Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Debate between Viscount Hailsham and Lord Paddick

Tuesday 13th June 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, with little exception, I agree with what the noble Lord, Lord Pannick, has said. I start by having considerable sympathy with the motives that have caused the Government to come forward with this statutory instrument. However, for the reasons that were advanced by the noble Lord, Lord Coaker, I feel that the process is very defective. However, again, for constitutional reasons, which I shall mention very briefly, I cannot support the fatal amendment.

That, in summary, is my position; if I may, I shall elaborate a little further. So far as the motives of the Government that lie behind the statutory instrument are concerned, I share very many of these views, as indeed does the noble Lord, Lord Pannick. In a free society, individuals have a right to demonstrate. However, their fellow citizens have a right to go about their daily business without unreasonable obstruction. I fear that, increasingly, we are seeing on the part of demonstrators a disregard for the obligations they have to their fellow citizens.

So I can well understand the motives that activate the Government in bringing forward the changes in the statutory instrument. However, for the reasons advanced by the noble Lord, Lord Coaker, I have very real reservations about the process that is being adopted. The process and its defects were identified by my noble friend Lord Hunt of Wirral. He is entirely right, and his report is extremely direct on the subject. The statutory instrument is in fact designed to reverse the defeat in this House earlier this year.

If that is a desirable thing to do, it should be done by primary legislation. That is the point made by the noble Lord, Lord Pannick. Amendments made to a Bill by this House on Report can always be considered further in the House of Commons and, where appropriate, they can be the subject of ping-pong; that is the proper way forward.

A statutory instrument is an unamendable legislative device and, in my view, one that should not be used to make significant changes to the law, in particular to the criminal law. So one needs to go to the purpose of this statutory instrument. The Home Secretary set it out in yesterday’s debate in the House of Commons. At column 55, she set out the four purposes of the instrument, and said later, of the police, that

“we are trying to clarify the thresholds and boundaries of where the legal limit lies, so that they can take more robust action and respond more effectively”.—[Official Report, Commons, 12/6/23; col. 74.]

Now, that raises at least two pertinent questions. Either this statutory instrument, in effect, does no more than tidy up existing legislation and ensure that existing case law applies equally across the statutory waterfront, or it is intended to make significant changes to existing law. In the first case, it must be doubtful whether the statutory instrument is required; in the second case, if, as I suspect, the statutory instrument does make substantial changes to existing law, it should be done by primary legislation—and that is what this House intended to do in January.

So, finally, we get back to process, which is fundamental to tonight’s debate. I share all the reservations expressed in the amendment of the noble Lord, Lord Coaker. They constitute good reasons why the procedure adopted by the Government is flawed. I would like to think that if the amendment is passed—and in all probability, I will vote for it—the Government will withdraw the statutory instrument and resort to primary legislation.

I am afraid that I cannot support the fatal amendment moved by the noble Baroness. Here, I find myself in agreement with the views expressed by the noble Lords, Lord Reid and Lord Rooker. The House of Commons passed this statutory instrument last night by a very substantial majority. The fatal amendment has a much more dramatic consequence than those occasions when the House amends a Government Bill. In such cases, the Bill can be further considered by the Commons. However, if this House carries the fatal amendment, the statutory instrument is killed. That goes beyond that which an unelected House should in general do.

[Lord Paddick (LD)]

The noble Viscount seems to be saying that the difference here is that if this House votes down a measure in primary legislation, it goes back to the Commons to be reconsidered. That is not what happened in this case: the amendment was introduced in the House of Lords, not the other place, we voted it down and it disappeared. It did not go back to the other House. Exactly the same thing will happen tonight if noble Lords vote for the fatal amendment.

[Viscount Hailsham (Con)]

I entirely understand this point, but we need to draw a distinction between amendments that this House makes in Committee and on Report, when it is possible for the House of Commons to consider again and come back to this House, and—

[Lord Paddick (LD)]

Will the noble Viscount give way?

[Viscount Hailsham (Con)]

May I just finish this point?

