Public Order Bill

Lord Coaker Excerpts

Committee stage
Wednesday 16th November 2022 Lords Chamber

[Lord Skidelsky (CB)]

My Lords, I will speak briefly in support of Amendment 21 from the noble Lord, Lord Paddick, to which I put my name. The principle it seeks to uphold is that the offending person must be the one committing the offence or intending to commit the offence, rather than somebody else connected with that person. That is a very important point, because “in connection with” is another of these vague phrases that have crept into this kind of legislation. It is also there in counterterrorist legislation. How connected? Friend, lover, colleague, co-religionist? What is the nature of the connection? All these things are undefined. What counts as a malicious connection? That is why we want this amendment.

[Lord Coaker (Lab)]

My Lords, I thank those who have supported the various amendments in my name. I very much supported the comments that the noble Baroness, Lady Jones, made when she opened the group. Similarly, I thank the noble Lord, Lord Paddick, for his support and the arguments he put forward on the various amendments. I also thank the noble Lords, Lord Beith and Lord Skidelsky, and the noble Baroness, Lady Fox. She made some very good comments about “serious disruption” and “key national infrastructure”.

This is the first contribution I have made. The Minister said that the Government had listened to the House of Lords by withdrawing amendments when they came up in the Bill at the beginning of the year, putting them through the Commons and then bringing them to the Lords, that constitutionally that was the right way of doing things, and therefore that the Government had correctly brought the Bill forward to the Lords. I say to him that we as the Lords have a constitutional right to review legislation that comes from the Commons, to say where we think it is wrong, to put forward amendments and to seek clarity where there is none.

That has been the purpose of all the amendments put forward here this afternoon as we go into the evening. Each amendment put forward has sought that clarity of definition—what the Government actually intend and mean—so that as this law goes through and the Bill passes, as it will, it will be a better Bill that delivers what the Government want. That is what we seek to do with all the various amendments.

The key question that will keep coming back to the Government is: why is the Bill necessary? There is no dispute in this Chamber—we all totally and utterly feel that the Just Stop Oil protesters went too far, and that was serious disruption that was unacceptable. It is an Aunt Sally, or whatever the politically correct term is, to say, as the Government sometimes do, that they are in favour of the great British public who object to having their lives disrupted while there is a group of others, in this Chamber or elsewhere, who seek to be on the side of the protesters instead. We are all on the side of the public. We all agree that there is a right to protest but that there should be limits to it, and there will be a debate about where that should come.

The third group deals with the scope of the offences. Again, there is a series of questions for the Government in this group about where we are with the drafting and the scope of the offences. As I say, we keep coming back to the need to draft good law and the need for clarity, not offences so broad that they impinge unreasonably on the British public’s rights and are unenforceable. Other key issues include focusing police resources on where they actually matter, not criminalising lawful behaviour or peaceful protest by members of the British public who are causing minor disruption. Our various amendments seek to probe the Government so that we can consider what to bring forward on Report.

Amendments 18 and 20 deal with being equipped to lock on. Currently, Clause 2 provides that an offence of being equipped for locking on takes place where a person is carrying an item that “may” be used “by any person” in the course of a locking-on offence or “in connection with” such an offence, or which may be used “by any person” in the course of or in connection with a locking-on offence. The amendments that I have tabled and others in the group would narrow that scope so that an offence was committed only where a person was carrying an item with the intention that it “will” be used to commit an offence by the person carrying it. As I say, those amendments are to probe the scope of the offence. Why is the word “may” there, not “will”? Why is the phrase “in connection with” used?

What does “by any person” mean? Any person in the group? Any person standing next to them? Any person who happens to be standing nearby? We heard from my noble friend Lady Armstrong about the difficulties one has where you just imply that someone in the group may be associated with a particular person, and the problems that causes. As my noble friend Lord Ponsonby said to me, there is already a well-used piece of legislation containing the offence of being equipped. He would know, as a magistrate. Why does that legislation not work here? Time and again, the Minister has been asked to say why the current legislation is inadequate to deal with such situations.

