Technology Rules: The Advent of New Technologies in the Justice System (Justice and Home Affairs Committee Report)

Lord Sharpe of Epsom Excerpts

Monday 28th November 2022 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank all noble Lords who have spoken in the debate today and particularly the noble Baroness, Lady Hamwee, for securing the debate. I also thank those who contributed to the Justice and Home Affairs Committee’s thoughtful and insightful report, which has paved the way for today’s discussion.

As the noble Baroness has made clear, the Government responded to that report in June, but it is nevertheless welcome that we have found time to discuss these important matters more fully. I hope this is not the last time we cover the topic; I suspect it will not be. I will remark briefly on the broad thrust of the committee’s report and the Government’s position, as well as on points made during this debate, while also—I am afraid—having to join the noble and learned Lord, Lord Hope, by admitting that I am not much good with my thumbs either.

I am not sure that this line is going to qualify as “riding to the rescue”, but there is significant agreement between the Government and the committee on the challenges posed by advanced technology and how it is rolled out into the justice system. I am sorry if noble Lords feel that the government response was in some way a brush-off, but I am sure all your Lordships would agree that the technology is very complicated. The policing and justice sector and the ethics around balancing competing human rights are also very complicated. The public expect us to have a world-class justice system, and I think all noble Lords acknowledged this. Utilising technology is a cornerstone of this. The police must use technologies to free up officer time to fight crime, by making administration more efficient, and as a tool to hold those responsible for crime to account.

The Government are committed to empowering the police to use the latest technologies because the public support their use. However, there are no easy answers and the risk of acting without fully understanding the implications of these technologies and getting it wrong is very real. We are not presently persuaded by the overall recommendations put forward in the report, but the Government are committed to the spirit of improving consistency, maintaining public trust, ensuring sufficient oversight and empowering the police which sit behind those recommendations.

The subject of transparency was raised by my noble friend Lord Hunt and others. In their evidence, the Government were clear that transparency is not optional. The police themselves see and understand that being transparent is in their interests. We do not agree that we should mandate specific rules on transparency across such a wide range of current and potential future technologies and uses, but that does not mean we take it any less seriously.

Transparency is an important part of data protection laws. Our policing model works only if there is public consent. For the public to consent, as the noble Lord, Lord Ponsonby, has just pointed out, they must be engaged. It is in the police’s interest to hold conversations and be open about what they are doing and why. Several police forces are working with the Centre for Data Ethics and Innovation to explore how the algorithm transparency standard may work for them. We welcome it as one tool that could promote the sharing of best practice, but transparency can come in many forms. Our position is that mandating a set of rules could restrict what information is ultimately provided to the public and risks turning transparency into a tick-box exercise.

Instead, we will continue to help the police to collaborate with experts and identify how they can be transparent in a way that allows scrutiny, both at a technical level by those with expert knowledge and at an ethical level by the wider public. There is no point being transparent if what is said cannot be understood. We are in agreement that the question of ethics is of fundamental importance, and the ethics of acting or using technology is not something to be considered lightly.

We have heard how important the roles of accountability and oversight are at each stage of the system. I would caution that a statutory ethics panel, as proposed in the report, may decrease democratic oversight because such powers could override local decision-making, local accountability and locally elected officials, but I note the particular reference to the West Midlands Police example. We are not persuaded that the creation of a national statutory ethics committee is the best way to bring expert insight into police practice, but we will continue to work with colleagues in policing to develop and support non-statutory models.

Our democratic system, and ultimately Parliament, is here to provide scrutiny and oversight. The committee’s report is proof of that, as is today’s debate. It is right that our institutions are held to account, especially in relation to the complex and important issues we have discussed today. The committee’s report noted that, below this, there are a range of oversight bodies tasked with providing oversight on various aspects of how the police use technology. We recognise the risk of overlap and confusion, which is why we have proposed in the Data Protection and Digital Information Bill to simplify the arrangements for biometric and surveillance cameras, because, ultimately, it is individuals, not technology, who take the key decisions within the justice system. Technology may be used to generate insights, but the decision to arrest will always remain with the officer, while the courts will decide what material can be given in evidence in determining guilt and any sentence. The Government will continue to support work to equip and educate the individuals working within the justice system so that they understand the technologies they use and how to use them correctly.

My noble friend Lord Hunt and others raised governance and accountability. On accountability, I think the question was who is responsible when things go wrong—who has the day-to-day responsibility for governance? There are existing regulations covering the responsibilities of parties when undertaking a procurement and when working together to provide a service. Depending on the issue, it may be addressed in different ways: illegal activity may be a criminal offence; other unlawful activities, such as a data protection breach, would be an issue for regulators; and poor performance should be mitigated against at the contractual level.

The public expect the police to innovate. They have to be allowed to do so within the law, so decisions on what technologies to use are highly operational ones for the police, independent of government. However, the police need to act within the legal framework set out by Parliament, and bans are in place where they are proportionate to the risk, such as in cases where the technology poses a risk of lethal or less than lethal force. This is not the same level of risk as that associated with the types of technologies raised in the report.

Chief constables ultimately decide when and how to use new technologies. However, they and their PCC are advised, regulated and overseen by a range of technical and regulatory bodies. The police chief scientific adviser, who I will come back to, advises chief constables on important matters such as good education. The ICO can and will take action where there is a lack of compliance with data protection laws. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a duty to consider how forces are meeting the Peelian principles, of which the use of technology is of course a part. HMICFRS undertakes thematic reviews based on its local inspections, and the use of technology is an area which could merit specific analysis.

The noble Baroness, Lady Primarolo, asked about individual complaints challenging the use of technology. Challenging the use of technology in the courts is certainly a resource-intensive process, and it is best reserved as a solution when the circumstances are exceptional. However, individuals can report concerns through other avenues, and we encourage them to do so. Where there are concerns over necessity, proportionality or a policing justification, they could be raised with HMICFRS, which has a mandate to consider how professional standards are applied in its reports and investigations. If the matter relates to how individuals within policing are using technology and their behaviour, this may be something to take forward with the independent police complaints authority. Concerns related to fairness, equality or rights can be raised with the Equality and Human Rights Commission, while the Information Commissioner’s Office is well placed to investigate questions of data protection and privacy.

Noble Lords have acknowledged that the police are operationally independent, which is an essential principle of our system. Nevertheless, we are also alive to the need to ensure that law enforcement is given appropriate support in adapting to technological change and advancements. The role of the police chief scientific adviser, to which I have referred, was created to give policing a scientific capability, establishing a dedicated place for advice on how to innovate, test technologies and ensure that tools do what they claim. Since being appointed, the chief scientific adviser has led reform of how the sector works with the scientific community and is developing a strategy for science and technology. The NPCC’s science and technology strategy will strengthen how the police approach using validated and cutting-edge science in their mission to protect the public. The Government support this strategy and encourage its successful adoption. Those using the technology and impacted by it must be confident that it works as it should.

The Home Office is investing in policing to strengthen the technical evidence available on the most promising future technologies, as well as helping in the commission of research by the Defence Science and Technology Laboratory, which tests functional performance. Confidence in the scientific basis and validity of the technology being used is only part of the picture: there must also be confidence in the operational practice.

The wider question of technology in the justice system is clearly an area in which it is important constantly to develop best practice and future guidance. We agree that clear and consistent advice is essential to allow innovation. To this end, the sector is developing its repository of guidance and information. For example, the College of Policing published national guidance on live facial recognition earlier this year. The Government will support the sector to stay on the front foot in addressing specific technologies, as needed.

An approach centred on the “Move fast and break things” mantra may work for innovation in the Silicon Valley, but it would not be appropriate in the context of UK law enforcement. So we have no wish to break the system establishing the rule of law, which of course dates back a very long time. That is not to say that the Government intend to sit back and be solely reactive, but proactively regulating brings its own risks. Mandating standards without consensus in the sector on what it needs may turn certification into something that is easily gamed by bad actors, opening up public authorities to harm.

So, although I happily acknowledge that there will be an opportunity for someone to set global standards, at the moment the Government are of the opinion that certification, or kitemarking, can create false confidence in the validity of a technology. We want to ensure that responsibility for using lawful technologies is not delegated to a certification process that may be gamed. Within our existing regulatory model, the police have a responsibility to use products that are safe and meet the high ethical tests set out in the data protection, human rights and equalities legal framework.

Assessing proportionality and necessity, even if the technology works, depends on the unique factors of each use case. Organisations should not hide behind regulations or certification when it comes to deploying new technologies responsibly. The police must make justifiable decisions during procurement, development and deployment, reviewing them regularly. The current legal framework places responsibility for how to do that firmly on the organisation. However, in addition to the Centre for Data Ethics and Innovation, the Government have established an AI standards hub to help to promote good practice. But the responsibility and accountability that organisations face are theirs alone.

Although we did not generally share the committee’s overall approach of more and more legislation, we will act when the need is clear. We are confident that the regulatory model is proportionate and mature. We have established a statutory code for digital forensics and placed the forensic services regulator on a statutory footing. As practice consolidates around specific standards, we will continue to learn from the relevant experiences and engage with wider learning from sectors such as healthcare.

Someone, but I am afraid I have forgotten who, asked: does it actually work? The answer is yes. I have a large number of examples but in the time available I will provide one: all forces use facial recognition retrospectively. South Wales Police produces around 100 identifications a month, which, as a noble Lord—I forget who—noted, reduces certification time from 14 days to a matter of hours. South Wales Police and the Met have also used live facial recognition technology and successfully disrupted things like mobile phone theft gangs, with no reported thefts at rock concerts, for example, and there were 70 arrests overall during various trials, including for offences as severe as rape, robbery and other forms of violence.

The noble Lord, Lord Clement-Jones, raised the Bridges case. That was a compliance failure by South Wales Police. The court confirmed that there was a legal basis in common law and a legal framework including human rights, data protection and equalities law, in which live facial recognition and, by extension, other technologies could be usefully carried out. Since the judgment, the College of Policing has published an authorised professional practice clarifying the “who” and “where” questions.

On the question of potential bias, noble Lords will be interested to know that the US National Institute of Standards and Technology, which is generally recognised as the world’s premier outfit of this type, found that the algorithm that South Wales Police and the Met use shows almost indetectable bias.

The Committee may have noticed that I am slightly between focus ranges with or without glasses, which is making life rather complicated. I wish I were relying on technology at this point.

I was asked about live facial recognition as an example. I have just mentioned that the College of Policing authorised professional practice guidance on live facial recognition. That requires chief officers to ensure training within the force on the following: how to respond to an alert; the technical capabilities of live facial recognition; the potential effects on those subject to the processing; the core principles of human rights; and the potential impact and level of intrusion on each subject.

The adoption of live facial recognition standards serves as an example of where practice has moved quickly over the last few years following legal scrutiny and greater public discourse. The sector learned from the early pilots to test, improve and evolve policies following feedback. The pilots of this tool were just that—early tests. Now that more evidence is available and the maturity of the capability is advanced, we can analyse how the legal framework is working. This process points to the strength of our legal framework as it has driven the improvement of standards without suffocating innovation.

My noble friend Lady Sanderson and the noble Baroness, Lady Ludford, asked about DCMS and cross-departmental working. The answer is that we work very closely. The Home Office is also part of a pilot looking at how the algorithm transparency standard works for the department’s own activities. As for the White Paper, it will come some time next year but I am afraid I do not have a specified date.

I thank all noble Lords who have contributed to this fascinating debate. I extend my thanks again to the committee for all the work and insight that went into producing a thorough and engaging report on these very complex issues. We do not fully agree on the way forward in terms of specific steps, but I am confident in suggesting that there is a broad consensus about the need for a long-term approach. Whether that stops noble Lords being disheartened, I do not know.

For the Government’s part, we will continue to look at the entirety of the system and seek to encourage improvements at each stage, with a focus on developing policy to ensure that the benefits of new technology are realised throughout the justice system. As the report laid out so clearly, there is no option to pause or stand still. The issues discussed today are of fundamental importance to the safety and security of our citizens and our values, and I look forward to continuing our engagement on these matters.

Investigatory Powers Commissioner (Oversight Functions) Regulations 2022

Lord Sharpe of Epsom Excerpts

Thursday 24th November 2022 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I beg to move that the Grand Committee consider the draft Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022, laid before the House on 19 October 2022, and the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022, laid on 18 October 2022.

Protecting our national security and keeping the public safe remains a top priority for the Government, as does ensuring that public trust and confidence in the exercise of investigatory powers are maintained. These two sets of regulations are concerned with the exercise of investigatory powers, and in particular with the important safeguards and oversight. The investigatory powers with which they are concerned are set out in the Investigatory Powers Act 2016 and the Regulation of Investigatory Powers Act 2000, which I will henceforth refer to as RIPA.

We are concerned with three key measures today. First, I will turn to amendments to the Covert Human Intelligence Sources Code of Practice. Throughout this debate I will refer to covert human intelligence sources as CHIS, and the code of practice itself as the CHIS code.

The CHIS code sets out the processes and safeguards governing the use of CHIS by public authorities and provides detailed guidance on how CHIS powers should be exercised and duties performed, including examples of best practice. The draft regulations before the Committee today will bring into force changes to the CHIS code. These changes have been made following amendments made to RIPA by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which I will refer to as the CHIS Act throughout today’s debate.

The amendments made to Part II of RIPA by the CHIS Act ensure that there is a clear and consistent statutory basis to authorise CHIS to engage in conduct that could otherwise be criminal, where it is necessary and proportionate to do so, having regard to the Human Rights Act and the UK’s obligations under the European Convention on Human Rights.

The draft revised CHIS code enhances the protection for children and vulnerable adults where they are to be authorised as CHIS in exceptional circumstances. There has been substantial consultation with charities and interest groups, and we have given due consideration to the valuable feedback they have provided on the changes we have made to the CHIS code.

The investigatory powers regulations will also make necessary changes to the Interception of Communications Code of Practice, which I will now refer to throughout the debate as the interception code. The draft revised interception code provides further guidance on the use of interception by public authorities that exercise such powers, also known as intercepting authorities.