In this particular case, if we pass a fatal amendment, as advocated by the noble Baroness, we will be killing a statutory instrument which was supported by the House of Commons last night. I am very unwilling to support that proposition as a precedent, and I agree with the views expressed by the noble Lords, Lord Rooker and Lord Reid.

I say this as one who was in the House of Commons for 30 years. I am under no illusion as to the nature of the House of Commons. My father used to speak and write about the “elective dictatorship”. He was entirely right, but at the end of the day we have to decide where authority lies, and however imperfect its authority may be down the road, it does have the authority of an election, and we do not have that. I give way to the noble Lord if he wishes to intervene further.

[Lord Paddick (LD)]

I am very grateful, but the noble Viscount makes another error in his assertions. This was not an amendment to the Bill introduced by the Opposition in this House. It was a Government amendment introduced in this House, which was defeated by this House, which means that the amendment could not then be considered by the House of Commons. Therefore, there is no practical difference between the voting down of that Government amendment, killing it completely, and voting for a fatal amendment to the statutory instrument, which would kill it completely.

[Viscount Hailsham (Con)]

The noble Lord is cavilling at this point. We are, in a sense, talking about principle. Where does authority, in the end, lie? It lies down there because they are elected. It does not lie here because we are not elected. It is for that reason that I shall vote for the amendment moved by the noble Lord, and I do not feel able—although I agree with a great deal that the noble Baroness said—to vote for the fatal amendment.

Public Order Bill

Debate between Viscount Hailsham and Lord Paddick

Report stage
Tuesday 7th February 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will make three brief comments about these amendments. First, regarding the trigger points, I entirely agree with Amendments 56 and 60 from the noble Lord, Lord Anderson, which the noble and learned Lord spoke to. The reference to an injunction is particularly worrying because, for the reason the noble and learned Lord mentioned, members of the public would not be aware of it. In any event, what are or could be contemplated in the third, fourth and fifth trigger events are acts that are very remote from the mischief the Bill contemplates. Therefore, I very much hope that the amendments are put to the House, and I shall support them if they are.

Secondly, your Lordships need to keep in mind that the test of necessity, which is dealt with in Clause 20(1)(d), is quite a high bar. I deal with it in interim orders made by the regulatory panels, which are fully aware that “necessity” is different from “desirability” and requires quite a high threshold.

My last point is a query to the Minister, if he would be so kind. It is a very long time since I dealt with complaints before magistrates’ courts, so I apologise for not really being familiar with the procedure. In any view, these SDPOs are very serious. Does the complaint, which presumably has to be made both by the court and to the person named, specify the concerns felt by the senior police officer? Does it specify the relief being sought in the order itself? I assume that these are inter partes hearings, not ex parte. Does the person against whom the order is sought have the opportunity to make representations, give evidence, be represented and object to the relief being sought? This is ignorance on my part, but I fancy that quite a lot of your Lordships would like to know the procedure being invoked.

[Lord Paddick (LD)]

My Lords, as we have heard, most of the amendments in this group seek to restrict the proposed provisions in serious disruption prevention orders so that they are more in line with terrorism prevention and investigation measures. TPIMs are primarily designed for instances where the case against someone who is believed to be a serious threat to society—a suspected terrorist—is based on intelligence rather than evidence that could be given in open court. They are supposed to be a temporary measure while attempts are made to secure the evidence necessary to convict the person of a criminal offence. SDPOs as originally drafted were potentially limitless banning orders preventing people from involvement in protests, even if they had never physically been present at a protest before and, in the case of Clause 20, had never been convicted of a criminal offence.

