Public Order Bill

Baroness Chakrabarti Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I declare my registered interest as a council member of Justice, the all-party UK section of the International Commission of Jurists.

Noble Lords know that we are not here today to examine the tactical blend of persuasion and nuisance that constitutes peaceful dissent for those who do not own media or energy empires or walk red or green carpets. Sadly perhaps, still less are we here to debate the substance of so many burning issues—the future of our planet being the most obvious.

No, we are here to protect the constitutional climate and to scrutinise yet another public order Bill proposed for an overcrowded statute book. Is it effective, transparent, proportionate and even-handed? Is it respectful of the rule of law principles articulated by the late, great, noble and learned Lord, Lord Bingham of Cornhill? We might also reflect on why the Government promote blank-cheque police powers before even beginning to deal with police discipline, found so wanting after Sarah Everard’s murder and in the interim report from the noble Baroness, Lady Casey.

The Bill bears closer resemblance to anti-terror law than measures aimed at addressing moments when peaceful dissent crosses a line into significant public nuisance. I commend to noble Lords Sir Charles Walker’s speech in the other place against the “machismo laws” he described as “unconservative” and designed for a good headline in the Daily Telegraph.

I refer noble Lords first to the concept of thought crime, where otherwise innocent activity is impugned on the basis of imputed intention alone, as in being “equipped for locking on” by carrying a bicycle chain or first aid kit in one’s rucksack. Secondly, I refer to suspicionless stop and search, notoriously ripe for racialised abuses of police power and found in breach of the convention on human rights in Gillan and Quinton v UK, brought by Liberty during my time as its director. Thirdly, I refer to using quasi-civil orders such as the infamous anti-terror control orders, once opposed by noble Lords opposite, and the now proposed protest banning orders—that is what they are—issued on a civil standard of proof including, as we have head, against people never convicted of a crime, creating a personal criminal code with harsh restrictions on the liberty of the individual subject.

This is controversial enough when applied to suspected terrorists. But how even more dangerous is it to play cat and mouse with non-violent dissenters, whether historic suffragettes or contemporary pro-democracy campaigners in Hong Kong, Russia or the United Kingdom? Some noble Lords may find the comparisons uncomfortable—as well we all should. But they should look at the analysis of Justice, Amnesty International and Big Brother Watch, which describe these provisions, rightly previously rejected by your Lordships’ House, as going further than the law in Russia and Belarus. A Hong Kong lawyer now based in the UK described to me the aptness of comparison with her former home in no uncertain terms just last week. The Bill undermines us as champions of the rule of law internationally, but it also sends a terrible signal to our young people here at home.

Yesterday in the Moses Room, Ministers lamented cancel culture in universities. Today, via unfortunate proxies, perhaps on the Benches opposite, the resurrected Home Secretary wages culture war: not no-platforming and hurt feelings but police batons and prison terms. She further proposes a new and unprecedented power for herself: directly to intervene operationally in public order, in a manner previously reserved for the police and criminal courts on the one hand and those directly affected and civil courts on the other. Thus this sensitive area of policing will be more politicised than ever, with tub-thumping Ministers playing to the populist gallery, not just with conference and Commons speeches but in court. The Home Secretary pleads redemption for herself but incarceration for those who plead for the planet, against poverty, and even for free speech itself.

Hypocrisy is not mere tactical error. When it invades our statutes, it threatens the legitimacy layer: that which protects law-based order in which civilised society endures. An unelected House that does not stand for rights and freedoms becomes even and ever harder to defend.

Public Order Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

1: Clause 1, page 1, line 5, at end insert “without reasonable excuse”
Member's explanatory statement
This amendment makes the lack of a reasonable excuse a component part of the offence of locking on, thus placing the burden of proof upon the prosecution.

[Baroness Chakrabarti (Lab)]

My Lords, I will rise slowly to allow the mass exodus from the Chamber of noble Lords who are fascinated by the civil liberty implications of this terrible draft legislation. The exodus is nearly, if not quite, complete.

I have the unhappy duty of opening the first detailed debate on this Bill, which has so many problems. One of them is that it criminalises innocent, legitimate activity in a way that is so vague and broad it risks a great deal of potential injustice. It is really not appropriate for legislators in either place to allow this kind of shoddy work to pass, risking the liberties of our people, many years into the future.

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

I am sorry to interrupt at such an early stage. My noble friend rightly said that she has the unhappy duty to move this amendment. It is astonishing that we are considering the Bill and these amendments today. My noble friend has been very much involved in the detailed discussions in relation to the Bill. In view of the outright opposition, right across the country, to some of the provisions in the Bill, have the Government given my noble friend any indication that they propose not to proceed with the Bill? It is outrageous that we continue to consider these details and amendments, and I am sure that my noble friend would agree with me. Surely the Government have had second thoughts on this by now.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

I am grateful, as always, to my noble friend, who has been a parliamentarian of distinction in both Houses, over many years, and who cares a great deal about our constitutional climate and integrity in this country. I regret to inform him that I have heard no such cause for comfort or indication of any reflection on the part of the Government in relation to the Bill. I agree with my noble friend that that is a matter of enormous regret. As it happens, I have not heard even a hint of potential listening or movement around the Bill’s detail, let alone what my noble friend and I would prefer, which is that this terrible attack on British liberty is dumped by a Government who have seen reason.

A case in point is the new proposed criminal offence of locking on. As noble Lords will remember, a person commits this offence if they

“attach themselves to another person, to an object or to land … attach a person to another person, to an object or to land, or … attach an object to another object or to land”.

That is very vague and broad. The Bill also says that a person commits this offence if

“that act causes, or is capable of causing, serious disruption”—

it does not define this—

“to … two or more individuals, or … an organisation”,

and if they “intend” the act to have that disruptive consequence or

“are reckless as to whether it will have such a consequence.”

By the way, noble Lords in the Committee will remember the rather colourful and entertaining speech of my noble friend Lord Coaker when these provisions came this way the first time, before the current reheated version. It was either my noble friend Lord Coaker or my noble friend Lord Kennedy who talked about two people linking arms as they went down the road together. It was a rather colourful example of the two of them linking arms and going down the road together, which caused some amusement on all Benches in your Lordships’ House—they would perhaps take up a bit of space, if I can put it like that. But the idea that that simple, innocent act would potentially be impugned by an offence of the breadth that I have just set out is not a laughing matter, despite the amusing example.

The only crumb of comfort that the draftsmen and policymakers in the Home Department have offered is a defence—not part of the criminal offence itself—if the person charged proves that they had a “reasonable excuse” for this attachment, be it human to human, bicycle to railings or whatever. So the burden is put upon the accused person, rather than residing where it should in our criminal law: with the prosecution.

This is a terrible offence. The principle of burden flipping—reversing the burden of proof—is in relation to the new proposed offence of “locking on”, but it is present elsewhere with other offences. I object per se to reverse burdens; they are inherently very dangerous. They are sometimes necessary, but, when they are necessary, the actual conduct being impugned must be very tightly limited. It would be one thing to have an offensive weapon without a “reasonable excuse”—because you can license the holding of offensive weapons; that would make sense to me—but it does not make sense to include attaching yourself “to another person” or to property, linking arms with your chum, attaching your bicycle to railings, et cetera. These are all examples of conduct which can be potentially impugned by this criminal offence, and for which one could go to prison for nearly a year. This is totally outrageous and unacceptable.

--- Later in debate ---

[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 ---

[Lord Balfe (Con)]

I suggest to my noble friend that it also leads to juries being less and less likely to convict because they see these offences as being very spurious.

[Baroness Chakrabarti (Lab)]

I could not agree more with the noble Lord, Lord Balfe. Again, it echoes something that the noble Lord, Lord Carlile of Berriew, said. He will forgive me if I summarise his excellent contributions: let us not bring the law into disrepute—not in this place. We are not an elected House, but we are a scrutinising Chamber; we have the time and expertise to make sure that we do not bring our statute book into disrepute. That is where we agree, across the Benches and across this Committee.

I totally agree with the noble Lord, Lord Macdonald of River Glaven, that having proportionality in our law is not a problem; it is a benefit. Ministers should not work so hard to squeeze out the judgment and proportionality that must be employed by decision-makers, including police officers and courts.

I will stop there, save to say once more to the Minister that he has not been well served in some of his briefing. Respectfully, it is perfectly legitimate for Members in this Committee to begin by asking the Government to justify why they are legislating and where there is a gap in the existing law, because that central point has not been addressed in this hour of debate. If we do not address it, there will be more cases like that of Charlotte Lynch, and others who are not journalists—in some cases they are bystanders and in some cases they are peaceful dissenters. There is plenty of police power on the statute book and some of it has been abused. There are plenty of criminal offences and some of them have not been used when perhaps they might. It really is for the Government to justify interfering further with the spirit of British liberty. With that, I will—for now only—beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Public Order Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

12: Clause 1, page 2, line 2, leave out “to imprisonment for a term not exceeding the maximum term for summary offences,”
Member's explanatory statement
This amendment, with others in the name of Baroness Chakrabarti, reduces the maximum sentence for the proposed new offence of “locking on” to a fine.

[Baroness Chakrabarti (Lab)]

My Lords, I now get the opportunity to congratulate and welcome the Minister —the noble Lord, Lord Murray—to this Committee. I have had the opportunity to welcome him in other ways before, but it is important to be engaged in detailed scrutiny of the Bill for the first time.

This group is about sentencing. Notwithstanding everything that I have said so far—and no doubt will say again, and make the Minister’s ears bleed with my position on the Bill as a whole and specific offences—it is also important to engage with the specific issues of appropriate and proportionate sentencing, how the sentencing framework and different offences in that framework fit together, and whether we in this country should be incarcerating more and more people, including for what may well be peaceful dissent. It is very difficult to separate the issue of sentencing from the other formulation of the offence. When I was young, I was a lawyer in the Minister’s department, and one of the things that we were responsible for at that time in the Home Office was looking at the overall sentencing framework. That may now belong in the Ministry of Justice, but none the less the point was that whenever a new offence was proposed by any government department, it needed to pass some gatekeepers in a little unit in the Home Office who wanted to be clear about the formulation of the offence—mens rea, actus reus, et cetera—but also about the sentence, because in government people look for levers for change and everyone has a new big idea about a new offence.

In particular, in this group, with my first and some other amendments, including those of other noble Lords, I am really probing whether the new proposed offence of locking on—the Minister’s colleague, the noble Lord, Lord Sharpe, who is about to arrive in his place, was discussing that earlier—could even include people who, in a disruptive way, link arms. The noble Lord, Lord Sharpe, made the argument that sometimes linking arms in big enough groups would be just as disruptive as gluing your hands to the road. Are we really suggesting incarceration for up to 51 weeks for an offence that could be perpetrated by people singing “Kumbaya” and linking arms? It is a probe, but it is important that there should be some probes about the sentences for these offences, and not just their intention and formulation. I think that it is very important that we consider how many people we are incarcerating in this country, the trajectory that we are on with imprisonment in this country, and whether we have a criminal statute book—including a sentencing statute book—that is proportionate and coherent to meet the needs of a very troubled and polarised society at the moment. With that, I beg to move.

[Lord Paddick (LD)]

I look around in vain for anyone else who wants to speak. I agree with the principles that the noble Baroness, Lady Chakrabarti, has just spoken about. Amendment 13, in my name, is based on a recommendation from the Joint Committee on Human Rights. In its report on the Bill, the committee points out that the offence of locking on under Clause 1 is punishable with—as she just said—

“up to 51 weeks in prison.”

The committee states that:

“This sanction is significantly harsher than the maximum penalties that, until recently, applied to existing ‘protest-related’ non-violent offences such as obstructing the highway (level 3 fine) or aggravated trespass (3 months imprisonment).”


The committee notes that there is likely to be a low hurdle for prosecution—again, as the noble Baroness, Lady Chakrabarti, just said. The amendment therefore questions whether the length of potential imprisonment —51 weeks—is proportionate to the offence that is committed. Amendment 13 suggests that this should be reduced to a three-month maximum sentence.