The amendments to the draft revised interception code will reflect the Government’s long-standing position on serving interception warrants on cloud service providers and the enterprise services they provide to customers. These changes will provide much-needed clarity to relevant UK and US companies impacted by enterprise service issues. By enterprises, we mean companies, academic institutions, not-for-profit organisations, government agencies and similar entities that pay cloud service providers to store and/or process their organisations’ electronic communications and other records. When a cloud service provider is providing such services to an enterprise, the enterprise is responsible for providing accounts to its users and determining the reasons for which data is retained and processed.

A public consultation on the proposed changes was carried out between July and October. After further cross-governmental engagement on the draft revised interception code, three additional changes to the proposed revisions were made to provide further examples of the circumstances under which a warrant may be served on a cloud service provider instead of an enterprise customer, and to outline the obligations imposed by the Investigatory Powers Act regarding unauthorised disclosure to help protect national security.

Finally, I turn to the changes to the Investigatory Powers Commissioner’s oversight functions, as proposed in the Investigatory Powers Commissioner regulations. I will refer to the Investigatory Powers Commissioner as the IPC throughout.

These regulations place two areas on a statutory footing: first, the IPC’s oversight of the GCHQ equities process; and, secondly, compliance by members and civilian staff of SO15 at the Metropolitan Police Service and officers of the National Crime Agency with the guidance referred to as the Principles Relating to the Detention and Interviewing of Detainees Overseas. These areas have previously been overseen by the IPC and his office on a non-statutory basis.

The IPC has made it clear, and the Government agree, that he considers formalising his oversight responsibilities as being in the best interests of transparency and robust oversight. As a statutory authority, the parameters of the IPC’s remit are set by Parliament. These changes will provide greater public accountability and enable the effective discharge of the IPC’s responsibilities.

These regulations are vital for keeping the public safe by providing clarity and transparency around the use and oversight of powers. I hope the Committee will be able to support these measures and their objectives. I commend the draft regulations to the Committee. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I apologise for coming in when the Minister was already on his feet. I declare an interest as a council member of Justice, the all-party law reform group that took a significant interest in the CHIS Bill when it was going through the House. It was a very strange time: it was during lockdown when we had Zoom Parliament and so on, as the Minister will recall.

All noble Lords will appreciate that the legislation was—and remains—controversial. Whatever the arguments for and against its necessity, it is controversial to grant advance immunity from prosecution not only to police officers or direct officials and agents of the state but to those whom they run in the community, including in criminal fraternities. We have had the arguments in relation to the legislation itself. None the less, we all need to recognise the dangers that exist with that kind of advance immunity from criminal prosecution, including for quite serious crimes.

During the passage of the legislation the Government said that the Human Rights Act would be a safeguard, and the Minister has repeated that. But we are constantly told that the Human Rights Act is in jeopardy and, with the return of Mr Raab to the Office of the Deputy Prime Minister and as Justice Secretary, that remains in the balance. That needs to be on our minds when we consider these powers and the codes of practice made thereunder.

I will make one further point, about the consultation around the CHIS codes of practice. Justice informs me and other noble Lords that the consultation took place between 13 December 2021 and 6 February 2022—an eight-week period that included Christmas and serious restrictions because of the rise of the omicron variant. That was of concern not only to Justice but to other charities and NGOs that had concerns about the legislation and about victims’ rights in particular. One of their substantive concerns is that there is not enough in the current codes of practice to encourage victims to seek compensation in the event that they are harmed as a result of advance criminal immunity being given to CHIS.

Christmas is a problem for people who work in the sector in any event, because staff are on holiday and so on, but lockdown made it harder still. What Justice says about that is if the Home Office had compensated for the short festive period by going out proactively to consult potential interested parties, that consultation deficit could have been met. But that, I am told, did not happen. As a result, both Justice and the Centre for Women’s Justice, which of course had been very involved in supporting the female victims of the spy cops scandal, made their views known to the Home Office. That has not been a satisfactory engagement.

I know there is a limit to what can be done about this at this point but I intervene today to put this to the Minister. He perhaps was not the Minister responsible at the time of the consultation but might, none the less, keep this under review and possibly open up a line of ongoing communication with Justice and the Centre for Women’s Justice. Although these regulations are of course going to pass, these codes of practice need to be kept under review, as does the operation of this legislation with the codes of practice. I know from my dealings with him that the Minister is a reasonable person. After the regulations pass, I hope that he will perhaps meet these people to keep that conversation going and ensure that the operation of these provisions and vital codes of practice is monitored, and that the monitoring from the Home Office actively encourages involvement from those who work on victims’ rights and in the sector.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all three noble Lords for their considered responses on these regulations. As I set out earlier, the changes we are seeking to make through the regulations will ensure that the investigatory powers regime functions effectively, with appropriate oversight and safeguards, to protect our national security and keep the country safe; I welcome the reassurance from the noble Lord, Lord Ponsonby, on that from his side. I will do my best to answer all the questions that have been asked. Obviously, if I miss anything, I will carefully go through Hansard and commit to write to noble Lords.

The noble Baroness, Lady Chakrabarti, asked why the public consultation was somewhat truncated, over Christmas and what have you. When the CHIS Bill was introduced to Parliament in September 2020, the Government also published a draft revised code of practice setting out the changes that it was anticipated would be appropriate, were the Bill to be enacted as introduced. The noble Baroness recalled the lively debates in Parliament during the Bill’s passage and the Government’s collaborative approach to engagement with both parliamentarians and wider stakeholders, during which a broad range of expertise was brought to bear and views were aired in respect of the policy underlying the Bill. The public consultation on the revised CHIS code, which commenced on 13 December 2021 and concluded on 6 February 2022, as noted, concerned not the policy underlying the CHIS Act but the proposed changes to the current code. Many of these changes were set out in the draft revised code, published alongside the Bill, in September 2020. The consultation was originally scheduled to last six weeks but, as much of that period was over the Christmas holidays, we extended the consultation by a further two weeks to accommodate that.

The noble Baroness also asked about compensation for victims of criminal conduct authorisations. Section 27A of RIPA makes it clear that those who have been victims of criminal conduct authorised under a criminal conduct authorisation are entitled to compensation, notwithstanding that the criminal conduct may have been authorised by a CCA. Any person or organisation is able to make a complaint to the Investigatory Powers Tribunal against a public authority if they suspect a public authority of using covert techniques against them, which will be independently considered by the IPT. Additionally, a person is able to make a claim to the IPT under the Human Rights Act 1998 for any suspected breaches of human rights that they believe have been committed against them in connection with conduct where Part II of RIPA is concerned.

I want to go into a little detail on the comments around women’s groups. I reiterate that it is never acceptable for an undercover operative to form an intimate sexual relationship with those whom they are employed to infiltrate and target or may encounter during their deployment. That conduct will never be authorised, nor must it be used as a tactic of a deployment. The noble Baroness, Lady Chakrabarti, will know that, in a specific case, the review is ongoing.

We are aware of historical instances in which the authorisation of CHIS has disproportionately disadvantaged women, for example in the case of Wilson v Metropolitan Police. That related to the actions of undercover police officers deployed to gather intelligence on protest groups and people associated with them between 2003 and 2009. The Investigatory Powers Tribunal found that the sexual relationships of an undercover officer with a female member of those protest groups demonstrated that there had been failures in the supervision and management of undercover officers.

Since 2013, steps have been taken by His Majesty’s Government to strengthen safeguards and increase oversight to prevent such activity by law enforcement. Separately, the Undercover Policing Inquiry was established in 2015 to inquire into and report on undercover police operations in England and Wales since 1968. That inquiry is ongoing; the Home Office will consider the report of its findings in due course. I am sorry to answer that point at length, but I think it is worth stressing.

On the question from the noble Lord, Lord Paddick, about the public consultation and the Government’s response to it, Home Office officials carefully considered all the responses received on the revised code as part of the public consultation. The process took more time than expected, but we wanted to ensure that we gave full consideration to the concerns raised. Having a robust code of practice is an important part of maintaining public trust and confidence in the use of the powers to which the code relates.

On operating without a CHIS code, safeguards in the Act and under it were already enforced; the code provides guidance. A draft revised code has been in place since the Bill was before the House.

All noble Lords referred to safeguards. It is of course important that authorisation of CHIS activity is subject to robust and independent safeguards. The CHIS code provides guidance and clarity on the safeguards related to the use of CHIS that are set out in the CHIS Act. For example, all authorisations are granted by an experienced and highly trained authorising officer, who, as noble Lords will recall, is of high rank and will ensure that the authorisation has strict parameters and is clearly communicated to the CHIS. In addition, as with other sensitive investigatory powers, the use of CHIS is overseen by the Investigatory Powers Commissioner under the Investigatory Powers Act 2016, thereby providing robust and independent oversight of the power.

When public authorities authorise criminal conduct authorisations, the judicial commissioners within the Investigatory Powers Commissioner’s office, which I will henceforth refer to as IPCO, must be notified of a criminal conduct authorisation within seven days of an authorisation being granted or cancelled. Where an authorisation is granted, such notifications must set out the grounds to which the authorisation relates and specify the conduct that is authorised.

The IPCO also conducts inspections of public authorities that have the power to authorise CHIS and publishes an annual report on the findings from these inspections. Previous annual reports on the management of CHIS have been positive. In 2018 the IPCO annual report found that, in all instances, MI5’s authorisations of CHIS participation in criminal conduct were

“proportionate to the anticipated operational benefits”

and met “a high necessity threshold”.

On the safeguarding of children, I stress that the revised code makes clear that children are able to be authorised as CHIS only in exceptional circumstances and subject to the enhanced safeguards, including the risk assessment process set out in Article 5 of the juveniles order. An enhanced level of safeguards also applies to the rare occasions when there is a need to authorise a vulnerable adult to engage in CHIS activity, including criminal conduct. As with authorising children as sources, vulnerable adults should be authorised to act as a CHIS only in exceptional circumstances.

These are substantive amendments to the code of practice that focus on the well-being and safety of the child or vulnerable adult. It is right that there are additional safeguards for these authorisations. These amendments provide this further protection while ensuring that they do not create any unintended consequences that risk the safety of the individual. We have consulted extensively with charities and rights organisations in preparing the draft code to ensure that these safeguards are at the heart of the guidance.

On the limits on CHIS criminal conduct, a CHIS will never be given authority to engage in criminal conduct of any and all kinds. All authorisations must be necessary and proportionate to the criminality they are seeking to prevent, and the authorising officer must ensure that the level of criminality authorised is at the lowest level of intrusion possible to achieve the aims of the operation.

Any authorisation for a CHIS to engage in criminal conduct must comply with the European Convention on Human Rights—the noble Baroness will forgive me for not speculating as to the current state of affairs with that. This includes the right to life, and prohibition of torture or subjecting someone to inhuman or degrading treatment or punishment.

The noble Lord, Lord Ponsonby, referred to the fact that the CHIS Act does not list specific crimes that may be authorised or prohibited. The reason is sound: to do so would place in the hands of criminals, including terrorists and hostile state actors, a means of creating a checklist for suspected CHIS to be tested against. That would threaten the future of CHIS capability and result in an increased threat to the public.

As I have already said, a CHIS may be granted only where necessary, proportionate and compliant with the Human Rights Act. The use of agents provocateurs or entrapment undermines a person’s right to a fair trial. That is reflected in the Undercover Policing Authorised Professional Practice, which states in clear terms that an undercover officer

“must not act as an agent provocateur.”

Although agent provocateur is not a defence at law, it is managed through common-law principles, and the updated director’s guidance on charging provides safeguards to ensure that the Crown discharges its disclosure obligations to ensure that an agent provocateur issue does not cause a miscarriage of justice. Furthermore, the criminal courts have developed safeguards to ensure fairness in criminal proceedings, including where entrapment is alleged to have occurred.

I am sorry, I am slightly out of sync. The noble Lords, Lord Ponsonby and Lord Paddick, asked whether the juveniles order will be amended to reflect paragraph 4.4 of the code. We have already amended the juveniles order. We do not intend to amend it again at present.

Finally on this, a failure to comply or to have regard to the code would be a relevant error per Section 231(9)(a) of the Investigatory Powers Act. It is therefore an oversight issue, so it would be a matter for IPCO.

I move on to the interception code, which the noble Lord, Lord Paddick, asked about. We wanted to make these changes as close as possible to the entry into force of the UK-US data access agreement, given that the number of requests to which this existing policy will apply will be significantly higher now that the agreement has entered into force. Additionally, as per Section 260 of the IPA, the Home Secretary will shortly publish a report on the operation of the IPA, in line with her statutory obligations. It would be wrong to pre-empt the outcomes of that report. We will continue to keep all the IPA codes of practice under review.

I must stress that this instrument does not expand the IPC’s remit but simply formalises existing functions. Neither will it provide intelligence agencies or law enforcement authorities with new powers. The regulations to amend IPCO’s functions will ensure that the IPC’s functions are underpinned by statute, increasing public accountability, transparency and robust oversight. These are important powers—again, I join the noble Lord, Lord Ponsonby, in singling out the relevant personnel for our thanks and praise—and will allow our agencies to keep the public safe and to protect national security.

I think I have answered all the questions. I am very grateful for the contributions that have been made, but as I set out in my introduction, these changes we seek to make will ensure the greater efficiency of the IPA and that the Act continues to retain world-leading safeguards and oversight.

Motion agreed.

Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations

Lord Sharpe of Epsom Excerpts

Thursday 24th November 2022 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations.

Relevant documents: 16th Report from the Secondary Legislation Scrutiny Committee

Motion agreed.

Proceeds of Crime (Money Laundering) (Threshold Amount) Order 2022

Lord Sharpe of Epsom Excerpts

Thursday 24th November 2022 Grand Committee

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Proceeds of Crime (Money Laundering) (Threshold Amount) Order 2022.

