After Clause 49 - Application of Police and Criminal Evidence Act 1984 to National Food Crime Unit of Food Standards Agency

Police, Crime, Sentencing and Courts Bill – in the House of Commons at 6:56 pm on 28th March 2022.

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Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office) 6:56 pm, 28th March 2022

I beg to move,

That this House
insists on its disagreement with the Lords in their amendment 58 but proposes amendments (a) to (c) in lieu.

Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to consider the following:

Government motion that this House disagrees with the Lords in their amendment 72B but proposes amendments (a) and (b) in lieu.

Amendment (c) in lieu of Lords amendment 72B.

Government motion that this House insists on its disagreement with the Lords in their amendment 73, insists on its amendment 74A to Lords amendment 74, disagrees with the Lords in their amendment 74B to that amendment in lieu, disagrees with the Lords in their consequential amendments 74C, 74D, 74E, 74F and 74G, insists on its disagreement with the Lords in their amendment 87, insists on its amendments 87A, 87B, 87C, 87D, 87E and 87F to the words restored to the Bill by its disagreement to that amendment but proposes additional amendment (a) to the words restored to the Bill by its disagreement with the Lords in their amendment 73 and additional amendment (b) to the words restored to the Bill by its disagreement with the Lords in their amendment 87.

Government motion that this House insists on its disagreement with the Lords in their amendment 80, insists on its amendments 80A, 80B, 80C, 80D, 80E and 80F to the words restored to the Bill by its disagreement with that amendment, disagrees with the Lords in their amendment 80G instead of the words left out by that amendment but proposes additional amendment (a) to the words restored to the Bill by its disagreement with the Lords in their amendment 80.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

Our position on Lords amendment 58 has always been that we accept the case in principle that the Food Standards Agency should have direct access to relevant police powers to enable it to tackle food crime, but that such powers should be accompanied by appropriate accountability mechanisms, including in relation to the investigation of complaints. Lords amendment 58 was inadequate to the task, but as the disagreement between the two Houses was not one of principle, we have now brought forward amendments 58C to 58E in lieu, which seek to put a comprehensive legislative framework in place.

The amendments do four things. First, they allow the regulations to be made, conferring relevant Police and Criminal Evidence Act 1984 powers on the Food Standards Agency; we are principally concerned here with search and seizure powers. Secondly, they will enable regulations to apply provisions of the Criminal Justice and Public Order Act 1994 relating to drawing inferences from a suspect’s failure to account for their presence at a particular place. Thirdly, the amendments create an offence of obstructing a food crime officer in the execution of the functions conferred on them under new section 114C of PACE. Fourthly, they amend the Police Reform Act 2002 to bring the National Food Crime Unit within the remit of the Independent Office for Police Conduct. I trust that the amendments will be welcomed by both sides of the House, notwithstanding the unfortunate way they were made in the other place.

I move on to Lords amendment 72B. I am pleased that the other place has seen reason in abandoning plans to make misogyny a hate crime, given that the Law Commission identified risks that the plans could generally prove counterproductive for women and girls. The Lords have, nevertheless, tabled an alternative. It would still mandate the police recording of crimes that effectively amount to hostility on grounds of sex or gender, although, perhaps recognising the Law Commission’s warnings, it does so without any attendant powers to recognise such crimes in court. The amendment would also introduce a new stand-alone offence related to harassment or intimidation that is aggravated by hostility towards sex or gender.

On matters of police recording, I assure Members that the issue requires no legislation. During the Domestic Abuse Bill, the Government committed to asking the police to collect such data and they are still in discussions with forces to take that forward. I acknowledge that the other place thinks that the commitment is moving too slowly. My noble Friend, Baroness Williams of Trafford, was completely frank that we ought to accelerate our efforts; I share that sentiment.

However, judging from the debate in the other place, the purpose of the amendment appears to be based on the premise that any delay is explained by police foot dragging; as such, legislation would serve to turn up the heat on reticent forces. That is not a fair characterisation. We need to move more quickly, but the remaining teething issues are of an entirely technical nature, as we decide on the best approach and reconcile a number of different approaches by those forces already recording that kind of data. Wielding a bigger stick through legislation may confer a frisson of virtue, but unfortunately it misdiagnoses the problem. It is also particularly important that we take extra care over the design of our approach in light of the Law Commission’s finding on existing local police recording efforts. Quoting an independent review, it noted that the experience in Nottinghamshire has

“not been associated with increased reporting”.

We want to understand why and then improve on that outcome. What we simply need to do now is resolve a number of points of implementation with forces. We are committed to moving more rapidly in doing so.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am listening with great care to my right hon. Friend’s remarks about reporting—a concern that, as he knows, I share, having been in office when we made that undertaking, which I regard as very solemn. In order to help, I hope later to develop an argument about sentencing guidelines, but does my right hon. Friend agree that existing guidelines on intimidatory offences already refer to offences based on hostility in relation to sex, as opposed to a sexual motive? Would he with his officials look at the applicability of those guidelines to see whether that is already a hook on which the police can hang their monitoring and data collection task?

