Public Order Bill

Debate between Lord Ponsonby of Shulbrede and Baroness Blower

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Baroness Blower (Lab)]

My Lords, not being a lawyer, I would never have dreamed of writing amendments of the technical nature of Amendments 114 and 115. None the less, having heard the speech of my noble friend Lady Chakrabarti and having discussed it with her before she made it, it is evident to me that these are vital amendments should Clause 17 stand part—which, of course, it absolutely should not. If there is any sense, as my noble friend Lady Chakrabarti has powerfully persuaded me there is, that Clause 17 is constitutionally dubious, that really should give the Government pause for thought. I genuinely believe that anyone—the person on the Clapham omnibus—who read this and found that the Government can substitute a prosecution for a private company at the public expense would, frankly, be rather appalled and find it very odd legislation.

Clause 17 (5) states:

“the Secretary of State must consult such persons (if any) as the Secretary of State considers appropriate, having regard to any persons who may also bring civil proceedings in relation to those activities.”

That just does not seem appropriate. Surely, the purpose of the law is to make sure that the onus for things lies in the proper place, and the onus for proceedings such as those conceivably envisaged here cannot possibly lie with the Government and the public. Amendments 114 and 115, in the name of my noble friend Lady Chakrabarti, at least tighten up the possibilities here. The Secretary of State would be required to publish a range of things, as she has already said, including

“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”.

It seems to me that we are allowing the Secretary of State to do something which, if I had just read this myself and come to a view on it, I would have considered to be ultra vires, if that is the correct term, because this is not something we should be spending public money on. Amendments 114 and 115 would go some way towards tightening up Clause 17, but as other noble Lords have said, those of us who have read this in detail and given it some consideration genuinely believe that it should not stand part of the Bill.

[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.

Public Order Bill

Debate between Lord Ponsonby of Shulbrede and Baroness Blower

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Baroness Blower (Lab)]

My Lords, my noble friend Lady Chakrabarti is unable to be in her place for this group, which affords me the opportunity to speak to Amendment 23, which would include in the Bill a definition of “serious disruption”—a single definition, in contradistinction to the ideas proposed by the noble and learned Lord, Lord Hope.

Much turns on this phrase; it appears a grand total of 132 times, acting as a core component to several new and extremely broad criminal offences. As things stand, the consequence of “causing or contributing to” serious disruption of varying kinds could result in a prison sentence, unlimited fines or a variety of conditions imposed through what many are calling protest banning orders, including GPS ankle tagging, bans on internet usage, prohibitions on associating with certain people and, again, imprisonment—yet, as we all now know, nowhere in the Bill is “serious disruption” defined.

The former Minister, Kit Malthouse MP, claimed at Second Reading in the other place 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.”—[Official Report, Commons, 23/5/22; col. 106.]

I am afraid that I do not think that explanation suffices. The test to which the former Minister refers is that set out in the Public Order Act 1986, which is now almost four decades old. It relates to the imposition of conditions on public procession, assemblies and one-person protests. This Bill is very much wider, and that framework does not necessarily neatly map on to what is before the House today.

I add that it is surprising that the Government should be content to allow legal uncertainty and let the courts, through lengthy and expensive litigation, rather than through Parliament, set the parameters of what actions they wish to criminalise. The lack of a definition of serious disruption in the Bill is an obvious and, in my view, critical deficiency and one which Members on all sides of this House and those in the other place have identified on several occasions.

The Joint Committee on Human Rights remarked in its report:

“It is unclear who or what would need to be seriously disrupted, what level of disruption is needed before it becomes serious and how these questions are meant to be determined by protesters and police officers on the ground—or even the courts.”


At Second Reading, the noble Lord, Lord Anderson, made apt reference to both the Joint Committee report and the evidence to the other place from West Midlands Police, who called for

“as much precision … as possible”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 58.]

in defining serious disruption. The noble Lord, Lord Hogan-Howe, who has much experience of police operations in response to protests through his time as Metropolitan Police Commissioner echoed this call for clarity. In another place, Sir Charles Walker condemned the overall thrust of the Bill, no doubt worsened by this vague and all-encompassing term, calling it “unconservative”.

Therefore, it was heartening to hear at Second Reading the Minister recognise the House’s “strength of feeling” on this issue and that

“a clear definition could bring benefits”.—[Official Report, 1/11/22; col. 204.]

This amendment would deliver such benefits, giving legal certainty and precision to what are otherwise vague and, frankly, highly draconian offences. It does so by clarifying that before the Bill’s offences are engaged, significant harm must be caused to persons, property or, per the Public Order Act 1986, the life of the community. It sets the bar at an appropriately high level, stating that “significant harm” must be

“more than mere inconvenience, irritation or annoyance”.