The remaining amendments in my name in this group relate to the level of fine that can be issued to a person who commits an offence under Clauses 1 to 7. They are similar to amendments that I tabled to the corresponding clauses of the Police, Crime, Sentencing and Courts Bill—now an Act—when it was previously debated in this House. However, given the nature of the debate at that stage—in particular, in Committee, we started discussing those clauses at 11.45 pm—I believe that there is merit in discussing this issue again in this Committee.

Under Clauses 1 to 7, a person convicted of an offence may be liable to “a fine”. However, the Bill does not specify what the maximum level of such a fine should be. For each of these new offences, our amendments ask the simple question: is an unlimited fine proportionate for such an offence? In particular, is it proportionate that a person convicted of the offence of being equipped for locking on, for example, should be subjected to an unlimited fine? The Minister may argue that the level of fine suggested in our amendments is too low. At this point, they are simply probing amendments designed to make the principled point that an unlimited fine may be disproportionate for a number of the offences contained in the Bill. Finally, it would also be of benefit to the Committee if the Minister could set out how they intend fines to be applied consistently for these offences, if there is no upper limit as to the fine that can be imposed.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

It is, of course, frequently the case in legislation that there is no guidance on the face of the Bill as to the likely sentences that are imposed. It is very common for there to be sentencing guidelines formulated in the usual way by the judiciary. No doubt that is what will happen in relation to these offences. As I am sure the noble Lord, Lord Ponsonby, will agree, these are the guidelines to which prosecutors routinely refer the court before the court passes sentence.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who have participated in this all-too-sparse and short, but very important, debate about maximum sentences for new offences that are incredibly controversial. To address the Minister’s response directly, I am concerned that a briefing pattern is developing in the course of this Committee, where the Minister is given an example of something that protesters did that caused a lot of disruption and harm and so on, but we have yet to really understand why existing criminal law is not capable of addressing that. What is not being offered to the Committee—and perhaps not being advised to Ministers—is where the need is, given the scale of the public order statute book as it is. Within that, specific to this group, we are not being given a picture of where these offences sit in the hierarchy of criminal offences and criminal sentences.

Instead, we are being given a story about something outrageous that some protesters did and told that this is why the whole Bill is justified. We really need to get into a bit more specificity when we are playing with the criminal statute book and potentially sending people to prison or bankrupting them and so on. That is no disrespect to the Minister, his noble friend, his colleagues, or even his advisers. What is more traditional—certainly in this place—is that when offences are offered, and sentences to go with them, we are given a picture of where they sit within the current ecosystem of the criminal law; then we can really drill down into both the formulation of the offence and the sentence. People who disagree with me and, perhaps, welcome the offences, can nonetheless improve them and make sure that they are proportionate in their formulation and sentencing.

That has not happened in this debate, and it really must happen for us to do our duty as a Committee. That really must start to happen during the passage of this Bill, and it certainly will have to happen on Report. Concerns about incarceration, bankruptcy and maximum sentences, as well as fundamental concerns about the formulation of the offences themselves and even prior concerns about the need for them, are going to keep coming, group after group, in this Committee, and they will come again as we go down the road of consideration. I hope, therefore, that Ministers will take that in good part. For the time being, I beg leave to withdraw.

Amendment 12 withdrawn.

Debate on whether Clause 1 should stand part of the Bill.

[Baroness Chakrabarti (Lab)]

I apologise in advance to the Ministers for making their ears bleed. A lot of what I have just said is relevant to this group as well. In previous hours in this Committee, noble Lord after noble Lord from around this Committee—from the Benches opposite, the Cross Benches, lawyers, lay people, people concerned with the balance between peaceful dissent and other rights and freedoms for the rest of the community—has been really concerned about these new offences and the justification for them. There was a real consensus that it is for the Government of the day, and those who propose new restrictions of whatever kind on liberty, to make the case. Particularly when we are talking about coercive police powers at a time when there has been a bit of a crisis of trust in the police, which is not what we want, it is really important that the justification for new offences, new police powers and so on be made before we sign these blank cheques. It is no disrespect to the police. Every day that I come into this place, I am grateful to our wonderful police, who stand out there and protect us all as legislators. I am so grateful to them. Of course, it crosses my mind that I am criticising expansive police powers and so on, but I still feel that is my duty.

I will not take up too much time, but the case for these new offences has not been made by the Government. I tried to make my point in response to the debate on the previous group. We need a statement from Ministers about the existing public order statute book, what these existing offences and powers do and do not do, and what the gaps are thought to be, so that noble Lords in this Committee, including the noble Lord, Lord Carlile of Berriew, who knows a little about the criminal law—he and I have debated it over many years; sometimes we have agreed and sometimes we have disagreed—can bring their minds to this schedule, which hopefully the Government will provide, and ask, “Is there really a gap?”

That has not been done to date, despite the fact that these measures are largely defrosted and reheated from a previous Bill and have been through the elected House. That forensic case, that examination of the existing statute book and where the gaps are, has not been made. I do not vote on people’s liberties to protest, whether I agree or disagree with them, unless I see the case being made. That is why I have taken the step of opposing so many of the clauses—and I apologise if that seems rude in any way.

Make no mistake: I would be doing this if it was my party in government or whoever’s party in government. Sometimes, when it comes to civil liberties, whoever you vote for, the Government get in. As legislators we have duties to be a little more careful and forensic before adding to the very expansive public order statute book, with people concerned for their basic protection—yes, from each other, but also from abuses of power. With that, I do not have to say anything more.

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti, and in the widest sense I agree with her—but I come at it from a rather different angle. I am concerned about the integrity of the legal process.

I do not want to repeat what I said earlier. The Minister heard me referring to a very recent statute that came into force in August, I think from memory, which in my view covers all the conduct we are considering here. One has to consider the effect on the legal process of having different provisions, with very different consequences, which are not alternatives to one another; they have to be charged separately. It is not like wounding with intent under Section 18 of the Offences against the Person Act, where Section 20, unlawful wounding, is always an available alternative. These are quite separate offences, in totally separate Acts of Parliament, separated by a little time—though oddly, in this case, if the Bill is enacted, both introduced in the same year by the same Government.

We have to think about the way the process operates. The biggest Crown Court in London has a backlog, partly because of Covid, of nearly 4,000 cases, and we should consider the case management that is placed on the judges there. I have a particular interest in that Crown Court, which I place on the record. My interest in that court leads me to the view that the judges, the prosecutors and probably the defenders there are unlikely to be aware of the alternatives. However, as I suggested earlier, in another Crown Court another charge might be brought under the other Act of Parliament, and the judges there would know about the offences with the lower imprisonment maximum but would not know about the other statute. We will end up with a crowded calendar, with the Court of Appeal eventually having to say, “Why do we have two Acts of Parliament that deal with the same conduct but have totally different consequences?” I am sure that the noble Lord, Lord Ponsonby, who is an experienced, busy and highly regarded lay magistrate, has similar experience of backlogs in the courts in which he sits in London, and the same is true in all the cities around the UK.

--- Later in debate ---

[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.

Public Order Bill

Baroness Chakrabarti Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, in moving Amendment 110 in my name, I will speak also to my Amendments 111 to 113 and 116 and the other amendments in this group. These amendments are about a power to be given to the Secretary of State to bring civil proceedings to curtail or prevent protest, including potentially with a power of arrest attached, if the Home Secretary “reasonably believes” that activities are causing or likely to cause disruption to the use or operation of any key national infrastructure or have a seriously adverse effect on public safety in England and Wales.

Amendments 110 to 112 in my name would increase the evidential test to

“has reasonable grounds for suspecting”

to ensure that the Secretary of State has to set out before the court the exact evidential grounds for her application. In meetings with the Minister and officials on the Bill, it was explained that protests could affect a number of different operators or local authorities and that it would be in the public interest to have an overarching injunction in such cases.

The HS2 nationwide injunction seems to prove that such an overarching injunction is available to those concerned without the intervention of the Secretary of State but, in any event, Amendment 113 is designed to ensure that the power is used if, and only if, it is not reasonable or practical for a party directly impacted by the activity to bring civil proceedings, and to ensure that the Secretary of State does not use the power where any party directly impacted does not consider such proceedings to be necessary. My Amendment 116 is designed to ensure that a power of arrest cannot be attached to an injunction simply on the basis that the conduct is merely

“capable of causing nuisance or annoyance”.

This is in Clause 18(2)(a), which the amendment removes from the Bill.

We wholeheartedly support the additional checks and balances proposed by the noble Baroness, Lady Chakrabarti, in her Amendments 114 and 115. I beg to move Amendment 110.

[Baroness Chakrabarti (Lab)]

My Lords, during Second Reading a number of noble Lords, including those who do not share my views of the Bill more generally, expressed significant scepticism about the new Clause 17 provision for the Home Secretary to bring civil proceedings against protesters, instead of being brought by directly affected oil, gas or transport companies, and so on. I share these concerns at the politicisation of both policing and civil disputes, and therefore oppose Clause 17 standing part of this Public Order Bill.

Not only is it constitutionally dubious for a politician to be standing in the shoes of the police in relation to the criminal law, or of affected companies in relation to the civil law; it also raises questions about this use of considerable sums of taxpayers’ money in expensive litigation that could and should be brought by those who profit from fossil fuel or other carbon-intensive development, and no doubt factor legal fees into their budgeting. The lack of transparency required by the new Clause 17 also brings a risk of corruption, in the event that the relevant firms should choose to donate to or otherwise “promote” a Home Secretary amenable to seeking civil legal proceedings on their behalf.

It should be noted that under Clause 17(5), the Secretary of State must only

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

No transparency in the Secretary of State’s discussions, or non-discussions, with these “persons”—namely, large companies—or consideration of why they should not finance their own legal proceedings, is required. Never has the word “must”, in a provision supposedly creating a duty upon a Secretary of State to consult, constituted such a toothless tiger or illusory protection from the potential abuse of public money and political power.

In addition to supporting the amendments proposed by the noble Lord, Lord Paddick, I propose Amendments 114 and 115, which would create safeguards against corruption and abuse. They require the Secretary of State to publish the reasons for any decision not to consult; the results of any consultation; any representations made to the Secretary of State as to a proposed exercise of the new power; an assessment of why other parties should not finance their own proceedings; and assessments of why any proceedings have been brought by the Secretary of State at public expense, rather than by private companies themselves. Such publication will occur both each time an exercise of the power is considered, and annually on an aggregate basis.

Clause 17 is both unnecessary and undesirable. If it really must stand part, so must the vital safeguards previously referred to, but also those in Amendments 114 and 115, which I commend.

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I thank the noble Baroness, Lady Chakrabarti, for tabling her thought-provoking Amendments 114 and 115. I understand that the amendments seek to create a requirement for the Secretary of State to publish an annual report regarding the uses of the powers in Clause 17, containing justifications and explanations for decisions taken in the use of such powers. While I agree with the noble Baroness on the need for checks and balances, I am inclined on this occasion to question the necessity of these amendments. There are currently sufficient measures in place to ensure that the powers granted by Clause 17 are used appropriately and proportionately. It is, of course, always for the courts to review the appropriateness of a civil claim and to grant appropriate relief, and we are satisfied that these are sufficient safeguards. There is also a recognition that civil proceedings are done in public and that the judgment of the court would be available. However, I recognise the intent behind the noble Baroness’s amendment and will consider whether further clarity around the process whereby a Secretary of State may seek to initiate such proceedings could be provided.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for giving way. He made a kind offer to consider this argument; when he is considering it, could he think about transparency versus corruption and the public expense? He has made his arguments about the new co-ordinating role of the Secretary of State, standing in the shoes of a consortium, if you like, of local government, business and central government, but there is still this issue about transparency versus corruption. When he takes this away, will he think about a scenario in which a press baron or an oil baron—whichever noble Baron, or ignoble Baron, it is—says to a Home Secretary, or a putative Home Secretary, “I’m sick of these legal fees, and I think it would be a jolly good idea if the Home Department brought these proceedings against these pesky demonstrators in my shoes”? Will he think about the risks to public trust in the good use of public money that might result if there is not transparency about this new power?