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

As usual, my right hon. and learned Friend has made a helpful suggestion. We will certainly review as he suggests. It is worth bearing in mind what we are trying to achieve, which is twofold. First, we obviously want to encourage women and girls to come forward and report in a way that they believe will have impact. Secondly, we have to make sure that that impact happens—that there is a police response. As many hon. Members will know, modern policing is driven by data. It is important that the police see crime through the data that appears daily in their management dashboard and that they can therefore assign resources accordingly. I have often said to groups of citizens that reporting crime is a little like that interesting philosophical problem: if a tree falls in a forest and no one is there to hear it, does it make a sound? If a crime occurs and no one reports it, how on earth are the police to know?

The reporting of crime is often a complex area, so marrying up the confidence that my right hon. and learned Friend Sir Robert Buckland is looking for in reporting, and making sure that that then translates into police action on the frontline, is the critical piece of work that we want to do as swiftly as possible.

I move on to the question of a stand-alone offence. The Law Commission’s review of hate crime laws did touch on this issue, while noting that it was not within its terms of reference. In doing so, it suggested that the Government should tread carefully, recommending that we explore the possible need for such an offence and ensure that, if one is required, it is proportionate and well defined. It also briefly echoed some of the Government’s own considerations about the need for further analysis, speaking to some of the complexities.

With that in mind, I am pleased that in the other place my noble Friend Baroness Williams committed to consulting publicly on the issue before the summer recess. That is entirely the right approach—ensuring that we are moving forward to elicit answers while taking account of the competing considerations at play. Again, short of rushing into legislation before we have the right answers, this part of the Lords amendment is also in my view rather redundant.

As I have said before, our desire to advance the cause of women’s and girls’ safety is extremely strong, but we have to ensure that our efforts are directed at the right solutions. The Government are already doing and have committed to doing a huge span of work in this space, and our mission is ongoing and urgent. To that end, the Government have tabled amendments (a) and (b) in lieu. These require us properly to consider the Law Commission’s carefully considered and expert-informed recommendation relating to making misogyny a hate crime and to establish a clear position on it. Through that, we are targeting attention to the right evidence-based solutions, the importance of which I have outlined. Furthermore, we have gone further in committing to consulting publicly on a new public sexual harassment offence, which means that we will soon have a much clearer sense of how we should proceed. With those measures in mind, I invite the House to reject Lords amendment 72B and agree with the amendments in lieu.

Let me turn to the two public order issues that were returned to this House by their lordships. There has been much ill-informed comment about the powers to attach conditions to a protest related to the generation of noise. I will repeat what I said at the last session of ping-pong: these provisions do not ban noisy protests. There is no dispute that local authorities should have powers to deal with egregious noise—I speak as a local councillor and, when I was a resident of central London, as a frequent user of their services. Indeed, at the Opposition’s behest, we added provisions to the Bill that can be used to limit noisy and disruptive protests outside schools and vaccination centres. Those continuing to support the Lords amendments—including, I assume, Labour Members—are saying that protesters may make any amount of noise, at any location, at any time of the day or night, and for any length of time, perhaps over a period of days or weeks.

When faced with a prolonged protest in, for example, a residential or commercial area, where the level of noise is such as to amount to intimidation or harassment, or is causing alarm or distress, it is entirely reasonable that the police should be able to impose conditions, perhaps prohibiting the use of amplification equipment or drums between the hours of 10 pm and 7 am. If not, we find ourselves in the ridiculous situation where although the police cannot enforce something, the local authority can.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

Obviously, Northern Ireland has a history and tradition of protesting, and it is about getting the right balance. I say honestly to the Minister that I, and probably other Opposition Members, would like Lords amendment 73 to be approved. If someone is preaching the Gospel, or if a single person or group of people are singing hymns on the streets of the United Kingdom, can the Minister reassure me that they will be able to continue and there will be no restrictions? We all know those services last no longer than about an hour—that is a fact. We are keen to ensure that the Government are not suppressing the right to religious freedom in the way it has been suppressed in the past.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

There is no desire or intention to suppress religious or other freedoms. This is about giving the police powers not to ban protest or assembly, but to place conditions on it. As I said in previous stages of the Bill, the job of this House in a democratic society is to balance competing rights. There is no doubt that, as is accepted at the European Court of Human Rights and across the liberal world, the right to protest is not unqualified. Someone cannot protest in such a way that it unreasonably impinges on my right to go about my business as a non-protester. Where noise is concerned, we are seeking to give the police powers to strike that balance where appropriate.

Photo of Ian Paisley Jnr Ian Paisley Jnr Shadow DUP Spokesperson (Communities and Local Government), Shadow DUP Spokesperson (Culture, Media and Sport)

Can I take this point just a little further? This is about an interpretation not only of how loudly something is being said, but of what is being said. Is the Minister saying that the Bill would allow a police officer to make a judgment that he does not like the particular verse of scripture or quote that is being used, and could therefore stop it being said? That breaches the European convention on human rights in a number of areas.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

The amendments have no bearing on the content of the noise, merely on the impact the noise is having on people nearby from a decibel or distress point of view. Other legislation governs content, particularly if it promotes hatred or incites violence, although as I hope the hon. Gentleman will understand, that will not necessarily be true in this case. The amendments are agnostic as to content.