As the noble and learned Lord, Lord Brown of Eaton- under-Heywood, pointed out in Committee, these orders would remove people’s rights under Articles 10 and 11 of the European Convention on Human Rights if a court was satisfied on the balance of probabilities—depriving people of their human rights on the weakest of evidential tests. Even in the case of Clause 19, on serious disruption prevention orders on conviction, where the court is convinced beyond reasonable doubt that a criminal offence has been committed, the court needs to be satisfied only on the balance of probabilities that the offence was protest related. It then has to be satisfied—again, only on the balance of probabilities—of a second involvement in a protest. For example, if someone had contributed to crowdfunding to pay for coaches to take protesters to London and, in the end, there were not enough protesters and the coaches never went, but serious disruption was likely to have resulted if they had and the coaches had been full of protesters, on the balance of probabilities the court could impose an SDPO.

That many of the amendments in this group attempt to weaken SDPOs, making them merely outrageous rather than totally unacceptable, is no reason to support them—perhaps with the exception of Amendment 56, which seeks to limit those who would be made subject to an SDPO and which, frankly, goes nowhere near far enough. The House should not make legislation less bad when it has an opportunity to oppose it in its entirety. The noble Lord, Lord Anderson, expressed his support for that by signing Amendment 59.

As His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported in its review of public order policing, the police’s view was that courts would be reluctant to deprive individuals of their right to protest by granting protest banning orders in the first place, and even more reluctant to impose any significant penalty should someone breach an order by peacefully participating in a future protest. If they caused serious disruption, they would be convicted of a substantive public order offence. As a result, SDPOs were seen as unworkable and having no real deterrent effect.

We support the amendments in the name of the noble Lord, Lord Ponsonby of Shulbrede—to leave out Clauses 19 and 20—which have been signed by me, the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Chakrabarti. We cannot support depriving anyone of their human rights on an evidential test of the balance of probabilities, especially when the police believe that the courts would be unlikely to impose SDPOs or a deterrent penalty for any breach. We will support the noble Lord when, we hope, he divides the House on Amendments 59 and 63.

Data Protection Bill [HL]

Debate between Viscount Hailsham and Lord Paddick

Report: 3rd sitting Hansard: House of Lords
Wednesday 10th January 2018 Lords Chamber

[Lord Paddick]

My Lords, I declare an interest. When I was a commander in the Metropolitan Police service, my personal details—this was in breach of data protection—were secured by Mulcaire, the private detective employed by a newspaper. This was discovered by the Metropolitan Police in 2002, but I was not told about it until 2010, when the Guardian alerted my lawyers to the fact that this had taken place. However, in the course of what subsequently transpired, I was shown an internal memorandum of the Metropolitan Police service, which showed that in 2002 it was aware that my phone and that of the then Deputy Prime Minister had been hacked into, and it never informed me of that. Therefore, noble Lords will understand that I should declare that personal interest.

However, I want to tell the following story to the House. I went with the family of Milly Dowler to see the then Prime Minister, the then Deputy Prime Minister and the then Leader of the Opposition to talk about the family’s experience. Noble Lords will recall that Milly Dowler went missing, was kidnapped and murdered, and that her family kept trying to call her mobile telephone. However, the phone relayed the message that the voicemail box for that number was full. Therefore, the family was losing hope that she might still be alive. Then they tried to phone again and found that some of the messages had been listened to. That gave them hope that she might still be alive. However, it transpired that there was room in that mailbox because journalists had hacked into her voicemail and had listened to some of the messages.

On the evening before the first of those meetings with the then Deputy Prime Minister, Nick Clegg, Milly Dowler’s father was telephoned by Surrey Police to tell him and the family that Surrey Police knew in 2002 that journalists had hacked into Milly Dowler’s voicemail, thereby allowing further messages to be left, as the journalists involved had called the police incident room to tell them that they had illegally hacked into the voicemail. However, it was not until nine years later and the imminent meeting with the then Prime Minister, the then Deputy Prime Minister and the then Leader of the Opposition, that the police felt obliged to tell the Dowler family that they knew from the outset that her phone had been hacked into. They did not offer any explanation for not having taken any action in relation to that illegal hacking into that phone.

These are the sorts of issues involved. This is not just about the conduct of the media. The aim of part 2 of Leveson is to examine the relationship between the police and the media and between politicians and the media, not simply the conduct of the media themselves. That is why we need part 2 of Leveson, and that is why I support Amendment 127A.