[Baroness Jones of Moulsecoomb (GP)]

My Lords, before the Minister resumes his speech, may I ask him about a word he used? I do not know if I misheard—and I have quite a good vocabulary—but I think he used the word “dubiety”. Does that mean dubiousness?

Public Order Bill

Baroness Chakrabarti Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

I strongly urge the Government to accept this amendment, which provides holistic protections to ensure that journalists, observers and bystanders continue to have access to protest sites in order to report on what happens and to monitor police powers. It is an essential part of our democracy. I beg to move.

[Baroness Chakrabarti (Lab)]

The Committee will imagine the daunting privilege of attempting to follow that speech from one of the most senior journalists—and indeed one of the greatest environmentalists—in the Committee and your Lordships’ House. I want to speak briefly to explain why we have Amendments 117 and 127A. The reason is my poor draftsmanship when we conceived Amendment 117, for which I apologise. Amendment 127A is an improvement on Amendment 117 because of a defect that was pointed out to me by the noble Baroness, Lady Boycott. Amendment 117 had protected journalists who were covering the policing of protests only, and, of course, we need to protect journalists who are covering protests as well as the policing thereof.

I would also like to take this opportunity to reassure the Minister that, notwithstanding my fundamental concerns about the Bill as a whole, and significant provisions within it, this journalistic protection in Amendment 127A—I am grateful to the other co-signatories and supporters across the House for understanding this too—notwithstanding our fundamental objections to various provisions that the noble Baroness, Lady Boycott, referred to, would not in any way wreck those provisions, objectionable though they may be for my part. All Amendment 127A would do is protect journalists where any police power, not just the police powers in this Bill but police powers more generally, are being used for the principal purpose of preventing their reporting.

I know that it is very hard in Committee to persuade a Minister to think again, but this is not a request to think again about the Bill in sum or in part; this is requesting a protection for journalists that is required in relation to even the police powers that currently stand. In the case of Charlotte Lynch, and other cases to which the noble Baroness, Lady Boycott, referred, journalists were arrested and detained under public order powers as they currently stand—not even the broader, blank-cheque powers to come.

So I hope that, in this Committee, those in the Box, and noble Lords and Ministers, will take pause for thought and think about whether we need a protection against current public order powers, and any to come, to ensure that the police are not using them to arrest journalists because they think that the reporting of protests per se gives the oxygen of publicity to protest and so on. Day after day, at Question Time in particular, Foreign Office Ministers stand at the Dispatch Box and—rightly and sincerely, in my view—criticise attacks on journalistic freedom across the globe. I think something like Amendment 127A would be a very important statement, putting that sincerity of Foreign Office Ministers into law in the home department.

So, I hope that noble Lords, Ministers, and Members of the whole Committee will really reflect on the noble Baroness’s speech.

[Lord Deben (Con)]

My Lords, I declare an interest as chair of the Environment and Climate Change Committee. I want to ask the Government to listen very carefully to this discussion. We have a very real issue when really serious matters, which threaten all of us, do not appear to some of us to be properly addressed. That is a very serious matter for any democracy, and those of us who are democrats do have to stand up for the rule of law and do have to say that extreme actions cannot be accepted.

But it has a second effect too, and that is that we have to be extremely careful about the way in which we deal with those extreme actions. I do beg the Government to take very seriously the fact that these extreme actions will continue, because people are more and more worried about the existential threat of climate change. The Climate Change Committee spends a great deal of its time trying to ensure that there is a democratic and sensible programme to reach an end that will protect us from the immediate effects of climate change, which we cannot change, and, in the longer term, begin to turn the tables on what we as human beings have caused.

It is not always easy to do that in the light of others who are desperate that we should move faster and that we should do more; who are desperate because they are seriously frightened and are not sure that those who are in charge have really got the urgency of the situation.

It is very difficult to imagine that we are not going to have to cope with the uprising of real anger on this subject. As a democrat, I want us to cope. As a parliamentarian, I want us to be able to deal with these issues and ensure that the public are not threatened. I echo the Deputy Chancellor of Germany, a Green Member of Parliament, who makes it absolutely clear that the kinds of actions we have seen in this country from Extinction Rebellion and similar things in Germany are not acceptable in a democracy.

The other side of that argument is that we have got to be extremely careful about the way in which we enforce the law and how we deal with this issue. Journalists play the key part in this. They must be there to report on what happens. It is in our interest as democrats that that happens. If they are not there and cannot say what needs to be said without fear or favour, none of us can stand up and deal with the arguments of those who argue that democracy does not work and that somehow they have to impose their will.

I want the Government to recognise the importance of this. In this country, a journalist must have access without fear or favour. The police must not treat them in a way that has happened again and again, and which must stop happening. As the noble Baroness, Lady Chakrabarti, said, it is not happening because of what is in this Bill, which in general I do not have an objection to; it is what happens in any case. The fact that the police could hold a journalist for five hours knowing that they were a journalist is utterly unacceptable. You cannot do that in a democracy—and nor can we talk to other countries about these things if that happens here and we do not do something to enshrine in law the fact that it should not.

Earlier, I had to deal with the question of not opening coal mines in order to be able to stand up in the world and show that we too will carry out what we ask other countries to do. This is another, even more serious, case of that. We cannot talk about repression if we in this country can be shown not to have protected journalists in these circumstances.

It is a terribly simple matter. We must put on the face of the Bill, referring to all actions, that journalists should be in the position that the noble Baroness, Lady Boycott, suggests. It may be that her amendments could be better done; it may be that the Government have a different way of doing it. The only thing that I ask, in order to protect democracy and ourselves—those of us who are moderates and believe in the rule of law—is that we need to have this assertion.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

Before the Minister sits down, and with my real thanks for the sentiment that he expressed, does he concede that public order powers in general are cast in broad terms? Charlotte Lynch was arrested for the offence of conspiracy to cause a public nuisance—a fairly broad concept—and a number of broad police powers and offences in the Bill are triggered by an undefined concept of serious disruption.

Does the Minister also concede that senior voices in policing have said that journalists who give the oxygen of publicity to protests are part of the problem? By giving publicity, they are feeding the fuel of serious disruption. I know that the Minister disagrees with that proposition but, given that there has been so much performative legislation, and that there is apparently disagreement in the policing world about what is and is not feeding a serious disruption, why would the Government not take this modest step to ensure that no one should be arrested for the primary purpose of preventing their reporting of protest?

As a point of clarification, the difference between Amendments 117 and 127A is not the class of people they cover; it is the class of activity that is being reported on. Amendment 127A is an improvement on my poorer drafting of Amendment 117 because it refers to reporting protests themselves and not just the policing.

[Lord Sharpe of Epsom (Con)]

I agree with the noble Baroness that I do not agree with the proposition she just outlined from senior police officers. Having said that, I have not read those particular comments and cannot comment on the specifics. I go back to what I was saying earlier: it is not lawful to detain journalists simply there monitoring protests; it is against the law. The police made mistakes in these cases. As I said earlier, we agree it was completely wrong.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have not been present for earlier proceedings on this Bill because of other commitments, for which I apologise. For that reason, I will say only a very few words. With everyone else who has spoken, I completely oppose Clauses 19 and 20 and support the amendments in this group restricting their ambit and the ambit of SDPOs, for all the reasons considered and voiced by my noble friend Lord Paddick in opening and all other noble Lords who have spoken.

The so-called serious disruption prevention orders amount to punishment that does indeed involve serious disruption: serious disruption of individual citizens’ liberties, imposed without a criminal conviction and on proof to the civil and not the criminal standard, and which can last indefinitely. These proposals are entirely inimical to principles deeply embedded in our law and to notions of crime and justice that we all hold so dear. They are an insidious attack on civil liberties. They threaten a gradual, incremental encroachment on civil liberties—the very type of encroachment that can ultimately lead to the destruction of those liberties themselves.

[Baroness Chakrabarti (Lab)]

My Lords, I declare a historical if not a current interest as a Home Office lawyer from January 1996 until the autumn of 2001. I was occasionally and habitually a happy and unhappy inhabitant of the Box.

I agree with—I think—every speech so far in this significant debate. I would go further than some in saying that I was always against this blurring of civil and criminal process from the beginning when, I am sorry to say, Labour did it. I was against ASBOs, CRASBOs, control orders, TPIMs, football banning orders and all the rest, because they were always about lessening criminal due process. That is always the intention when you blur civil and criminal process by way of these quasi-injunctive orders. Whether it is minor nuisance or suspicion of being associated with terrorists, whatever the gravity of the threat, you will catch behaviour without proper criminal due process and then prosecute people for the breach.

Although we do not always agree, I must commend the noble Lord, Lord Anderson of Ipswich, in particular on a devastating critique of this use of copy and paste in my former department. Computers are wonderful things—until they are not. I will not labour the point, save to quote the right honourable Member for Haltemprice and Howden, who has done his best on this Bill in the other place along with Sir Charles Walker, from the Times this morning:

“Serious disruption prevention orders, or SDPOs”—


protest banning orders—

“can be given to anyone who has on two previous occasions ‘carried out activities related to a protest’ that ‘resulted in or were likely to result in serious disruption’”—

which is not defined—

“or even ‘caused or contributed to the carrying out by any other person’ of such activities. This is drafted so broadly so as to potentially include sharing a post on social media or handing out a leaflet encouraging people to go to a protest—even if you did not go on to attend that protest. Those issued with an SDPO can face harsh restrictions on their liberty, including … GPS tracking and being banned from going on demonstrations, associating with certain people”,

et cetera—and the orders are renewable indefinitely, as we have heard.

I am sorry if I have made noble friends feel uncomfortable. Do not think about these measures as they would be employed today. Think about how they could be used on the statute book by another Government, not of your friends and not of your choosing, in 20 years’ time. That is why, in a terrible Bill, Clauses 19 and 20 should not stand part.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by echoing what the noble Lord, Lord Paddick, said: all the arguments in all the amendments could become redundant if we support not putting Clauses 19 and 20 in the Bill. The strength of feeling demonstrated through this short debate leads me to believe that that may well be what we vote on when we come to Report.

I forget whether it was my noble friend Lady Chakrabarti or the noble Lord, Lord Skidelsky, who referred to this as copy-and-paste legislation. I think it was the noble Lord, Lord Skidelsky, who gave the analogy of chicken coops being moved around to replicate these civil injunctions. But perhaps the most powerful speech we have heard was from the noble Lord, Lord Anderson, who gave six examples of SDPOs being tougher than TPIMs, which really caused me to sit back and reflect on the meat of what we are dealing with here today.

My noble friend Lady Chakrabarti said she has always been against what she called quasi-injunctive orders—civil orders—going all the way back to ASBOs. This caused me to reflect, as a magistrate, on which of those orders I deal with when I sit in courts. I deal with some of them: football banning orders, knife crime prevention orders and domestic violence protection orders—I think most noble Lords who have taken part in this debate think DVPOs are an appropriate use of civil orders. But, of course, the list goes on. That is really the point my noble friend makes: there are a growing number of these civil orders that, if breached, result in criminal convictions.

To repeat what I said, here we are meeting a very extreme situation in which people planning to get involved in protest or to help people do so can potentially be criminalised for that activity. The nature of the potential offence being committed is different.

The noble Lord, Lord Paddick, went through in detail, for which I thank him, the nature of the injunctions in Clauses 19 and 20, so I will not go through all that again, but I will make one point that he did not make. We are concerned that there does not seem to be any requirement for the person involved to have knowledge that the protest activities were going to cause serious disruption. That lack of a requirement of knowledge is a source of concern for us.

In the debate on the previous group, my noble friend Lord Rooker and the noble Baroness, Lady Meacher, spoke about the comments of the Delegated Powers and Regulatory Reform Committee, and my noble friend quoted from them. The noble Lord, Lord Beith, spoke about the Secretary of State issuing guidance to chief police officers and how that could go down a road whose potential political implications, in a sense, I prefer not to think about.

I will quote briefly from other committees which have reflected on this legislation. First, the Joint Committee on Human Rights has said:

“Serious Disruption Prevention Orders represent a disproportionate response to the disruption caused by protest. They are likely to result in interference with legitimate peaceful exercise of Article 10 and 11 rights. The police already have powers to impose conditions on protests and to arrest those who breach them. Other provisions of this Bill, if passed, will provide the police with even greater powers to restrict or prevent disruptive protest.”


