Public Order Bill

Lord Davies of Gower Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, there is no doubt that there has been a growing incidence of public order situations recently. We even had a demonstration in Central Lobby a week or so ago. What I have observed is that no quarter has been given by the protesters, even to those seeking access to hospitals, those trying to pick up their children from school, those trying to go to work to earn the money that keeps this country afloat, those trying to provide services to those who need care to stay in their own homes, and so many others.

Extensive criminal damage has been caused. Just a couple of weeks ago, we saw the spray-painting of the famous sign at New Scotland Yard. The clear message, in attacking this iconic sign at the headquarters of the Metropolitan Police, was that they can do what they like and there will be no real consequences. We have also seen attacks in art galleries and desperate members of the public trying to clear roads as police officers stand by. We have seen protesters jumping on to the roof of police vehicles as police officers stand by.

Such behaviour by protesters is in breach of existing legal provision on many occasions. As has been said, the organisation Justice helpfully provided a list of relevant statutes. The Police, Crime, Sentencing and Courts Act 2022, for example, creates a statutory offence of public nuisance and allows the police to impose conditions on processions and assemblies which are too noisy. The Criminal Damage Act 1971 created offences of unlawfully destroying or damaging property belonging to another intentionally or recklessly, being reckless as to whether any such property would be destroyed or damaged, intending to endanger the life of another or being reckless as to whether the life of another would be thereby endangered. The maximum penalty for conviction on indictment is a term not exceeding 10 years. The Police Act 1996 provides an offence of assaulting a constable

“in the execution of his duty”,

an offence carrying, on summary conviction, a penalty of up to six months in prison or a fine. The Highways Act 1980 provides that:

“If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to imprisonment for a term not exceeding 51 weeks.”


The Road Traffic Act provides further offences.

These are just a few of the options available to deal with behaviour such as that which we have seen recently. The Joint Committee on Human Rights observed in its June 2022 report that:

“The criminal law and the powers of the police already allow for action to be taken against violent protest and disruptive non-violent protest. We are unconvinced that additional offences are necessary or appropriate.”


Why create new offences which would add significantly to the burden of police services in providing training and guidance to officers in how and when to exercise these powers or initiate and manage necessary investigations with a view to prosecution? Why add to the range of offences which may be committed in public order situations in a way which may, as noble Lords have said, be in contravention of the rights which citizens have under Article 9 to freedom of religion, thought and conscience, under Article 10 to freedom of expression and under Article 11 to the right of assembly and association?

All these rights are ensured to us in the Human Rights Act. They are not absolute rights. We accept that there are circumstances in which the exercise of those rights may be limited, but they are rights which all our people have. In circumstances in which we are seeing the limitation of rights in Hong Kong, the US, China and Russia, it is profoundly important that we, as a democracy, protect those rights which are part of our ancient heritage.

The Equality and Human Rights Commission has published its views on some of the proposed offences. Referring to the creation of the new offences of locking on and being equipped for locking on and the obstruction of major transport works, the introduction of new serious disruption prevention orders, the extension of stop and search powers with and without suspicion, and the granting to the Secretary of State of new powers to seek protest-related civil injunctions, the EHRC has said that it considers these offences to be “inconsistent” with the right to protest, noting that the Supreme Court recently determined that this type of protest was protected by Article 11 and that there should be

“a certain degree of tolerance to disruption to ordinary life, including disruption to traffic, caused by the exercise of the right to freedom of expression or freedom of assembly”.

The JCHR has said that the locking-on offences

“risk criminalising actions that fall within the protections of Article 10 and 11 ECHR and contain inadequate safeguards against this”,

and that these clauses would allow the police to take pre-emptive action against people planning to engage in lawful protest, which it says would undermine the right to protest. It says that the provisions are

“broad enough to interfere with Article 8 right to privacy and Article 14 rights to freedom from discrimination.”

Clauses 17 and 18, which give the Secretary of State the power to bring proceedings and apply for injunctions could, the JCHR says,

“have a chilling effect on the right to protest”,

creating a significant risk that large numbers of protesters could be criminalised.

