Crime and Policing Bill

Baroness Chakrabarti Excerpts

Committee stage
Tuesday 13th January 2026 Lords Chamber

[Lord Pannick (CB)]

My Lords, that was a powerful speech, but it really is not the case that all protesters are in the position of Martin Luther King, Emmeline Pankhurst, Mahatma Gandhi and the noble Baroness herself. There are protesters who have good reason for wishing to conceal their identity. If I am a protester against the current regime in Tehran and join a protest in London in order to express my views, I will be genuinely and properly concerned that my identity being revealed may well lead to action being taken against my family and associates in Tehran, and I have a very good reason for not wanting to have my identity disclosed.

I am concerned that Clause 118(2) is too narrow. It provides a defence for a person who has concealed their identity: showing that the reason they are wearing a mask is for

“a purpose relating to the health of the person or others, the purposes of religious observance, or … a purpose relating to the person’s work”.

Those are the only defences. That does not cover the example I gave—I could give many other examples—of the protester concerned about what is going on in Tehran. So I suggest to the Minister that, although I do not support the wish of the noble Baroness, Lady Jones, to remove these clauses, I do think she has a point about the narrow scope of the defences in the clause.

[Baroness Chakrabarti (Lab)]

My Lords, I agree with the noble Lord, Lord Pannick. The noble Baroness, Lady Jones, made her point so ably that I was not tempted to speak, until I heard the counter-speech from the noble Lord, Lord Blencathra. It is simply ahistoric to suggest that the suffragettes—those protesters who everybody loves now but who were once incarcerated and tortured by the British state—

[Lord Hain (Lab)]

They went on hunger strike.

[Baroness Chakrabarti (Lab)]

Indeed, they went on hunger strike. It is simply ahistoric to suggest there was not a significant clandestine element to their operations. I am sure that, if one were to examine other examples the noble Lord gave, one would find greater complexity than he offered us in his very glib comments about protest.

Just minutes ago in this Chamber, noble Lords from across the House expressed their horror at what has been happening in Iran. On any given day in your Lordships’ House, similar comments will be made about Hong Kong or protests anywhere else in the world. It is of concern that organisations that many of us respect, such as JUSTICE, Human Rights Watch, Amnesty International and so on, are now writing very concerning reports about silencing the streets of the UK.

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[Lord Hogan-Howe (CB)]

My Lords, I am quite open- minded about the clause on face coverings and whether it is a good or bad thing to have face coverings at protests. I have just a couple of points for the Government in considering whether to change the provisions in any way.

First, imposing more conditions, as the noble Lord, Lord Pannick, suggested, to narrow the provisions might be laudable but will make them harder and harder to enforce. The officers on the street can take action only on what they see, and if the person alleges that they have a member of their family in Iran, or wherever it happens to be, it will be quite hard for the officer on the street, so it may make no difference at all to the initial action. At the ongoing investigation and prosecution that might follow, they may then want to rebut—if they intend to—the claim that that defence is available. It will impose more burden on the prosecution, so we must be very careful about the conditions that we impose on it.

Secondly, although we tend to think about face masks being worn by only some people in the crowd, we could anticipate that everybody in the crowd wears a mask. If that is the case, it can be quite intimidating, and it makes normal policing quite difficult to embark on. For example, one way in which you would notice if someone has a bail condition that they should not attend a protest is whether you can recognise them. In terms of general investigation, if everybody has a mask, it is quite difficult to distinguish one person from another. We might anticipate some of the things that we saw in the 1930s. We have the Public Order Act 1936, which was intended to stop people from wearing uniforms. It could become a kind of uniform, or at least an aspect of a uniform, to signify support for a political purpose.

This clause needs some thought if it is to go forward. I ask for as much consideration as possible for the enforcers, who will be criticised if they get it wrong, but we can anticipate now whether they might be left in an invidious position.

[Baroness Chakrabarti (Lab)]

I rather agree with the noble Lord’s concern about how ever more protest laws are to be operated in practice by police officers, who are dealing with a growing and ever more complex statute book. But I wonder what he thinks about the comments from the noble Lord, Lord Strasburger, that the powers already exist to require and direct people to remove a mask, which could be done to individuals. In the hypothetical situation that the noble Lord, Lord Hogan-Howe, gives of everyone wearing a mask as a form of intimidatory uniform, what does he think about the fact that the power already exists? What is an officer to do, faced with those duplicative powers and offences?