The example of people joining arms to walk down the street has already been given, so I will not repeat that. Under the amendment’s proposed definition, these ordinary everyday behaviours would be rendered safe from undue criminalisation. The definition also requires that significant harm must be

“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence, provided for under this Act.”

We have seen the police exercise existing powers inappropriately and disproportionately—I will not go into the case of Charlotte Lynch yet again, but it is one such.

This amendment is designed to prevent the future misuse of any new offences and powers created. Its benefits are threefold, giving guidance to the police in exercising their powers; safety to the public, who should be free to enjoy their right to protest free from prosecution; and clarity to the courts when they must interpret the law.

The criminal law acts as a powerful and coercive tool by which dividing lines are set between conduct Parliament has deemed acceptable or unacceptable. As the former senior Law Lord and eminent jurist, Lord Bingham, posited in the 2003 case, R v H and the Secretary of State for the Home Department, its purpose is

“to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society”.

Clear definitions are therefore indispensable, for without them, how is the public expected to understand what is proscribed, from what they are being deterred or what Parliament has concluded is sufficiently damaging to the interests of society?

I strongly believe that the Bill should be voted down in its entirety. It represents a dangerous and authoritarian boost to the state’s power to curtail the vital right to protest peacefully. However, this amendment’s definition would go some way to remedying one of the Bill’s many critical flaws. I therefore commend it to the House.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak to the amendments in my name and the name of my noble friend Lord Coaker. This debate has been about the threshold for committing an offence, the meaning of the phrase “serious disruption”, which is not defined in the Bill, and the need for the intent of an offence for an offence to be committed. The key overarching issue is the drafting of good law and not broad, poorly defined offences and powers which the police then have to try to navigate.

I turn first to Amendment 3, as drafted and recommended by the JCHR. It would change that threshold to causing serious disruption to the life of the community. This is supported by the National Police Chiefs’ Council, which in its written evidence stated

“In addition, we believe using the definition of ‘serious disruption to the community’ may be preferable to ‘two or more people, or an organisation’, as the former is more widely understood and will allow more effective application consistent with human rights legislation.”


In the Commons Committee stage, the Minister, Kit Malthouse, referenced disruption to the life of the community as the threshold for the offence of locking on. He said that some behaviour

“would not necessarily cause serious disruption to the life of the community, and would therefore not necessarily constitute an offence under the Bill.”—[Official Report, Commons, Public Order Bill Committee, 14/6/22; col. 93.]

So it seems that the Minister already agrees that there may be a more appropriate threshold.

Moving on to Amendment 17, this is a JCHR recommendation that goes hand-in-hand with Amendment 3 to provide a definition of serious disruption to the life of the community in the Bill. I recognise that the noble Lord, Lord Anderson, has jumped ship and is supporting the noble and learned Lord, Lord Hope. I reserve my judgment; I may do the same at a later stage but, for the moment, I will press ahead with Amendment 17. It is one option, as drafted by the JCHR. It replicates the definition eventually added by the Government to the PCSC Act but, as we have heard, this group contains multiple possibilities for how the necessary level of disruption could be appropriately and clearly defined.

Turning again to the evidence submitted by the National Police Chiefs’ Council, it has requested clarity to allow it to respond operationally, saying:

“Within public order legislation ‘serious disorder, serious damage to property and serious disruption to the life of the community or intimidation of others’ is a key phrase. The elements of serious disorder, serious damage and intimidation are accepted and clear. However, the term ‘serious disruption’ has been subject to much discussion and debate. Within any new legislation we would welcome clarity or guidance about the threshold and interpretation of this to allow operational commanders to best apply their operational responses.”


This amendment is about clarity, as well as passing laws that can be easily understood by both the public and the police.

Amendment 23, spoken to very powerfully by my noble friends Lady Blower and Lord Hain, would provide a definition of serious disruption as actions

“causing significant harm to persons, property or the life of the community.”

It specifies that serious harm must mean

“more than mere inconvenience, irritation or annoyance”

and be action

“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence”

provided here. I support that amendment as well.

Amendment 54 is again a JCHR recommendation. It adds, first, a threshold of causing serious disruption, and secondly, a requirement that there was an intent to cause serious disruption to the offence of obstructing major transport works. The JCHR said that

“there is no requirement that the offending conduct could be capable of causing significant disruption and there is no requirement that these actions be carried out with any particular intention of causing obstruction or disruption. This means that inadvertent actions could result in arrest or even a criminal penalty.”

Across this group of amendments, the question of intent is integral to the debates that we have been having. The question of whether it is intended or reckless is really key to these debates. Can the Minister say something more about what recklessness covers? It is a phrase that is used in many other aspects of law, but how will the police be expected to prove that a person has been acting recklessly or not?