Photo of Ian Paisley Jnr Ian Paisley Jnr Shadow DUP Spokesperson (Communities and Local Government), Shadow DUP Spokesperson (Culture, Media and Sport)

I must press the Minister further. We surely live in a society that allows difficult things to be said. Unfortunately, the Bill is going down a road—it is considerably un-Tory-like, I have to say—where difficult things will no longer be allowed to be said, or at least to be said loudly, proudly and boldly. That appears to be where the Bill is taking us.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

Not at all. Difficult things will and should still be said loudly, proudly and boldly, but it may be different in certain circumstances—for example, we have already conceded in the Bill that certain things should not necessarily be said consistently loudly, proudly and boldly outside a school. We have already conceded the power to control noisy protests outside a school, or indeed a vaccination centre. Why should those areas necessarily be privileged over others? This is about the distress and alarm caused by that noise, and its imposition on the rights of others. It is not necessarily about the content.

Photo of Richard Burgon Richard Burgon Labour, Leeds East

Only the other week, alongside RMT and Nautilus members I engaged in a very noisy protest outside the P&O and DP World headquarters in London. That protest was noisy, and I hope it was a nuisance to those working in P&O head office. People are very concerned that the Government have such a stubborn attitude to trying to retain provisions that could make the noise of that important protest against injustice unlawful.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

Let me give the hon. Gentleman an example. At that protest, legitimate and right as it is, individuals are exercising their right to free speech. Imagine, for example, that next door to the P&O headquarters there was an old people’s home. [Interruption.] Alex Cunningham laughs, but such circumstances do occur, and that is why we have local authority noise teams. There could have been a hospital next door to the P&O headquarters. If Richard Burgon had continued his noisy protest, and the shouting, screaming and flying of banners through the night for days on end, to the extent that occupation of that hospital became difficult, it would seem perfectly reasonable for the police to say, “Would you mind awfully not shouting and screaming between 10 o’clock at night and 7 in the morning?” In certain circumstances the police would have to form a judgment about that. An area might face prolonged and noisy protests that impinge on the rights of others who are not necessarily even involved in the dispute or protest. In the face of changes and developments in amplification technology, we have a duty to seek to strike a balance between those competing rights.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Northern Ireland), Liberal Democrat Spokesperson (Cabinet Office)

The question of distress and alarm is an interesting one jurisprudentially. By what means does the Minister anticipate that it will be established in court? Does he see it as an objective or subjective test?

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

If I could make some progress, I was going to come to that matter. There has been some concern about the definitions of particular phrases in the Bill, and we recognise that some of the terminology has caused concern. Many of the terms used, such as “alarm” and “distress”, are precedented and well understood by the police and courts, but we accept that the term “serious unease” is novel in legislation. To address those concerns, the Government amendments in lieu remove that as a trigger for the power to attach noise-related conditions to protests.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I am grateful to the Minister for taking so many interventions. By taking out the word “serious” as well as “unease”, there is a danger that we also take out “serious alarm” or “serious distress” and replace it with just “alarm” or “distress”. On one hand the Home Secretary is making a welcome concession on “serious unease” but she also appears to be watering down the trigger so that “alarm” and “distress” is enough.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

As I said, those terms are well understood by the police and courts. They are interpreted, and have been over many years in other circumstances, and we do not believe there is room for misinterpretation. This is about placing conditions and balancing rights. We hope and believe that in the small number of circumstances where it is appropriate for the police to apply conditions, just as for the tiny number of protests that currently attract conditions in this country, this is a proportionate, modest power for the Lords to put in place.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

The Minister is trying his best on this point, but he has to return to the fact that it is wholly subjective whether distress or alarm has been caused. We are conferring this power, but we are not providing strictures around it, or indicating what we believe to be appropriate or inappropriate. None of this will be settled until it is tested, tested and tested again, but bear in mind it will never be tested in the court until a protest has already been curtailed and the police have acted in using these powers without any parameters from us as legislators. That is not the road to go down, unless we very clearly and simply define what we mean and how we intend to curtail protest. Until the Government do that, they cannot have our support.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office) 7:15 pm, 28th March 2022

I understand what the hon. Gentleman is saying, but he is looking towards, if I may say so, a Napoleonic approach to the law which we do not have in this country. We set the parameters of powers for the police, which they interpret and which are then tested through the courts. That has been done for public order legislation down the ages. As I say, it has been interpreted, quite rightly, over time by independent judges who oversee and seek to strike that balance. He is right that each circumstance where the police face a decision will be different and that we rely on the test through the court over time to find the right balance.

I urge Members who are expressing concern about this measure to consider, as many do, what it is like living in central London. Those who are residents of Westminster, where for many years I was a councillor, will know that Westminster City Council has a very good and very effective noise team. If their next door neighbour is having a disco or a party well into the night, night after night, they can seek a defence against that from their local authority.

In a small number of cases where legitimate protest impinges, because of its noise, decibel level, longevity or other matters, why should not local residents or businesses who are unable to continue, or whatever it might be, seek some kind of protection from the police? That seems perfectly reasonable to me and I cannot see why anyone objects, unless they believe that protesters should be allowed to make any amount of noise at any time anywhere outside any sort of premises. If they do not, we are just talking about matters of degree. The way we settle those matters of degree, as in other areas of police powers where we look at proportionality and reasonableness which are then interpreted by the courts, seems to me a fairly modest way of doing things.

On Lords amendment 80, I should say once again that both the national policing lead for public order and the policing inspectorate have said clearly that the distinction, drawn by the Public Order Act 1986 between public processions and public assemblies is anachronistic and no longer reflects the realities of policing protests. Provided the thresholds in the 1986 Act are met, the police should be able to attach any condition to an assembly in the same way they can already attach a condition to a procession.