Finally, I will say a word about Clause 9, a late amendment to the Bill in the other place which seeks to create an “Offence of interference with access to or provision of abortion services” and would introduce 150 metre-wide “buffer zones”—also known as “censorship” or “safe” zones—around abortion providers. When “protests” take place, they are typically quiet prayer groups which occasionally display signs or placards. However, participants do not cajole or harass women. There is no interference with access to or the provision of abortion services. Approximately 90% of all clinics and hospitals have not reported either activity as ever having occurred, according to the findings of the 2018 Home Office review. A blanket ban around abortion clinics would be disproportionate, a denial of the right to freedom of expression, it is unnecessary, and it could even be harmful.

The reality is that many of those taking part in these vigils often provide help to vulnerable women. Historically, as a result of expressions of prayer and offers of help, women have been able to avail themselves of practical, emotional and other forms of support of which they may previously have been unaware or were unable to access. Some women, who may be uncertain but feel forced to terminate a pregnancy because of their fears that they cannot cope, and who might be reassured by what they might hear before they get into the clinic, will inevitably suffer if a disproportionate ban is enforced. Some of these women have never had the opportunity to receive impartial counsel and support as they consider their options.

On 24 October the Minister said that the Bill is generally compatible with convention rights. I regret that I do not agree with him on that point. However, I agree with his comment on Clause 9:

“I am unable, but only because of clause 9, to make a statement that, in my view, the provisions of the Bill are presently compatible with Convention rights”.


He was saying that Clause 9 is not compatible with the convention rights.

Current laws already provide wide-ranging powers for authorities to keep public order and protect women and the public from genuine harassment and intimidation, including outside abortion clinics. The Ealing PSPO shows that a nationwide ban is unnecessary and that further measures to ban peaceful demonstrations can have the unintended consequence of harming individuals seeking to express their views. Clause 9 is poorly drafted. It is so broadly worded that it could be used to criminalise people who merely express opinion outside an abortion facility.

In 2018, the Home Office concluded there was no need to introduce buffer zones. The then Home Secretary, Sajid Javid, said that:

“introducing national buffer zones would not be a proportionate response, considering the experiences of the majority of hospitals and clinics, and considering that the majority of activities are more passive in nature.”

This position has been consistently reaffirmed by the Government since then, most recently on 27 September 2022.

A June 2021 poll undertaken by Savanta ComRes shows that only 21% of the population support introducing buffer zones around abortion clinics nationwide. A majority support either having no restrictions on speaking about the issue of abortion outside abortion clinics or restrictions in line with current legislation.

Clause 9 is not only not convention-compatible but disproportionate, as police officers already have the powers to intervene. If a vigil is causing harassment or harm, they can intervene under the Public Order Act, the Protection from Harassment Act, and the civil provisions of a public spaces protection order under the Anti-social Behaviour, Crime and Policing Act 2014.

A person guilty of these new offences would be liable, in the first instance, to imprisonment of up to six months and/or an unlimited fine, and in further instances up to two years’ imprisonment and/or an unlimited fine. The offences vary from “seeking to influence”, advising, persuading and informing, to “persistently, continuously or repeatedly” occupying the area within the proposed buffer zone. We value and believe in free speech—

[Lord Davies of Gower (Con)]

I realise that the nine-minute time limit is advisory but can I ask the noble Baroness to bring her speech to an end, please?

[Baroness O’Loan (CB)]

Yes; I will do so shortly. Surely we do not think it appropriate to criminalise those who seek to exercise their rights to free speech by advising, persuading or informing or even by simply being present, quietly and unobtrusively? This is what happens in places such as Hong Kong, China and Russia, not the UK.

Such a penalty would be imposed in our country on those who seek only to pray and to offer help to women who may be in a desperate situation, and for whom help can be provided. I have met some of these women and their babies. I have seen their joy in the presence of their little ones. This is not an argument about access to abortion or preventing access—that right exists in law. Clause 9 would deprive people from offering help and support to women, for whom such help could be the difference between the choice to terminate the life of their unborn child and the ability to bring that child into the world in a safe place.

The Bill also reverses the traditional burden of proof which lies on the prosecution to prove any criminal offence beyond a reasonable doubt—

[Lord Davies of Gower (Con)]

I must ask the noble Baroness to bring her speech to an end, please.

[Baroness O’Loan (CB)]

I will—I have very little to say. I ask noble Lords to bear with me; this is an important point. That clause is inconsistent with the common-law presumption of innocence and the protections under Article 6.