Another committee, the Constitution Committee, said:

“The purposes for which a Serious Disruption Prevention Order can be issued are broad. They can be issued not only to prevent a person committing a protest-related offence but also to prevent a person from carrying out activities related to a protest. Such a protest need cause, or be likely to cause, serious disruption to only two people. This gives the orders a pre-emptive or preventative role. Furthermore, ‘protest-related’ offence is not adequately defined in this part of the Bill nor … is ‘serious disruption’. This undermines legal certainty. We recommend that the meaning of ‘protest-related offence’ is clarified more precisely.”


The Minister has a big job on his hands to try to convince any Member of this Committee that he is on the right track. The amendments in my name—the clause stand part amendments—are the quickest way to put this part of the Bill out of its misery.

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Moved by

[Baroness Chakrabarti]

146: Clause 35, page 36, line 25, at end insert—
“(4A) No other provisions of this Act may be brought into force until a report by His Majesty’s Chief Inspectorate of Constabulary and Fire Services on improvements to the vetting, recruitment and discipline of specialist protest police officers is laid before and debated in each House of Parliament.”Member’s explanatory statement
This amendment, and another in the name of Baroness Chakrabarti, require parliamentary debate of a report by HMCI on improvements to the vetting, recruitment and discipline of specialist protest police officers before most provisions of the legislation may be brought into force. They further prohibit the bringing into force of the provisions in any police area under HMCI special measures.

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate those still here. We end, of course, with commencement, because that is the tradition. In moving Amendment 146 I will speak also to my Amendments 147 and 149. I also support Amendment 148 from the noble Lord, Lord Paddick, and Amendment 150 from the noble Lord, Lord Paddick, and my noble friend. We are dealing with the tension between ever more police powers on the one hand and the lack of equivalence in resources, training and vetting for policing on the other hand. This tension has been more and more exposed in graphic terms in recent months and years.

We began this evening with the eloquent speech from the noble Baroness, Lady Boycott, who spoke powerfully about incidents of abuse of police power in relation to journalists. We were assured, I think sincerely, by the Minister that it was far from the intention of the Government that those things happened. The Government apparently agreed with me that those were wrongful arrests, yet they have happened more than once. There are some in the police community who hold the view that this is a legitimate thing to do to prevent serious disruption, which is undefined in statute. So, with the amendments, we are seeking to ensure that there is some check on the new blank cheque that we are putting on the statute book, in addition to blank cheques that have already been put there by broad concepts such as conspiracy to cause a public nuisance, et cetera. That is what we are trying to get at.

Amendment 146 prevents the commencement of most provisions of the Bill until there has been

“a report by His Majesty’s Chief Inspectorate of Constabulary and Fire Services on improvements to the vetting, recruitment and discipline of specialist protest police officers”.

In another group, the Minister said, “If they’re trained, they’re trained”. So this is about ensuring that that is the case before additional power is granted. Amendment 147 is consequential to that.

Amendment 149 is crucial at a time when more than one police force is in special measures. It provides that provisions should

“not be brought into force for any area in which the police service is under special measures, the engage phase of monitoring, or other unusual scrutiny … by His Majesty’s Chief Inspectorate of Constabulary and Fire Services.”

That seems to be a perfectly reasonably check on the new powers and a perfectly reasonable request to make of Ministers, so I beg to move.

[Lord Paddick (LD)]

My Lords, I have tabled Amendments 148 and 150 in this group, and will speak also to Amendments 146, 147 and 149.

My amendments would mean that the new offences in the Bill—the delegation of functions and serious disruption prevention order provisions—could not come into force until the Government have laid before Parliament a report assessing the current capability of police services to use the provisions in those sections. Most of the 10 police forces inspected by HMICFRS said that the limiting factor in the effective policing of protests was a lack of properly trained and equipped police officers, not gaps in legislation. If that is already the limiting factor, what assessment have the Government made of the additional strain that the new provisions will have on already-stretched police officer numbers? What is the point of new legislation if the police do not have the resources to use it effectively—or, indeed, to use existing legislation effectively?

I can understand the principle behind Amendments 146, 147 and 149 tabled by the noble Baroness, Lady Chakrabarti; the right reverend Prelate the Bishop of Manchester has added his name to Amendments 146 and 147. Were it to be within the scope of the Bill, I too would support a moratorium on giving the police any further powers unless and until Parliament had a chance to consider a report by HMICFRS into the vetting, recruitment and discipline of all police officers, not just public order officers—particularly in forces that are subject to the “engage phase” of scrutiny by HMICFRS, commonly understood to be “special measures”. With so many forces requiring intensive scrutiny and intervention by HMICFRS, and public confidence in the police being so low, the police should not be given further powers until HMICFRS has reassured the public that they can have confidence in the police use of existing powers, let alone new ones.

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[Lord Sharpe of Epsom (Con)]

What I hope I said is that our expectation is that the provisions in the Bill will improve the ability of the police to “remove and deter protesters”, thereby alleviating some pressure on the police.

[Baroness Chakrabarti (Lab)]

That is very helpful. I agree with the Minister that police officers—we have a fine one in this Committee—and police forces should not be treated with a broad brush, but, and noble Lords will perhaps forgive me if I say it, nor should peaceful protesters. Hence, the question raised by the noble Lord, Lord Paddick, and hence the bulk of criticism of this entire draft legislation in this Committee. It is an unhappy privilege to be perhaps the last speaker in this Committee; I think I was the first. I am grateful to the Minister for his fortitude and courtesy. He wants to rise again.

[Lord Sharpe of Epsom (Con)]

I just want to clarify that I mean criminal protesters.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister but, of course, if the Government are able to keep expanding the definition of criminality, that does not give much cause for comfort about protecting peaceful dissent. I am none the less grateful to the Minister for his fortitude and courtesy throughout this three-session Committee. I hope that he and his colleagues will understand that what he has heard over these days and hours is very serious cross-party concern about these measures, reflected in vast sections of the country. I have no doubt that, after a good break and, I hope, a happy Christmas of reflection, colleagues will be back and some of these matters will definitely be put to the vote. With that, I beg leave to withdraw the amendment.

Amendment 146 withdrawn.

Public Order Bill

Baroness Chakrabarti Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I would have thought that the necessity for the Lord Speaker to retire for five minutes might be termed a “serious disruption” of the working of this House. However, the point I want to make, briefly, concerns the use of the phrase “capable of causing”. According to Amendment 48, a senior police officer will make the decision. What on earth will he base the decision on? It would certainly be easier with Just Stop Oil or Extinction Rebellion, but, as we know, there are many other processions and disturbances—particularly in London but right around the country—that he would not know to what they were leading or what they would be like. How on earth is he to assess whether they are capable of causing serious disruption? I find the issue very difficult to understand. I hope the Minister will explain what is really meant by a police officer deciding what is “capable of causing” serious disruption.

[Baroness Chakrabarti (Lab)]

My Lords, it is a pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, and a daunting privilege, as always, to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood. My views on the necessity and desirability of this proposed anti-terror-style legislation are no secret. But whether noble Lords are for or against this Bill—whether they are for or against its new offences, including thought crimes, stop and search powers, including without suspicion, and banning orders, including without conviction—all noble Lords must agree that the concept of “serious disruption” has been used throughout the Bill as a justification and trigger for interferences with personal liberty.

So, “serious disruption” should be defined. However, His Majesty’s Government resisted any definition at all, all the way through the Commons stages of the Bill and in this House, until this late stage, notwithstanding attempts by some of us on this side to provide a single overarching definition very early on, in Committee, and despite even senior police requests for clarity. What a way to legislate, bearing in mind that we are here at all only because of late amendments to last year’s bus—sorry, Bill—the police et cetera Bill, which would have had this whole Bill dropped into it, again at a very late stage.

Just over a week ago, via a Sunday afternoon No. 10 press release—because No. 10 press officers never rest on Sundays—and with no amendment even attached to that press release, we learnt that there was to be some sort of definition so that

“police will not need to wait for disruption to take place”.

The government amendments and signatures to amendments from other noble Lords were not published until about 24 hours later, so there was a whole media round of debate the next morning—this was before the conviction of Police Constable Carrick—concerning unpublished amendments. I hope that the Minister will tell us when he first knew about this new approach of having a definition, and why it was heralded by press release rather than discussion in your Lordships’ House.

As for the substance of the issue, government amendments are confusingly piecemeal and set the bar too low before a number of intrusive police powers and vague criminal offences kick in: “more than minor” hindrance is not serious disruption. More than minor is not serious enough. They cannot be serious.

I face more than minor hindrance in congested London traffic every day or even when walking through the doors and corridors of your Lordships’ House at busy times. The definition of civil nuisance at English common law involves “substantial interference” with the use and enjoyment of my property. Should it really be harder to sue my neighbour for polluting my private land than it will be under the Government’s proposal to have my neighbour arrested for protesting against pollution in the public square? Obviously not—or at least, not in a country that prides itself on both civil liberty and people’s ability to rub along together and even disagree well.

Instead, the single overarching and more rigorous Amendment 1 defines “serious disruption” as

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

That is the overarching definition, and it includes “significant delay” in the delivery of goods and “prolonged disruption” of access to services, as set out in the Public Order Act 1986. To help the noble Lord, Lord Pannick, the concept of prolonged disruption is already in the 1986 Act as amended by last year’s bus, the police et cetera Act, so that is not a novel concept. We are really talking about significant harm instead of more than minor hindrance. I urge all noble Lords, whether they are for or against the Bill in principle, to vote for that.

[Lord Hope of Craighead (CB)]

I would like to speak next because my amendments have been mentioned and it is probably best that I explain what they are. I stress that the amendments under discussion are not my amendments: they are Amendments 5, 14 and 24 in this group, which substantially repeat amendments I tabled in Committee. There is a certain amount of revision of the words but essentially, I am making the same point as I did in Committee. They seek to give effect to a recommendation by the Constitution Committee, of which I am a member. I am grateful to the noble Lord, Lord Faulks, who, as I speak, is still a member of that committee, for adding his name to the amendments.

The committee noted that the three clauses concerning locking on, tunnelling and being present in a tunnel—the offences that are the target of my amendments—use the term “serious disruption” to describe the nature of the conduct that the Bill seeks to criminalise. The committee noted that this could result in severe penalties, such as providing the basis for a serious disruption prevention order, and took the view that a definition should be provided. On that issue, I think there is a wide measure of agreement across the House—perhaps with the exception of the noble Lord, Lord Paddick—that a definition is needed because of the nature of these offences and the consequences that follow from them.

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[Lord Hope of Craighead (CB)]

So there is agreement that a definition is needed because of the nature of the crime and the consequences that follow from it. The committee noted that a definition was given in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Baroness, Lady Chakrabarti, has referred. Those sections deal with the imposition of conditions on public processions and public assemblies. The amendment in the name of the noble Lord, Lord Coaker, seeks to adopt the same definition for the purposes of the Bill.

[Baroness Chakrabarti (Lab)]

I am sorry to be a hindrance to the noble and learned Lord, although I hope no more than a minor hindrance. The concept of “prolonged disruption” is a tiny part of the definition, but my noble friend Lord Coaker’s Amendment 1 does not replicate the definition in Section 73 of the 1986 Act. The new overarching principle that we would introduce with Amendment 1 is

“significant harm to persons, organisations or the life of the community”,

and that is not in the 1986 Act. It is not the provision that is limited in that Act to processions or indeed assemblies.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Baroness and accept her correction. Of course the catalogue that follows is very much the catalogue that we see in the 2022 Act, and it was that which took our attention in the committee. Our view was that the definition is not suitable for use in the Bill because of locking on and, especially, tunnelling. The committee said that the definition should be tailored to the very different defences with which we are concerned in the Bill, and recommended that the meaning of the phrase should be clarified in a proportionate way—for a reason that I will come back to, because the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that point—in relation to each offence. That is what my amendments seek to do. I suggest that they are more in keeping with what the Constitution Committee was contemplating than the amendment by the noble Lord, Lord Coaker.