As is its right, the revising Chamber, the unelected partially hereditary House, has asked this elected democratically accountable House to consider the amendments again. We have listened to the concerns raised and responded with further changes. It is now time for the views of those of us who took the trouble to get elected to prevail, so we can get on with implementing the many measures in the Bill that tackle violence against women and girls, ensure violent and sexual offenders get the punishment they deserve, and protect all our neighbourhoods.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

I thank the Minister for his radical reformist speech. I had not realised he was in favour of such reform of the House of Lords.

There are three topics for debate today: the Food Standards Agency and tackling food crime; misogyny as a hate crime; and noisy protests. I can deal with the first relatively quickly. We welcome the Government’s amendments in lieu of Lords amendment 58 on increased investigatory powers for the National Food Crime Unit of the Food Standards Agency. I congratulate Lord Rooker and his colleagues on their doughty campaigning on this topic, and I congratulate the Government on listening to the argument and introducing additional amendments to bring the National Food Crime Unit within the remit of the Independent Office for Police Conduct. I understand that further legislation will bring the crime unit under the remit of Her Majesty’s inspectorate of constabulary and fire and rescue services. We will therefore support the Government in their amendments in lieu tonight.

Moving on to misogyny, I am sorry that yet again we are in a position where the Government are blocking legislation that would provide better protection to women. Given the Government’s woeful record on violence against women and girls, with prosecutions at an all-time low for crimes such as rape and sexual assault, it seems to us that they should be doing far more, from making street harassment a crime or introducing rape and serious sexual offences in every force, to longer minimum sentences for rape and more support for victims. As Baroness Newlove said in the other place, making misogyny a hate crime is simply about ensuring

“that the law is on the side of women”.—[Official Report, House of Lords, 17 January 2022; Vol. 817, c. 1379.]

The Lords listened to the Government’s arguments that the Law Commission had concerns that making misogyny a hate crime might complicate the prosecution of rape and sexual assaults. They then came back with Lords amendment 72B, which narrows the scope of the proposals significantly. It makes it an offence to harass or intimidate a person based on hostility to their sex or gender. That negates all the concerns of the Law Commission. The amendment also requires the Secretary of State to pass regulations within six months requiring police forces to record data on offences which fall under this section or which the victim reports as being motivated by misogyny. These are relatively straightforward steps that will increase public awareness, improve victims’ confidence in reporting, and enhance the way the police respond to violence against women.

The Government have rejected those simple and progressive reforms. In their place, they have tabled an amendment giving the Government 12 months to respond to the Law Commission’s report. Surely that is a statement of the obvious, in that one would expect the Government to formally respond to the Law Commission. The Opposition do not understand why the Government would reject a law making it an offence to harass or intimidate a person based on hostility to their sex or gender. And we certainly do not understand why the Government still have not asked police forces to gather the data.

On that point, perhaps the Minister could help to clarify something for us. During the passage of the Domestic Abuse Bill in March 2021, the Government committed to asking police forces “on an experimental basis” to record the data and said that they would shortly begin the consultation process with the National Police Chiefs’ Council. In the other place, Baroness Williams said:

“discussions with the police through the NPCC have been under way on this for some time.”—[Official Report, House of Lords, 22 March 2022; Vol. 820, c. 790.]

However, in a freedom of information response this month to my hon. Friend Stella Creasy, the NPCC says:

“a formal request to record has never been received to date.”

Can the Minister clarify if the Government have—if so, when they did—or have not formally requested, through the NPCC, that that data should be recorded? My concern is that, while I understand some of the arguments the Minister was making about the complexity of the data, some of the conversations have yet to actually begin.

We must be absolutely intolerant of misogyny in all its forms. The Government could choose to make that clear now by backing Lords amendment 72B. It is not a frisson of virtue, which is what the Minister described it as; it is a very clear and simple way to make sure the law works for women.

Turning to the third of the three issues we are debating this afternoon, the right to noisy protest, we stand at a significant moment in history following the Russian invasion of Ukraine. We were all humbled and deeply moved by the presence of President Zelensky on our screens in this place, showing us his country’s bravery in the face of tyranny. Last week, President Zelensky called on people across the world to take to the streets in the name of peace:

“Come from your offices, your homes, your schools and universities, come in the name of peace, come with Ukrainian symbols to support Ukraine, to support freedom, to support life.”

We saw brave Ukrainians protesting where there were horrific reports of Russian troops opening fire on the crowd, and brave Russians protesting in their country in their thousands on the streets, and being arrested and detained for standing their ground. We saw tens of thousands of people on the streets in London this weekend supporting Ukraine. But here we are again debating amendments that could criminalise singing the Ukrainian national anthem. Under the provisions in this Bill, protesters could be criminalised—[Interruption.] The Minister is heckling from a seated position—

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

Indeed the Minister can heckle me from a seated position, but it does not make him right. Under the provisions in this Bill, protesters could be criminalised if the police determine that they are too noisy. We have suggested amendments, and the Lords have done the same. Conservative Members have expressed significant disquiet at the timing of such a draconian intervention. Why on earth is the Home Secretary pushing ahead with plans to stop protests that make noise? The police have never asked for these provisions, and I doubt they would ever use them. The public did not ask for them, and Members from the Home Secretary’s own party did not call for them.