Relevant documents: 16th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, this draft statutory instrument raises the existing threshold in the Proceeds of Crime Act 2002 below which certain businesses in the anti-money laundering regulated sector do not need to submit defence against money laundering suspicious activity reports, known as DAMLs. The amount is being raised from £250 to £1,000. This aims to increase the efficiency and effectiveness of the DAML regime for law enforcement, businesses and customers.

A DAML is submitted to the National Crime Agency by a person proposing to deal with suspected criminal property that may make them liable for one of the principal money laundering offences under the Proceeds of Crime Act 2002. By submitting a DAML, a person can avoid criminal liability by obtaining consent or deemed consent for the act they propose to carry out; for example, a customer’s transaction to pay their rent. The DAML provides intelligence to the National Crime Agency and effectively freezes a transaction until it gives a consent decision or seven working days pass, after which businesses can assume that they have the relevant consent.

Raising the threshold to £1,000 is required now because the volume of DAMLs is rising and the vast majority do not provide law enforcement with asset seizure opportunities. Instead, they place regulatory burdens on businesses to submit and burdens on law enforcement to review, and cause a delay to customers, who must often wait seven days for their transaction to process.

To put the volumes in perspective, between 2018-19 and 2019-20 they increased by 80%, from 34,543 to 62,341. They then increased by, by my calculations, a further 41% to approximately 105,000 in 2020-21. In 2019-20, only 2% of all DAMLs, equivalent to 1,365, were refused consent by the National Crime Agency. Of those, only 1,062 progressed to law enforcement pursuing asset denial. The threshold applies to transactions in the operation of an account which do not relate to the opening or closing of an account. It applies only to deposit-taking bodies—in essence, banks and building societies—and to electronic money and payment institutions. This uplift in the threshold will result in fewer delayed transactions for businesses and customers where a DAML is no longer needed. It will allow businesses to prioritise their resources towards intelligence-led investigations and will enable law enforcement to focus on higher-priority reports that provide opportunities for asset seizure and disruption of criminal activity.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this order as well. As the noble Lord, Lord Paddick said, it seems a reasonable increase and some organisations would have gone to £3,000. However, there were other respondents to the consultation who were against the increase to £1,000; they wanted to keep it at the lower limit. Can the Minister say what their concerns were? Although I agree with the noble Lord, Lord Paddick, that £1,000 seems reasonable, other people thought it should have stayed at its original level: does the Minister know why they thought that? He indicates that he does not know why—okay.

I have some of the same figures that the Minister quoted. The Explanatory Memorandum states that the volume of DAMLs is rising steeply and gave those figures. The question is: what percentage of those 105,000 referrals were over the new £1,000 threshold—what difference will increasing the threshold to £1,000 make?

On the further figures that the Minister quoted, he said that only 2% of all DAMLs were refused consent in 2019-20, of which only 1,062 progressed towards asset denial. The question is, of that 2%, how many of those DAMLs were for amounts over £1,000 and so would still be caught? Both those questions are about how much the amount of work will be reduced by increasing this limit, although we of course approve of the objective.

One of the main benefits suggested by the Government, with which we agree, is that this measure should free up law enforcement to pursue other activities. We welcome that in itself. We heard from the current Home Secretary’s predecessor that the National Crime Agency has been asked to make staffing cuts of up to 20%. Can the Minister say anything about whether that previous expectation is still in place or has now been ruled out?

The Explanatory Memorandum states:

“A full Impact Assessment has been published alongside the Economic Crime and Corporate Transparency Bill, which considers the impact of the changes in this instrument.”


One of our key concerns about that Bill is its failure to tackle fraud and economic crime, with falling rates of enforcement and prosecution. I understand that this change is intended to reduce the number of ineffective DAMLs, but what action is being taken alongside that to try to increase the prosecution rate? It is a huge problem and it is very time-intensive to secure successful prosecutions—I understand that—so although we support this SI I would be grateful if the Minister could set out in a slightly broader context how he will try to increase the possibility of getting successful convictions.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their support. In answer to the detailed statistical questions from the noble Lord, Lord Ponsonby, the National Crime Agency has yet to publish its report into 2020-21 or 2021-22. The details will be in there; I will be happy to share that report as soon as it is published, if that is acceptable.

The noble Lord also asked me about staffing at the National Crime Agency. I cannot answer his specific question and do not wish to stray there, but I can say that we are increasing capacity in law enforcement to analyse and act on suspicious activity report intelligence. That includes 75 additional officers in the UKFIU, which will almost double capacity. Some 45 of those officers are already in post, and the milestone for recruiting the remaining 30 is the end of this financial year, 2022-23. I will not go beyond that at the moment but we all share the noble Lord’s concerns, particularly about financial crime, which, as we know, is a pressing problem.

However, we should also salute the news stories I heard this morning about the Metropolitan Police apparently busting a fairly sizeable scamming organisation. Well done them; let us hope that that results in a large number of successful prosecutions.

I will stop there. Once again, I thank both noble Lords for their support. We believe that this intelligence is a critical tool in our ability to identify, disrupt and recover the hundreds of millions of pounds that underpin the most serious organised crime in the UK. That intelligence will be preserved through this adjustment and the requirement to submit intelligence-only SARs even when businesses are using the threshold exemption. Increasing the threshold is a measure supported by industry and law enforcement. I am sorry, I do not know who did not support the rise; I will try to find out.

Setting the threshold at a more appropriate level to reflect the current landscape is an important step towards improving the performance of the anti-money laundering system to better disrupt money laundering, terrorist financing and high-harm offences.

Motion agreed.

Counterterrorism: Martyn’s Law

Lord Sharpe of Epsom Excerpts

Wednesday 23rd November 2022 Lords Chamber

[Lord Harris of Haringey (Lab)]

I refer to my interest in the register and beg leave to ask the Question standing in my name on the Order Paper.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, the Government are grateful to Figen Murray for her tireless campaigning for Martyn’s law. The protected duty will ensure that public places put safety and security first. We are working hard to bring forward this important piece of legislation as soon as possible.

[Lord Harris of Haringey (Lab)]

My Lords, it is five years since the Manchester Arena bombing and Figen Murray has campaigned tirelessly following the death of her son. Had there been a Protect duty in place at that time, 22 people might not have died. The Home Office has moved with extraordinary sloth since the principle was accepted. It has consulted at length and responded to the consultation. We were promised this in the Queen’s Speech. When is this going to happen, or do we have to wait for another atrocity?

[Lord Sharpe of Epsom (Con)]

Bringing forward this legislation was a 2019 manifesto commitment. As the noble Lord noted, there was supposed to be a consultation in early 2020, but that was delayed due to Covid. It was eventually undertaken between 26 February and 2 July 2021. It was a very comprehensive consultation process with more than 2,500 responses, and the duty has received strong support from businesses and others. As I say, the Government are committed to bringing forward this important legislation, as per the Queen’s Speech, as soon as parliamentary time allows.

[Lord Kamall (Con)]

My Lords, does my noble friend the Minister agree that one of the best ways to tackle terrorism is to prevent people becoming terrorists in the first place? What is his department is doing to work with the many local civil society organisations that are working with young people in many communities across the country, to prevent them being recruited by terrorists?

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for his question. The Contest strategy is the Government’s counterterrorism strategy and has the four Ps at its core, one of which is Prevent. Many sections of the community are engaged with that and the Government expect to publish an updated and enhanced version of Contest early next year.

[Lord Anderson of Ipswich (CB)]

My Lords, notwithstanding the horrific slaughter of young people in the Manchester Arena, a clear majority of the 100 or so deaths from terrorism in Great Britain this century have been on public transport or on the streets of London. Knowing the risks, we still prize the ability to run for a train or hop on a bus without submitting to checks or scrutiny of any kind. Does the Minister agree that we need to reflect long and hard before requiring precautions at public venues that are not required on public transport? I think particularly of the hundreds of thousands of small venues, such as cafes or parish churches, where there may be no money to spare and no specific threat.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very sound point. He is, in effect, asking me about the scope of the proposed legislation and that work is ongoing. It would not be appropriate for me to comment at this point.

[Lord Paddick (LD)]

My Lords, I pay tribute to the noble Lord, Lord Harris of Haringey, and to Martyn’s family for their work on these issues. What else can the Government do to encourage small venues to improve security, while we await this long-overdue legislation? What about a public information campaign or a security rating scheme for venues? Lives may be unnecessarily at risk because of government inaction.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes an interesting point. ProtectUK was launched in March 2022 as a digital tool. Its work includes offering guidance, advice and engagement with counterterrorism experts via an online platform. As it develops, it will establish itself as a central digital location for counterterrorism support. There are a number of other aspects to that, which I could go on about at some length, but considerable work is being done in that space.

[Lord Blunkett (Lab)]

My Lords, seven former Home Secretaries have written to the Prime Minister today, asking for this matter to be expedited, given that it is almost 18 months since the end of the consultation. I am being only slightly facetious when I ask the noble Lord if he will make sure that the Prime Minister gets the letter because, when Tony Blair’s dad wrote a letter to Downing Street and signed it “love, Pop”, he got a letter back saying “Dear Mr Pop”. Perhaps we could make sure that this letter reaches Rishi Sunak.

[Lord Sharpe of Epsom (Con)]

I will make sure the Prime Minister is aware of the letter.

[Baroness Newlove (Con)]

My Lords, as the former Victims’ Commissioner, I have met Figen and other campaigners. For the Government not to have any legislation in place after five years is inhumane to the families who are grieving and fighting to make other venues safe. After all, at the end of the day, the Manchester inquiry has a huge profile and it is up to the Government to put legislation in place for the sake of the lost family members and for those fighting to protect others—as Figen has and will continue to, in a dignified manner.

[Lord Sharpe of Epsom (Con)]

I agree with my noble friend that the campaign has been conducted in a very dignified manner. Of course, I express my sympathies with all the victims and their families. As I say—I cannot improve on this answer—the legislation will come forward as soon as parliamentary time allows.

[Lord Coaker (Lab)]

My Lords, we are not going to let the Minister off the hook with that. My noble friend Lord Harris has been campaigning with Martyn’s family on this issue for years. It has been five years since the Manchester Arena bombing. It is not good enough for the Minister to say that this will be done as soon as possible, “We are trying to do it expeditiously”, et cetera. When will we see this legislation put into practice to honour the memory of those who died at Manchester and elsewhere?

[Lord Sharpe of Epsom (Con)]

I am sorry to disappoint the noble Lord again, but I will have to stay on the hook. The fact is that it will be as soon as parliamentary time allows. I cannot improve on that answer.

[Lord West of Spithead (Lab)]

My Lords, in 2009, I signed off a mass of work to do with security in crowded places. My right honourable friend was in a nearby office at the time and we increased the number of NaCTSOs, as well. Can the Minister confirm that that work—a great deal of work—on exactly this stuff is being looked at and used in the context of this legislation? If not, as with so many things, we will be going round and round in circles.

[Lord Sharpe of Epsom (Con)]

As I say, the Government are still working on this and all aspects of it will be included in the legislation and in the other things I have referenced, such as the Contest and Protect strategies.

[Lord Flight (Con)]

My Lords, do the Government consider counterterrorist measures the most suitable measures to deal with the security of public venues?

[Lord Sharpe of Epsom (Con)]

As outlined in the Queen’s Speech, yes.

[Lord Watts (Lab)]

My Lords, can the Minister explain why the legislation programme seems much slower with this Government than it was with the previous ones?

[Lord Sharpe of Epsom (Con)]

No, I do not think I can.

[Baroness Foster of Oxton (Con)]

My Lords, while we wait for this proposed legislation to pass through this House and the other place, can we be assured that one of the main failures that was a contributory factor to the Manchester bombing was the lack of joined-up thinking and joined-up work by the emergency services? Can we at least have the assurance that that is in hand and that all venues, small or large, now have proper contingency planning while we await the legislation?

[Lord Sharpe of Epsom (Con)]

My noble friend makes a good point. I am, of course, happy to try to give that assurance from the Dispatch Box but, as we know, all police forces and emergency services remain operationally independent to some extent. The fact is that they have access to the various services I have outlined, through Contest.

[Lord Harris of Haringey (Lab)]

My Lords, I am sorry to come back to the Minister, but the question just asked by his noble friend highlights that there is a lot of guidance there. The whole point of this proposed legislation was that it would place a duty to act proportionately on those responsible for public venues. I cannot understand why there is this continued delay. Is it simply that there is no parliamentary time, given that both Houses seem to have a very light load at the moment?

[Lord Sharpe of Epsom (Con)]

From my personal point of view, I am not sure that it is a particularly light load. As the noble Lord says, the duty will enhance public security by introducing new requirements for certain public places to ensure preparedness. It is necessary: there is no disagreement about that. It will come forward as soon as parliamentary time allows.

Solihull Murders

Lord Sharpe of Epsom Excerpts

Wednesday 23rd November 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, this terrible tragedy highlights the fact that although domestic abuse crimes recorded by the police have been increasing annually by between 5% and 6%, prosecutions have slumped for the fifth year in a row. What are the Government going to do about the endemic misogynistic culture among the police and prosecutors which means that they do not tackle these dangerous crimes against women, which can, as here, with unanswered and unresponded to calls, prove fatal?

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

I begin by saying that my thoughts are with the loved ones of Khaola Saleem and Raneem Oudeh. For a mother and daughter to lose their lives in this way is truly heartbreaking. We should bear in mind the perpetrator, who bears the ultimate responsibility for this sickening act.

The noble Baroness asked about misogyny in the police. The Government remain determined to tackle misogyny in the police. That is why the independent policing inspectorate was tasked with reviewing vetting and countercorruption arrangements in policing across England and Wales, looking in particular at what forces are doing to identify and deal with misogynistic behaviour. We welcome the report’s conclusion that the culture is improving. The findings about adverse attitudes towards women are unacceptable and I expect all forces to take action in response as a matter of urgency.

[Baroness Sugg (Con)]

My Lords, tragically, these deaths were preventable. Does my noble friend the Minister believe that the police are appropriately trained in cultural sensitivities in relation to domestic violence?