I have tried to provide definitions that are tailored to each of those three offences and are short, simple, proportionate and easy to understand. After all, this is a situation where guidance is needed for use by all those to whom the offences are addressed. That audience includes members of the public who wish to exercise their freedom to protest; the police, who have to deal with these activities; and the magistrates, before whom most of any prosecutions under these clauses will be tried.

At the end of my speech in Committee, my aim was to invite the Minister and his Bill team to recognise the importance of the issue and, if my amendments were not acceptable, to come up with a more suitable but just as effective form of words. As noble Lords can imagine, as we so often issue invitations of that kind and those words were uttered more in hope than expectation, it was rather to my surprise that on this occasion my hope was realised when the Bill team began to take an interest in what I was seeking to do. I am grateful to them and to the Ministers in the other place and in this House for the discussions that then followed, which helped me to improve and finalise my wording. I cannot claim that I have found an absolutely perfect solution, but I think what I have done is achieve the best that can be done. Certainly, it is very much better than the alternative that is before your Lordships.

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[Lord Hope of Craighead (CB)]

These are the words we are dealing with. “Significant” is the word in the Amendment 1 and it is defining “serious disruption”, but we are trying to find words that define what we mean by “serious disruption” in the case of these three offences, which is my point. I come back to the point that the important word is “more”, because I am trying to establish the threshold at which it is right that the police should intervene. The problem with “significant”, of course, is that can mean different things to different people in different contexts.

[Baroness Chakrabarti (Lab)]

I think the difference between us is that the noble and learned Lord is suggesting that there is a binary: there is “minor” and there is “significant”, and therefore anything “more than minor” must be “significant” or—forget “significant”—“serious”. To understand the intention behind our amendment, one needs to think about “significant harm”—“harm” as in damage. Harm and damage, and significant harm and damage, are well understood in the law, as he knows. As for his concerns about the long list, it is a replication of provisions previously in the 1986 Act for assemblies and processions. To reiterate, it is a non-exhaustive list of examples. The crucial part of our definition is “significant harm”. I think an ordinary person on the street would understand “significant harm” as more serious a minor hindrance or one iota more than a minor hindrance.

[Lord Hope of Craighead (CB)]

I was looking to identify the threshold at which one reaches the point where, on my approach, one moves beyond a minor disturbance to something that becomes significant. That is why I use “more” for the point at which, I suggest, given these particular offences, it is right that the police should then intervene. I asked the question: once one reaches that point, in the case of the tunnelling, why should that go on and on? People are arguing about whether we have reached the stage where the harm is caused is significant without the further guidance of being directed to the point at which it becomes significant.

The problem with the words that the noble Baroness is addressing to me is that they can mean a range of things within the compass of the word “significant”. I am trying to direct attention to the particular offences and consequences that follow from the activities being carried on. That is why I suggest that “more” is the most important and significant part of my formula.

As for locking on, the other of the three offences, I do not have a long catalogue of things that may be affected. There is always a risk that something might be missed out, so I have tried to capture what is put at risk by the omnibus words “their daily activities”. But here again, the threshold that I am seeking to identify is to be found in the words

“more than a minor degree”,

for the reasons that I have explained. Again, the question is: why should the police wait any longer once that threshold is reached?

I come back to the point about proportionality that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned, and the reasonable excuse point. Proportionality is very important and the threshold has to be put into the right place, because we need to consider at what point the interference with the convention rights of freedom of expression and freedom of assembly and association becomes disproportionate.

In its judgment in the recent Northern Ireland abortion services case, delivered last December, the Supreme Court said in paragraph 34:

“It is possible for a general legislative measure in itself to ensure that its application in individual circumstances will meet the requirements of proportionality … without any need for the evaluation of the circumstances in the individual case”.


In other words, there is then no issue for a jury to consider or a magistrate to address his or her mind to; it will have been sufficiently addressed if the issue identified in the legislation is in the right place.

As to whether that is so, some guidance can be found in a decision of the Grand Chamber of the Strasbourg court in a Lithuanian case called Kudrevičius in 2015. That case was about a demonstration by farmers, of which a number have happened in recent years. They had gathered in a number of groups to block the traffic on a number of public highways. The court said that in that case the disruption of traffic that resulted could not

“be described as a side-effect of a meeting … in a public place, but rather as the result of intentional action by the farmers”—

in other words, they were intending to disrupt the highway—and that

“physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities”

of others, the court said,

“is not at the core of”

the right to freedom of assembly. That in itself, however, was not enough to remove their participation entirely from the scope of the protection.

That is the background for what the court then decided. It said that “Contracting States”, which included ourselves,

“enjoy a wide margin of appreciation in their … taking measures to restrict such conduct”

and that the farmers’ intention—a serious disruption of the highways to a more significant extent

“than that caused by the normal exercise of the right of peaceful assembly in a public place”—

was enough to enable the Court to conclude that the criminal sanction which was imposed there was not disproportionate. That is an example of a case which went across the border from being a side-effect of what was happening to something that was a deliberate obstruction of traffic, which is what locking on is all about, and a deliberate interruption of, let us say, the HS2 development, which is what the tunnelling is all about.

My approach also has the support of a decision by the Divisional Court in March last year in a case called Cuciurean. That case was about tunnelling. It affected only a small part of the HS2 project, it lasted for only two and a half days and the cost of removal was less than £200,000. However, the prosecution for aggravated trespass was upheld as not amounting to a disproportionate interference with the protester’s rights. I am sorry to weary your Lordships with those references, but, having looked at those and other case law, I believe that the position I have adopted in these amendments strikes the correct balance for the proportionate treatment of the rights we are talking about.

Of course, I hope that the noble Lord, Lord Coaker, will not press his amendment—although I have no doubt he will feel he should—because I believe it is not fit for purpose. It is not right to introduce a general definition of that kind, which is perhaps all right for one of three offences but is completely out of place for the other two. It is not good legislation. We try in this House to improve legislation. With the greatest respect to the noble Lord, I do not think his amendment improves it. On the contrary, I suggest that my amendments do improve it and, when the time comes, if I have the opportunity to do so, I will seek to test the opinion of the House.

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[Lord Hogan-Howe (CB)]

The noble Baroness makes a good point. I was going to come on to a point that she made, but the point the police are making is that, if there is a lack of precision around something as simple as obstructing the highway, can we help them? People have alluded to the fact that the police have asked for help, and that is one of the things Parliament can do: explain more clearly how obstruction can be a protest that is beyond the criminal boundary, particularly when political motives are involved. Generally, the police will try not to get involved in that, which why they are seeking help in asking for more legislation, rather than less, although in general I think they would say that they do not need any more legislation.

The noble Lord, Lord Coaker, explained very well why he would like to approach this issue in a different way. The problem I have with his amendment is that it refers to a “prolonged disruption”, as the noble Lord, Lord Pannick, said. I particularly do not like its reference to health. What if someone is having a heart attack or another very serious medical issue that involves minutes rather than hours—or days, in some cases?

[Baroness Chakrabarti (Lab)]

Just to be clear one more time, prolonged disruption is just an example. One does not need prolonged disruption for significant harm to be caused to a person, an organisation or the life of the community. I cannot think of a more significant harm than a person with a heart attack not being able to be transported in an ambulance.

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Moved by

[Baroness Chakrabarti]

2: Clause 1, page 1, line 5, at end insert “without reasonable excuse”
Member’s explanatory statement
This amendment makes the lack of a reasonable excuse a component part of the offence of locking on, thus placing the burden of proof upon the prosecution.

[Baroness Chakrabarti (Lab)]

My Lords, I first thank noble Lords; so too does Cole Porter from the grave, because “how strange the change” would have been from “major” to “just a little bit more than minor”.

This second group deals with the concept of “reasonable excuse”, which noble Lords will remember is present in a number of the new criminal offences in the Bill. As noble Lords have heard, some, including locking on in particular, are very vague and dangerous. I have some amendments, with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that attempt to set straight a reversed burden of proof, inappropriate in criminal law, where the Government have sought to place the burden on the innocent cyclist with the bike lock or the protester, or whoever, to demonstrate that they had a reasonable excuse when, really, the lack of a reasonable excuse should be a component part of the criminal offence and, indeed, something that a police officer considers before arresting someone.

The noble Lord, Lord Paddick, has said eloquently many times in your Lordships’ House that criminal offences need to be fit for purpose not just in a courtroom or even during a charging decision in a police station, but on the ground when an officer is considering who to arrest. Therefore, it is important that the lack of a reasonable excuse be a component, core part of the offence and not something that a hapless bystander or protester has to prove.

The noble Lord, Lord Paddick, will speak to other amendments in this group that he has tabled. I support all of them, whether my name is there or not; it is there in spirit. I would like to be clear about that and, similarly, with attempts to improve these offences and improve the definition of “reasonable excuse”. But, on account of time, I just want to focus on and prioritise the importance of not supporting the government amendments or, should I say, the amendments that Ministers have now signed in the name of the noble and learned Lord, Lord Hope of Craighead.

It seems harsh, to say the least, to single out “protest” from all the potential excuses that may or may not be reasonable in a particular case and a particular set of circumstances. Why single out protest as something that can never be reasonable? That seems to me to be an attempt to take proportionality out of the mind of a decision-maker—not just a court but a police officer on the ground. I think that is a mistake.

The noble and learned Lord, Lord Hope, will no doubt cite very leading authority on circumstances in which proportionality is so clearly part of an offence that there is no need for second guessing at the arrest or prosecution stage. But that will not be the case in relation to some of these offences and, I venture, locking on in particular.

I will not attempt to repeat the eloquence of my noble friend Lord Coaker with the various descriptions of linking arms, but the idea that an offence that can be committed with such trivial activity should not have an element of proportionality put in the mind of a decision-maker is of huge concern to me.

Without further ado, I commend the various amendments that I have described, but also ask noble Lords not to support any attempt to single out protest as the one excuse that is never reasonable. That seems rather unreasonable to me. I beg to move.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I support the noble Baroness on her amendments and am opposed to Amendment 8 from the Government and the noble and learned Lord, Lord Hope, which seeks to exclude and narrow down very dramatically the scope which, I submit, should be present in this offence for a defence of reasonable excuse.

Why should not a demonstration against measures concerning, for example, climate change as a question of fact and degree for the trial judge be adjudged reasonable, as was the case in DPP v Ziegler, which went to the Supreme Court. It is perfectly true and perfectly right that I should acknowledge this. Indeed, my noble and learned friend Lord Hope drew my attention way back at the end of last year to the latest Supreme Court decision, which he mentioned today with regard to group 1, in the Northern Ireland abortion case. It is a reference from the Attorney-General for Northern Ireland.

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[Lord Murray of Blidworth (Con)]

I entirely understand that that is the noble Lord’s view. The test of proportionality will, of course, be decided on the facts of each case as it arises, which will be matters that will feed into the decisions taken by the police and CPS in the charging process.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who spoke in an incredibly thoughtful debate—your Lordships’ House at its best, if I may say so. Noble Lords will forgive me if I do not mention everyone, for obvious reasons of time, but I am particularly grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for explaining that sometimes reverse burdens make sense when the criminality is just so obvious, such as carrying a bladed article in public, but that linking arms is generally not thought of as the same kind of criminality.

I am also grateful to the noble and self-deprecating Lord, Lord Paddick. He may not be a lawyer, but he is certainly a better lawyer than many of us lawyers would be police officers, I suspect. His brilliant exposition of the Northern Ireland case in particular, including by way of his last intervention, demonstrates that Ziegler is not dead. As we have heard from many noble Lords in this thoughtful debate, protest is not a trump card; it will not always be a reasonable excuse for criminality. But sometimes it might be. It is not irrelevant to these matters. Good law is about rules and discretion and, without the right amount of discretion, injustice will follow.

Most of all, I am grateful to the noble Lord, Lord Deben, because it was his particular thought experiment that made me most concerned about a mass demonstration such as the one on Iraq—but it could be on another subject under another Government in future. We are talking about a mass demonstration where, quite deliberately, the police do not run around arresting everybody; they use their discretion in the public interest not to do so, so as not to cause a very hazardous situation to human beings and public order, or because they simply would not be able to arrest a large number of people.

