that something is wrong. For the police to have the powers to say that we cannot, because it might be too noisy, is wrong.
Baroness Wheatcroft (CB)
My Lords, I am very grateful to the noble Lord, Lord Deben, for voicing the fears which I suspect many in this House share. The Government’s majority at the other end, coupled with the attitude of the Executive, would render this House redundant if it could. Today we have seen the possibility of negotiation on a couple of amendments. However, as the noble Lord, Lord Deben, and the noble Baroness, Lady Fox, have said, the right to protest is absolutely crucial to human rights. That the Government should be taking the power, even only possibly, to curtail that right is surely something that this House should fight against.
I completely agree with the noble Lord, Lord Cormack, that there are conventions—there are—and, when dealing with conventional legislation, I have no doubt that we should abide by those conventions. But, as far as I can see, this Government are determined to take powers that are, in our democracy, unconventional. I therefore believe that it is not just our right but our duty to keep trying to tell them that up with this we will not put. They may not intend to use these powers—although quite what the Home Secretary intends is anybody’s guess; certainly not to let in Ukrainian refugees, as far as I can see—but, once they are on the statute book, another Government could. It therefore seems to me that there is no doubt about it: we should hold our ground, not on every amendment that this House passes but on those where we believe we have a real duty to stand up for the democratic rights of the country.
Baroness Jones of Moulsecoomb (GP)
My Lords, I shall speak to Amendments C1 and D1. As usual, I really enjoyed the contribution from the noble Lord, Lord Coaker, because he drew attention to the fact that the Bill is badly written. We knew that when it arrived, which is why it has had so many amendments here in your Lordships’ House. It is still badly written, and it is our duty not to let badly written Bills through. They lay themselves open to court cases and all sorts of potential miscarriages of justice. I personally think that the Government are holding this House in contempt, and that is why they produce so many badly written Bills. Because they have a huge majority in the other place, they can afford not to care about how the Bills are written or about their content.
The noble Lord, Lord Coaker, also said that he did not think the Government were trying to suppress protest. I do not agree with him there, because I think they are. Protests are expensive in terms of police time and clearing up afterwards. They are very disruptive and are almost always anti-Government, so why would the Government not try to suppress them? But they are necessary for free speech and a necessary part of our democratic process. I love demonstrations because they are a chance to meet people who agree with me, which is sometimes a rarity.
Not only is this Bill an assault on freedom of speech and democracy, it clearly should not be passed. It is badly written, and it has bad content. You cannot have a vague and wide-ranging definition of which protests are likely to be too noisy or disruptive. It will be a subjective judgment made by police officers with their own biases. Do not forget that: police officers are human beings as well, and they will have innate biases. As we have heard from the noble Lord, Lord Paddick, the police do not even want these powers anyway. Those of us who believe in clear laws that can be challenged in court do not want them either.
I have been elected five times—once to Southwark Council under first past the post and four times to the London Assembly under proportional representation—so I understand what it is to have a democratic mandate. I understand to some extent the Government’s point of view, who feel they have a big mandate and the right to push things through, but I also understand that this unelected Chamber has a mandate of another kind. Although I love being here, I am not happy about being part of an unelected Chamber; it offends me deeply and I would like it to be abolished so we have an elected Chamber. However, we have a mandate to look at legislation and improve it where we can. As other noble Lords have said, the Government are not listening to us; they do not take into account the expertise—I do not count myself among the experts—that we have here. They do not listen to us.
To protect civil liberties, we have to send this Bill back. I have been assured by a few who have been in this House for decades that ping-pong used to last much longer and that Bills got sent back again and again until this House was happy that legislation was expressed properly and clearly. We really should ask MPs to look at this again and think about whether this is good for democracy in this country. The noble Lord, Lord Cormack, said we should stop and look at it later. No: let us get it right now.
Viscount Stansgate (Lab)
My Lords, I know the House is anxious to move to a vote, although I am here to support my noble friend’s Amendment C1. He used great humour to serious effect, but when I think of how this debate will be viewed when we look back on it, I think the point raised by the noble Lord, Lord Cormack, will be at the very heart of what we are discussing. Yes, there is the incident case of the legislation, but it is the nature of the relationship between this House and the other place that is at the heart of what we are here to do. I much admired the comments of the noble Lord, Lord Deben, and others who have raised this.