[Lord Hogan-Howe (CB)]

It is a fair question. I would only say that, generally speaking, if you have a large crowd and a significant number within it wearing masks, the chances of you telling them all to take them off are very limited. If I understand the proposal, it is to prevent people arriving at the march with a mask rather than having to deal with it once they arrive. If you have to deal with it, you will have to deal with it. That is the only thing I would say: having allowed people to mask up, you cannot then expect officers to deal with a crowd of 5,000 or 6,000—it is just impractical. That is the argument against it, but I understand why the argument is made.

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I totally reject the suggestion of the noble Lord, Lord Marks of Henley-on-Thames, that somehow I am in a Nineteen Eighty-Four dystopia by producing some limits on protest where there is criminal action taking place. It is perfectly reasonable for Parliament to determine legislation as to how and when protest is policed, so that the right to protest is upheld to the same point that the rights to enjoy life or to not have criminal activity are upheld.

[Baroness Chakrabarti (Lab)]

I am so grateful to my noble friend the Minister for giving way. I am glad to hear him restate his commitment to the European Convention on Human Rights. He will know that that statement at the beginning of any Bill is not a certificate of compliance but a belief in the compliance of the contents of the Bill. I wonder whether my noble friend could help me understand whether there has been any assessment in the department of measures such as this in the hands of a future Government who do not share his commitment to human rights and how such powers might be used.

On the issue of having powers to limit expression when offences are taking place, as my noble friend said a couple of moments ago, I remind him that in Clause 119, which is the mechanism for designation, the test is not that offences are taking place; it includes preventing the possibility of offences. In relation to compliance, he will know that any limits on convention rights must be proportionate, yet the test for designation in Clause 119 is not proportionality but expedience. Can my noble friend help the Committee understand why the human rights language of proportionality has been substituted for the test of expedience?

Finally, can my noble friend say why protest has been singled out in this way and not, for example, carnivals, religious prayer vigils or other gatherings of people where they might conceal their identity?

[Lord Hanson of Flint (Lab)]

There were a number of points there. If my noble friend will allow me, I intend to answer the points made during the course of the debate. I say to her straightaway that we have published our analysis of the ECHR obligations; I can refer her to it. I will ensure that if she does not have it to hand, I will send it to her. It is published and is available for that.

As I will come on to in a moment, the rights that we are seeking in this piece of legislation for protesters, the community, the Government and police forces are measured in a way that I believe is acceptable. In recent years, policing large-scale protests has posed significant challenges; the noble Lord, Lord Hogan-Howe, referred to that. While most participants exercise their rights peacefully and lawfully, a small minority have engaged in criminal acts while concealing their identity. It is because the police have highlighted this issue with existing powers to identify those committing offences during protests that we have brought these issues forward. It is essential that the police can identify those committing offences during protests, not only to ensure accountability and justice but to protect peaceful demonstrators and the wider public from harm.

As a whole, Clauses 118 to 120 strike a careful balance. This will not apply to all protests. It applies only to protests that have been designated by a senior police officer of inspector rank or above. In addition, as was mentioned by a number of contributors to the debate, although the police currently have powers to remove face coverings in designated areas, they themselves have said to us—this goes back to the point made by the noble Lord, Lord Hogan-Howe—that those measures are not always effective in the context of managing protests. People often comply but then replace a face covering later, which is difficult to monitor in large gatherings. The new offence addresses this by making it unlawful to wear a face covering once a locality has been designated by a police officer—not by a Minister or by the Government—in the light of upholding rights as a whole.

That senior police officer, who will be at least of the rank of inspector, must reasonably believe that a protest is likely to occur, that it is likely to lead to criminal behaviour—that is the critical point, which comes to the contributions from the noble Baroness, Lady Fox of Buckley, the noble Lord, Lord Hogan-Howe, and others—and that it is necessary to act to prevent or reduce such offences. That is an important caveat, not the Nineteen Eighty-Four dystopia that the noble Lord, Lord Marks, seems to—

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[Baroness Chakrabarti (Lab)]

I am grateful to my noble friend for his detailed responses and for his patience in taking interventions. Could he in a moment deal with my point about why the word “expedient” has been used in Clause 119 rather than “proportionate”? He himself has talked of proportionality many times, and of course he will know that the test for lawful interference with convention rights is proportionality rather than expedience. And, in the light of comments made in this Committee by noble Lords such as the noble Lord, Lord Pannick, who does not oppose the provision outright, would he consider, between now and Report, adding an additional defence of fear of reprisal to the health provision, for example?