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that question. Training includes those issues. I will quote the Minister in the other place yesterday, because she summed it up perfectly. She said:

“It is about time that people who work in this field do not look towards colour as being an excuse for non-activity. This Government take the matter very seriously. It does not matter what colour, creed or sex a person is; if they need the police’s help, they need the police’s help. I expect those themes to be included in proper police training.”—[Official Report, Commons, 22/11/22; col. 158.]


So do I.

[Baroness Burt of Solihull (LD)]

My Lords, in her remarks yesterday, the Minister also said:

“We need thorough risk assessments, and they need to be followed with proper training.”—[Official Report, Commons, 22/11/22; col. 156.]


I am sure all noble Lords would agree. Can this Minister tell the House why some police forces have failed to carry out assessments and training of their officers? Can he give me any good reason why this training should not now become compulsory?

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Baroness for that question. We agree: it is incredibly important that the training reflects the gravity of these sorts of situations. We are taking action to improve this. I am sure she will be aware that we are supporting and funding the National Police Chiefs’ Council’s Deputy Chief Constable Maggie Blyth in her role as full-time national policing lead on this sort of subject. We are committed to funding the continuing rollout of the College of Policing’s Domestic Abuse Matters programme for front-line responders, and to adding VAWG to the strategic policing requirement.

On the training that has been developed by Maggie Blyth, which I think was released last December, so far only two-thirds of police forces have adopted it. That is not good enough. The Minister in the other place said the same and I am happy to repeat it.

[Baroness Crawley (Lab)]

My Lords, will the Minister say why it took until these last 12 months for the Government to recognise that violence against women and girls should be included in the definition of “serious violence”?

[Lord Sharpe of Epsom (Con)]

I am not sure that is strictly true. I do not wish to comment on the precise timings, but I repeat the statement I just made. The Government are taking violence against women and girls incredibly seriously and will continue to do so.

[Lord Bellingham (Con)]

My Lords, the five officers in question have been served with management action by the Independent Office for Police Conduct over the missed opportunities. Can the Minister explain exactly what this means? Furthermore, the Home Secretary has instructed police authorities to make sure that they do all they can to investigate every single burglary. Can the same principles not be applied to domestic violence as well?

[Lord Sharpe of Epsom (Con)]

My noble friend is completely right. In fact, nine officers from West Midlands Police were served with misconduct notices, and the IOPC found a case to answer for five of them at level. They received management action; I am afraid I am unable to define what “management action” actually means. I apologise for that. I will try to find out more on the subject and, if I can, I will write to my noble friend.

[Baroness Newlove (Con)]

My Lords, this case is horrendous. It makes me feel very sad that people are still dying unnecessarily under the laws we put in place in this Chamber. I inform my noble friend that, while I appreciate his answers to these questions, on the ground it simply is not happening. I am receiving lots of emails from women who have been asked by police officers to do their own investigations into domestic abuse, acid attacks and stalking; I guide them to go back to the police and ask the questions. The inspectorate says it will attend every burglary; I agree with my noble friend that it should do so for every crime. No victim should be asked to investigate the horrific crimes that they are going through.

[Lord Sharpe of Epsom (Con)]

I completely agree with my noble friend. It may help if I go through the list of recommendations made by the IOPC to West Midlands Police in this case. The learning recommendations concerned domestic abuse risk assessments being completed without intelligence checks and misunderstanding by officers around when such risk assessments would be reviewed by their public protection unit. Other recommendations were that the force should consider PPU oversight of all domestic abuse cases with repeat victims, and further training around the use of domestic violence protection orders—DVPOs—and domestic violence protection notices.

My noble friend is quite right that no woman should be asked to undertake her own investigation; that is absolutely absurd. It is for the police to do it. The police have recognised it, the IOPC has published recommendations and West Midlands Police in particular is acting on it. I hope all other forces do too.

[Lord Watts (Lab)]

My Lords, the Minister says that every force should carry out this training, yet we know that a lot are not. Between the Home Office, the inspectorate and the police forces, where is the accountability in the system to make sure that this crucial training takes place?

[Lord Sharpe of Epsom (Con)]

As the noble Lord is well aware—I have said it many times from the Dispatch Box—police forces in this country remain operationally independent. That is right, but of course the PCC is also the interface here between the public and the police. The statement on this case by the West Midlands PCC, Simon Foster, was very robust and made some solid points. With the noble Lord’s permission, I will quote a bit of it:

“My Police and Crime Plan makes it clear that West Midlands Police must impose bail conditions on perpetrators rather than releasing under investigation, make full use of civil protection orders and restraining orders and make arrests for breach of non-molestation orders.”


He goes on at some length and I will not repeat it all, but I think that is the appropriate response. I commend him on his actions and urge other PCCs to follow suit.

[Baroness Hussein-Ece (LD)]

My Lords, police failed repeatedly to come to the rescue of Raneem Oudeh and her mother, despite 10 complaints and six 999 calls, including on the night of their death. We have heard the police pledge to attend every single home burglary, but I just wonder what the priorities are here. Surely, saving the lives of women in these situations should be of equal importance as attending burglaries, if not more important. Why are women just not listened to by the police?

[Lord Sharpe of Epsom (Con)]

I think it is of rather more importance than investigating burglaries; we should all think that. I do not necessarily agree that it is not a priority for the police forces. The police forces are certainly saying the right things but, as I have already said from this Dispatch Box, I, the Minister in the other place, the Home Secretary and the Government think they have more to do.

[Lord Paddick (LD)]

My Lords, is not the problem here—the difference between burglary and domestic violence—the attitude of police officers towards women? What are the Government doing about that?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I went through some detail on that, as regards the strategy on tackling misogyny in the police. I agree that there are some clear failings on this, certainly in regard to this case. The way the police failed to investigate some very clear signals was clearly unacceptable, but the Government are determined to tackle the misogynistic culture that has been identified.

[Lord Hogan-Howe (CB)]

My Lords, police attendance on a crime-by-crime basis is a difficult thing to sustain. The police should attend all reports of crime if the victim wants them to or if it is a very serious event, which is something I have always pursued, but should the Government not also work with the College of Policing to share the best evidence about what highlights those most at risk? For example, Professor Larry Sherman, recently at Cambridge, highlighted a high correlation between suspects who had threatened suicide and people who eventually became murderers of victims they had previously threatened. We had previously been told that threatening the victim prior to their murder was also an indicator. Both matter, but the police’s response needs to be based on good evidence. I am not convinced that the college has yet got that connection between the evidence base and passing that on to the police to share, so that their training improves.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord for that, and commend him for investigating all the crimes when he was still actively policing. I will take back his suggestions on the College of Policing because they make sense. Obviously one of the college’s primary duties is to ensure that best practice is shared and disseminated.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Lord Paddick (LD)]

No pressure.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for his closing words; as the noble Lord, Lord Paddick, said, “No pressure”. I thank all noble Lords for their impassioned contributions to what has obviously been a very substantive debate.

Clause 9 seeks to establish buffer zones outside abortion clinics in England and Wales to ensure that persons accessing or providing abortion services are free from harassment or intimidation. As the Committee will be aware, this clause was inserted into the Bill on the basis of a free vote in the other place. I will not get involved in second-guessing the motivations of those who voted, but the result was 297 votes in favour to 110 votes against. As I have said before, and I am very happy to say again, the Government respect the will of the House of Commons.

It is obviously clear—today’s debate makes it even clearer—that there are very strong views on both sides of the argument. Many noble Lords want the clause to become law, and many want to alter or to delay it. Amendments 80 to 97—tabled by the noble Baronesses, Lady Hoey, Lady Fox, Lady Watkins, Lady Barker and Lady Hamwee, my noble friend Lady Sugg, the noble Lords, Lord Ponsonby and Lord Beith, and the right reverend Prelate the Bishop of St Albans—all seek to make an array of changes to Clause 9, be that by raising the threshold for the new offence or by seeking to clarify the clause in some way.

Amendments 98 and 99 tabled by the noble Lord, Lord Farmer, seek to introduce buffer zones pending the outcome of

“a consultation … to determine if there has been significant change in”

protests “outside abortion clinics since” the Government’s last review. Amendments 87 to 93 look to ensure that only activities relating to abortion services within a buffer zone constitute an offence, while Amendments 88, 96 and 97 seek to ensure that activities within private dwellings and places of worship are exempt. Amendments 80 to 82 seek to provide a person within a buffer zone with the opportunity to defend their actions and

“to strengthen the burden of proof required to establish an offence.”

As I said before, I thank all noble Lords for their interest and ideas to amend the existing clause in its current form, particularly their well-intentioned attempts to tighten what was described in the other place by the Minister as a “blunt instrument”. It remains the Government’s view, based on legal advice, that this amendment does not meet our obligations under the European Convention on Human Rights and would require a Section 19(1)(b) statement to be provided. That said, after having been brief, I am now even more keen to meet noble Lords in the coming days, and I encourage them to meet me so that we may discuss the next steps for the clause. For now, I invite noble Lords not to press their amendments.

[Baroness Sugg (Con)]

Does my noble friend the Minister agree that the clause as inserted by the other place calls for universal zones around all clinics in England and Wales?

[Lord Sharpe of Epsom (Con)]

I say again to my noble friend—I have said it before, and I am happy to say it again—that the Government respect the will of the House of Commons.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank all Members of the Committee for a wide range of speeches, ensuring that we have covered a lot of ground on this important issue. Contributions have been thoughtful, sometimes tetchy but largely civil; it is important to have these arguments out. I listened to what everybody said, and one thing I noted was that all speakers on all sides have condemned the harassment and intimidation of any woman going into a clinic or a hospital for an abortion. It is important that we note that we have that in common, because sometimes it can be presented as though people who are against Clause 9 are indifferent to the intimidation or harassment of women. Everybody has said that it is wrong; this is a question of how you deal with it.

The dispute is also about exactly what happens outside clinics. We have heard the clash of narratives in the contributions that I referred to, which makes the call for a new review from the noble Lord, Lord Farmer, all the more appealing. Indeed, the noble Baroness, Lady Sugg, herself suggested—backed up by the reply to me from the noble Baroness, Lady Barker—that the situation has got a lot worse since 2018, and particularly very recently. That is disputed by people so, for the clause to have legitimacy, maybe we need a public discussion to get the evidence—that would be important.

--- Later in debate ---

I suggest to noble Lords and to those who read these remarks that suspicionless stop and search for protest-related offences is a step too far in a democracy. It undermines protest and, to be frank, I will be very surprised if the Government are able to say anything to stop us bringing this back on Report and saying to a wider audience that suspicionless stop and search for protest-related offences is a step too far, and we are against it.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their contributions to this debate. In answer to the question from the noble Baroness, Lady Jones, about the duration of the previous debate, we are of course a self-regulating House.

We believe that stop and search is a vital tool to crack down on crime and protect communities. The Bill extends both suspicion-led and suspicionless stop and search powers, enabling the police to proactively tackle highly disruptive protest offences by searching for and seizing items which are made, adapted or intended to be used in connection with protest-related offences, such as glue, chains and locks. The powers can also act as a deterrent by preventing offenders carrying items for protest-related offences in the first place because of the increased chance of being caught.

The suspicion-led powers in Clause 10 will help the police manage disruptive protests more effectively, as police officers will have the power to stop and search anyone they reasonably suspect is carrying items that could be used for locking-on, obstruction of major transport works, interference with key infrastructure, public nuisance, obstruction of the highway and the tunnelling offences.

The suspicionless powers in Clause 11 build on the Government’s plan to give the police the powers they need to prevent serious disruption at protests from happening in the first place. In high-pressure, fast-paced protest environments, it is not always possible for officers to form reasonable suspicion that individuals may be about to commit an offence. That is where suspicionless powers are important, and reflect the operational reality of policing.

The noble Lord, Lord Coaker, asked about the wording in Clause 10(g). Of course,

“intentionally or recklessly causing public nuisance”

are legally well-understood terms which are found in much other legislation.

The suspicionless stop and search power will be usable only if certain conditions are met, and in cases where a police officer of or above the rank of inspector authorises its use in a specified locality for a specified period. This power uses a similar framework to that found in Section 60 of the Criminal Justice and Public Order Act 1994 to ensure consistency in police powers and safeguards. The rank of inspector aligns with existing stop and search powers to ensure consistency.

In answer to the earlier question of the noble Lord, Lord Coaker, a Section 60 order cannot be extended beyond 48 hours. PACE Code A is also clear that a suspicionless stop and search should be reasonable and no bigger than needed.

In terms of the size of the area that designations would cover, as I said earlier, our intention is to mirror the approach used in Section 60. The geographical extent of a Section 60 order depends on the situation that led to the order being authorised, so it is for the authorising officer to determine. PACE Code A states that the authorising officer should specify a fixed location for the boundary of the search area, whether that is a street name or a divisional boundary, and not make the area wider than is necessary for the purpose of preventing these suspected offences.

[Lord Coaker (Lab)]

Will the Minister reflect on his remarks about a specified locality and his analogy with Section 60? That deals with terrorism. Suspicionless stop and search may well encompass a huge area, as this Parliament has accepted on the basis that a terrorist may travel hundreds of miles to target people. This is about protest and protesters. Is the Minister saying that the Government see that as analogous? I find that difficult to comprehend.

[Lord Sharpe of Epsom (Con)]

The fact is that the search area should not be wider than necessary for the purposes of preventing the potential offences. I do not believe it is analogous to terrorism, but that is quite clear.

The noble Lord also asked how the geographical extent of a no reasonable suspicion stop and search order is communicated. It is for police forces to determine how and whether to communicate the geographical extent of such an order under Section 60, and this will be the case for the new suspicionless powers in the Bill. But although forces are no longer required to communicate whether a Section 60 order is in place, many continue to do so where they judge it to be operationally feasible, to help deter criminals and enhance community trust and confidence. It is very common for forces to use their social media channels or websites to communicate the extent of a Section 60 order.

The noble Lord also asked about officers in plain clothes. This power only extends to those in uniform. 