Photo of Geraint Davies Geraint Davies Labour, Swansea West

Does my hon. Friend agree that the measures give legitimacy to the secret police—or the open police—who are basically bundling up those in Moscow who protest against Putin’s brutal war? This is playing into the hands of Putin. Does she also agree that the proposals will effectively stop picketing as a legal and legitimate means of protest in trade disputes? It is despicable.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

I thank my hon. Friend for his intervention. At this significant historical moment when millions of people across the world are protesting against what is happening in Ukraine, we need, as mother of all Parliaments, to protect our right to protest.

The Minister said that we need to get the balance right, and of course that is true. There are laws already in place to manage protests to make sure they legitimately allow people to go about their business. We are talking tonight about protests being too noisy. [Interruption.] The Minister is heckling about the Labour amendments on harassment and intimidation outside schools and vaccination centres. That was about harassment and intimidation; it is not about noise.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

Perhaps the Minister wants to stand up and make another speech, but I will carry on. The Home Secretary is pushing amendments that the police do not want and did not ask for, and that the public do not want and did not ask for. Why are the Government so constantly out of step with public opinion?

Part 3 of the Bill targets protests for being too noisy. It provides a trigger for imposing conditions on public assemblies, public processions and one-person protests if a protest is too noisy. It includes vague terms such as “serious annoyance” or the subjective notion of being too noisy, which create a very low threshold for police-imposed conditions and essentially rule out entirely peaceful protests. Lord Coaker in the other place has read the Government’s definitions of “too noisy”. Double glazing is a threshold. If someone is organising a demonstration and they are going to be noisy, they need to find areas where buildings have double glazing. You could not make it up, Mr Deputy Speaker.

One person’s “too noisy” is another person’s “not loud enough”. Keeping these provisions on noise will invite all sorts of problems of interpretation for the police in trying to agree on what “too noisy” might mean. The Opposition want these provisions removed from the Bill. Lords amendment 73 removes the trigger on noise related to public processions; Lords amendment 87 removes the trigger on noise related to one-person protests; and we support the leave-out amendment 80 to remove the clause from the Bill altogether, as well as Lords amendment 80G, which accepts a definition of “serious disruption” being added to the Bill, but removes from it any mention of noise.

The Home Secretary and the Justice Secretary have made one small concession on noise by removing the term “serious unease” from a range of conditions under which police can restrict protest. I am glad that the Government have partially admitted that the term should never have made it on to the statute book. As Stuart C. McDonald has said, and as Liberty and others have pointed out, however, the drafting has unintended consequences. Now the police will be able to impose conditions on protests that they believe may cause persons to suffer “alarm or distress”. There no need for it even to be “serious” alarm or distress. We have a better solution, and a way for the Government to fix this legislative mess. All they have to do is support our amendments.

In the MPs’ offices in 1 Parliament Street that look over Whitehall and Parliament Square, MPs—including me and my right hon. Friend Yvette Cooper, the shadow Home Secretary—and their staff work with near-constant background noise coming from protests, be it loud music, singing or speeches. Of course it is annoying, and it can be very distracting, but that is the point of protests—to capture our attention, because they have something to say. I urge Members across this House to ask themselves tonight why they would vote for legislation that could criminalise singing in the street.

At this late stage of the Bill’s journey, we are debating specific amendments. Members all know that voting against the Government’s public order amendment tonight does not mean voting against other measures in the Bill or stopping it from passing. The time for that has come and gone. It would simply mean that Members do not want to vote through measures that restrict peaceful protest based on noise. When Members walk through the voting Lobby this evening, I hope they have the voices of those protesting for Ukraine ringing in their ears.

Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means) 7:30 pm, 28th March 2022

Order. I ask those wishing to catch my eye to stand. There are about five. I am going to impose a five-minute limit—not everybody is going to get in—and I want to leave five minutes for the Minister to respond at the end. As Members know, Divisions will take place at five to eight.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

Thank you, Mr Deputy Speaker. I will do my best within a five-minute limit. Normally, I have only just cleared my throat after minute four, but I will strive within the constraints you have placed on me.

I rise to speak to the Government’s proposed amendment in lieu of Lords amendment 72B, regarding a response to the Law Commission. I welcome it, and I think it is sensible to set out a timetable on which the Government will respond to those recommendations. To cut to the quick, I make no bones about the fact that I think we need to improve the law on street harassment. The current deficiency in the law on harassment and stalking is that it requires a course of conduct. That will not cover a whole range of crimes that are committed against women, in particular, on the streets of our country every day. I had hoped that we would be able to deal with the matter in the Bill, but I am realistic and I understand the constraints under which the Government work.

Of course, I respect the Law Commission, which is an excellent body. When I was Lord Chancellor, I helped to make sure that its funding was put on a more even keel. Its work is of a very high standard and we should be proud of it. I, for one, will not therefore seek to overturn the proposal, even if I do not quite agree with the answer. Having said that, and with respect to the Law Commission, I do not think its recommendation about a sexually motivated offence is the right answer; I think that would be to narrow it too much. I would be looking for an offence that was wider in definition and covered a variety of behaviours. It might include specific statutory reference to misogyny as a motivation or demonstration based on sex or gender, but that could equally be dealt with in sentencing guidelines.