[Viscount Hailsham]

My Lords, I will speak briefly, both to the proposed new clause in the amendment moved by the noble Baroness and the proposed new clause moved by my noble friend.

I am against the suggestion that we should have an inquiry. I share the view of the noble Lord, Lord Pannick, that we know enough already. The facts have been canvassed time and time again, in inquiry, in criminal cases and in civil cases, and the time has now come for policy. We do not need new facts—we need a policy decision, and that is essentially a matter for government and Parliament. If we call for a further inquiry, the policy decisions will be postponed. A further point is that, if the proposed new clause is carried, the pressure will be on a judge-led inquiry. In the generality, I am against judge-led inquiries when they address matters of major general policy. Judges are good at identifying facts and deficiencies in existing legislation, but they are not well placed to address general policy issues.

Policing and Crime Bill

Debate between Viscount Hailsham and Lord Paddick

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

[Viscount Hailsham]

My Lords, I would like to make a declaration of interest, in that I hold a shotgun certificate and a firearm certificate, and to that extent I may be supposed to have a personal interest. Moreover, I have a declaration of personal responsibility to make too, in that after the Hungerford shooting way back at the end of the 1980s I was the Minister in the Home Office—subject, of course, to Douglas Hurd, now Lord Hurd of Westwell—responsible for the carriage of the firearms Act in 1988. I also have a long-standing interest in the law relating to firearms.

I am broadly in favour of Amendment 169A. Indeed, it is a response to my former Parliamentary Private Secretary, Mr Geoffrey Clifton-Brown—and all credit to him for tabling it in the House of Commons. However, I have one reservation about proposed new subsection (1)(b) in the amendment, which states,

“in the case of a rifle, the borrower is aged 17 or over”.

Contrary to what the noble Lord, Lord Rosser, said, I think that that threshold is far too high. I look back to my youth when I used to use a .22 carbine, shooting on the lawn under the very close supervision of my father, who was, I think, a fairly respectable Member of this House. We felt that there was nothing improper about that so long as the supervision was close. I think that the age 17 threshold is too high. Personally, I would rather see a lower one—14 or something close to it. I agree that there should be supervision but I do not agree with the threshold.

I am very much against Amendment 169B, which concerns the full recovery of costs. I think we need to keep in mind the basic proposition that if you give powers to officials, on occasion they will be abused. That is one of the great rules of politics. Therefore, one needs to watch very carefully the powers you give officials.

In Lincolnshire, the chief officer pursues a sensible firearms policy. However, I am conscious that there are forces not too distant from Lincolnshire in which the firearms officers are fairly aggressive, driving up the cost. You should have a restriction of the reasonable cost, not the full cost, because it is possible for chief officers and firearms officers, through an overaggressive use of their investigatory and inspection powers, to drive the cost up, either because they want to deter firearms use or simply because they have a fairly aggressive approach. Therefore, my strong preference is that the limit be confined to a reasonable cost and not the full cost.

In acknowledging my own failings in 1987, I will go a little wider. There are three areas relating to the possession of firearms to which I hope my noble friend will give consideration in the future—or perhaps even in this Bill. First, what happens when your guest leaves by accident his or her gun in your house? This has happened to me. One of my guests, a Member of your Lordships’ House, was shooting with me in Scotland and he managed to leave his shotgun accidently when he went a long way south, 200 or 300 miles away. The gun was in the gun cabinet and perfectly locked up, but the estate owner was not certificated to hold it. I asked myself whether I should take it down to him. I was not certificated to transport it. What does one do? I am not going to tell you what I did for obvious enforcement reasons, but it is a dilemma. What is the law where a gun is accidently left behind but is secure in a gun case? We need to have provision to cover such a situation.