In conclusion, the Bill, while well intentioned, and probably reflecting a desire by the Government to try to show that they are strong, will deprive people of their historic and indeed ancient rights to protest. This is not what we as a country should be doing. We must not place an additional and unnecessary burden on our police. We need at this perilous time in the world to protect the rights of people to protest peacefully, and to utilise existing laws to deal with those who commit some of the many criminal offences which we have witnessed. We can do this, but the Bill is disproportionate in its effect and would be very damaging to those freedoms and constitutional rights which we have cherished as a people across the centuries.

Public Order Bill

Lord Davies of Gower Excerpts

Committee stage
Tuesday 22nd November 2022 Lords Chamber

Moved by

[Lord Davies of Gower]

102: Clause 16, page 16, line 3, leave out “in England and Wales”
Member's explanatory statement
This amendment and the amendments in the name of Lord Sharpe of Epsom at page 16, line 12, page 17, line 20, page 17, line 35 and page 18, line 4 have the effect that in Clause 16 the amendments to sections 14 and 14A of the Public Order Act 1986 in relation to the British Transport Police apply in relation to Scotland as well as England and Wales.

[Lord Davies of Gower (Con)]

My Lords, Clause 16 closes a gap in existing powers at Part 2 of the Public Order Act 1986 for policing public processions and assemblies which may result in serious disorder. It does this by harmonising the position between on the one hand the territorial police forces—that is to say those covering a geographical force area—and on the other hand the British Transport Police and Ministry of Defence Police.

The present position is that the territorial forces are able to exercise these powers, but the British Transport Police and Ministry of Defence Police are not. Clause 16 extends to the British Transport Police and Ministry of Defence Police some of the powers at Part 2 of the 1986 Act in relation to their respective jurisdictions, where there is an operational case for doing so.

For example, the power may be used in a situation where a trespassory assembly is planned or is occurring on the railway or on railway property. This could be within a station, outside a station or in a retail area owned by the railway. In this case, the British Transport Police may be the most appropriate force to exercise the power. The railway is a unique and complex environment with specific risks which British Transport Police specialise in managing while minimising disruptive impact on the operation of the rail network.

To be clear, Clause 16 does not create any new powers, nor does it broaden the existing ones. It simply serves to close a potential gap in jurisdiction by extending certain existing powers to those two additional, non-territorial police forces. The powers contain various limitations and safeguards; for example, there is provision that only the most senior of the officers present may exercise the powers and a requirement that the officer must reasonably believe that the assembly may result in certain forms of serious disorder. Clause 16 reads these across, with necessary transpositions for the jurisdiction and functions of the British Transport Police and the Ministry of Defence Police.

While the provisions concerning the Ministry of Defence Police are reserved, as policing and railway are devolved matters, the provisions concerning the British Transport Police have practical application only in England and Wales. Following discussions, the Scottish Government have requested these powers be extended to the British Transport Police in Scotland. We have therefore tabled minor, technical amendments to the clause to facilitate the extension of the powers to Scotland.

[Lord Beith (LD)]

My Lords, the Government are stretching credulity if they say this creates no new powers; it creates new powers for the British Transport Police and Ministry of Defence Police. It is mostly on the British Transport Police that I want to concentrate.

This police force is not locally accountable. It is the police force of the operators of the railway system. It has its own structures and is essentially a nationally organised force with certain centres of activity. There are many cases where police support is needed, and we certainly see this in Berwick. The local police have to come on the scene some time before British Transport Police can come from 70 miles away to take part in whatever problem there may be. We have to be a bit careful about so readily extending powers to a very different kind of police force, which does not have the chain of local accountability that our civil police forces have.

If anyone thinks that the arrangements are all very smooth and there is not a problem in relations between local police and British Transport Police, they should read the proceedings of the Manchester Arena inquiry. They will discover some pretty uncomfortable things about how co-ordination between British Transport Police and other agencies is meant to work but does not always work in practice. I was slightly surprised that Scottish Ministers decided they wanted to extend the powers included here, but it is with the approval—if the case is in Scotland, it is not to the Secretary of State—of Scottish Ministers.

I will take the Minister back to an incident in the 1960s which he is too young to remember. It shows that these are not new problems requiring drastic new powers. A railway line called the Waverley route between Edinburgh and Carlisle was closed. Before it managed to get itself closed—it has since been partially reopened—people in the village of Newcastleton between Hawick and Carlisle protested vigorously. One night, when the night sleeper was heading towards Carlisle, the minister of the local kirk and some of his congregation and others gathered on the crossing and stopped the train. On the train at the time was Lord Steel of Aikwood, then the young MP for the Borders area. This incident was handled by the police quite smoothly and locally, without any involvement of the British Transport Police—I doubt very much that they ever got there.