If the noble Lord, Lord Cormack, and I were playing ping-pong, there is, as far as I know, no constitutional limit to the number of times we can bat backwards and forwards, as the noble Baroness just mentioned. The noble Lord says we should call a halt after two attempts, but I think there is a different way of looking at it and we should send this back again. There is time. I do agree with the comments made by people with great experience of both Houses that the amount of time the House of Commons devotes seriously to legislation is—I will not say a disgrace—very little. In many cases, many Members I know who go through the Division Lobbies to overturn amendments we have made in this House could not tell you what they are about. They really could not. So, there are good reasons for taking this question on noise seriously and asking the House of Commons to think yet again.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I thought I would start by talking about time on debates. This House does spend time on debate. We have gone on until 2 am, 3 am and, once, 4 am in debate. We do not curtail it.
The Government have given way on this Bill in a number of ways. I am very glad my noble friend Lord Cashman—he is my noble friend—is in the Chamber because one thing we have worked on over far too many years is the disregards for historical offences by LGBT people that are no longer offences today. I am incredibly proud that we have secured that through this Bill. To go back to the point from my noble friend Lord Deben about the Secretary of State saying which things they want to get through, I am not going to try to thwart the will of the Home Secretary; I approached her personally on this matter. She had no hesitation in giving way and helping us promote that through this House. I am very glad it has gone through already. We have short memories sometimes; we forget what has gone through on Report. Just this morning we conceded on the PACE powers, and what we are down to is the sticking point on two matters—powers that are vested in the police, not the Home Secretary.
I am pleased that Amendments 58C to 58E have found favour with the noble Lords, Lord Rooker and Lord Coaker, and I am very grateful to the noble Lord, Lord Russell, for his very constructive approach to the issue of the police recording offences aggravated by sex or gender. I do think, through this Bill—not legislatively but through a practical solution—that we have a good way forward. We can all agree the outcome we want to see, which is the collection of data that is usable, useful and consistent. I have outlined that it is not straightforward. I also acknowledge the detailed questions he sent to us yesterday afternoon. I am afraid that, in the short time available, we have not had the chance to consider them, but we will do so and provide him with answers as soon as possible and keep the House updated.
The two outstanding public order measures have been subject to extensive debate and scrutiny in this House and the other place for close to 13 months. The noble Lord, Lord Coaker, asked whether removing “serious unease” risks watering down the threshold, as the qualifier “serious” will no longer apply to alarm or distress triggers. That is not the case: the adjective “serious” can be applied only to the unease trigger, not to the alarm or distress triggers. He seeks to caricature these provisions with his point about double-glazing. The House found him very amusing, but it is not a double-glazing test. The Bill provides that, in determining whether the level of noise may have a significant impact on persons in the vicinity of a protest, the police must have regard to, among other things, the likely intensity of the impact.
The factsheet we have published to aid understanding of these provisions is not guidance for the police. A noisy protest outside a building with double glazing will have less of an impact on the occupants of that building than if there is no double glazing. That is a statement of the obvious but is a matter of judgment for the police on a case-by-case basis. The tests to be applied are clearly set out in the Bill and the police are well versed in applying similar tests in other contexts. The elected House has now reconsidered the amendments on public order a second time and has insisted on its disagreement with the relevant Lords amendments, but in the spirit of compromise it has put forward a constructive amendment to address concerns about the drafting of these provisions. I urge the House to accept this amendment.
I assure my noble friend Lord Cormack that in the normal way, this Bill will be subject to post-legislative scrutiny three to five years after Royal Assent. On the issue raised by the noble Baroness, Lady Fox, the Bill also increases the maximum penalty for obstructing the highway. To answer my noble friend Lord Deben, we have honoured the deal. The Government have listened in so many ways on this Bill, as I have illustrated with a couple of examples, but part of this deal is that ultimately, the views of the elected House should have primacy. I say to the noble Baroness, Lady Wheatcroft, that, as I said earlier, the powers are vested not in the Home Secretary but in the police.
I note that the noble Lord, Lord Paddick, has also put forward his own compromise Amendment, 80J, which would enable the police to set conditions prescribing the start and end times of an assembly, as proposed by the Joint Committee on Human Rights. In our response to the JCHR report, we quoted from the HMICFRS report on the policing of protests, which said that
“protests are fluid, and it is not always possible to make this distinction”
between assemblies and processions.
“Some begin as assemblies and become processions, and vice versa. The practical challenges of safely policing a protest are not necessarily greater in the case of processions than in the case of assemblies, so this would not justify making a wider range of conditions available for processions than for assemblies”.
Given the findings of HMICFRS and the evidence provided by the police, we continue to believe that it is necessary and proportionate to ensure that the police have the power to place the same conditions on assemblies that they do on processions, and in addition to specifying the start and end time of—
Baroness Butler-Sloss (CB)
I am sorry to interrupt the Minister. What is the point of a factsheet if the police are not to take account of it?