[Lord Hanson of Flint (Lab)]

The wording in the Bill is the wording the Government have agreed. That is the position that we have taken. We may have a disagreement on that. If my noble friend wishes to put an amendment down on Report to change that wording, that is a matter for her. She has made a further suggestion about a further defence. Those are matters that I suggest should be considered by the noble Lord, Lord Macdonald of River Glaven. If she wishes to expediate that quickly, she has the opportunity along with anybody else to table an amendment on Report. But the Government have given serious consideration to this and Clauses 118, 119 and 120 are the result of those considerations. They are at the request of the police, they are proportionate, and they are, in my view, compliant with human rights. I commend them to the House and in a gentle way urge the noble Baroness, either today or in the future, not to seek to withdraw them.

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I am deeply ashamed that even on my side of the House, people who associate themselves with the rights of workers to be able to work inside communities that are trying to express themselves can be intimidated by people. Giving this discretion to the police, who have had to experience this for a long period of time, is a very proportionate measure. I hope that the Government keep firm in rejecting the accounts that have been given by others as to why this needs any change.

[Baroness Chakrabarti (Lab)]

My Lords, the Committee is in the business of precision and proportionality. Those two concepts have rightly been raised by a number of noble Lords and my noble friends. It is because of reasons of proportionality and precision that I agree that the concept of “the vicinity” is too vague and too broad. I say that while completely acknowledging that places of worship are sensitive places and that it is completely proportionate within the European Convention on Human Rights to give them some extra protection.

There is precedent in Section 44 of the Terrorism Act 2000 for the concepts of “area” and “vicinity” being too flabby and too broad. Noble Lords may remember that this allowed an area not defined to be designated for the purpose of suspicionless stop and search. In 2003, in response to the anti-arms demonstrations at the ExCeL centre in the Docklands, a number of protesters were stopped and searched and issued notices. Only through the parliamentary debates and litigation that followed did the public become aware that all of England and Wales had been designated during the Iraq war. That was the breadth of the area for suspicionless stop and search—a power that was used as an anti-protest power.

That does not mean that there cannot be limitations, but they need some definition. After many years of litigation in the European Court of Human Rights in Strasbourg, the UK Government were found wanting because of that breadth and the blanket nature of the power, because there was no definition. I am trying to help my noble friends in government by suggesting that concepts such as areas and vicinities will be better for definition, so I support my noble friend Lady Blower and commend her remarks in speaking to her amendment.

I also commend my noble friend Lord Hain and remind the Committee that he was not just an anti-apartheid activist in his day, digging up sports fields and whatever else he was digging up—

[Lord Hain (Lab)]

I was sitting on them, not digging them up.

[Baroness Chakrabarti (Lab)]

I am sorry. He was sitting on them. I do not mean to defame him.

My noble friend of course went on to be Northern Ireland Secretary and therefore has some understanding of the need to balance rights—the rights of peaceful dissent but also the rights of people to go about their business, particularly in their homes and places of worship and so on. That is proportionality and precision.

This vice of vagueness with the concept of “vicinity” is mirrored in the concept of “area” for the purposes of cumulative disruption. As with the Section 44 provision that ended up being impugned in the Strasbourg court, “area” for the purposes of cumulative disruption is not defined, so we are looking at a very broad power here. I say to noble Lords, with all solidarity with their concerns about, for example, synagogues and places of faith and worship, that provisions such as these can be applied as much to a counterprotest as to a protest, and to one group or another group at different times. When we legislate, we need to have a mind to how these powers might be used in the future.

To those noble Lords who spoke of a new quasi-terrorist proscription but for groups that do not quite meet the threshold—

[Lord Walney (CB)]

Not terrorist.

[Baroness Chakrabarti (Lab)]

Not for terrorism but for extreme protest et cetera that by definition does not meet the test of terrorism but something less than that, I urge extreme caution. There is a reason why powers to proscribe have to date been limited to terrorist groups—that exceptional threat—and the reason is that guilt by association is extremely dangerous when you are dealing with broad communities, potentially millions of people, and protest movements.

I have no doubt that some of the activities by some suffragettes—and we saint them now; everyone in this Committee saints and canonises the suffragettes—would meet the terrorist threshold. But does that mean that we want to tar them all in the same way and suggest that the entire movement should be subject to proscription? I urge caution with that and with any amendments in this group that go further than is precise or proportionate.

House resumed. Committee to begin again not before 8.39 pm.