Local police are used to dealing with these situations. I fear from the provisions we have now that, given the nature and scope of this Bill, someone proposing to have either a group of people in a station protesting against imminent cuts to the service, or a single protestor in the station building by the ticket office saying “Your service is going to be halved from next week—join me in a protest”, will find themselves subject to the powers of the Public Order Act. There will be an unnecessary level of police involvement by the British Transport Police. Without the powers here, they would be able to deal with it in the normal way, as the local police would. We are in some danger if we get the British Transport Police into the state of mind that they are policing protest. It is really not what they are good at and not what they are supposed to be good at.

--- Later in debate ---

[Lord Coaker (Lab)]

That is a very good point—I was going to make that point and ask whether that made any difference. What makes this even more important is whether, tucked away in the Bill, there is some mechanism by which the Government could extend these protest-related powers to the Civil Nuclear Constabulary. The Government are saying that, at the moment, there is no need for it to have these powers because there have been no protests and it has not been appropriate—that is the information I received. All that I am asking—this is particularly relevant given the point of the noble Lord, Lord Beith, about it being armed—whether the Bill gives the Government the opportunity to do that, should they so wish, or whether they would have to come back and pass primary legislation to do that. It would be useful to find that out.

On Amendment 106 of the noble Lord, Lord Beith, which probes the breadth of the powers, can the Minister give us more clarity on the power to make an order prohibiting specified activities for a specified amount of time? What is the amount of time in scope, and who grants the order?

The clause references assemblies

“on land to which the public has no right of access or only a limited right of access”.

Would that activity therefore be covered under existing trespass offences? I am just asking for clarity on one or two of the specifics with respect to these amendments.

[Lord Davies of Gower (Con)]

I am grateful to noble Lords for their speeches in this group. I turn to Amendment 106, in the name of the noble Lord, Lord Beith, who explained that it is intended to avoid excessively wide use, at railway stations, of the power for a chief constable to make an order prohibiting a trespassory assembly if certain conditions are met. This is an outcome that we can all support: the Government are clear that public order powers should always be used proportionately and should have appropriate safeguards and limitations. However, I hope I will be able to provide him with assurances that his amendment is not necessary to achieve that outcome and indeed that it would not have the effect of limiting the use of this existing power at or around railway stations.

--- Later in debate ---

[Lord Coaker (Lab)]

The Minister said, quite rightly, that he will write to the noble Lord, Lord Beith. For the benefit of the Committee, it would be useful for it to be put in the Library. The letter writing is fine but I sometimes worry about it because it means it is not in Hansard. For those people who read our deliberations, I think that could be a bit of flaw in them being able to understand what is going on. The answers often are in a letter or in the Library and not as widely available as they would be if they were in Hansard. It is a point that has increasingly bothered me, to be frank.

[Lord Davies of Gower (Con)]

I recognise what the noble Lord says and will make sure that the letter is placed in the Library.

Amendment 102 agreed.

Moved by

[Lord Davies of Gower]

103: Clause 16, page 16, line 12, leave out “in England and Wales”
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Sharpe of Epsom at page 16, line 3.

--- Later in debate ---

Moved by

[Lord Davies of Gower]

107: Clause 16, page 17, line 42, leave out “Secretary of State” and insert “relevant national authority”
Member's explanatory statement
This amendment and the amendment in the name of Lord Sharpe of Epsom at page 18, line 10 have the effect that the consent of the Scottish Ministers is required in order for the chief constable of the British Transport Police to make an order under section 14A(4D) of the Public Order Act 1986 prohibiting trespassory assemblies in an area in Scotland.

Public Order Bill

Lord Davies of Gower Excerpts

Committee stage
Tuesday 13th December 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, we support Amendment 143 in the name of the noble Lord, Lord Coaker, to which I have added my name. We on these Benches believe that the prison service is overwhelmed. As a result, prisoners have no real opportunity for rehabilitation, and this can lead to a revolving door of offending, conviction and imprisonment. Liberal Democrats want to reduce the number of people unnecessarily in prison by introducing a presumption against short prison sentences and including the use of tough community sentences and restorative justice where appropriate. We want to transform prisons into places of rehabilitation and recovery by improving the provision of training, education and work opportunities.