I say that because when I looked again at the sentencing guidelines for intimidatory offences, I saw the word “sex” included as one of the factors determining culpability. That is a departure from previous guidelines that I have worked with. This guideline came in back in 2018, and I was not immediately familiar with it because I moved on from the role of Law Officer shortly thereafter. I was struck by the fact that we already have that important word in guidelines that the court has to take into account in sentencing. I ask my right hon. Friend the Minister to consider that matter in the round. It seems to me that because of those guidelines, police and prosecutors should already be working to gather evidence where there is a crime of intimidation, and where that aggravating factor may well be present.

I said in my intervention on my right hon. Friend the Minister that I regarded the undertaking that we made during proceedings on the Domestic Abuse Bill as a solemn one. I am, frankly, disappointed and impatient that we have not made the progress we should have done on reporting and collating this information. We need to get on with that, because we need that body and wealth of information well before the commencement or bringing into force of any new offence that particularly affects women and girls. I see no reason for excuses or shilly-shallying around this issue. I note in particular the amendment tabled by Stella Creasy about that. She has tailored it particularly carefully around that reporting right. I am prepared to give my right hon. Friend one last chance on this, but I will not be going any further, because I think that now is the time for us to get on with this, frankly.

I note that in the other place, my name was taken and referred to as if I was the architect of the amendments. It is no false modesty on my part to say I really was not, but I am grateful to the hon. Member for Walthamstow for the discussions we have had. She has always sought to be constructive. We are trying to find our way through this thicket to offer more protection for women and girls. Let us not beat around the bush: that is why we are all here and it is what we should be pressing the case upon. That is why our lordships rightly have asked us to think again.

I do not share my right hon. Friend the Minister’s cynicism about the Lords. They have an important role to play on issues such as this, where we have detail. Where I do have an issue is with the increasing practice in the other place of challenging the underlying philosophy of Bills, which I do not think is their role. On issues such as this, they have an important part to play. We have men and women there who speak with authority—certainly on this issue—and I am grateful to them for their careful consideration.

We are nearly there. We are now in the right area on harassment. I will be happy to give my right hon. Friend the leeway that he needs, but on reporting, the watchword has to be, “We need to get on with this, and soon.”

Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

I call the Front-Bench spokesperson for the Scottish National party, Stuart C. McDonald.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

The SNP remains totally opposed to the dreadfully drafted and totally excessive restrictions on protest contained in part 3 of the Bill, and we do so for all the many reasons that my hon. Friend Anne McLaughlin has set out in previous stages, so I can be relatively brief.

The truth is that the Government know they have comprehensively lost the arguments on this, so they are left reassuring us that the powers will not actually be used and that noisy protest will not be banned altogether, and providing a hotchpotch of examples, many of which would already be caught by existing public order provisions. The Minister even made reference to discos. While I would love there to be a fundamental right to disco, or whatever the modern terminology is, that is not remotely comparable to a protest and the fundamental right to protest.

We just cannot legislate in this way. We cannot hand over draconian powers on the basis that Home Office Ministers reassure us that they or the police will use these powers exceptionally, rather than ubiquitously. Any restriction on fundamental rights must be carefully justified, carefully set out and carefully circumscribed, but the protest provisions in the Bill are as far from careful as could be imagined. They remain vague, confusing, opaque and incredibly subjective, and they trigger police powers to intervene in protest at an unbelievably inappropriate and low level. They make it hard for people to understand what they might or might not be able to do.

For the reasons that the shadow Minister set out, the powers are verging on the absurd. We have seen Ministers being drawn into debates about whether the presence of double-glazing might impact on whether a protest could be subject to restrictions. Even this evening, we have been drawn into debate about next-door neighbours and whether a protest at the Russian embassy would be okay if the next-door neighbour was a bunch of officers, but might not be okay if it was an old folks’ home. That is the level of absurdity.

All of these powers are dreadful from the point of view of the rule of law, of human rights and of democracy itself. On the other hand, the powers might also prove to be a poisoned chalice for police forces, which will struggle to justify any of their decision making on objective grounds or to defend themselves against charges that they are being political in their decision making, and that will be true whether or not they actually use the powers.

As the shadow Minister said, it is welcome that the concept of serious unease is being removed, but the point I made to the Minister was not properly addressed. The expression in the Bill as it stands is

“serious unease, alarm or distress”.

The Government are not just taking out the word “unease”; they are taking out the word “serious” alongside it. That means that the threshold is not “serious” alarm or “serious” distress, but just “alarm or distress”. As I said in my intervention, the Home Secretary has made a concession on the one hand, but she is taking much more away with the other, and that point has not been answered in any way, shape or form.

Frankly, these provisions are beyond saving. They are a botched, rushed job, just so that the Home Secretary could say that she was doing something about certain protests that she did not like—no matter to her, it seems, that her legislation significantly impacts on the fundamental right to protest more generally. There is nothing left for it but to continue to insist that the whole lot comes out. The Government’s arguments have fallen to pieces, and I regard it as dreadful that they continue to try to bulldoze these provisions through Parliament. We will vote against the relevant Government motion to disagree, and I hope that the other place will continue to resist these utterly unjustifiable restrictions on the right to protest.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

I welcome the journey that the Minister is on, because a week ago he told us that he was not convinced and needed to see more evidence. A week later, he has obviously been doing some reading, because now he wants to have more conversations and go further, faster. This evening, we want to help him keep up with the rest of us who have been looking at how we can tackle violence against women and to see what can be done. I welcome the words of Sir Robert Buckland on that.