--- Later in debate ---

[Baroness Blower (Lab)]

I invite the Minister to comment on the remarks that I and the noble Lord, Lord Beith, made at Second Reading, which my noble friend Lord Coaker referenced.

If a police officer attempts to stop and search a woman who clearly knows that she is not carrying anything unreasonable, given what the police themselves said about how single women walking alone at night might respond to this, there is every chance that a suspicionless stop and search could result in the woman—young or old—obstructing a police officer in the course of his or her duty. I did not hear the Minister respond to that. It is a very significant concern. It would be a concern anyway but it is an aggravated one, given what the Metropolitan Police and other authorities have said in the light of what we know only too well happened previously.

[Lord Sharpe of Epsom (Con)]

Obviously, I understand where the noble Baroness is coming from, but asking an officer for proof of identity is not in and of itself an obstructive thing to do. That is very clear.

[Baroness Blower (Lab)]

If I might just press the point: of course, if the young woman has the presence of mind to simply ask for proof of identity, that may very well not be obstruction, but she may be frightened by this and seek to move away or to respond in some other way, but not to assault the police officer. I just see that there is a danger in this situation, and I am not hearing anything that I could tell women who are asking me about what we are doing in the Public Order Bill so that they do not need to have any concern about suspicionless stop and search. We heard before about it being perfectly reasonable to respond in such a way that you can categorically assure yourself that a person is a police officer. Frankly, I have never seen a police identity badge, so I do not know what they look like. The previous Metropolitan Police Commissioner talked about flagging down buses if you are not happy about what is going on. I want to press the Minister on this point, because although I absolutely accept that asking to see a badge is not necessarily chargeable with obstruction, other things could befall.

--- Later in debate ---

[Lord Paddick (LD)]

Before the Minister responds, he may also wish to think very carefully about what he said about these powers not being exercisable by officers in plain clothes. I am prepared to apologise to the Committee for misleading it when I say that these powers alter Section 1 of PACE, which has nothing in it about an officer having to be in uniform to exercise powers of stop and search. So what the Minister said about these powers not being exercisable unless the officer is uniformed is not true.

[Lord Sharpe of Epsom (Con)]

If I am incorrect I will most certainly correct my statement. That was the information that I was given. If it is incorrect in any way, I will of course come back and apologise. It was inadvertent if that is the case.

I think we are getting slightly off topic, but I say to the noble Baroness that the Minister certainly appreciates that women and girls can feel very vulnerable, particularly at night, and I understand the level of hassle. However, a road where one is likely to be alone is not likely to be subject to the Section 60 power, so we are in the realms of the hypothetical to some extent. I accept and understand the concerns that have been raised, but I reiterate that it is everyone’s right to ask a police officer for identification, and I believe that under the suspicionless basis the officer has to be wearing uniform, but I will confirm that later with the Committee, certainly if I am incorrect. I do not have an answer for the noble Baroness, Lady Jones, so I will have to write to her.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords who have participated in this debate. The noble Baroness, Lady Jones of Moulsecoomb, questioned the area in which suspicionless stop and search could be operated. Marches that occur in central London traditionally start at Marble Arch, go down Park Lane and sometimes through Oxford Street and Regent Street. The number of people who could be subject to suspicionless stop and search as the result of that sort of demonstration is mind boggling.

In his real-world experience as adviser to the police on these issues, the right reverend Prelate the Bishop of Manchester talked about these powers being invariably used disproportionately. The Minister has said nothing to reassure the Committee that the powers will not be used disproportionately, with the damage that will be caused to the reputation, trust and confidence in the police.

The noble Lord, Lord Coaker, made the valid point that the powers can be used against children. Public nuisance is such a wide offence. I also raised the offence of being present in a tunnel. How can someone go equipped to be present in a tunnel? There was no answer about that.

Before this, there were two elements to suspicionless stop and search. The Minister talked about Section 60 of the Criminal Justice and Public Order Act, which is to do with serious violence. The other was Section 44 of the Terrorism Act, which the Conservative Government repealed because it was being used disproportionately. The Government withdrew suspicionless stop and search in relation to terrorism because they considered that its impact on trust and confidence in the police was disproportionately negative. It does not exist any more in relation to terrorism, but this Government want to introduce it in relation to people exercising their lawful right to protest.

The Minister made no reference to what HMIC said was likely to be a chilling effect on people exercising their human rights under Articles 9, 10 and 11. There was not a word about this, even though HMICFRS raised it. There was nothing about the disproportionate impact on minority communities. Minority communities and young people are more likely to be engaged in protest because they do not feel that the parliamentary process represents their views. As the noble Lord, Lord Coaker, said, we will return to these issues on Report. I am sure we will vote on them.

[Lord Sharpe of Epsom (Con)]

My Lords, I should like to clarify my remarks about uniforms. Section 60—which is what I was talking about—applies only to officers in uniform. Section 1 powers can apply to all officers.

[Lord Paddick (LD)]

Can the Minister clarify whether these powers—not Section 60 powers—to stop and search people in relation to protests can be exercised by officers in plain clothes?

[Lord Sharpe of Epsom (Con)]

As I think I explained, we are basing these powers on Section 60.

[Lord Coaker (Lab)]

Is the Minister telling this Chamber that a plain clothes officer in the middle of Lambeth, Manchester, Newcastle or Cardiff can stop a car without suspicion, without anybody knowing that there is a suspicionless stop and search operation going on?

[Lord Sharpe of Epsom (Con)]

Our intention is to mirror the approach used in Section 60. I said that very clearly earlier. I have already explained its geographical extent.

[Lord Paddick (LD)]

Can the Minister point to the part of the Bill that says that suspicionless stop and search powers are restricted to officers in uniform?

[Lord Sharpe of Epsom (Con)]

I am afraid I cannot.

[Lord Coaker (Lab)]

This is extremely serious. It is exactly the point that the noble Lord, Lord Paddick, is making and what we are trying to clarify. When can a non-uniformed officer use these powers and when can they not?

[Lord Sharpe of Epsom (Con)]

I apologise to the noble Lords, but I have nothing more to say on the subject. I have tried to explain how this relates to the Section 60 powers. Our intention, I say again, was to mirror that approach.

[Baroness Blower (Lab)]

This is of very great significance; not just to me, not just to women, but to everyone who is trying to understand the Government’s intention with this legislation and in what position people will find themselves. Does the Minister not agree that, if it is the Government’s intention that only uniformed police officers may exercise these powers—frankly, I do not think that they should do so either—then that should be made explicit in the Bill, as there is clearly the possibility of ambiguity?

[Lord Sharpe of Epsom (Con)]

I am grateful to my noble friend for pointing out that Clause 11(6) says:

“This section confers on any constable in uniform power … to stop any person and search them or anything carried by them for a prohibited object.”

Clause 10 agreed.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall open by thanking the noble Lord, Lord Paddick, for setting the scene and the background to this group of amendments. I agree with the way that he set out the history of this group of amendments. I also thank my noble friend Lady Chakrabarti for the way she set out her amendments and commented on the other amendments. I agree with her assessment that the Bill, as drafted, is vague and broad—and that it is vague and broad in a dangerous way. I agree with those central points.

Throughout the Bill, a number of clauses state that it is a defence for a person charged with an offence under the clause to

“prove that they had a reasonable excuse”

for their actions. As we have heard, the JCHR flagged this as a reverse of the burden of proof, so that rather than the prosecution having to prove that a person’s actions were done without a reasonable excuse and so were unlawful, it is for the defendant to prove, after they have been charged, that they had a reasonable excuse for their actions. This is in contrast to an offence such as obstruction of the highway, which we have just heard about, where the prosecution must prove that the defendant did not have lawful authority or excuse for their actions. For the new locking-on offence, the burden of proof would be on the defendant to show that he or she had a reasonable excuse.

Such a reverse burden of proof may be inconsistent not only with Articles 10 and 11 but with the presumption of innocence—a central principle of criminal justice and an aspect of Article 6 of the ECHR and the right to a fair trial. This is because requiring the defendant to prove something, even on the balance of probabilities, may result in a conviction despite there being an element of doubt, and it is hard to see why a reverse burden is necessary or appropriate in this case. The noble Lord, Lord Anderson, gave the example of a bladed article and the reverse burden of proof in that context. It is of course a defence I am very familiar with as a sitting magistrate in London. It is of course right that the court will take its own view on whether the reverse burden of proof is reasonable in these circumstances.

I agree with the point made by my noble friend Lady Chakrabarti that the better situation is that a police officer, when considering whether to charge, at that point takes into account whether there is a reasonable excuse, rather than it being subsequently resolved in a court case—although I also acknowledge the legal point made by the noble Lords, Lord Carlile and Lord Anderson, that it is not always simple to distinguish between the two. Nevertheless, the point is that the police officer should take into account a potential reasonable excuse defence before deciding whether to charge.

To summarise this debate, two noble Lords made points that I thought were particularly resonant. The noble Lord, Lord Carlile, asked whether this was speciality legislation for ever more exotic offences that can be extremely annoying to the general public. As many noble Lords have said in this debate, there is existing legislation to deal with those offences, and there is scepticism that the police are feeling able to use the legislation that is already within their power. The noble Lord, Lord McDonald, challenged the Minister to give examples of the gaps in the existing laws: in fact, he defied the Minister to go ahead and give those examples.

I also want to comment briefly on my noble friend Lady Blower’s speech on Amendment 60, which of course I agreed with. I also agreed with the point made by the noble Lord, Lord Balfe, that in the case of industrial action it should not be a reasonable excuse. The offences should never be charged in the first place. It is the same point, in a sense, that the potential use of a reasonable excuse should be taken into account right at the beginning of the process rather than once you get to a court case.

Although the amendments focus on particular detailed provisions in this Bill, I think a challenge has been laid down to the Minister to give examples and to say why this is necessary when we have a plethora of laws which are being used. The demonstrators on the M25 have moved on partly because of the sentences that have been given to them, so what is the necessity of pursuing this legislation?

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank all noble Lords who have spoken in this debate, to which I have listened carefully. Before I turn to the specific amendments in the group, I shall start by setting out the case for Clauses 1 to 8 and why I disagree with the general thrust of many of the amendments that we are going to discuss today that seek to make these offences less effective.

Before I do that, I shall go on to a couple of general points. The noble Lord, Lord Paddick, said that this House had already rejected these measures, but one of the main criticisms that noble Lords made during the passage of the Police, Crime, Sentencing and Courts Bill was that the measures had not been debated in the House of Commons. The elected House has now had an opportunity to scrutinise this legislation and vote on the Government’s proposals and has supported its move into the House of Lords.

A number of noble Lords mentioned compatibility with the ECHR. I reaffirm that it is the Government’s view that the measures in this Bill are compatible with the ECHR, namely the rights to freedom of expression, assembly and association. However, these rights are not absolute. They do not extend to wreaking havoc on the lives of others. Of course, however, as with all existing public order powers, the police will absolutely need to act compatibly with the human rights of protesters when using those powers.

[Lord Foulkes of Cumnock (Lab Co-op)]

It appears from his general introduction that the Minister is going to proceed with this Bill. Surely, in the light of the overwhelming view on both sides of the House that existing legislation is entirely adequate—with one slight hesitation from the noble Lord, Lord Horam—it is a waste of the Minister’s valuable time and this House’s time to proceed with this. Will he now quickly have a rethink and withdraw this Bill?

[Lord Sharpe of Epsom (Con)]

Well, I thank the noble Lord for that, and the answer is, of course, no.

[Lord Foulkes of Cumnock (Lab Co-op)]

That is a very clear answer. I wonder whether the Minister could give, perhaps, a sentence or two of explanation as to why he does not think that it would be a wise move to withdraw this Bill, since all its aspects are already covered by existing legislation.

[Lord Sharpe of Epsom (Con)]

My Lords, it is reasonable to say at this point that we are about to have two days of quite detailed explanation on that, so I am afraid that that is as far as I can go on this.

Returning to the more general points that have been made so far in this debate, particularly as to why the police need these powers, what existing powers they have, and so on and so forth, we will be returning to this in a much later group, and I intend to speak in much more detail on it. From a general point of view, recent protests were clear that they had as their aim the intent of causing as much disruption as possible through the use of what can only be described as guerrilla tactics. These measures give the police the proactive powers necessary to respond to these dangerous and disruptive tactics quickly. We are going to work closely with our partners in the police to ensure that they have the support and resources in place that they need to use these powers.

Again, as my noble friend Lord Horam remarked, too often we have seen protesters acquitted on grounds of technicalities or get penalties that do not reflect the harm that they have caused to others. We want simple, stand-alone offences that ensure that those who cause this level of disruption and misery can be convicted and receive a penalty proportionate to the harm that they have caused. I will return more specifically to the legislation in a later group; I hope that will be acceptable.

To give one example of this type of behaviour, just two Just Stop Oil activists climbed the suspension cables of the Queen Elizabeth II bridge in the early hours of 17 October this year. They caused its closure for more than 36 hours. Once discovered, the Essex Police attended and closed the carriageway so that officers could safely leave their vehicles in an attempt to engage with the activists. It was later advised by National Highways to keep the road closed for the safety of the protesters, road users and responding partners. The closure of the carriageway meant that the entirety of the clockwise traffic from Essex to Kent that usually utilises the QE2 bridge had to be diverted through the east bore of the Dartford Tunnel, halving the usual counter-clockwise Kent-Essex traffic capacity that would normally use all the tunnels at the Dartford crossing. This had a number of knock-on impacts in terms of the emergency services and local communities and businesses. I am sure that we are all familiar with what those were.

The noble Lord, Lord Paddick, raised a hypothetical example of a landowner in respect of a tunnel.

[Lord Paddick (LD)]

Before the Minister continues, can he point to which part of this Bill would be deployed against the two Just Stop Oil activists who climbed on the QE2 bridge?

[Lord Sharpe of Epsom (Con)]

Well, we are about to go into a good deal of discussion about things such as serious disruption, key national infrastructure and so on, which form essential parts of this Bill. I am not a policeman, but I imagine that the police are perfectly capable of utilising those aspects of the Bill.