That cannot be done against a background of an ever-increasing prison population. In particular, custodial sentences should be restricted to the most serious types of offending that place public safety at risk. We believe that peacefully exercising basic human rights of freedom of expression and assembly are not included in the types of offending warranting a custodial sentence in most cases. That it is why it is important to review sentencing for public order and protest-related offences to ensure that the right balance is struck between the right to protest and the disruption such protests may cause. If the balance is wrong, it is an indication of a repressive regime that seeks to stifle the democratic right of citizens in a free society to gather and express their concerns about the way the Government and Parliament are operating. We therefore support the proposed review.

[Lord Davies of Gower (Con)]

My Lords, I thank the noble Lords, Lord Coaker and Lord Paddick, for tabling this amendment. I empathise with the importance of understanding sentencing for criminal offences. However, the Government do not feel that it is necessary to accept this amendment. There are already adequate mechanisms in place to scrutinise sentencing. The Sentencing Council for England and Wales exists to promote greater transparency and consistency in sentencing. It issues guidance on sentencing and is responsible for monitoring sentencing. Its objectives are to promote a clear, fair and consistent approach to sentencing, to produce analysis and research on sentencing and to work to improve public confidence in sentencing.

As a result of the delegation of these functions, it is felt that the Government are not best placed to undertake such a review. I therefore respectfully ask that the amendment be withdrawn.

[Lord Ponsonby of Shulbrede (Lab)]

Well, the Minister did not make any attempt to answer any of the questions I asked. I do not know whether he would undertake to guide me to some government documents that may answer those questions. I think that may be useful, to see whether we might come back to this matter at a later stage.

[Lord Davies of Gower (Con)]

My Lords, in respect of the specific questions, which are more or less covered by the Sentencing Council for England and Wales, I think we will commit to write to the noble Lord, Lord Ponsonby.

[Lord Ponsonby of Shulbrede (Lab)]

I beg leave to withdraw the amendment.

Public Order Bill

Lord Davies of Gower Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Davies of Gower (Con)]

My Lords, I just gently remind the House of the rules of debate on Report, which say:

“On Report, no Lords Member may speak more than once to an amendment, except: the mover of the amendment”.


Intervening repeatedly on other Members is not really in keeping with the rules of debate on Report.

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

My Lords, at Second Reading and in Committee there was much discussion on the meaning of “serious disruption”, and many noble Lords spoke to the need to provide a clear definition in the Bill. I thank all noble Lords who have participated in what has been a fascinating debate. At Second Reading, I agreed with many of the comments made by your Lordships and committed to take the matter away. What we are debating today is the matter of thresholds, as all noble Lords who spoke noted. The debate is not about whether these measures ban protests: quite simply, they do not, and I thank the noble Lord, Lord Coaker, for his comments emphasising that fact. We are trying to ascertain the point to which protesters can disrupt the lives of the general public. This Government’s position is clear: we are on the side of the public.

I thank the noble Lord, Lord Coaker, for tabling his amendment, which provides a definition of “serious disruption” for offences in the Bill. I agree with the purpose of his amendment but do not believe that the threshold is appropriate. The Government want to protect the rights of the public to go about their daily lives without let or hindrance. I do not believe that his amendment supports this aim; therefore, I cannot support it. I make no secret of what the Government are trying to do. We are listening to the public, who are fed up with seeing, day after day, protesters blocking roads: they make children late for school; they make people miss hospital appointments; and they make small businesses struggle. Any change in law must address this, and I do not believe that the noble’s Lord’s proposed threshold does.

In this vein, I turn to the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, which also provide a definition of “serious disruption”, but for the specific offences of locking on, tunnelling and causing disruption by being present in a tunnel. His amendments follow the judgment handed down by the Court of Appeal following the Colston statue case. The court found that the right to protest does not extend to acts of criminal damage that are violent or where the damage is to more than a minor or trivial degree:

“We cannot conceive that the Convention could be used to protect from prosecution and conviction those who damage private property to any degree than is other than trivial.”