Last Friday when Just Stop Oil called off its protest, I heard one of the protesters say on Radio 4—it was the “Today” programme, and the Minister can go back and listen to it—that among the reasons why they did so were the number of people who had been arrested and the number who were in jail or on remand. They said that was having an impact on the ability to carry out protests. Is that not part of the existing legislation dealing with these problems? Maybe it should have been used or enforced quicker but that is a process issue and a policing issue, not a legislative one.

Under current drafting, if an item is not used and absolutely no disruption is caused to anyone, has the person committed a criminal offence because something in their possession may have been used by someone else—not even themselves—to lock on? Is that a criminal offence or not? What does “in connection with” a locking-on offence mean? What activity does that cover?

The classic example that we have all used is a bike lock. We keep coming back to that because it has not been properly addressed. If a person walks through Parliament Square with a bike lock, they could be caught by that clause—is that not the case? Will it be up to that member of the public to prove to a police officer that they have no intent even though it might be used by someone else, not even to commit locking on but for an action that is somehow connected to it? Again, clarity is needed in the law because that police officer will be required to enforce it.

It is worth noting that the clause does not include a reasonable excuse defence. In practice, that is what happens when someone has a reasonable excuse, such as they work close by and own a bike. How is that going to work if there is no reasonable excuse defence available in the clause. Or have I misread it? Asking these questions is, after all, the purpose of Committee.

Amendment 52 concerns the obstruction of major transport works. Clause 6 makes it an offence to obstruct any actions that are

“reasonably necessary … in connection with”

constructing or maintaining transport works. The amendment would remove “in connection with”. Again, this is to probe what actions that may cover. Clause 6 currently provides that it is an offence to obstruct a person

“taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works”.

What does “in connection with” mean? Imagine the list of activities that could be considered as any step that was reasonably necessary in connection with maintaining a transport work. If a local protest prevents a person from painting a railway generator for a few hours, is that now a criminal offence? As the JCHR said:

“For example, the offence would be committed by moving any apparatus that ‘relates to’ construction or maintenance of major transport works (such as a shovel, a broom or a traffic cone) or, indeed, moving any apparatus (even if unrelated to the works) that belongs to a person acting under the authority of the person in charge of the works.”


Is the JCHR wrong to have used those examples? As I say, poor, open-ended drafting will make these offences unusable, casting the net so wide that it means that in no way is the Bill focused on the small number of highly disruptive protesters who are purposefully breaking the law.

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[Lord Sharpe of Epsom (Con)]

That is captured. As I say,

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

[Lord Coaker (Lab)]

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

[Lord Sharpe of Epsom (Con)]

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

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[Lord Paddick (LD)]

My Lords, I hesitate, as a non- lawyer, or even as someone who has never been a judge or magistrate, to enter this debate. I have amendments 34, 56 and 62 in this group.

Amendment 34 seeks to ensure that only those people present in tunnels created under Clause 3 are criminalised—in other words, illegal tunnels, or tunnels dug by protesters—rather than those present in tunnels such as the London Underground tunnels. The drafting of the offence appears to capture people causing serious disruption in the London Underground tunnels, which I am sure was not the intention. In meetings with Ministers before today’s debate, there was an undertaking to recognise that and address it. I would be grateful to hear from the Minister what conclusions the Government have come to, bearing in mind that they have been given prior notice.

Amendments 56 and 62 reflect the recommendations from the Joint Committee on Human Rights that particular regard must be had to the right to peaceful protest under Articles 10 and 11 of the European Convention on Human Rights when deciding whether someone has a reasonable excuse for their actions that would otherwise be an offence of obstructing major transport works and interference with the use or operation of key national infrastructure.

On the other amendments, I admire the ingenuity of the noble Baroness, Lady Jones of Moulsecoomb, in her Amendment 9. I shall leave it at that.