I come to the hypothetical example of the landowner that the noble Lord raised earlier. It is worth pointing out, in relation to the entire Bill, that the threshold is “serious disruption”. In the case that the noble Lord outlined, that is clearly not the case, so there would be no case.

I move on to the measures in Clauses 1 to 8. As well as the measures we will discuss next week, the police will have the proactive powers necessary to respond quickly to these dangerous and disruptive tactics.

I turn to the specific amendments in the group. Amendments 1, 7, 8, 24, 28, 29, 35, 39, 40, 55 and 59, in the names of the noble Lords, Lord Paddick, Lord Anderson of Ipswich, Lord Skidelsky and Lord Coaker, and the noble Baroness, Lady Chakrabarti, seek to move the burden of proof for a reasonable excuse from the defendant to the prosecution, making it a key element of the offence. We will debate the subjects that the noble Baroness, Lady Blower, raised with regard to trade disputes in the fourth group today, so I will defer specific answers to those questions until the debate on that group.

Whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, so we see it as entirely appropriate that the defendant, who has committed the offence in the first place and has personal knowledge of these facts, is required to prove them. It is also the case that the burden of proof resting on the individual is not a novel concept. There are multiple offences where this is the case, including—as the noble Lord, Lord Anderson, pointed out—the defence of good reason for possessing a bladed article in a public place under Section 139 of the Criminal Justice Act 1988.

The noble Baroness, Lady Chakrabarti, raised the example of linking arms. Of course linking arms itself is not an offence; it is an offence and applicable only if the act

“causes, or is capable of causing, serious disruption to … two or more individuals, or … an organisation”.

Groups of protesters linking arms and obstructing roads or buildings can cause just as much disruption as those who use other equipment to lock on. For example, it is not right that groups of people who glue themselves to roads may fall under this offence but those who link arms and cause just as much disruption do not.

On the question from the noble Lord, Lord Anderson, on why the burden of proof being on the defendant is in the public interest, we have seen people cause so much serious disruption and then continue to burden the prosecution with more and more requirements to prove things. Surely it is right that, where people have caused this kind of disruption, they should demonstrate that they had a reasonable excuse.

With these offences, the prosecution will still need to prove all the elements of the offence to the criminal standard of proof, including that the act

“causes, or is capable of causing, serious disruption”,

as I just explained, and that the defendant intended or was reckless as to serious harm disruption. For those reasons, I respectfully disagree with the amendments.

[Lord Skidelsky (CB)]

Does the Bill define serious disruption?

[Lord Sharpe of Epsom (Con)]

Again, we will come back to that in some detail in the debate on a later group. The amendments have been grouped thematically today so there will be a bit of overlap, for which I apologise. For now, I respectfully disagree with these amendments and ask that they not be pressed.

[Lord Carlile of Berriew (CB)]

Will the Minister at some point explain to us why Section 78 of the Police, Crime, Sentencing and Courts Act 2022, introduced by this Government, does not meet exactly the requirements discussed in this Bill? It is not an ancient Act of Parliament but a new one, and it seems to me to fit the bill proportionately.

[Lord Sharpe of Epsom (Con)]

I commit to doing that in the debate on a later group.

[Lord Paddick (LD)]

Can the Minister address the issue of people being arrested and detained, and being allowed to deploy a reasonable excuse defence only once charged, as opposed to someone not committing an offence if they have a reasonable excuse, which is the normal process with most legislation?

[Lord Sharpe of Epsom (Con)]

My Lords, I think I have gone into reasonable detail on the reasonable excuse situation, so I will rest my comments there for now.

[Lord Paddick (LD)]

I am sorry to disagree with the Minister, but he addressed the issue of whether the burden of proof was on the prosecution or on the defence. He did not address, in any shape or form, police being allowed to arrest and detain people and their being allowed to deploy the reasonable excuse defence only once charged.

[Lord Sharpe of Epsom (Con)]

I will come back to the noble Lord on that.

[Baroness Hamwee (LD)]

If the Minister is going to come back to my noble friend, could he do so in this Chamber? That question is absolutely fundamental to the discussion on the Bill. To have the answer in writing, available in the Library if one goes to look for it, is in our view not adequate.

[Lord Paddick (LD)]

This is Committee, so we are allowed this sort of debate. I want to reinforce what the noble Lord, Lord Carlile, said about Section 78 of the Police, Crime, Sentencing and Courts Act. It says:

“A person commits an offence if … the person … does an act, or … omits to do an act that they are required to do by any enactment or rule of law … the person’s act or omission … obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and … the person intends that their act or omission will have a consequence mentioned in paragraph (b)”.


That covers, completely and perfectly, the people on the gantry of the QEII Bridge. The maximum sentence for that activity is up to 10 years in prison. None of the provisions in this Bill goes anywhere near 10 years in prison. Why do the Government not rely on existing legislation rather than creating all these other offences?

[Lord Sharpe of Epsom (Con)]

My Lords, I think I have already gone into that. As I say, the Bill creates another set of offences designed to deal with evolving protests, but I will come back on the specific point about the PCSC Act.

[Baroness Chakrabarti (Lab)]

My Lords, I am almost speechless. I do not blame the Minister, but those briefing him really need to consider what we have been discussing today; we are talking about the rights and freedoms of people in this country, and it is a very serious issue.

I thank all noble Lords who have participated in this debate on the first group. I particularly thank the noble Lord, Lord Paddick, for, as always, bringing his policing expertise as well as his parliamentary skills to the debate. I also thank him for mentioning Charlotte Lynch, the LBC journalist who was arrested last week beside the M25 with a valid press card and with a microphone that was clearly branded with the name of her broadcaster. She offered her press card to the police, who then slapped handcuffs on her. They took her mobile phone from her and started scrolling to see who she might have been speaking to. Perhaps she had been tipped off about the protest by protesters; that is what journalists do in a free society. She was subjected to a body search and taken to Stevenage police station. She was detained in the police station in a cell with an open toilet and a simple bed for five hours, and was eventually let go without a police interview. Records show that they arrested her for the offence of “conspiracy to cause a public nuisance”. That happened under the existing law.

Now, without addressing concerns about incidents of that kind, and in the wake of what happened to Sarah Everard and all the crises there have been in public trust in policing in this country, the Government are proposing this suite of new offences—yet the Minister has not been able to identify the gap that those offences are supposed to address. That is a matter of considerable concern—a concern which was mentioned by almost every speaker in this debate, with the exception of the noble Lord, Lord Horam, and the Minister himself. The noble Lord, Lord Horam, called for clarity in the law, but I am afraid I was not totally clear which provisions or amendments he was addressing.

The noble Lord, Lord Anderson of Ipswich, gave a master class on issues of burdens of proof and reverse burdens, which are sometimes used in law. However, I remind the Minister that, when they are used in law, it is in relation to very tight offences that are problematic per se, such as carrying a blade or point in a public place. Most members of the public understand that that is not innocent activity; it is incumbent on somebody to explain why they needed to be carrying that knife in the street. That is not the case with carrying a bicycle chain or linking arms with a friend. That is innocent activity per se that is rendered criminal in certain circumstances, and so it is particularly dangerous to flip the burden of proof. Further, on the point made by the noble Lord, Lord Paddick, it is essential that the person should be able to say to the police officer before they are arrested—not seven hours later, in Stevenage police station—that they have a legitimate reason for what they have done. I ask the Minister to think about Charlotte Lynch when he reflects on the powers that he is being asked to justify by others in this Chamber.

--- Later in debate ---

This has been a wide-ranging debate which has gone to the heart of a number of the issues within the Bill. I look forward to the Minister’s response.

[Lord Sharpe of Epsom (Con)]

My Lords, I once again thank your Lordships for all the contributions made in this debate. We turn to a series of amendments which seek to raise the threshold for the corresponding offences. Amendments 2 and 4 target the lock-on offence; Amendments 25 and 26 target the tunnelling offence; Amendments 36 and 37 target the offence of being present in a tunnel; and Amendment 54 targets the offence of obstruction of major transport works.

Before I deal with some of the questions concerning those amendments, I will just say two things. First, on the subject of the suffragettes, I entirely agree with the distinction the noble Baroness, Lady Fox, made between the protesters we see now and the suffragettes. Secondly, while we are slightly off the subject, I will make a few comments about the journalist who was arrested, who has been referred to twice. Clearly, the arrest of journalists lawfully reporting on events should not have happened—I want to make that very clear. I understand that an independent investigation into the arrests has been commissioned by the relevant police force. However, we do not agree that more powers will lead to further arrests of journalists: the issue lies with the training of journalists—a subject to which we will return.

[A noble Lord]

Police.

[Lord Sharpe of Epsom (Con)]

The training of police— I am sorry.

The scope of the offences is drafted as such to ensure that all kinds of behaviour that protestors engage in to cause misery and disruption can be captured. Amendments 2 and 4 would mean the offence would not account for situations where, for example, a person has locked on to a dangerous structure but is removed by the police before maximum disruption can be inflicted. Amendments 25 and 26 would mean the offence would not account for situations where, for example, a person has started creating a tunnel but is removed before maximum disruption can be caused. Amendments 36 and 37 would not account for situations where, for example, a person is present in a tunnel with the intent to cause serious disruption but is removed by the police before the tunnel can reach the designated area where maximum disruption can be inflicted.

Amendment 54, tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Ludford, seeks to add a threshold of causing “significant disruption” to the offence of interfering with key national infrastructure. I am not sure whether the amendment should say “serious” disruption rather than “significant” disruption, as I note that the JCHR’s own explanatory statement stated the former. That would echo the threshold for other offences in the Bill. If Amendment 54 is intended to add a threshold of serious disruption, I would argue that while we assess that it is right for the lock-on offences and certain other protest-related offences to include serious disruption within their scope, we do not see it as necessary here.

As I have stated already, protestors have been able to cause huge damage to major projects such as HS2. While much attention has been focused on how protest activity across HS2 sites causes massive disruption to the project, protestors have also engaged in many more minor disruptive acts, such as disrupting ecological surveys, damaging construction vehicles or blocking access points to construction sites. While some of these acts may not meet the threshold of serious and/or significant disruption, they still have a significant impact on the project and its costs. The Government view such actions as serious and completely unacceptable criminal activity. The offence as drafted seeks to deter individuals from targeting these projects while giving the police powers that are more sufficient in order to respond.

Before I get onto the amendments dealing with serious disruption, I accepted the invitation of the noble Lord, Lord Carlile, to read Section 78, and I will have a go at answering. Because many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, it has been asked why, in light of that, we need to introduce the measures in the Bill. The fact is that we are not solely interested in the process on the M25: the Bill was conceived before Just Stop Oil protesters were dangling off gantries. There are other unjustifiable protests, such as those targeting HS2, which I have just discussed. The criminal offences in the Bill extend to private land; currently, those who lock on or tunnel are only committing aggravated trespass, which carries a relatively low sentence. As it is a broad offence, I am sure that many here in the Chamber today would not welcome the sentences for aggravated trespass being increased. Finally, the pre-emptive measures in the Bill will improve the response to criminal protest. They were in fact conceived following discussion with the Metropolitan Police Service on what would have improved their response to Extinction Rebellion-style protests.

Amendments 3, 6, 17, 23, 27 and 38, all seek to provide a definition of serious disruption. I thank all noble Lords for these amendments, particularly the noble Lord, Lord Anderson—although I note that he is potentially deserting his—for our constructive engagement so far. I also thank the noble and learned Lord, Lord Hope of Craighead, for his thoughtful contribution to this debate.

I assure the House that I absolutely recognise the benefits that a clear definition of serious disruption could bring. However, we have faced some difficulties when trying to define serious disruption. That is because being too prescriptive in our definition risks creating a loophole which would provide those intent on causing as much disruption as possible an opportunity to evade arrest and prosecution. I would also say that, as drafted, some of these amendments offer a narrower definition of serious disruption than the Police, Crime, Sentencing and Courts Act provides for under

“serious disruption to the life of the community.”

None of that is to say that I dismiss the principle of these amendments. There is a balance to be struck between a definition which is too broad and one which is too prescriptive. We will consider these amendments in detail to ensure that they accurately reflect the disruption that the Government seek to target while providing clarity to the police and others, as many noble Lords have mentioned, and we will continue to work with all interested noble Lords on this important matter.

[Lord Hope of Craighead (CB)]

Is there a prospect of the Minister coming up with definitions in time for Report, to prevent us having to discuss this all over again? It would be a great help if he could come forward with his definitions, if he is going to proceed along this line.

[Lord Sharpe of Epsom (Con)]

I will certainly endeavour to—I can make no promises. I am sorry: the noble Lord, Lord Ponsonby, asked me about recklessness, which I forgot to answer. The definition of reckless is to capture those for whom we cannot prove that they intended to cause disruption but who were clearly happy to cause it. I hope that clarifies the matter to some extent. For now, I ask the noble Lord to withdraw his amendment.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords for their contributions to this debate. The noble and learned Lord, Lord Hope of Craighead, made some very important points. He is a member of the Constitution Committee. He said that convictions for these offences could lead to more serious consequences such as serious disruption prevention orders and that some of the conditions that could be imposed under those orders are quite draconian, such as 12 months of electronic tagging. He made the important point that because the offences are very different in nature, there should perhaps be a tailored definition of serious disruption depending on what offence we are talking about.

The noble Lord, Lord Carlile of Berriew, made a very important point about creating ambiguity between the provisions in this Bill and Section 78 of the Police, Crime, Sentencing and Courts Act 2022. The Minister’s attempt to explain why Section 78 could not be relied on does not hold water. He started talking about offences of aggravated trespass and having low sentences, but Section 78 has a far more serious penalty than any of the offences contained in the provisions here, so I do not understand why we need new offences that have serious sentences attached to them when Section 78 can provide much stiffer penalties than any offence in this Bill. That does not seem to make any sense.