We agree with the judiciary and believe that this threshold should be consistent across the statute book. Although the court concerned itself with the matter of damage to private property, the same principles apply to obstructing the public from enjoying their right to go about their business without hindrance. That is why the Government support the noble and learned Lord’s amendments; I am very pleased we were able to surprise him in that regard. They provide a threshold for “serious disruption” that is rooted in case law. I thank him for tabling this amendment and, indeed, for explaining it in such a detailed and precise way. It provides both clarity to the law and a threshold that addresses the public’s frustration with disruptive protests.

I will now speak to government Amendments 48 and 49. The Commissioner of the Metropolitan Police Service has asked for further legislative clarity on police powers to manage public processions and assemblies. These powers are conferred by Section 12 of the Public Order Act 1986 for processions and Section 14 for assemblies. They allow the police to place reasonable and necessary conditions on protests to prevent specific harms from occurring. One of these harms is

“serious disruption to the life of the community”.

These two amendments provide clarity to this phrase for both Sections 12 and 14. The noble Lord, Lord Paddick, was quite right in anticipating that I would be quoting Sir Mark Rowley, who said:

“I welcome the Government’s proposal to introduce a legal definition of ‘serious disruption’ and ‘reasonable excuse’. In practical terms, Parliament providing such clarity will create a clearer line for police to enforce when protests impact upon others who simply wish to go about their lawful business.”


These amendments, supported by the police, prioritise the rights of the law-abiding majority. First, they carry over the noble and learned Lord’s definition of “serious disruption”. Secondly, they define the meaning of “community”. Thirdly, the police may consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly. In answer to the comments of the noble Lord, Lord Paddick, that these are too complicated, I say that the Home Office will work closely with the NPCC and the College of Policing to ensure that appropriate guidance and training are developed. Mirroring the definition of the noble and learned Lord, Lord Hope, will provide consistency across the statute book. As I have said, this is welcomed by the police. I point out that the definition specifies that the disruption is caused by physical means only.

The noble Lord, Lord Coaker, raised in the Policy Exchange paper the use of “minor” in the definition. These amendments protect the daily activities of the public; it is clear that the public are fed up with the disruption caused by protesters, and that is what these amendments address. Many protests that do not disrupt the lives of others occur on a regular basis. The noble Lord, Lord Hogan-Howe, made a very good point: that we should not allow the protesters themselves to determine the scale of disruption. Many protesters are able to express themselves and place pressure for change without blocking roads.

Currently the term “community” is undefined. The police should be able to use their powers to protect anyone who is detrimentally impacted by serious disruption from protests, not just those who live, work or access amenities where the protest occurs. The police must consider the absolute disruption caused to the public, as opposed to the disruption relative to what is typical for an area. The measure will give officers the confidence that they can use to respond to disruptive protests, even in areas routinely subject to spontaneous disruption such as traffic jams. To prioritise the rights of the public, the amendment allows the police to consider the cumulative impact of protests and separate protests. It is wrong that the public must repeatedly put up with disruptive protests, in part because each time there is a new protest, the police must consider the level of disruption afresh and in isolation from what has previously happened and what may be planned. If multiple protests cumulatively ruin the daily activities of a community, they must be considered collectively. Following from this, if the police are to manage the collective impact of protests, they must be able to apply the conditions on separate but connected protests. For example, a large protest campaign made up of multiple small protests that disrupt a large area should be subject to blanket conditions. Allowing the police to consider the cumulative impact of protests by requiring them to manage each individually complicates the operational response unnecessarily. Collectively, these measures will allow the police to protect the public from the disruptive minority who use tactics such as blocking roads and slow walks. The public are clear that they want the police to protect them from these tactics. In turn, the police have asked for clarity and law to confidently and quickly take action and make arrests where appropriate. The Government have listened to both, and I hope this House does the same and supports the amendment.

I will speak collectively to the amendments tabled by the noble Lord, Lord Paddick. These measures do two things to the locking-on and tunnelling offences. First, they lower the threshold of the offence so that acts capable of causing serious disruption are not in scope. Secondly, they alter the mens rea so that only intentional acts, and not reckless ones, are in scope of the offence. It is clear that the public do not want to see police officers sit by while criminal protesters disrupt their lives; lowering the threshold would mean that the police will have to do so. Why should an officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause serious disruption to the public? As for the mens rea, as I have said already, the Government are concerned with the disruption caused to the public. It does not matter whether it is caused recklessly or intentionally; what matters is the impact it has on people’s daily lives. For all these reasons, I encourage all noble Lords to support the amendments in the name of the noble and learned Lord, Lord Hope, and those by the Government and reject the others.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will make only a very brief intervention. I agree with what my noble friend said in her introduction of this group, and also what the noble Lord, Lord Paddick, said about his Amendments 19 and 31. I am looking forward to the Minister’s explanation of Amendment 29 and how that is a more appropriate amendment than Amendments 19 and 31.