Secondly, and rather similarly, if you go shooting some distance from your home you take your gun in the car. You travel along the motorway—no doubt with your wife or your partner—and when you stop at a service station, for obvious reasons, you leave your gun, generally speaking, in the car, with your wife in the car looking after it. However, in the normal run of events, she is not certificated. In my case I have taken precautions in that regard, but your wife or partner in the car is in possession of a gun for which she is not certificated. That is potentially an offence.

My final point—I am sorry to trespass on your Lordships’ patience—relates to the keys of gun cases. Some of your Lordships may know of the unfortunate case where a lady admitted to a police officer that she knew where the keys to the gun case were, and she was done for being in possession of the gun. That is a complete nonsense. I did not tackle these problems when I was the Minister in charge of this issue, but I like to think that my noble friend will be more sensible than I was.

In the old days, enforcement of gun laws was fairly relaxed. The chief officer would know that so and so was a reliable citizen. However, that is not the case now—probably rightly—and what I have described can give rise to serious sanctions and penalties. That alarms me. I like to think that my noble friend on the Front Bench will reflect on my shortcomings as the Minister responsible for the 1987 Act and perhaps remedy the deficiencies.

[Lord Paddick]

My Lords, I support Amendment 169B in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.

I accept the point made by the noble Viscount, Lord Hailsham, about reasonable cost as opposed to full cost recovery—or, at least, I could accept it if it was an approach the Government took across the board. However, in Committee I drew a parallel with the Immigration Act, where the Government proposed a philosophy of full cost recovery for visa applications and for the Immigration Service generally. I asked the Minister then, if she was not going to agree with amendments tabled to ensure full cost recovery for the issuing of firearm certificates, to explain why a different approach is being taken to the principle of full cost recovery when it comes to immigration. In particular, I asked her to refute the obvious allegation that the Government are discriminating against foreign nationals as against those who go hunting with guns for sport. I cannot recall the Minister specifically responding to that question; perhaps she could address it today.

Having apparently agreed in Committee to the principle of full cost recovery for firearms certificates, the Minister went on to say that there was a public consultation on these issues and that,

“there might be good reasons not to set fees at full cost recovery levels, either for a transitional period or for certain categories of licence holder”.—[Official Report, 9/11/16; col. 1163.]

There are very good reasons why visa applications and the like should not be set at full cost recovery levels, yet the Government appear determined that they should be, without any public consultation or a transitional period. Can the Minister explain why foreign nationals are being treated differently from those who possess firearms?

I asked the Minister in Committee what consultation there had been with groups that represent immigrants or those who might apply for visas before the Government implemented full cost recovery for immigration visas. Can the Minister please answer that question for the record, as she was unable to do so in Committee?

Investigatory Powers Bill

Debate between Viscount Hailsham and Lord Paddick

Monday 11th July 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, my noble friend Lady Hamwee and I have Amendments 19 and 66 in this group. The relevant part of Clause 4 that we are talking about here deals with the definition of “interception”. Clause 4(1)(b) talks about interception being,

“to make any content of the communication available, at a relevant time”.

It is the expression “at a relevant time” that we wish to probe. Clause 4(4) describes “relevant time” as being during transmission, or before or after transmission. For us, that begs the question: what does “relevant time” therefore mean? Why does it have to be stated that “relevant time” is necessary, bearing in mind that it seems to cover every time before, during and after transmission?

I turn to Amendment 66. Clause 42(1) talks about interception being effectively lawful if both,

“the sender and the intended recipient … have each consented”.

This amendment simply suggests that that consent should perhaps be in writing. I beg to move.

[Viscount Hailsham]

My Lords, I would like to raise two points, if I may, about Amendment 66. I entirely agree with the suggestion that the consent should be in writing, and I would rather hope that the Minister will give us some reasons why it should not be, because on the face of it, it is an extremely sensible suggestion. As we all know, there is sometimes a certain degree of opaqueness regarding what people have or have not done. Looking at Clause 42, to which Amendment 66 applies, I have some difficulty in understanding the relationship between subsections (1) and (2). I am not sure why subsection (2) is there, given the language contained within subsection (1). Perhaps my noble friend can help us on that.