In my development of the thought experiment from the noble Lord, Lord Deben, instead of just not arresting people and just ensuring that people are safe, certain police officers arrest only a certain type of person—say, only people in wheelchairs, or only women, who are easier to arrest, or, dare I say it, only people of a certain race. If those people alone were then prosecuted and were not permitted to argue a reasonable excuse that they were just on the demonstration like everybody else, I suggest that a grave injustice would follow. The fact of the protest is never a trump card, but sometimes it is highly pertinent.

I shall not press the amendments in my name to a Division, because I have decided, on the basis of this debate, that the priority in the time that we have is to vote against the government amendments, which is what I would urge all those concerned about this to do.

Amendment 2 withdrawn.

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Moved by

[Baroness Chakrabarti]

9: Leave out Clause 1

[Baroness Chakrabarti (Lab)]

My Lord, we come to the next group, and I have put my name to leaving out Clauses 1 and 2, on locking on and going equipped. I will not rehearse the problems with the vague nature of the offence of locking on, which, at its lowest, could literally be linking arms; or going equipped, which is a thought crime that could criminalise people carrying all sorts of innocent items in their rucksacks—bicycle locks or even potentially, in the context of the way in which some journalists or photojournalists have been arrested of late, the camera they were going to use to photograph the locking on, because they knew there was a protest. The noble Lord, Lord Paddick, will speak to some amendments he has tabled in the group to tighten and improve some of the more serious offences, and the Minister will of course speak to the government amendments, which I do not believe, for once, are incredibly controversial. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

I support the noble Baroness, Lady Chakrabarti. Quite honestly, we are trying to amend this awful piece of legislation and really, it is not enough: we should just kick it all out, including these government amendments.

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[Lord Davies of Gower (Con)]

My Lords, the amendments in this group take issue with offences listed in the first five clauses of the Bill, so it might be helpful to set out exactly why the Bill is so necessary and how it differs from existing public order legislation. The Bill seeks to speed up the ability of police to pre-empt, intervene and respond to the evolving tactics we have seen from—what can best be described as—a selfish minority of protesters. It also seeks to establish clear stand-alone offences, which target disruptive and dangerous behaviour, and impose sentences that are proportionate to the harm caused.

I have heard many times that the police already have the powers necessary to deal with disruptive behaviour, such as tunnelling or locking on. I disagree. We have only to look at the high levels of disruption as recently as a few months ago to see that more needs to be done. The Bill provides police with the powers necessary to combat these specific offences while ensuring that those who seek to cause serious disruption on private, as well as public, land are held to account. It is completely unfair that the hard-working public have to face misery and disruption caused by individuals locking on to a road or tunnelling under a building site, only to see the perpetrators arrested several hours after beginning their actions and then let off with a light sentence.

Clauses 1 and 2 are a key part of the Government’s plans to protect the public from the dangerous and disruptive protest tactic of locking on. We have seen protesters who use locking on and who tunnel be acquitted on technicalities. Therefore, it is important to have clear, stand-alone offences for locking on and tunnelling. This ensures that those intent on causing serious disruption for others can be brought to justice quickly and given a proportionate penalty that reflects the harms they have caused. The “going equipped to lock on” and the “going equipped to tunnel” offences enable the police to intervene earlier to prevent serious disruption. Dealing with a tunnel or a lock-on is extremely resource-intensive, taking hours of police time, which could be much better spent tackling other crimes and disorder on our streets. Surely noble Lords would agree that enabling the police to act before the acts are committed is in everyone’s best interests.

The Government are on the side of the public and will act to ensure that the public are protected from these disruptive acts. We welcome Extinction Rebellion’s sensible new year’s resolution to

“prioritise attendance over arrest and relationships over roadblocks”.

However, Just Stop Oil and Insulate Britain are digging their heels in and have committed to continue trampling on the lives of others. Faced with this threat, it is clear to me that Clauses 1 and 2 should stand part of the Bill. Therefore, I respectfully ask the noble Baroness, Lady Chakrabarti, to withdraw Amendment 9.

Amendment 19, tabled by the noble Lord, Lord Paddick, limits the extent of the offence of causing serious disruption by being present in a tunnel to tunnels which have been created through the commission of the offence of causing serious disruption by tunnelling. I thank the noble Lord for tabling this amendment and accept the need for clarity in distinguishing between those who cause serious disruption in a tunnel created for the purposes of or in connection with a protest, and those who cause serious disruption in tunnels such as the London Underground tunnels.

My noble friend Lord Murray previously committed to considering this matter further: subsequently, the Government have tabled Amendments 21, 29 and 30. These amendments provide that the offence of causing serious disruption by being present in a tunnel, as defined by Clause 4, is committed

“only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.”

The Government’s amendments provide clarity in the legislation on the scope of the offence. This means that people who cause serious disruption in tunnels not created for the purpose of or in connection with a protest—such as the London Underground tunnels—would not fall within the scope of Clause 4. In contrast to Amendment 19, it also includes no additional burden for the courts when prosecuting offences under Clause 4, in that they would not be required to show that an offence has occurred under Clause 3 as well.

Finally, Amendment 31 raises the threshold at which an object may be captured within the scope of the “going equipped to a tunnel” offence, as doing so would limit the effectiveness of the offence. We are trying to ensure that the police can act proactively before these harmful tactics are used. The amendment in the name of the noble Lord, Lord Paddick, raises the threshold for intervention too high. In light of this, I hope noble Lords will support the amendments in the Government’s name and reject the other amendments in this group.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who spoke in this short debate. I believe it was such a short debate because so much of the argument has been rehearsed in the first two groups. I thank the Minister for the tone of his remarks. The reason that so many noble Lords voted as they did in the first two groups is because of their profound concerns about the breadth and vagueness of these offences. The brevity of this debate is in no sense any indication of support for, for example, locking on—an offence that could find a courting couple, if that is not too antiquated a term, who linked arms being accused of being capable of causing disruption to police officers and, if an argument ensues, finding themselves in the territory of locking on. It was a revelation in one of the debates on the Bill when the Minister, the noble Lord, Lord Sharpe of Epsom—who is now in his place—said, in response to a challenge by one of my noble friends, that, yes, linking arms could be attachment.

There are reasons why, for example, people in wheelchairs might attach themselves to the wheelchair in order to feel safer during a busy demonstration. There are so many unintended consequences. Even if one thought it were legitimate to create specific—or bespoke, which is the phrase normally used by my noble friend Lord Ponsonby—offences to tackle the suffragettes of the future, this offence is so broad and so vague that it would catch people who do not even intend militant protest at all.

With respect to the Minister, when he tells us that the events of recent months make this legislation necessary, how does that square with the comments of the right reverend Prelate the Bishop of Manchester? Gluing yourself to the road, with the intended consequence of being caught, has already led to prosecution and conviction. Legislating does not stop bad things happening but, with bad legislation, more bad things will happen. The law will be brought into disrepute, and the relationship between the police and the public will be further fractured at a time when it is under grave strain for a number of reasons that we need not rehearse.

In the light of the first two votes, His Majesty’s Government are going to have to do some serious thinking before the further passage of this Bill on these offences, the definition of “serious disruption”, the issue of “reasonable excuse”, and the need to protect journalists such as Charlotte Lynch, who the noble Lord, Lord Paddick, mentioned earlier, and a number of others who have been arrested under existing offences, including conspiracy to cause a public nuisance—no reasonable excuse for them before detention in a police station for many hours. The Government are going to have to think again.

In closing—because we may not get to the journalist protection amendment this evening—when the Home Secretary Ms Braverman appeared before the noble Baroness, Lady Hamwee, who is in her place, as chair of the Justice and Home Affairs Committee, before Christmas, she very kindly agreed to consider the subsequent amendment in my name and that of the noble Baroness, Lady Boycott, to give specific protection to journalists. I have not yet heard a response from the Home Office. I have followed up with emails to the Home Secretary and to the public correspondence section of the Home Office. I hope that, before we reach that later amendment, there could be some consideration, as was promised to your Lordship’s Justice and Home Affairs Committee before Christmas.

I shall withdraw my opposition to Clause 1 standing part for the reasons I gave. I have every confidence that, in the light of the last two votes, which may have come as a surprise to them, the Government will sensibly now give some consideration to the way forward for this Bill.

Amendment 9 withdrawn.

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Moved by

[Baroness Chakrabarti]

38: Clause 7, page 7, line 39, leave out subsections (7) to (9)
Member's explanatory statement
This amendment removes the Secretary of State’s power to make regulations by statutory instrument amending subsection (6) to add a kind of infrastructure or to vary or remove a kind of infrastructure; or to amend section 8 to re-define any aspect of infrastructure included within the new criminal offence.

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[Baroness Chakrabarti (Lab)]

My Lords, now we turn to the offence of interference with the use or operation of key national infrastructure, which is clearly a matter of considerable concern to the life of the community and to the balance that we have been discussing between peaceful dissent and the rights and freedoms of people in a democratic society.

The definition of key national infrastructure becomes very important in relation to a new criminal offence which attaches to it a maximum of 12 months in prison. My Amendment 38 is perhaps fairly predictable for an amendment in your Lordships’ House: it seeks to remove the Secretary of State’s ability by regulations or statutory instrument to amend the definition of key infrastructure. As your Lordships will understand, it would be just too easy for any Government, now or in the future, to amend the definition in a way that was not proportionate, and to add matters and items to key infrastructure that the public did not consider to be key. On principle, I do not think that criminal offences should be created or amended in that way by Henry VIII powers. That is the reason for my Amendment 38. It is the sort of amendment that I would have tabled to any number of criminal justice Bills. It is not specifically about protest; it is an objection of principle to amending important definitions within criminal law in that way.

Amendments 39 and 40 in the group, tabled by the noble Lord, Lord Paddick, similarly try to tighten important definitions, but I will leave him to speak to those. I beg to move.

[Lord Paddick (LD)]

My Lords, as the noble Baroness, Lady Chakrabarti, just said, I have Amendments 39 and 40 in this group. As we discussed in Committee, while there may be some sympathy for measures designed to stop protesters blocking motorways, airport runways and railway lines, the legislation as drafted—covering anyone who interferes with the use or operation of any key national infrastructure, including being reckless as to whether it could be interfered with—could criminalise those legitimately protesting on railway station forecourts or concourses or those protesting outside or inside airport terminal buildings who do not intend directly to impact train journeys or flights. Clause 7(4) is extraordinarily broad in its scope, in that anything that prevents the infrastructure being used or operated to any extent for any of its intended purposes is covered.

For example, those awaiting the arrival of a controversial figure whose presence is arguably against the public interest, and who wish to demonstrate their objection to the person’s presence in the United Kingdom, should be excluded from the overbroad remit of this offence. I accept that they may be committing other offences, but to be prosecuted for interference with the use of key national infrastructure when this is clearly not the purpose or intention of the protest does not appear to be right. Amendments 39 and 40 seek to restrict the offence to infrastructure that is essential for transporting goods and passengers by railway and air respectively. We support Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, on the regulation-making powers of the Secretary of State to add, alter or delete the kinds of infrastructure covered by this offence.

--- Later in debate ---

[Lord Davies of Gower (Con)]

I am very grateful to the noble Lord for his explanation. As I said previously, rail and air infrastructure are each complex, interconnected systems, and it is not an easy exercise to find rail and air infrastructure that you can describe as non-essential to the running of services.

Adopting this carve-out could pose a risk of ambiguity as to whether certain facilities—sidings, depots, maintenance facilities, freight facilities, air infrastructure used for pilot training, air shows and, potentially, trials of flights, aircraft and so on—would be covered. It would therefore create ambiguity for the transport industry, the police and protesters, and would give protesters another opportunity to delay prosecutions where the prosecution has to prove that the infrastructure targeted was “essential”. I also note that these are not safe places to conduct a protest, although this has not necessarily stopped people in the past. It is therefore the Government’s view that all parts of our rail and air transport infrastructure must be protected. For these reasons, I respectfully ask that noble Lords do not press their amendments.