Baroness Williams of Trafford (Con)
My Lords, it is intended to be helpful. Going back to something the noble Lord, Lord Blunkett, said at Second Reading, which seems like an age ago now, we must provide clarity to the police. I totally agree with the points he made then.
Given the findings of HMICFRS and the evidence provided by the police, we still think it necessary and proportionate to ensure that the police have the power to place the same conditions on assemblies as they do on processions. In addition to specifying the start and end time of an assembly, as provided for in Amendment 80J, or the place where the assembly may take place and the maximum number of participants, as the 1986 Act currently provides for, it should be left to the operational judgment of the police to apply other necessary conditions—for example, conditions prohibiting the use of lock-on equipment where this could cause serious disruption to the life of the community.
This House has fulfilled its responsibilities as a revising Chamber, and I commend noble Lords for the time they have taken in scrutinising the Bill. It is now time for this Bill to pass.
Baroness Williams of Trafford
That this House do not insist on its Amendment 72B and do agree with the Commons in their Amendments 72C and 72D in lieu.
“Response to Law Commission report on hate crime laws
(1) The Secretary of State must, before the end of the period of 12 months beginning with the day on which this Act is passed—
(a) prepare and publish a response to Recommendation 8 of the Law Commission report on hate crime (adding sex or gender as a protected characteristic for the purposes of aggravated offences and enhanced sentencing), and
(b) lay the response before Parliament.
(2) In this section “the Law Commission report on hate crime” means the Law Commission report “Hate Crime Laws” that was published on 7 December 2021.”
“(ka) section (Response to Law Commission report on hate crime laws);”
Baroness Williams of Trafford
That this House do not insist on its Amendment 73, to which the Commons have disagreed for their Reason 73A; do not insist on its disagreement with the Commons in their Amendment 74A to its Amendment 74, on its Amendment 74B to that Amendment in lieu, or on its con- sequential Amendments 74C, 74D, 74E, 74F and 74G; do not insist on its Amendment 87, or on its disagreement with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E and 87F to the words restored to the Bill; and do agree with the Commons in their Amendment 73C to the words restored to the Bill by their disagreement with Lords Amendment 73 and in their Amendment 87H to the words restored by their disagreement with Lords Amendment 87.
Baroness Williams of Trafford (Con)
I beg to move.
Motion C1 (as an amendment to Motion C)
Lord Coaker
Leave out from “House” to end and insert “do insist on its Amendments 73, 74B, 74C, 74D, 74E, 74F, 74G and 87, do insist on its disagreement to Commons Amendments 74A, 87A, 87B, 87C, 87D, 87E and 87F, and do disagree with the Commons in their Amendments 73C and 87H”
Baroness Williams of Trafford
That this House do not insist on its Amendment 80, do not insist on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F to the words restored to the Bill by their disagreement with that Amendment, do not insist on its Amendment 80G instead of the words left out by that Amendment and do agree with the Commons in their Amendment 80H to the words restored to the Bill by their disagreement with Lords Amendment 80.
Baroness Williams of Trafford (Con)
I beg to move.
Motion D1 (as an amendment to Motion D)
Lord Paddick
Leave out from “House” and insert “do insist on its Amendment 80 and on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F, do disagree with the Commons in their Amendment 80H, and do not insist on its Amendment 80G but do propose Amendment 80J instead of the words left out of the Bill by Amendment 80—
“Imposing conditions on public assemblies
(1) Section 14 of the Public Order Act 1986 (imposing conditions on public assemblies) is amended as follows.
(2) In subsection (1), after the third “held,” insert “the time at which (but not the date on which) it is to start and conclude,”.
(3) After subsection (2) insert—
“(2A) For the purposes of subsection (1)(a), the cases in which a public assembly in England and Wales may result in serious disruption to the life of the community include, in particular, where—
(a) it may result in a significant delay to the supply of a time- sensitive product to consumers of that product, or
(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, 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.
(2B) In subsection (2A)(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.”
(4) After subsection (10A) (as inserted by section 57(11)) insert—
“(11) The Secretary of State may by regulations amend subsection (2A) or (2B) for the purposes of making provision about the meaning for the purposes of this section of serious disruption to the life of the community.
(12) Regulations under subsection (11) may, in particular, amend either of those subsections for the purposes of—
(a) defining any aspect of that expression for the purposes of this section;
(b) giving examples of cases in which a public assembly is or is not to be treated as resulting in serious disruption to the life of the community.
(13) Regulations under subsection (11)—
(a) are to be made by statutory instrument;
(b) may apply only in relation to public assemblies in England and Wales;
(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision, including provision which makes consequential amendments to this Part.
(14) A statutory instrument containing regulations under subsection
(11) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””