One thing I can add to this interesting short debate is as a magistrate who deals regularly with the issue of reasonable excuse, and it is something we have got used to dealing with over many years. The context in which I see that excuse is when someone is carrying a knife or a bladed article. That is almost invariably the defence that one hears when one is in court. That is something that we are used to dealing with. It is also something that there is a lot of public interest in, so changing definitions and giving more scope to more complex laws does not help the courts. The courts have, in these contexts, the defence of reasonable excuse and they are well used to dealing with it. Nevertheless, the amendments in this group have been well presented and I look forward to the Minister’s response.

[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.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we also support these amendments. As my noble friend Lady Chakrabarti made clear in her introduction, her Amendment 38 would remove

“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.”

As she explained, she is trying to give the Secretary of State a slightly more limited remit to introduce Henry VIII powers, along the lines suggested in her amendment.

The noble Lord, Lord Paddick, has explained his Amendments 39 and 40 very well. I will not repeat his explanation, other than to say that we are in favour of them in general terms.

[Lord Davies of Gower (Con)]

My Lords, Amendment 38 in the name of the noble Baroness, Lady Chakrabarti, seeks to remove the delegated power for the Secretary of State to amend, add or remove infrastructure in the list under the legal definition of “key national infrastructure”. We have heard throughout the passage of the Bill about ever-evolving protest tactics, targets and technology. We therefore see it as entirely right that Clause 7 is accompanied by a delegated power which will allow us to respond effectively to emerging threats. This was the position taken in Committee when this amendment was first tabled, and it is still the Government’ position. I assure the House that the power is subject to the draft affirmative procedure, thereby facilitating substantive parliamentary scrutiny.

I turn to Amendments 39 and 40 tabled by the noble Lord, Lord Paddick. Amendment 39 seeks to narrow the scope of “rail infrastructure” to exclude protests that do not directly impact on the operation of trains, while Amendment 40 seeks to narrow the scope of “air transport infrastructure” to exclude infrastructure that is not essential for the purpose of transporting passengers and goods by air. As was noted when these amendments were considered previously, the scope of the offence as drafted reflects the importance of the continued operation of the infrastructure as defined in Clause 8.

I would be keen to hear from the noble Lord, Lord Paddick, what he deems to be the essential and inessential elements of rail and air transport infrastructure. 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.

[Lord Paddick (LD)]

The Minister asks me to explain: I explained in my opening remarks, which I accept are not reflected in his notes. If there was a protest at the arrivals part of an airport against somebody who people felt should not be in the United Kingdom, they could be criminalised by this offence as drafted, because they would be interfering in some way with air transport—perhaps arrivals, but not disrupting flights, as the legislation intends. The Minister asked for an explanation; I have just given him one.

[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.

Public Order Bill

Lord Davies of Gower Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Hogan-Howe (CB)]

And how is an officer to know?

[Lord Davies of Gower (Con)]

My Lords, I remind noble Lords that this is Report stage and they have one opportunity to speak.

[Lord Cormack (Con)]

My Lords, I am glad that my noble friend has just said that, because it was the point I was going to make. I will make one brief intervention. I was always brought up on the proposition that it is better that someone who is guilty goes free than that someone who is innocent is punished. That ought to be our guiding principle, particularly when we are dealing with such sensitive issues and such an important Bill.

When the noble Baroness, Lady Boycott, spoke very briefly, and very powerfully, she began with a story from China. We do not want to be bracketed with that. We talk a lot in this House about the importance of freedom of speech, and we mean it—passionately. However, freedom of speech cannot exist properly unless there is a free press. It may often say things that we deplore or get the balance wrong, but it must have that freedom. A free society depends upon a free Parliament and free speech, and it depends upon a free press and free broadcasting. We are going in the wrong direction with this issue if we do not accept the amendment that has been signed by a very distinguished Law Lord: the noble and learned Lord, Lord Hope of Craighead. I would take his advice on this as much as I would take anyone’s. It would be better if the Government did not oppose this amendment.