Public Order Bill

Baroness Meacher Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

Counsel to that committee would also like to know the Government’s response, because we still have all these Bills coming along, which have been drafted by parliamentary counsel, removing powers from Parliament and giving them to the Executive. They are doing it more and more. In this one, they have been caught out. It is quite clear that nobody is paying attention to the detail. While that continues, I and others will continue to push to see why that is the case. Hopefully, Ministers will be seized of the fact that it is an important parliamentary aspect that we do not just for this House but for both Houses together.

[Baroness Meacher (CB)]

My Lords, I support Amendment 142A from the noble Lord, Lord Rooker, and his Clause 30 stand part. He has set out the concerns of the Delegated Powers and Regulatory Reform Committee pretty clearly. Noble Lords will be pleased that I will therefore speak briefly, but I will consider Clause 30 in the political context.

Having been a member of the Delegated Powers Committee for a full term, I am acutely conscious of the increasing tendency of the Government to avoid adequate parliamentary scrutiny of powers delegated to Ministers. Clause 30 is of particular concern, because the delegated powers enable Ministers to increase the already unacceptable police powers under SDPOs. I am very interested in this Bill, even though I have not been able to be involved until now.

As has been extensively debated in this House, it is extraordinary that these orders can apply to people who have not been convicted of any offence and who are not considered to be at risk of offending; that orders can last for up to two years and be renewed; and that a breach of any requirement under an SDPO can lead to six months in prison—for somebody who has not been convicted of an offence. As things stand, such powers do not sit comfortably in a democratic state, in my view. But with Ministers able to extend those powers and further interfere with citizens’ liberties, with only minimal parliamentary involvement—and if, as the noble Lord, Lord Rooker, said, they stick with the negative procedure—this Bill feels much more suited to a country such as Iran or China. I have never said such a thing about a piece of legislation in this House before, but this goes way beyond the pale. A few years ago, Clause 30 would not have been included in this Bill; I just do not think it would have happened.

In the DPRRC’s recent report, Democracy Denied?, we express our concern about

“an increase in the number of occasions on which ministers have been given power to supplement primary legislation by what is, in effect, disguised legislation”

—things such as guidance, which is not a delegated power in the normal sense—that is,

“instruments which are legislative in effect but often not subject to parliamentary oversight”,

being, as in this case, subject only to the negative procedure. That is one way of doing things.

Democracy Denied? expresses further concern about guidance where there is a requirement “to have regard” to it, which the noble Lord, Lord Rooker, also referred to. Although there is an element of choice, a requirement to have regard to guidance carries with it an expectation that the guidance will be followed unless there is a cogent reason for not doing so. In the context of this Bill, such guidance is completely unacceptable.

I very much hope that this House will deal with Clause 30 on Report. Our Delegated Powers Committee recommends that the guidance should be subject to the affirmative procedure. It would probably have been ultra vires for the committee to have gone further than that, but speaking personally, and not in the context of being a member of the Delegated Powers Committee, I really hope that the House considers removing Clause 30 from the Bill at the next stage.

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Rooker, has done a service to the House in focusing such clear attention on the Delegated Powers Committee report, and the issue that it raises. I simply want to pursue one of the points that he mentioned, which is one of the features of the guidance to which this power relates:

“guidance about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made”.

What does the Secretary of State know that the police do not know about who it would be appropriate to make serious disruption prevention orders about? On what basis does the Secretary of State know what the police do not know and therefore have to be advised about?

The only basis I can think of is not a helpful one for the Government. It is that there is a political reason here and that what the Government want to do is say, “Never mind those people who are protesting about this, go after those people who are protesting about that.” This is the very kind of power which we have always tried to avoid giving, in the form of direction to the police, to anybody, including police and crime commissioners. There has been a very necessary reluctance to have the police directed in a way which could become political, and in which the choice of where to deploy resources was based on whom the authority concerned—in this case, the Government—disliked and wanted to see penalised in some way.

I cannot see any respectable argument for the Secretary of State saying to the police “You do not realise what I realise; this is the guidance I am giving you about identifying appropriate persons.” It is the sort of thing that even the affirmative procedure would not give us a very good chance to deal with, because you cannot amend statutory instruments, even under the affirmative procedure. But to leave it simply to the negative procedure, which is so limited and so inadequate, particularly in the other Chamber, is simply not satisfactory. The Government’s response to the Delegated Powers Committee has been wholly inadequate so far.