With regard to the noble and learned Lord, Lord Hope of Craighead, the reasonable excuse defence is clearly very difficult. One can understand and sympathise with Extinction Rebellion or the Just Stop Oil people who say, “You’re destroying the planet by giving out more licences for oil and gas exploration”. What more reasonable excuse could you think of for causing this sort of disruption? My only concern is that the Government will take the noble and learned Lord’s first option of doing away with the reasonable excuse defence altogether in these offences, rather than adopting the approach that the noble and learned Lord has suggested.

In the case of the journalist who was arrested, the alternative suggestion in the noble and learned Lord’s detailed amendments would clearly be something that she could use in her defence. I hesitate to say what would happen to her if there were no reasonable excuse for these offences. As the noble and learned Lord said—and with no disrespect to the noble Lord who is a serving magistrate—these are very difficult decisions. If the Court of Appeal and the Supreme Court disagree, and if you have two judges even on the Supreme Court dissenting, how can a Bench of lay magistrates grapple with these difficult issues around reasonable excuse? So there certainly needs to be clarification and clarity around reasonable excuse, and I hope that the Minister can help us with these issues.

[Lord Coaker (Lab)]

My Lords, this is an interesting group of amendments. I will come to the amendments of the noble and learned Lord, Lord Hope, but I will deal with my Amendment 42 first, because it deals with an important specific ask of the Government. I will then come on to the more general point about the reasonable excuse defence.

My Amendment 42, for which I am grateful for the support of the noble Lord, Lord Paddick, would insert a defence for a person who is present in a tunnel or is undertaking acts

“wholly or mainly in contemplation or furtherance of a trade dispute.”

The amendment probes situations where all or part of a person’s workplace is within a tunnel, such as the London Underground.

Currently, other clauses, such as Clause 6 on obstruction of transport works, include a reasonable excuse defence for people causing disruption as part of a trade dispute, and I think we all welcome the Government’s inclusion of that. But have they considered whether that defence needs to be replicated for the new offence of being present in a tunnel? What is covered in the definition of a “tunnel” under the Bill? Does it include the London Underground or the Channel Tunnel, for example? Under the Bill, the definition of a “tunnel” is simply

“an excavation that extends beneath land”.

So some clarification of that would be helpful, and I would be grateful for answers on my Amendment 42.

Aside from that amendment, we have had an interesting, almost philosophical, debate. The noble and learned Lord, Lord Hope, is right to say that you cannot just leave this to others to debate. There is a very real debate here: how far is protest justified by people who say, “My reasonable excuse is that there’s such a climate emergency and, if only people realised it, they would realise that we’re the people who are being sensible and reasonable”? This is a very difficult debate and discussion, but the noble and learned Lord, Lord Hope, has challenged Parliament to have it. The Government may need to think about this and come back on Report with something that seeks to explore the whole issue.

This example is not the same, for obvious reasons, but the Chartists would have been regarded in their time as unreasonable extremists. Many of the suffragettes were imprisoned and force-fed. You can say that this is different and we are in a different time, but you see the point that the noble and learned Lord, Lord Hope, is getting at: what is a reasonable protest, and how far should someone go? In other words, where is the balance in a protest that will inevitably cause some disruption? I have been on protests and demonstrations that have caused disruption. But where is the balance and where do you draw the line? We never debate or discuss this—

[Lord Hope of Craighead (CB)]

The crucial point that I was trying to make is that we are dealing here with serious disruption. I have been trying to get a definition of what that really means. These two points meet: you have to identify what you mean by “serious disruption”, and you reach a point where the proportionality tips against the person who is causing the disruption. That is what we need to get at and why the language in the Bill needs to be more precise to enable that to be determined.

[Lord Coaker (Lab)]

I could not agree more; the issue of proportionality is exactly right. But this is difficult. I have been on demonstrations that caused serious disruption that we regarded as perfectly reasonable, but I am not sure that everybody else would have thought they were perfectly reasonable.

So I support what the noble and learned Lord’s amendments seek to do, which is to get the Government to justify where they think that line should be and say—I am not a lawyer, but I often hear the lawyers here say this—that it should not be left to the courts to determine and try to guess what the Government’s view was and what Parliament was seeking to do. It is Parliament’s responsibility to try to define and clarify what the law seeks to achieve. The courts then interpret that, which is right in a democracy. But we abrogate our responsibility if we do not even seek to discuss this.