[Baroness Chakrabarti (Lab)]

I am grateful once more to all noble Lords who spoke in this short debate. Once more, not testing the opinion of the House should in no way be taken as consent, let alone enthusiasm, for what the Government are doing here.

The criminal law should be an exercise in precision technical drawing, not impressionist art. However, this Government, and the Home Office in particular, are painting with a very broad brush. These broad powers and offences, which we have debated at length, are a blank cheque not just for police officers to use and misuse by accident or design, but for the Secretary of State to further define and amend this serious criminal offence of interfering with key infrastructure without the proper scrutiny that comes with primary legislation.

I am grateful to the Minister for at least giving me the assurance of the affirmative procedure. However, the problem with even the affirmative procedure is that, at a time of great public concern about the next protest movement down the track—the one that has not made the new year’s resolution that this Minister approves of—a list of amendments will be made to the regulations governing what is to be key infrastructure. Some of them will be sensible and acceptable, and some will be outrageous. Members of the other place and Members of your Lordships’ House will be put in the invidious position of saying yes or no without the kind of scrutiny and line-by-line consideration, voting and amendment that is possible with a criminal justice or public order Bill. This need to sub-delegate seems all the more extraordinary when we are getting public order Bills every year at the moment. This just does not compute to me.

Having tested the patience of noble Lords and the Minister, I will not test the opinion of the House.

Amendment 38 withdrawn.

Public Order Bill

Baroness Chakrabarti Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of my noble friend Lord Coaker and of my friend the distinguished former police officer and consistent advocate for rights and freedoms, the noble Lord, Lord Paddick. Stop and search is always a vexed question; even stop and search with reasonable suspicion is a vexed question. Of course, we must sometimes have it in a democracy, when people are reasonably suspected of various crimes, but even that becomes difficult because the threshold of reasonable suspicion is so low. Stop and search with reasonable suspicion in this Bill is problematic because certain offences in it, for example locking on, are so vague. Therefore, the range of items for which you could be stopped and searched on reasonable suspicion include, as the noble Lord, Lord Paddick, pointed out, things that you might pick up in John Lewis. They could include, for example, your mobile phone if that might be used in connection with the offence of locking on, and so on.

However, my priority is of course stop and search without suspicion. As the noble Lord, Lord Paddick, has rightly pointed out, this has classically been for things such as terrorism and carrying weapons, rather than carrying things such as bicycle chains or mobile phones. Noble Lords will see the problem, which is particularly vexed in the context of the statistics, year on year, on the disproportionate numbers of black and brown people who will be subject to stop and search. Too many young people, boys in particular, have had their first experience of the state and the police service via a racially discriminatory stop and search, because that, unfortunately, has been the culture of policing for too long. We now add a new layer: that there will be lots of young women, not least today, who are particularly concerned about being stopped and searched by the police. That is not a happy thing to have to report, but I am afraid it is the reality.

When I was a young director of Liberty, the National Council for Civil Liberties, almost exactly 20 years ago, what was then Section 44 of the Terrorism Act allowed suspicionless stop and search where it was considered expedient to preventing acts of terrorism. When an arms fair took place in Docklands, large numbers of protesters, not terror suspects but protesters, were prevented from getting anywhere near that fair. They were hassled and detained, sometimes under Section 44 of that Act. Initially, the Metropolitan Police denied that they would ever use such powers in such a way, until questions were asked in Parliament, including in your Lordships’ House.

I sent a young lawyer from Liberty down to Docklands; he came back with large numbers of notices that had been issued to protesters and journalists, and predominantly to black and brown people, under Section 44 of the Terrorism Act. That was stop and search without suspicion. It took many years to take that case all the way to the European Court of Human Rights in Strasbourg, where of course it was found that that power was just too broad. Suspicionless stop and search is very ripe for abuse, so I urge—

[Lord Kerr of Kinlochard (CB)]

I have great sympathy for the noble Baroness’s argument and that advanced by the noble Lord, Lord Paddick, but could she explain whether her objection to Clause 11 would be removed if subsection (7) were removed? It is in Clause 11(7) that what seems to be highly objectionable language occurs. It says that the constable

“may … make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person … is carrying a prohibited object”.

Supposing that that provision were not in the Bill—is the rest of Clause 11 objectionable?

[Baroness Chakrabarti (Lab)]

This being not Committee but Report, the simplest and speediest answer that I can give to the noble Lord’s question is that Clause 11 is about suspicionless stop and search. He has picked out a particular subsection in the scheme, which would have been interesting in Committee. But the crucial thing is that Clause 11 is on stop and search without suspicion, not in the context even of terrorism, where it can come with greater justification—for example, when everybody is stopped and searched on their way into the Peers’ Entrance if they are not a Peer, or at the airport, where everybody is treated the same. But, by definition, that will not be the case in this scheme. This broad power will be used against young people all over London on the day of a protest. It will cause such strife and will poison relationships between the police service and the people it serves. For that reason, I urge all noble Lords to reject in particular this power to stop and search without suspicion even of the protest offences to which I object in the Bill.

[The Lord Bishop of Manchester]

I too speak in support of the amendments to remove Clauses 10 and 11, to which I have added my name. I declare my registered interests as the co-chair of the national police ethics committee and the chair of the Greater Manchester Police ethics advisory committee.

Stop and search can be an extremely useful tool in the police kit box, but, like many tools, it works far less well if it is overused or used for the wrong task. Eventually, it loses its efficacy entirely. I have several broken screwdrivers at home that bear witness to my own excesses in that regard, as well as to my very limited DIY skills. That is the danger we run when we extend stop and search powers in what, at times, feels like a knee-jerk reaction. They are simply the most obvious tool at the top of the box, whether they are appropriate or not. As the noble Baroness, Lady Chakrabarti, indicated, stop and search becomes, as it has in the past, so discredited that it reaches a point where, like my screwdrivers, it is counterproductive to use it, even in circumstances where it would be right and appropriate to do so.

The noble Lord, Lord Paddick, reminded us, with some chilling figures, of its disproportionate use against certain sectors of society—young black men in particular —which damages confidence in policing not just with regard to stop and search but more generally. It is because I am passionate to support our police that I have such worries about anything that tends to diminish that public confidence. I have the greatest concerns where stop and search is undertaken without suspicion; such powers are even more at risk of simply being used against people who look wrong or are in the wrong place. They become especially prone to the unconscious bias that we might try to shake off but all to some extent carry within us. Should these amendments be pressed to a Division, they will have my full support and I hope that of your Lordships’ House.

I conclude by offering a modest proposal that goes beyond these clauses and the Bill. Could the Minister seek to gain a commitment from His Majesty’s Government to refrain from any extension of stop and search powers until such time as it is clear that the existing powers are being used properly and proportionately? Such a self-denying ordinance might lead to us have an intelligent conversation about how better to focus the use of stop and search. We could then look at whether there are circumstances in which those powers should be radically extended—but not before then.

--- Later in debate ---

Moved by

[Baroness Chakrabarti]

54: After Clause 18, insert the following new Clause—
“Protection for journalists and others monitoring protestsA constable may not exercise any police power for the principal purpose of preventing a person from observing or otherwise reporting on a protest or the exercise of police powers in relation to—(a) a protest-related offence,(b) a protest-related breach of an injunction, or(c) activities related to a protest.”Member's explanatory statement
This new Clause would protect journalists, legal observers, academics, and bystanders who observe or report on protests or the police’s use of powers related to protests.

[Baroness Chakrabarti (Lab)]

My Lords, we now come to the totally uncontroversial matter of protecting journalists from abuse of police power. This is an amendment in my name and also those of the noble Baroness, Lady Boycott, the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Hope of Craighead. We are honoured to have as our guest today the young LBC reporter Charlotte Lynch, who was arrested by Hertfordshire police for doing her job last November. The noble Baroness, Lady Boycott, will explain.

[Baroness Boycott (CB)]

I shall be brief, because I know that time is of the essence. I begin by reading a very short extract from a news report for 28 November 2022—a couple of months ago:

“The BBC said Chinese police had assaulted one of its journalists covering a protest in the commercial hub of Shanghai and detained him for several hours, drawing criticism from Britain’s government, which described his detention as ‘shocking’ … ‘The BBC is extremely concerned about the treatment of our journalist Ed Lawrence, who was arrested and handcuffed while covering the protests in Shanghai,’ the British public service broadcaster said in a statement late on Sunday.”


I shall substitute a few words here to make the point. I substitute “Charlotte Lynch” for “Ed Lawrence”, “the M25 in Hertfordshire” for “Shanghai”, and LBC for the BBC—and another world. Charlotte, like Ed Lawrence was handcuffed for doing her job. She was held in a cell with a bucket for a toilet for five hours; she was fingerprinted and her DNA was taken, and she was not allowed to speak to anyone. Her arrest took place just two weeks before Ed Lawrence’s. Is this the kind of world we want to live in?

As many noble Lords know, I have been a journalist and a newspaper editor. I have sent people to cover wars and protests, and I believe fundamentally in the right of anyone in the world, especially in our country, to protest about things they believe in. You protest only when you cannot get anywhere with anything else, when letters to MPs, to the local council and the newspaper have been explored and you take to the streets. But just as this is a fundamental right, so is it more than just a fundamental right—it is a duty— of journalists to report on demonstrations, because demonstrations are where we see where society is fracturing and where people really care. I cannot believe, as a former newspaper editor, that I would now have to think that it might be more dangerous to send a journalist to Trafalgar Square than to Tahrir Square. I urge noble Lords to vote for this amendment.

--- Later in debate ---

[Lord Hogan-Howe (CB)]

May I respond to the noble Baroness, because I think she misrepresented what I said? I think I said that the officer would be intervening because of criminal behaviour, not because someone was a journalist or was suspected of being one. That would be the reason. There may be cases where an officer has intervened because they thought someone was a journalist and they did not want it to be recorded. I am not saying that has never happened; that would be wrong. There is no doubt about that. My point was only that the only reason for an officer to intervene should be—in principle, from the law—because the person is committing a criminal offence. That is what the Bill is all about: defining what is criminal and what is not. Therefore, I do not think it is fair to represent what I said as picking on someone because they are a journalist.

[Baroness Chakrabarti (Lab)]

I wonder if I could help the noble Lord, Lord Hogan-Howe, because he has not, with respect, read the amendment—or at least not very carefully. To be clear, there would be nothing to prevent the arrest of a journalist, filmmaker, legal observer or anybody else if the officer suspected the commission of a criminal offence, including offences in the Bill that I disagree with. The protection is only against the use of police powers for the primary purpose of preventing the reporting. That is a judgment that is left to the officer, but what he cannot do is to say, “You’re a reporter. You’re giving protesters the oxygen of publicity, and I’m gonna arrest you.” That is the protection given here to people such as Charlotte Lynch, who could not possibly have been reasonably suspected of locking on or committing any other criminal offence. Such people could be suspected only of what they were actually doing: their job as reporters in a free society.

[Lord Hogan-Howe (CB)]

And how is an officer to know?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My noble and learned friend makes a very fair point, but the College of Policing and the National Union of Journalists awareness training is a little more recent than the 40 year-old PACE codes.

The College of Policing’s initial learning curriculum includes a package of content on effectively dealing with the media in a policing context. In addition, the authorised professional practice for public order contains a section on the interaction of the police with members of the media. This includes the recognition of press identification. It should also be noted that it is entirely legitimate for a police officer to inquire why an individual may be recording at the scene of a criminal offence if they deem it appropriate. We do not want to suggest that this is unlawful.

In light of those factors, while I completely understand the direction and purpose of the amendment, we do not support it because we do not deem it to be necessary. These defences are already covered in law.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords who have spoken in this short but vital debate. Once more to respond to the noble Lord, Lord Hogan-Howe, who I am not sure has read the amendment—

[Lord Hogan-Howe (CB)]

I have.

[Baroness Chakrabarti (Lab)]

This amendment is not about preventing the arrest of anybody, journalist or otherwise, who is reasonably suspected of committing a criminal offence, including offences in this Bill. There is no definitional problem, because what is defined is the purpose of the arrest, not the identity of the person. This is important because even after Charlotte Lynch’s arrest, a Conservative police and crime commissioner took to the airwaves to say, “You are giving the oxygen of publicity to protesters.” In other words, “You are complicit in this kind of disruptive action by reporting it.”