Public Order Bill

Baroness Meacher Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

The Government are pretty close to that on climate change—if I may say so as chairman of the Climate Change Committee. Therefore, I want the Government to think. If they insist on the further restriction of protest, they had better think very clearly about the policies they are carrying through on issues about which the public as a whole feel very strongly. It is not an excuse to say, “My view is so important that it is therefore a good excuse for marching”, otherwise the Flat Earth Society or the Jehovah’s Witnesses are in a position to be able to hold us all to ransom. In many areas, the Government have to realise that their policies must in some way reflect the deep-held worries and concerns of the public, or it does not matter how many laws they pass, because they will not be obeyed.

[Baroness Meacher (CB)]

The noble Lord, Lord Deben, has made some very important points, particularly in relation to the police. It is worth elaborating for a couple more sentences. The fact is that the police already have great powers to deal with demonstrations and simply do not use them, as he suggested—partly because the police do not carry a huge amount of trust. The fact is also that these demonstrations reflect a huge amount of feeling among the public, and the police do not wish to stand out against those very strong feelings. Adding further powers for the police is not going to be helpful because the police will simply not use them for the reasons that the noble Lord, Lord Deben, very brilliantly—as always—pointed out. My main argument against these powers is that there is no point in them. They are designed to frighten people not to go out on protests. The police do not want these powers; they know that they would not use them. Therefore, they should not be introduced by Parliament.

[Lord Sandhurst (Con)]

My Lords, I will speak to my Amendment 55. I am grateful to follow the speech of my noble friend Lord Faulks. My amendment addresses the legal difficulties caused by the judgment of the Supreme Court in 2021 in the case of Ziegler, in respect of offences in which it will be, and will remain, a defence for a person charged to prove that they had a lawful or reasonable excuse for the act in question.

The judgment in Ziegler concerned Section 137 of the Highways Act 1980, which makes it an offence for a person

“without lawful authority or excuse”

wilfully to obstruct

“free passage along a highway”.

The Supreme Court ruled that the exercise of the convention rights to freedom of expression and freedom of assembly and association—which might loosely be summarised as the right to protest—constituted a lawful excuse. This has the effect that, before a person may be convicted of obstructing the highway, the prosecution must prove that a conviction would be a proportionate and thus justified interference with that person’s convention rights. In practice, this has caused real difficulties for the police, who at times have appeared paralysed. It has made it difficult for judges to run trials fairly and for magistrates to reach decisions.

My amendment leaves in the word “reasonable”. It does not make it a strict offence to obstruct the highway. You can still do it if you have a “lawful authority or excuse”. What is to be judged in future would be the duration and nature of what is done, not the fact that you have what you consider to be a high motive—whether it is flat-earth or anti-abortion protesters, it does not matter. It is not about whether you are a good person, or you think you are a good person; it is about what you are actually doing and whether you are stopping ambulances and people going about their daily lives unreasonably and for too long.

The amendment means that conduct being intended or designed to influence government or public opinion will not, of itself, make it reasonable or lawful. That is consistent with the jurisprudence of the Strasbourg court. I stress that the court has said:

“In a democratic society based on the rule of law, the ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”.


However, the law protects only the right to peaceful assembly. Articles 10 and 11 of the convention establish that public authorities are entitled to interfere with the right to protest for legitimate purposes such as the prevention of disorder, the prevention of crime and—importantly—the protection of the rights and freedoms of others. It is not about stopping every march, but about stopping prolonged obstruction. That is what we are about.

The Strasbourg court has gone on to rule that the rights of the public include the right to move freely on public roads without restriction, so there are two rights here; you have a right to protest, but the general public also have a right to move freely on public roads without restriction. It is a balancing exercise. The court has further recognised that states have a wide margin of appreciation in determining necessity when it comes to taking action against those who deliberately disrupt traffic or other aspects of normal life.

The right to protest in a public place exists, but it is not unfettered. It must be balanced against the rights of your fellow citizens. If the public are to be protected in the face of these novel types of protest we have not seen before, which in their duration and nature go far beyond what is fair and reasonable, the police must be able to intervene and not be paralysed by anxiety. Peaceful assembly and ordinary marches will still be protected. The public will still have to suffer and tolerate a measure of inconvenience and delay, but that will be within bounds.