When toxic masculinity is on show at the Oscars, in our streets and in our homes, all of us want to tackle it and none of us wants to condone it. The challenge with the Minister’s argument is that it is still inconsistent. As he admitted last week, misogyny drives crimes against women, but he is also saying that he does not know what he can do to help it. He just cannot make up his mind. It is almost like he is gaslighting himself. He needs to clarify whether he thinks things can change, as the sentencing guidelines already say. In this country, we can already recognise where hostility towards someone’s sex drives crimes. Does he think that is a good or a bad thing, as the right hon. and learned Member for South Swindon said? The amendments before him from the Lords, and the amendment in lieu that I have tabled to try to help him find that compromise across both Houses, would tackle it.

Does the Minister think that the 17 police forces that are already doing this practice and that recognise—including the chief constables who have this said publicly—that it helps improve victim confidence and the data they have to tackle crimes, are doing the right thing? If he does not, surely he wants to stop them doing it, because it is wasting police time. Which is it? There are inconsistencies in his arguments.

The Minister talks about the Law Commission, and I am sure it is delighted to hear what he said, because this Government’s track record on the Law Commission is not very good. Since 2010, 17 Law Commission reviews have been accepted, but not implemented, and a further 16 have had no response at all. Of the 62 that have been done, only half of them have been implemented.

There is no argument here about making misogyny a hate crime, like it is some lump of plastic. This is about recognising, as the Minister did last week, where crimes are driven and what we can do about it, just as we have recognised where hatred of someone’s religion or racial background is driving crimes, and we have sent that message. His argument is about why that does not need to be statutory, but he is making an argument that it does need to be statutory, because a year ago this place was promised that that would happen. Pledges were made at the Dispatch Box.

Indeed, Ministers in the other place wrote to me to confirm those pledges. On 17 March 2021, the first commitment was made. On 8 July, we were told that the Home Office had met stakeholders to make it happen, and on 15 November, we were told there was a consultation. In the Minister’s letter to me, he said:

“You noted my commitment that the Home Office will ask the police to collect crimes of violence against the person” in this way, and he confirmed that the police data requirements group would be taking that forward and that the details would be rolled out in May to meet the timetable of autumn last year, yet it has not happened. That is clearly an argument for making sure that where this good policing practice is already happening, it is extended across the country so that women are not facing a policing lottery as to whether their police forces are doing it.

The argument the Minister is making is precisely why we need to put this matter on the statute book and back those chief constables and 17 police forces that are already doing it. It is why we need to say to the 673,000 women who, according to House of Commons Library figures, reported being a victim of a personal crime in the past year, but did not come forward to the police, that we will learn what we can do to make them feel safe. It is why we should learn from the other place and Baroness Newlove, Baroness Bertin and Lord Russell, and Baroness Kennedy and the Scottish report, that deeds, not words matter.

The Minister says he recognises that the other place is frustrated by the slow pace of change. He says he is looking for the evidence. I encourage him to look at the independent evaluation that shows very clearly that including misogyny in hate crime helps policing and helps women come forward. We have to stop blaming women for not coming forward for crimes or saying that somehow we understand why they are cautious, and we have to start looking at what works.

We also have to stop hiding behind the Law Commission, because yet another review is not the commitment to deeds that women in this country want. Finding that only certain crimes can be motivated by misogyny does not recognise disabled women being targeted for fraud or Muslim women being targeted for both Islamophobic and misogynistic attacks. The Minister knows that the other place will not wear this any longer, and neither will women in this country. I urge him to do the right thing and accept the amendment in lieu. Let us get on with making sure that every woman is protected from misogyny in this country.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Northern Ireland), Liberal Democrat Spokesperson (Cabinet Office) 7:45 pm, 28th March 2022

I will touch briefly on all three areas under debate this evening. On food crime, I am delighted that we have got to what seems a sensible, workable compromise. It tells something about the attitude of the Home Office and this Government in general to Parliament and the other place that for something as prosaic as this it has taken two rounds of ping-pong before the Government have been prepared to accept what was surely to the rest of the world blindingly obvious. I welcome the fact that we have got there nevertheless.

On the issue of misogyny, there is little I could add to the excellent contribution from Stella Creasy. I might have had some more sympathy 20 to 25 years ago for some of the arguments that the Minister advanced, but I have seen the way in which interaction with the criminal justice system has been transformed for so many different groups in our communities, in relation to racial aggravation, religious aggravation and the rest of it, and this measure is surely long overdue. A consultation, such as is being offered by the Minister, just does not cut it. If the Government were to have the courage of our convictions and to go ahead with an amendment such as the one tabled by the hon. Member for Walthamstow, they would be doing something transformative in the way in which the police interact with women and girls, and are seen by them.

On noise protest, it will not be lost on the House that when I asked the Minister about the test to be applied he said that he would come to it later, but then did not do so, as he did not have any meaningful answer. As things stand, it is incredibly widely drawn and it takes us back to what used to be the situation in Scotland, where we described a breach of the peace as, “Anything that two cops did not quite like to the look of”. Things have advanced somewhat since then, but the broad definitions we are being asked to accept tonight are a retrograde step. Tellingly, the only answer the Minister had was, “Well, we’ve got courts who will look at these things and define them.” It is the job of this place, Parliament, when we are passing legislation, to give proper definition; we should not be subcontracting that to the courts, especially not on something as important as the right to protest. If that degree of uncertainty is left hanging, it is not difficult to see that there will quickly come to be a chilling effect. When we are dealing with legislation governing the right to protest, definition—the right of the individual to know exactly where they stand in relation to the police and the courts—is crucial. That is why it would be irresponsible of this House to allow the Government to have their way. If I were a frontline police officer or prosecutor, I would see this as an absolute poisoned chalice and I would not want to have anything to do with it.