The right reverend Prelate the Bishop of Southwell and Nottingham made an important point about places of worship. The noble Lord, Lord Hain, made an important point too. I greatly respect the role that he played in overturning apartheid in South Africa, but I am not sure he can say with confidence that what he did amounted to serious disruption when we do not have a definition of serious disruption in the Bill. The noble Baroness, Lady Fox, supported by the Minister, talked about suffragettes and how they were very different from the protesters at this time, but that was not the point I was making. My point was that suffragettes locked on and the Government are saying that this new offence of locking on is a response to new tactics employed by protesters. Well, that is what the suffragettes did. That is the only point I was trying to make.

As for nothing being done, the police have been arresting stop oil protesters even before they have caused serious disruption. They have been arresting them for conspiracy to cause public nuisance. Whether it is for causing public nuisance under the famous Section 78 or highway obstruction, for which they can now be sent to prison, protesters are being remanded in custody by courts which are not confident that they would not go on to repeat the offences for which they have been arrested. Some of them have been sentenced to prison for highway obstruction. So I do not think it is the case that the police are not doing anything, or that existing legislation cannot be used effectively by the police.

The noble Lord, Lord Anderson, supported the idea of tailored definitions, hence his wavering, if I can put it that way, in terms of his own amendment. The noble Lord, Lord Macdonald of River Glaven, reinforced the point about clarity and predictability. People need to know whether they are going to break the law if they do something, which is why we need these definitions.

The infamous Section 78 of the Police, Crime, Sentencing and Courts Act talks about serious harm, rather than serious disruption, but it is defined in the Act. So, if the Government can define serious harm in that Act, why can they not define serious disruption in this legislation? The noble Baroness, Lady Blower, talked about what the Minister said in the other place about there being a definition of serious disruption under the Public Order Act 1986. I agree with the noble Baroness that it is out of date and dubiously applicable in the circumstances set out in this Bill. Even the noble Lord, Lord Hogan-Howe, talked at Second Reading about the importance of clarity, and police witnesses at Committee stage in the other place said that as much precision as possible is desirable, yet the Minister seems completely ambiguous about whether the Government are going to define serious disruption in the Bill in response to the question asked by the noble and learned Lord. The noble Lord, Lord Ponsonby of Shulbrede, said that the National Police Chiefs’ Council is in favour of the definition of serious disruption to the life of the community put forward by the Joint Committee on Human Rights, so surely there is at least a lead for the Government to follow.

--- Later in debate ---

Many of us believe that the existing law works in many areas where the Government believe there are problems. So far the Minister has been unable to identify where the gaps are that the legislation seeks to fill. There are real concerns across the House about the implications for personal freedom and the ability to protest, and the Government need to come up with clear answers to some of the many questions that have been asked today.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have taken part in this shortish debate. I have already spoken about the damage and disruption that these offences can cause. Narrowing the scope of these offences, as the amendments in this group seek to do, would restrict the ability of the police to stop individuals from causing unjustifiable amounts of disruption and harm.

Before I get on to the amendments, I agree entirely with the noble Lord, Lord Coaker, about the scrutiny that this Bill deserves in this Chamber. I was merely clarifying an earlier point when I referred to its passage through the other place.

Amendment 5 provides a definition for the term “attached” in reference to the locking-on offence. We are fundamentally interested here in the disruption caused. The range of equipment used for locking on is extensive and ever changing. So, aside from bike locks, chains, cable ties and glue, police have also seen sophisticated devices that have been deliberately designed to be difficult and time-consuming to remove. Arm tubes involve protesters putting their arms through pipes containing concrete, steel or other materials that can either be released by the protester at will or require the police to use machinery to cut them free. Sometimes, such devices are designed to inflict harm on anyone who tries to remove them, placing the police in harm’s way. These devices are constantly evolving and designed to waste as much police time as possible. Given this, equipment that could be used in the course of, or in connection with, a locking-on offence is in scope. This could include locks and chains and large objects used to lock on, such as the bamboo structures that have featured in many protests. Specific equipment is not listed in the legislation as protesters can easily create new methods of locking on. Instead, referring to the act of locking on, and the serious disruption it causes, ensures this clause will remain relevant going forward.

Amendments 18, 19, 20, 48, 49, 51, 52, 53, 73, 74, 75, 76 and 77 seek to remove those acts which are taken “in connection” with these offences. I recognise the sentiment behind these amendments, but it is our view that it is vital that the full range of disruptive tactics that can be, and frequently are, deployed are captured to ensure our major transport works are protected.

With respect to the tunnelling offence, removing “in connection” would mean that those who carry items that are not strictly necessary for the construction or occupation of a tunnel are not in scope of this offence. The aim of the tunnellers is to cause disruption by delaying their removal for as long as possible. To achieve that, they will often create obstructions that will include, for example, coils of wire mesh and even nooses attached to the tunnel’s door to tie around their own necks. Items to make these are not themselves necessary for the commission of the other tunnelling offences, but I am certain that many in the House would agree that anyone carrying these items for these purposes should be in scope of the offence.

To use the obstruction of major transport works as an example, as I have already said, while many noble Lords will be familiar with the larger-scale protester action, many will be less familiar with the more minor acts of disruption that can start before construction even begins. Whether that is disrupting ecological surveys, removing or interfering with apparatus that is needed for construction, or blocking access to construction sites, all have a significant impact and can cause significant delays and additional costs to these works. For that reason, the scope of the offence is drafted as such to ensure all highly disruptive action are included in the scope.

Amendment 65, tabled by the noble Lords, Lord Coaker and Lord Paddick, and the noble Baroness, Lady Fox, seeks to narrow the scope of the offence of interfering with key national infrastructure to include only those who interfere to a “significant” extent rather than “any extent”. Again, I understand the core sentiment behind this amendment, but I would like to remind noble Lords that the types of infrastructure regarded as key national infrastructure are those that this Government have identified as playing a vital role for the nation. This is also the infrastructure that is being targeted by protest groups who are intent on causing disruption of any kind. As such, it is important that key national infrastructure is protected using the existing threshold of the Bill.

In a similar vein, Amendments 66 and 67 seek to narrow the scope of what it means to prevent the use of, or operation of, key national infrastructure, so that it only refers to instances where significant delay is caused for the use or operation of the targeted infrastructure. As I have touched on already, there are many circumstances beyond significant delay that should be captured within this offence. For example, should protesters successfully reduce the output of oil from an oil terminal but not delay its delivery, we could still see heating switched off as supplies dry up. We therefore see it as wholly necessary that the full range of disruptive behaviours and acts are captured.

Amendment 68 and 78, tabled by the noble Baroness, Lady Chakrabarti, would replace “newspaper printing infrastructure” with the term “communications” in the list of key national infrastructure on the face of the Bill. The list of key national infrastructure is based on sites that protesters have or are likely to target through their current tactics. Therefore, we do not believe it is necessary to add “communications”, as defined by the noble Baroness, into the list of key national infrastructure at present. However, as the noble Baroness will know—and we will definitely come to consider this in group six—the Bill does contain a delegated power that will allow us to amend this list as tactics and infrastructure evolve.

Amendments 70, 71, 72 and 79 seek to narrow the scope of the interference with key national infrastructure offence by altering the definitions provided for in Clause 8, including by removing B roads from the list of infrastructure in scope or by narrowing the definition of “printing presses”. The scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8. Some B roads are lifelines for small towns and villages, and we see it as entirely right they should be included. Printing presses have been included to protect the distribution of print media and news. There are many publications which serve that purpose which are not newspapers.

Finally, I would probe noble Lords on what they deem as “essential” and “inessential” elements of infrastructure. Many elements that some deem inessential, such as signs along railways and roads, provide important information to train and car drivers and may be necessary to ensure the high standards of safety we expect in this country.

For those reasons, I disagree with these amendments and ask that they be withdrawn.

[Lord Beith (LD)]

Can the Minister help the Committee by saying how he would answer this question, and if he has asked himself this question? If he were one of the people carrying something that a constable challenged him for—maybe the padlock that I talked about earlier that a young couple were going to put on a bridge, or maybe a packet of cable ties—what would his answer be to the constable who challenged him? Does he think it would result in him not being charged?

[Lord Sharpe of Epsom (Con)]

My Lords, these things are judged on a case-by-case basis. It would depend entirely on where I was, what I was doing and also the intention as described in Clause 2 of the Bill.

[Lord Harris of Haringey (Lab)]

My Lords, I listened with great interest to the Minister’s reply to the Committee’s discussion on this. Could he explain why, rather than trying to define all these activities—this happening, that happening and this piece of equipment and so on—has he not sought to do it in terms of intent, and a requirement that before an offence is committed intent to cause disruption is demonstrated?

[Lord Sharpe of Epsom (Con)]

That is captured. As I say,

“A person commits an offence if they have an object with them in a place other than a dwelling with the intention that it may be used in the course of or in connection with the commission by any person of an offence under section 1”.

[Lord Coaker (Lab)]

On this issue of intent, Clause 6 creates a criminal offence of obstructing “major transport works” but the Constitution Committee notes that unlike Clause 1, 3, 4 and 7, intent or recklessness are not required for an act to constitute an offence under Clause. Can the Minister explain why?

[Lord Sharpe of Epsom (Con)]

Not at this point, I will have to write to the noble Lord.

[Lord Paddick (LD)]

Bearing in mind the number of amendments, I worked out that the Minister spent 17 seconds per amendment in his response. I gave the example of a mobile phone that ended up on railway tracks interrupting national infrastructure and whether that was within the scope of the Bill. Does the Minister feel that his response has been comprehensive enough, on the very detailed questions he’s been asked?

[Lord Sharpe of Epsom (Con)]

My Lords, I am afraid I do.

[Baroness Jones of Moulsecoomb (GP)]

I thank all noble Lords who have contributed to this debate. I have really enjoyed it and I think we are expecting some better answers in the future. The Minister said something about probing us on what we thought, but it is our job to probe him about what this legislation means. So far, it is not coming out very well.

Personally, I hope it gets thrown in the rubbish bin because, quite honestly, we are spending an awful lot of time and energy debating it when we know it is awful. It is not as if we can see a glimmer of hope that it might solve some problems. The Minister talked about the damage and disruption that these protesters are doing. In fact, the Government have done more damage and disruption to our social fabric than XR, Insulate Britain or Just Stop Oil could ever do. They have had 12 years and made the most horrendous mess.

Getting back to the Bill, the Minister did not answer my question about “attach”. I still do not know what “attach” means. I am happy to wait and hear a longer answer, if he has one, on another occasion.

Public Order Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

It is not good legislation, even by the Government’s standards. Even if you think the Public Order Bill is a fantastic piece of new legislation that will solve the problems we face, it is not tight enough in definition or objective. That is unacceptable. On Report, a number of amendments will be made—I think they will be passed—and the Bill will, quite rightly, be sent back to the House of Commons to ask Members to think again. Of course, the House of Commons has a constitutional right to pass its Bill, but we have a constitutional right to tell it when it is wrong and to try to put right some of the inadequacies in the Bill as it stands.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, once again, I thank all noble Lords for their contributions to the debate this evening. It has been a very lively and thoughtful discussion generally. I look forward—I think—to continuing to discuss these important issues next week. I first reassure the noble Baroness, Lady Chakrabarti, that I do not think she is rude. I may not agree, but I think the position she is coming from is highly principled. I also say to the noble Lord, Lord Coaker, that I do not think we have failed when it comes to definitions. We have committed to take that matter away and it is ongoing work.

The amendments in this final group take issue with the some of the offences listed in Clauses 1 to 8. Clause 1 is a key part of the Government’s plan to protect the public from the dangerous and disruptive protest tactic of locking on. Recent protests have seen selfish individuals seek to cause maximum disruption by locking themselves to roads, buildings, objects and other people. This has seen traffic disrupted, public transport delayed and the transport of fuel from terminals grind to a halt—to name just a few examples. Such tactics cause misery to the public, with people unable to access their place of work or their schools, or to attend vital hospital appointments.

I turn next to Clause 2, which is inextricably linked to Clause 1. During fast-moving protest situations, the police must be able to take necessary proactive action to prevent lock-ons occurring. Along with the associated stop and search powers, which the Committee will scrutinise later, this new offence will allow the police to prevent lock-ons before they occur and deter others from considering doing so.

Lastly, Clause 5, along with Clauses 3 and 4, is designed to make clear that the protest tactic of building tunnels to disrupt legitimate activity will not be tolerated. I am afraid there is a degree of repetition here, but projects such as HS2 have been targeted on multiple occasions by tunnels which have contributed to an enormous cost of £146 million to the project. Aside from the cost, these tactics are enormously reckless, putting not just protesters themselves at risk but those called upon to remove them and repair the damage inflicted.

There is one further amendment in this group: Amendment 69, in the name of the noble Baroness, Lady Chakrabarti, which seeks to remove the delegated power for the Secretary of State to amend, add or remove the list of infrastructure in the legal definition of “key national infrastructure”. Throughout the debate, we have heard about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power that will allow us to respond effectively to emerging threats. But I reassure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.

Before concluding tonight’s debate, I will respond to speeches made by many noble Lords, but specifically the noble Lords, Lord Paddick, Lord Coaker and Lord Carlile of Berriew, and the noble Baroness, Lady Chakrabarti, about the necessity of the powers taken in the Bill. I have spoken about the three key general differences between the Bill and existing public order offences and legislation. First, it is about sentencing lengths; secondly, it is about offences that take place on private land; and, thirdly, it is about introducing more pre-emptive powers, providing the police with the ability to stop serious disruption before it happens.

It would be appropriate to acknowledge at this point that some of the commentary from the police is a little contradictory. Chief Constable Chris Noble, the National Police Chiefs’ Council lead on protests, said:

“There have been some very novel—without giving them any credit—and highly disruptive tactics; that is reflected on the contents page of the Bill. If we look across the breadth of protest organisations and groups, we see that they are very aware of some of the legal gaps, inadequacies and shortcomings; that is very clear from their engagement with police, as well as their tactics.”—[Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 5.]


Of course we work with the police, and we will obviously continue to do so.