If a senior Conservative police and crime commissioner took that view, it is perhaps understandable that some hard-working, hard-pressed police officers in difficult times might take the same view. The offence for which Miss Lynch was arrested was the very open-textured “conspiracy to cause a public nuisance”. Therefore, if a journalist has been tipped off that there is to be a demonstration that may or may not turn out to be disruptive and they go to do their job of reporting, some police officers, it would seem, and others may believe that in some sense to be complicity in causing or conspiracy to cause a public nuisance.

I also want to thank the Minister and his Bill team for meeting me just yesterday—although of course the Home Office press office had already told various media outlets that the Home Office was doubling down on this amendment. At that meeting, I asked the Minister and his colleagues to explain the basis for Ms Lynch’s arrest being unlawful. By the way, many other journalists have recently been arrested; what was the basis for these being unlawful arrests? I got the answer that noble Lords just got from the Minister.

What is said to be unlawful about Ms Lynch’s arrest is not that she is a journalist, but that individual officers were taking direction from their superiors and not exercising their own judgment. That is a technical and very important matter, but it is not the issue at stake here. I asked the Bill team and the Minister: where is the authority, the legal provision, in primary or even secondary legislation, that says that journalists should not be arrested, for example for conspiracy to cause a public nuisance, just for reporting on something that itself may be a public nuisance? There was no authority and no provision offered. So vague assertions about PACE codes that do not even deal with my specific point are really not going to cut it—not on something as important as free reporting in a free society.

I have moved this amendment and I seek to test the opinion of your Lordships’ House.

Public Order Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Tuesday 14th March 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I thank the Government for Motion C—yes, I did say that. In very turbulent and polarised times in our country, it is a real pleasure to be able to welcome it. Noble Lords will notice that there is a fairly minor tweak to the original amendment passed by your Lordships’ House. We said that a constable should not exercise powers for the principal purpose of preventing someone reporting, and the Government have replaced “principal purpose” with “sole purpose”. I for one am convinced that the precious and vital protection for journalists and others reporting on protests, rather than participating in them, is provided. The Minister wrote and said that they do not think that this is necessary but are doing it anyway. That is not ungracious. It is gracious, because I happen to think that this protection is vital. The Government disagree but they are doing it, so I am happy to thank them.

I remind noble Lords, as the Minister did, that the provision is in response to real cases: real journalists were arrested and detained last November, some for many hours, just for doing their job. The offence used when it was suggested that journalists were giving the oxygen of publicity to protesters was the fairly vague conspiracy to cause a public nuisance. While the Government have been consistent in their position that additional protection is unnecessary, no one at any stage of proceedings on the Bill could point to a single legislative provision on the current statute book that gives this protection. Therefore, I am grateful to the Minister for the way in which he has engaged with this and responded, not least to what I think was the largest defeat that the Government suffered on the Bill last time.

I am particularly grateful to Charlotte Lynch, the LBC reporter who visited us last time, having experienced the really quite traumatic incident of being arrested, handcuffed, put in a police van and detained for seven hours. This causes her some anxiety even to this day. She carried on and reported on that experience, and that has been very important for future journalists in this country, I hope that noble Lords will agree.

I am grateful to the all-party group, Justice, and Tyrone Steele, who worked with us on this amendment. I am especially grateful to the five distinguished Conservative Members of your Lordships’ House, including the former governor of Hong Kong and a former leader of the Conservative Party, who did the very difficult thing of coming through the lobbies with Her Majesty’s Opposition. I give my absolute respect to them.

I am, of course, grateful to my noble friends, the Liberal Democrats and many Cross-Benchers who supported this vital protection. I give especial thanks to the co-signatories of the original journalists’ protection amendment, including the noble Baroness, Lady Boycott. It was a great comfort and support to have such a distinguished journalist and former newspaper editor on my side in this.

My enormous thanks also go to the noble and learned Lord, Lord Hope of Craighead. We disagree about some things, but not about this. In particular, I thank my co-signatory, the noble Lord, Lord Paddick, not only for co-signing this amendment and bringing his noble friends with him, but for a lifetime of public service in policing and in your Lordships’ House. He is the most diligent and distinguished face of the police service in this country. When we reform that service, it will better reflect his values. That career of public service could not be better demonstrated than by him being here today, after suffering such unspeakable loss in recent weeks.

I do not want to take your Lordships’ time on the next group, so will say now that I support the noble Lord, Lord Paddick, and my noble friend Lord Coaker in the remarks that they will make about suspicionless stop and search. Stop and search is always difficult and challenging for police community relations, but suspicionless stop and search is positively toxic and not something that we should be increasing in these troubled times in our country.

Finally, I come to the difficult question of the meaning of “serious disruption”, not for the purposes of some offences, but for the whole Bill. We have the narrow policy question of what the threshold should be before a number of criminal offences and intrusive police powers impugned what would otherwise be totally peaceful and innocent dissent. That is the narrow question.

We also have a rather deeper and broader—almost philosophical—question of common sense and the English language. Is “serious” significant, as I believe, or simply more than minor? Is it a simple binary, like a child’s 18th birthday that turns them from a minor into someone who has majority; or is there a whole range of disruption that one can face in one’s life from something that is minor to something that is really quite a lot more than minor—that is significant?

This is a serious question and the threshold should be high. I am reminded of George Orwell’s famous essay “Politics and the English Language”—my favourite writing of his—in which he reminded us that distortion of language can quickly lead to abuses of power. This is a Public Order Bill and this ought to be a very serious threshold. However, if noble Lords prefer their literature to be accompanied by music, I will invoke not George Orwell but Cole Porter:

“There’s no love song finer, but how strange the change from major to minor”.


I urge all noble Lords who care about these things, who take a bipartisan approach to fundamental rights and freedoms in our country, as those distinguished five Conservatives did last time, to support Motion A1 in the name of my noble friend Lord Coaker.

[Baroness Butler-Sloss (CB)]

My Lords, I have been reflecting on the speeches which we have just heard. Listening to the noble and learned Lord, Lord Hope, and his point about the threshold, I have been thinking about what would be more than minor that was not significant. Looking at the examples that the noble Lord, Lord Coaker, gave, it seems to me that if one discovered people tunnelling under an area that was going to be HS2, that is not only more than minor; my goodness me, it seems to me to be significant. I was also thinking about the closing of four or five motorways. So far as I am concerned, that seems to be both more than minor and significant. I just wonder, rather hesitantly, whether we are arguing about a position where the difference between “more than minor” and “significant” is extremely small. I cannot at the moment think of a word that I would use that was more than minor but not significant. That is where I stand—a slightly different position, I confess, from what I said on the last occasion.

Public Order Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Tuesday 28th March 2023 Lords Chamber

[Lord Sentamu (CB)]

My Lords, I stand only to amplify what the noble Lord, Lord Coaker, has said. Anybody who reads the Baroness Casey Review: Final Report will find it a great shock. The noble Lord, Lord Coaker, has tried to put her words very simply. Paragraph 10 in one of her recommendations says:

“The use of stop and search in London by the Met needs a fundamental reset.”


We cannot simply go back and say, “We’ve been doing it this way”. She goes on:

“The Met should establish a charter with Londoners on how and when stop and search is used, with an agreed rationale, and provide an annual account of its use by area, and by team undertaking stop and searches. Compliance with the charter should be measured independently, including the viewing of Body Worn Video footage. As a minimum, Met officers should be required to give their name, their shoulder number, the grounds for the stop and a receipt confirming the details of the stop.”


At the end of our Stephen Lawrence inquiry, we talked about stop and search. We said that stop and search should be retained because it is a useful tool for preventing crime, but we had a similar attitude and gave similar statements to the noble Baroness, Lady Casey. John Grieve was tasked by the then commissioner of the Met to carry out work on how this could be done. There was a pilot. It worked, but of course some newspapers did not like it and saw it as bureaucracy that prevented the police’s work too much, and it was then stopped. This has now come home to roost. Had we sustained what was started by Sir Paul Condon, we would be in a very different place, but we are not. We have a review suggesting that what is in Motion A1 would be a good thing. I do not see how that could go wrong.

Finally, as I said in the last debate on this, if the Bill is about public order, we have extended stop and search beyond belief. People are protesting—let us say young people—about climate change, injustice and unfairness. There is really no need for it; I cannot see why they should be stopped and searched. Most of all, these protests are at the heart of being in a free society. Most of us did not want Clause 11 but, now that it is in there, these provisions would be a safeguard so that the extension of stop and search does not do greater damage and hurt to our young people, who really want to protest.

Remember when they left school for a day to protest about global warming. If you stopped and searched them because you believed there was a reason to do so, most parents would have been offended. I would have been. Stop and search has been extended in the Public Order Bill and not for the rest of crimes, which I would wholeheartedly support. In many ways this amendment would limit the abuse that could occur because we went for believing as opposed to having grounds to suspect.

[Baroness Chakrabarti (Lab)]

My Lords, this Bill was always about political signals, not sensible policy. Finally, even signals must change. I respect the Minister, but others in the Home Office have been slow to respond to the concerns of the British public about abuses of broad police powers.

Much has happened and even more has been exposed since this Bill began its passage last May. Last July Wayne Couzens lost an appeal against a whole life sentence for the abduction, rape and murder of Sarah Everard while he was a serving police officer, after a purported stop and arrest for breach of lockdown laws in March 2021. Last month David Carrick was imprisoned for 30 years for an unrestrained 18-year campaign of rape and abuse while he was a serving police officer.

Also last month, YouGov reported that 51% of Londoners do not trust the Metropolitan Police very much or at all. Last week, as we have heard, the noble Baroness, Lady Casey, called for a “fundamental reset” of the use of stop and search, which she said is

“currently deployed by the Met at the cost of legitimacy, trust and, therefore, consent.”

Just yesterday the Children’s Commissioner, Dame Rachel de Souza, found that nearly 3,000 children aged between eight and 17 had been strip-searched under stop and search powers between 2018 and 2022. Nearly 40% of them were black. Half of those strip searches had no appropriate adult present.

All this relates to the use and abuse of current police powers. Still, today we are being asked yet again to green-light new powers to stop and search peaceful protesters without even a reasonable suspicion of criminality. When trust in policing and the rule of law is in jeopardy, if this House does not exercise its constitutional duty to say “enough”—no more power without at least the modest statutory responsibilities set out in Motion A1 in the name of my noble friend Lord Coaker—what are we for?

[Lord Sandhurst (Con)]

My Lords, I had not planned to speak, but it is important to remember that we are not dealing simply with peaceful protests. I remind the House of what I said on a previous occasion in respect of these amendments. We are dealing with organised, large-scale disruption, using implements. The purpose of the disruption, as the disrupters make plain, is not simply to protest but to stop citizens going about their lawful business for a disproportionate length of time. As I reminded the House previously, the European Court of Justice in Strasbourg has said more than once that such activity is unlawful and that protests that go beyond merely protesting can legitimately be stopped by government.

Public Order Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Wednesday 26th April 2023 Lords Chamber

Whether it is with respect to this, or other policy matters we will be debating in the next few weeks, the Government of the day need to have the confidence to govern and not panic in response to the latest headlines

[Baroness Chakrabarti (Lab)]

My Lords, I will not detain your Lordships by repeating my profound concerns about this Bill at a time when peaceful protest is under attack all over the world, and policing is in such a parlous state in our own country. I must thank all noble Lords who supported the modest improvement that includes some protection for journalists who report on protests, without fear or favour. It is a small but vital protection, and came about because of the biggest defeat of the Government in this House, by about 100 votes that included many incredibly senior and distinguished Conservative noble Lords. I am grateful to everyone who supported that provision, which will now pass into law as a result of this otherwise terrible Bill. I must thank the Minister for the way he has engaged inside and outside the Chamber, and for perhaps helping the Government to see a little sense on that vital protection for journalists.

[Baroness Jones of Moulsecoomb (GP)]

Just for the record, I am absolutely furious about the Bill. I think the Government have panicked. It is unworthy of any Government who think freedom of speech is important. Shame on you all.