Photo of Geraint Davies Geraint Davies Labour, Swansea West

I have just come back from Lithuania. Hundreds of women have escaped to there, having lost their democracy as a result of Putin’s bombing and his oppressing his people at home. At the same time, we have a situation in Hong Kong where democracy is being taken away. Yet here we are taking away the right to peaceful protest, which has given us the suffragettes, climate change activists, peace campaigners and trade unions. This horrific bit of legislation will completely undermine the right of trade unionists to picket, at a difficult time in our economic evolution; it is purely terrible and it should not be brought forward. It is completely unnecessary, it will be very damaging to trade union relationships and it will drive protests underground, which, taken alongside the right for covert intelligence agents to act above the law, may lead to unintended consequences and will put the public at risk. Democracy and our public are at risk from this dreadful Bill, and it should be reversed as quickly as possible.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

It is traditional to express gratitude to Members for contributing to a debate, but after that nonsense, I am afraid that I cannot unequivocally offer that.

I welcome the support across the House for the amendments in lieu on food crime. I am afraid that amendment (c)—which was tabled by Stella Creasy—in lieu of Lords amendment 72B is unnecessary and misdirected, despite her attempts to patronise me. It is unnecessary because, as I said, the Government have already committed to collecting the data that is described and they have additionally committed to consulting on a new public sexual harassment offence before the summer recess. It is misdirected because the Government’s original amendment responds directly to a specific recommendation of the Law Commission. Furthermore, our commitment to consult on a public sexual harassment offence speaks to another Law Commission recommendation that we explore the merits of such an offence, as well as the significant attention to that issue in our previous debates. I take into account the entreaties from my right hon. and learned Friend Sir Robert Buckland to go faster and harder on this matter.

By contrast, the idea of contemplating that any additional new offence addresses

“intimidatory offences aggravated by sex or gender” is untethered to any particular rationale or proper discussion to date. In fact, I would go further in saying that we need to move away from the preoccupation with hate crime laws. I was struck by the words of Baroness Kennedy of The Shaws in the other place:

“Most men do not hate women, but somehow from boyhood they breathe in this sense of entitlement”.—[Official Report, House of Lords, 22 March 2022; Vol. 820, c. 797.]

However, Lords amendment 58B focuses not on addressing that entitlement, but on hostility—the legal test for hate crimes. The broader point by the Law Commission is that the concept is naturally unsuited to confronting the widespread and abhorrent behaviour most often directed against women and girls. Hate crime laws instead turn on those visceral occasions that befit the word “hatred”, such as a racial slur uttered during a crime.

The fact that hate crime legal models are poorly attuned to the sorts of behaviour that we want to tackle was put very well by Rape Crisis in the Law Commission’s report, which said of crimes against women and girls that

“these crimes are rooted in power and control, not hatred, making the gender/sex an ill-fitting protected characteristic in the hate crime framework.”

My hon. Friend Laura Farris made the same point in the last debate on this matter.

The point is that we need to think carefully about the right model for the particular problem that we want to address. An entirely bespoke solution, which addresses the root drivers of this behaviour, is more likely to succeed. The alternative, as proposed in Lords amendment 58B, is an offence that is poorly targeted and consequently never used, so let us now do the proper groundwork—I give an undertaking that we will do that—in identifying the right legal solution to the particular nature of these crimes. I hope that all Opposition Members will contribute to the consultation that we have committed to introducing before the recess. We are already exploring whether a public sexual harassment offence is that solution, and that is what the Law Commission also spoke about.

On the Lords amendments relating to public order, we have heard yet again the ridiculously misconceived claims that are peddled about these amendments. The Public Order Act has always sought to balance the right to peaceful protest with the rights of others to go about their daily lives. All we are doing is a modest updating of a legal framework that is more than 35 years old—I thought that would have been supported by the party who banned any protest within a kilometre and a half of Parliament—and does not reflect the realities of policing protests in the third decade of the 21st century.

To suggest that any amount of noise and disruption is acceptable is saying to the British public, adversely affected by a protest, that their rights do not matter and that they should just put up with it. Their rights do matter. Of course, we must accept that protests can be disruptive and cause inconvenience, but a line must be drawn somewhere, and the provisions in the Bill simply enable the police to draw that line where it becomes necessary and proportionate to place restrictions on a protest to protect the rights of others.

It is more than a year since the Bill was introduced. It has been thoroughly debated and scrutinised by both Houses. The unelected and, as I said, partially hereditary House has exercised its right to ask us to consider certain matters again. We have done so once already. We should again send these amendments back to the Lords, and that House should now accept the will of this democratically elected House and let the Bill pass.

Question put, That this House insists on its disagreement with the Lords in their amendment 58 and proposes amendments (a) to (c) in lieu.

A Division was called.

Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

There do not appear to be any Tellers, so I am calling the Division off.

Question agreed to.

One hour having elapsed since the commencement of proceedings on the Lords message, the proceedings were interrupted (Order, 28 February).

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).