My amendment would end the state of affairs in which persons who obstruct the highway, damage property or seek to avoid arrest can distort and upset the proper balance by asserting their motive. Peaceful protest will be permitted, but the balance will be restored. That is why, at the end of the amendment, it makes it plain that

“this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.

Henceforth, if my amendment is adopted, your assertion of a high motive will not suffice. You will be judged by what you did, how long it went on for, and the effect on other people.

Public Order Bill

Baroness Meacher Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Viscount Hailsham (Con)]

I am very grateful to my noble friend for giving way, but I am afraid that he is wrong about the absence of suspicion. When I was a special constable 40 years ago—I do not have the experience of the noble Lord opposite—I would stand in Trafalgar Square and get messages on the police radio such as, “Race code 3 or race code 9 coming down in a beaten-up Vauxhall: worth a stop.” That is not suspicion; that is arbitrary stopping.

[Baroness Meacher (CB)]

My Lords, we are not focusing right now—nor should we be, in my view—on the issue of the lack of suspicion, although that is fundamental to Clause 11. Let us focus for a minute on Clause 10, which is about stops and searches without suspicion. Those stop and search powers were introduced for police, necessarily and very importantly, to enable them to stop people who they believe may be carrying a knife or another potentially dangerous weapon. I fully support those stop and search powers, but there is not a strong evidence base that the stop and search powers in that context are actually effective in preventing violent crime. So the idea of extending those powers to stop and search people in case they have a placard—a piece of paper—is completely and utterly disproportionate.

In a democratic society, it is utterly wrong to give disproportionate powers to our police to interfere with the fundamental right in our democracy to protest and to go out on the streets to express our opinions. If we forget the issue of suspicion, Clause 10 is utterly disproportionate, anti-democratic and unacceptable, and it will lead to further discordance between the police and lots of communities where we need to build community support for our police. It will have very detrimental effects on all sorts of people across our society. It is for these reasons that I, among others—I hope the whole House—would support withdrawing Clause 10 from the Bill.

[Lord Deben (Con)]

What a good intervention that was; I much agree with it. Returning to the previous intervention, my noble friend can say what he likes; indeed, as a former special constable, he has no doubt told many how they should behave, but I am very ordinary and follow the law. It seems to me that “without suspicion” means that you do not have a suspicion, and, if you do not have a suspicion, I do not understand how you will decide that you will stop and search somebody.

Also, we should not underestimate the lack of confidence in the police among young people in particular —and, frankly, not only young black people. I have four law-abiding children who are now grown-up; all of them, as teenagers, had very good reason to be extremely suspicious of the way in which the Metropolitan Police behaved, even though all of them were law-abiding to a degree which some would find rather embarrassing. The truth is that the Metropolitan Police, in particular, has a very long way to go to recover confidence. I beg Members of this House to say that this is not the moment to introduce something for which I do not think there would ever be a moment to introduce it. In this moment, of all moments, it is the wrong thing to do; it is bad for the police, democracy and the rule of law.

Public Order Bill

Baroness Meacher Excerpts

Consideration of Commons amendments
Tuesday 28th March 2023 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I did not plan to speak and do not have notes to speak from, and I will speak briefly, but I want to express my strongest possible support for the amendment in the name of the noble Lord, Lord Coaker. I regret that the noble Lord, Lord Hogan-Howe, who I respect a lot, has nitpicked through the amendment. The principle of the amendment is that stop and search without suspicion is a completely exceptional step to be taken in a democracy. If we were standing here in Moscow, or Beijing, we might well expect this sort of power to be given to the police in relation to public demonstrations. It is not for this country to be introducing these powers for the police, and I am so shocked, frankly, that our Government are attempting to do that.

The amendment is incredibly modest. It is saying that police officers do not take these powers and use them thoughtlessly without proper care, attention and, ideally, consultation with the community. This is an incredibly serious step for any police officer to take. That is the point of this amendment. Yes, we can say it should say this or that or something else. That is not the point. The point is that this power is outrageous; the police already have the powers they need to deal with demonstrations—they really do. Those police officers need the commitment of the community and to work with the community. This power will interfere with policing and reduce the safety of our communities up and down the country.

I hope that the House will support the amendment in the name of the noble Lord, Lord Coaker, as a clear statement that we know this power to be the dangerous step that it is and that police officers need to take the most extreme care in using it.

[Baroness Butler-Sloss (CB)]

My Lords, I say briefly that I am concerned about the use of these powers and I support the amendment in the name of the noble Lord, Lord Coaker.