I will try to address some of the key existing offences that have been mentioned and talk about how the Bill differs and builds on these important offences. I turn first to Sections 12, 14 and 14ZA of the Public Order Act 1986, as amended by the Police, Crime, Sentencing and Courts Act 2022, which allows the police to place necessary and proportionate conditions on public assemblies and processions to prevent certain harms occurring—namely, serious disruption to the life of the community. These powers are for the safe management of large protests where many people assemble or march. They do not provide the police with the means to tackle non-violent direct action of the sort that Just Stop Oil engages in.

I turn now to public nuisance and obstruction of the highway offences. We are pleased to have put the public nuisance offence on to a statutory footing, and noble Lords are quite right that it can be used to deal with some of the highly disruptive protests that we have seen recently. As the noble Lord, Lord Coaker, indicated, both these and other criminal offences are currently being used to arrest and charge Just Stop Oil protesters.

But we have to remember that there are offences that can cause serious disruption but do not meet the threshold for the public nuisance offence, which is extremely high. At the moment, such protesters manage to find loopholes to get acquitted or are subject to low penalties. These new offences are therefore essential to give the police the powers that they need to deal with these offenders. Although many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, these offences do not necessarily apply to tactics such as those that have targeted HS2 Ltd. Therefore, new criminal offences covering tunnelling and locking on are necessary.

I turn to the offence of aggravated trespass, which criminalises intentionally obstructing, disrupting or intimidating others carrying out lawful activities on private land. The maximum penalty is three months’ imprisonment or a £2,500 fine, or both. This broad offence captures many activities that trespassers, protesters or others may engage in. The maximum penalty is not proportionate to the seriousness of some of the tactics used by protesters, which can put lives at risk. This is a broad offence that covers many non-protest behaviours, and it would not be appropriate to increase the maximum sentence for it. Therefore, new criminal offences that apply to private land are needed: locking-on, tunnelling and infrastructure-related offences.

I turn to stop and search. Section 1 of the Police and Criminal Evidence Act 1984 allows a constable to search individuals whom they reasonably believe are carrying something that could be used to commit specific criminal offences, including criminal damage. Furthermore, the police can search individuals after having arrested them. For example, after arresting Just Stop Oil protesters for conspiracy to commit public nuisance, the police searched their car and seized items suspected to be used in the course of the offence.

Finally, the noble Lord, Lord Paddick, queried the necessity of the measures given that HS2—which has experienced significant protest action at huge cost, as we have discussed many times—was able to secure a nationwide injunction. We agree that injunctions can be helpful for preventing the types of serious disruption we have seen, which is why we have introduced our own measure which provides a specific mechanism for a Secretary of State to seek an injunction against protest activity where it is in the public interest to do so. However, this is only one piece of the puzzle and we have seen from the M25 protests that injunctions do not necessarily stop people breaking the law.

I have tried to set out how the measures in the Bill will bolster the police powers to respond more effectively to disruptive and dangerous protests, to protect our key national infrastructure and major transport works from interference, and to better balance the rights of protesters with the right of the general public to go about their lives free from serious disruption and harm. For those reasons, I respectfully ask noble Lords not to press their amendments.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords for sticking it out and will try to be brief, given the hour. I am also particularly grateful to the Minister for reminding me that I did not speak to my Amendment 69, which, as he rightly said, would remove the ability to change the criminal offence of interfering with national infrastructure by adding further infrastructure. I stand by my concern that this kind of thing should not be done by way of secondary legislation, because it has such a profound effect on the rights and freedoms of people in this country to dissent peacefully. It would be very easy to abuse that power and it is not appropriate for secondary legislation. We will no doubt return to issues of powers of that kind at a later stage.

Once more, I must thank the noble Lord, Lord Carlile of Berriew, for pointing out what the courts are having to grapple with: a burgeoning statute book with more and more offences, which police forces must deal with too. This menu of potential powers and offences just gets bigger by the year. The idea that, every time there is an innovative or novel protest, something must be done and there will be a new offering of legislation is not a coherent way to operate the rule of law in a constitutional democracy. Lots of dangers will come from this.

I take the point about the police service not speaking as one on any of these issues, and maybe it should not. I was particularly grateful to the noble Lord, Lord Paddick, for pointing out, as a former police officer, that there is quite a strength of police opinion and scepticism about the powers in the Bill. I was also grateful to him for reminding me that the offence of going equipped for locking on is, in a way, even worse than the offence of locking on. Locking on is incredibly broad, as I think the Minister accepted in some of his earlier responses. Yes, linking arms is sometimes terribly disruptive too, but going equipped for locking on is a proper thought crime and one of the reasons I am particularly concerned about that offence. It is a thought crime that is supportive of a crime that is, in itself, incredibly broad and will, theoretically, capture some activities that some people think are just natural to humans and innocent.

I was grateful to the noble Baroness, Lady Hamwee, for addressing a very important process point. I totally understand the need for Ministers to write to noble Lords later, particularly in answer to the Questions we have each day. However, writing later should not be a central tactic of defending and promoting a Bill that has been some time in gestation. I was grateful to the Minister and his colleagues for coming up with a little more about the existing statute book in the latter part of this evening, but that will require a lot more examination. I know that noble Lords in Committee will be reading Hansard very carefully tomorrow and there will be more to discuss about that.

Ultimately, there are some protesters who, rightly or wrongly, care so much about the climate catastrophe, race equality, Brexit or whichever other issue that they are prepared to go to prison. There are some in that category for whom there is no new offence that will prevent their actions. So be it; that is life.

What I am concerned about, with the ever expanding public order statute book, are the people who are not in that category and who will get caught up in this kind of thing, as happened last week to the journalist who was detained for, in total, about seven hours, with five in a police cell, just for reporting on the protests. When you keep adding to police powers, adding to the public order statute book and catching more and more innocent activity, more injustice will follow. It will not be about catching the people who we all agree are going too far sometimes—and who are prepared to go too far for their cause; that is their conscience. There will be more and more innocent bystanders—journalists, people from racial minorities—who get caught up in this very broad blank cheque that noble Lords and Ministers are proposing to hand to the police. The police are from us; they are a part of our community and are imperfect as we are. It is not fair to hand this blank cheque to them and, when it goes wrong, to blame them. We have that on our conscience if we pass these powers.

Scammers

Lord Sharpe of Epsom Excerpts

Tuesday 15th November 2022 Lords Chamber

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, on behalf of my noble friend Lord Morrow, and with his permission, I beg leave to ask the Question standing in his name on the Order Paper.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, fraud awareness-raising activity takes place across government, law enforcement and the private and charity sectors. The Government provide free advice to the public online and via communications campaigns, including from Action Fraud, the Financial Conduct Authority’s ScamSmart, National Trading Standards’s Friends Against Scams, and the National Cyber Security Centre’s Cyber Aware.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

I thank the Minister for his response. Unfortunately, I have in the past had to assist some who have been victims of such vile crimes, having been scammed out of considerable sums of money. Therefore, I am too aware of the trauma this causes. Does he agree that banks need to accept more responsibility when their clients have lost money from their accounts—sometimes their whole life savings—to these ruthless scammers?

[Lord Sharpe of Epsom (Con)]

I absolutely agree. I also point out that banks are heavily involved with the awareness campaigns. Many noble Lords will no doubt have seen a recent advert put out by Santander to stop scammers which features Ant and Dec, when they are not busy in the jungle. Also, the Scams Prevention and Support Programme, delivered by Age UK and funded by Lloyds Bank, is aimed at older people and helps them to spot and understand scams, and to take action to protect themselves from becoming a scam victim. Of course, I also agree that it is emotionally devastating to be a victim of these crimes.

[Lord Browne of Ladyton (Lab)]

My Lords, today the National Audit Office published a report on fraud, which says in terms that the Government do not have the data they need to understand the full scale of the problem and are unable accurately to measure the impact of their own policies on this growing area of crime, which is 41% of crime in this country. A spokesperson for the Government said, as we can expect:

“This government is absolutely committed to cracking down on fraud and economic crime”


and that the NAO’s recommendations will be “reflected” in the “upcoming fraud strategy”. What on earth use is a fraud strategy based on data that is now six years old?

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Lord is quite right: the Home Office is leading work on a fraud strategy. The Prime Minister referred to it in the other place as recently as 2 November. We intend to publish on that shortly. It will consider all the possible tools required to go after fraudsters and to protect those who are most vulnerable. The strategy’s other aims will be to stop and block frauds being carried out, and to improve law enforcement. Considerable money is being invested in improving data collection, as well as law enforcement capability.

[Lord Paddick (LD)]

My Lords, of the £580 million taken from people through authorised push payment scams last year, less than half was reimbursed to victims. Banks say that people should be more careful, but this is unacceptable given the sophistication of these schemes and how rife they are. Will the Government replace the voluntary industry code on authorised push payments with a statutory code, including an obligation to reimburse victims unless there is clear evidence that they are at fault?

[Lord Sharpe of Epsom (Con)]

My Lords, I have slightly different figures for the number of victims who were reimbursed. I am told that up to the year ending June 2022, 71% of victims got fully reimbursed. On the code to which the noble Lord referred, in 2021 the Payment Systems Regulator consulted on further measures to combat APP fraud. It proposed that all payment service providers must reimburse victims of APP scams where the victim is found not to have been grossly negligent. It is also worth pointing out some other legislative activity. In November 2021, the then Economic Secretary to the Treasury announced that the Government would remove any legislative barriers through the Financial Services and Markets Bill to enable the regulator to act to make reimbursement mandatory. That Bill is currently in Committee, and the PSR is currently consulting further on the mechanism for reimbursement.

[Lord Bassam of Brighton (Lab)]

My Lords, this really is not good enough. The National Audit Office issued a helpful report five years ago on fraudulent scammers, which has been ignored by successive Ministers and Secretaries of State. This second devastating report, which my noble friend Lord Browne referred to, has found “limited” action taken by the Home Office to tackle a crime that is profoundly impactful on nearly 4 million people every year at a cost of £4.7 billion. Fewer than 5,000 prosecutions were launched last year. Many of the victims of this terrible crime are elderly. When is the Home Office going to re-examine its priorities and come up with a proper and effective plan that genuinely protects people from scammers, which our party and the National Audit Office have been demanding for the past seven years?

[Lord Sharpe of Epsom (Con)]

As I have already said, the National Audit Office report is going to inform the new fraud strategy. I reassure noble Lords that this is taken incredibly seriously. Alongside the fraud strategy that is due to be published shortly, we are providing more than £10 million to the City of London Police to upgrade Action Fraud, which has come under some criticism in the past. Next year, a new user-friendly and accessible reporting tool and website will be launched, offering an improved experience for victims and simpler pathways to access further support and guidance. Overall, £400 million is being allocated to economic crime, of which £100 million is being spent on the prevention of fraud.

[Lord Vaux of Harrowden (CB)]

My Lords, I have been privileged to be a member of your Lordships’ Fraud Act 2006 and Digital Fraud Committee which reported on Friday. I commend the report to the Minister and hope he has read it. One of the findings, which I think surprised all of us, is that it is not in fact the elderly who are most at risk from fraud but young people, who are also at risk of becoming money-laundering mules. Will the Government consider strengthening financial education for primary and secondary school children to equip them with the tools they need to stop being victims?

[Lord Sharpe of Epsom (Con)]

The noble Lord is quite right: in the year to March 2022 people aged over 75 were less likely to be a victim of fraud than those aged between 16 and 74. He makes an extremely good point and I will take it back to the Department for Education.

[Lord Davies of Brixton (Lab)]

My Lords, the report to which the noble Lord, Lord Vaux, referred states that

“all people have the capacity to become victims of fraud, regardless of perceived vulnerability.”

The House needs to understand that financial crime destroys lives and destroys families. Will the Government give an unambiguous commitment to include protection against financial harm in the Online Safety Bill?

[Lord Sharpe of Epsom (Con)]

My Lords, I have already outlined some of the legislative work going on, and I am not going to unequivocally commit to doing anything in other Bills at the moment. I will go on to one other point which perhaps refers to the previous question: one of the more effective tools at the moment is Friends Against Scams, to which I referred in my opening Answer. It is run by National Trading Standards and encourages people to educate others about fraud. People sign up, do an online training course and then share it. More than 1 million people have signed up. That sort of work is very valuable.

[Lord Kamall (Con)]

My Lords, my noble friend has rightly said that there is quite a lot of information online if you think you have been subject to fraud. Some of those sites encourage you to report a suspicious email or text, but do not do any more than that except say that they will remove it for you. What more can we do to direct people to websites that can actually help people who feel they have been a victim of fraud?

[Lord Sharpe of Epsom (Con)]

The National Cyber Security Centre launched its suspicious email reporting service to remove harmful scams online, and it is seeing high levels of success. As of October 2022 it had taken down more than 105,000 scams across 192,000 URLs. Another thing that the Government have done is the National Economic Crime Centre’s department dedicated to ensuring consistency of messaging. I will make sure it is aware of my noble friend’s suggestion.

[Lord Birt (CB)]

My Lords, for many years I was chairman of PayPal Europe. Working with the global head of security, I tried extremely hard to engage the British Government on this issue. With the Cabinet Office, the Home Office and the law enforcement authorities, there was absolutely no traction whatever. No real interest was taken in it. Can the Government now reliably estimate the enormous scale of online fraud, then a contagion and now an epidemic? To what degree are the Government bearing down on the offenders, who operate globally as well as nationally? Can the Minister tell us how many scammers were successfully prosecuted for online fraud in the last year for which figures are available?

[Lord Sharpe of Epsom (Con)]

I am afraid I cannot. I will endeavour to find the appropriate statistic. There is a problem about the collection of statistics—the noble Lord, Lord Browne, referred to it earlier—which is to do with differences of collection across the four nations, I am afraid. However the noble Lord, Lord Birt, is quite right: it is obviously a serious proportion of crime. I reassure noble Lords once again that the Government are taking this very seriously. As I said earlier, on 2 November the Prime Minister led on this.