The noble and learned Lord, Lord Hope, is exactly right, but my question to him is: where does it tip? One person’s view of what is proportionate may be regarded by someone else as weak and not strong or determined enough to challenge the system. The system might need more challenge, not less, to bring about the change that is needed.

So the debate is necessary, but quite where that takes us and how you put forward an amendment, other than the interesting amendment of the noble and learned Lord, Lord Hope, is really important, as is how the Government respond to it. This important point should not be lost. It is almost a philosophical debate, but its practical implications for protest in our society are immense.

Speaking as an individual, I would put up with some disruption because I recognise the need for people to protest. When I drive into London and sometimes cannot get into Parliament, I remind myself that I have done similar things to people in other circumstances—

[Lord Lennie (Lab)]

And worse.

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[Lord Coaker (Lab)]

And worse. Well, not quite worse, but I have done similar things, and that is the price you pay for democracy. Where you draw the line —before anyone takes me on, I suggest that the Just Stop Oil protesters have acted disproportionately—is an interesting debate and discussion to have, and the noble and learned Lord has done the Chamber great credit by bring it forward.

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

I thank all noble Lords for their contributions to this very interesting debate on this set of amendments. Before I begin, I will respond to the noble Lord, Lord Paddick, and the noble Baroness, Lady Chakrabarti, who is not present in her place, in respect of the comments made at the end of group 1, particularly those relating to the reasonable excuse defence being available before arrest and the recent specific case of the arrest of the journalist Charlotte Lynch. I repeat the words of my noble friend Lord Sharpe: this was clearly wrong and should not have happened. Hertfordshire Constabulary has confirmed that additional measures are now in place to ensure that legitimate media are able to do their jobs.

More generally, I make clear that, to arrest someone, the police need to have reasonable grounds to suspect that they have committed or are about to commit a crime. Of course, we would expect the police to consider the likelihood of someone having a reasonable excuse when making arrest decisions. But the police must be able to intervene early to deal with serious disruption, without having to go through bureaucratic hurdles.

Turning to the group at hand, we have already discussed the reasonable excuse defence at some length today, and I will not detain noble Lords for too much longer. Specifically in relation to Amendments 9 and 10, I thank the noble Baroness, Lady Jones, for giving me the opportunity to make it clear that trampling on the rights of the public in the name of environmental activism is not by default a reasonable excuse for locking on; nor does legitimate activity by the highly regulated energy sector constitute a criminal offence.

Turning to perhaps the most interesting part of the recent debate—regarding Amendments 11, 30, 41, 57 and 63—I particularly thank the noble and learned Lord, Lord Hope of Craighead, for his amendments, which seek to ensure that the reasonable excuse defence is assessed by the courts with reference to an individual’s direct intentions, rather than with reference to any type of public interest they claim to be pursuing through an offence. This would prevent someone using an argument of public interest as a reasonable excuse for committing an offence. I also thank him for his excellent contribution to the debate.

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[Lord Murray of Blidworth (Con)]

In Clause 7, “Interference with use or operation of key national infrastructure”, one can see that, in subsection (2), “a defence” is provided

“for a person charged with an offence under subsection (1) to prove that … (b) the act mentioned in paragraph (a) of that subsection was done wholly or mainly in contemplation or furtherance of a trade dispute.”

I am sure the noble Lord can see how the protection for the right to be involved in a trade dispute is protected by that drafting—and that is certainly the clear intention of the Government.

[Lord Coaker (Lab)]

Is the Minister saying that you cannot lock on in the furtherance of a trade dispute but you can picket in the furtherance of a trade dispute?

[Lord Murray of Blidworth (Con)]

Clearly, the provisions of the locking-on offence do not expressly contain the same provision. Therefore, it is correct to say that the Bill envisages a defence for the involvement in industrial disputes in relation to key national infrastructure, but there is no need for such a like provision in respect of locking on. I will obviously clarify that with my officials and respond to the noble Lord in on that.