Amendment 298

Police, Crime, Sentencing and Courts Bill - Committee (11th Day) – in the House of Lords at 10:45 pm on 24th November 2021.

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Lord Beith:

Moved by Lord Beith

298: Clause 55, page 47, line 33, leave out subsection (4)Member’s explanatory statementThis is based on a DPRRC recommendation. It removes the ability of the Secretary of State to make regulations defining “serious disruption to the activities of an organisation” and “serious disruption to the life of the community”, thereby requiring these terms to be defined on the face of the Bill.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, this is a simple and straightforward amendment implementing the wishes of our Delegated Powers and Regulatory Reform Committee. It deals with the “serious disruption to … an organisation” and “serious disruption to the life of the community” provisions, which, instead of being set out in the Bill, are to be the subject of a statutory instrument, a draft of which, or parts of which, have already been circulated by the Government.

The Delegated Powers and Regulatory Reform Committee was quite clear that the affirmative procedure for a statutory instrument is wholly inadequate to anything as important and fundamental as this. An affirmative statutory instrument, being unamendable and debated only once in each House, was not in its view adequate. It considered that the definitions of the expressions in question should be added to the Bill to give Parliament the opportunity fully to debate them. It said:

“We consider that the definitions of the expressions ‘serious disruption to the activities of an organisation’ and ‘serious disruption to the life of the community’ are of such significance that they merit the fuller scrutiny afforded to Bill provisions and should therefore appear on the face of the Bill.”

It is not clear to me that it was necessary to have got into this territory at all. There is a complex potential conflict with ECHR provisions which will probably lead to the matter being resolved in the courts in any event. For us to allow Ministers to proceed by statutory instrument on a matter which could have such a profound effect on how these provisions operate in practice does not seem wise. I therefore strongly support the views of the Delegated Powers Committee and believe that either the Government should go ahead and include these provisions in the Bill or they should take this element out altogether.

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers

My Lords, we have not had time yet for all of us to read the report from the Secondary Legislation Scrutiny Committee or, for that matter, that of the Delegated Powers and Regulatory Reform Committee, whose paper is entitled Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. I have read that, but I did not get round to the first.

We have to support our committees—that is why we have them; they are cross party. This is a tiny amendment of significance. The amendment does not propose any interference with the power to address the problem of serious disruption. It is not intended to address that. The submission is that the way in which the legislation is drafted, in Clause 55(4) and Clause 56(6), is completely unnecessary to enable justice to be done in whichever way the Government think it is appropriate for justice to be done.

Secondly—this is a bit naughty of me—I think the provision reflects a growing constitutional wheeze, what I call the “blank cheque wheeze”. It is this: the Executive tell the legislature to please legislate, and the legislature legislates—and, when it legislates, the Executive then tell the legislature what the legislation means. That is a blank cheque that we are being asked to give in these clauses.

As to the words, I know that it is quite late at night and so I shall be short, but do any of us here not understand two simple English words—“severe disruption”? I mean, come on, even the lawyers among us cannot think of a lot of differences. “Severe”, “serious”—get out your thesaurus. They are simple English words, and the two words put together make a perfectly clear picture of what is being addressed and sought to be protected.

This is unnecessary and a wheeze. We really must not allow the Executive to start treating this way of legislating—called in more elegant terms tertiary legislation —by saying, “We’ll tell you what it means when we get around to it”. The Secretary of State has started to tell us what it means. The place where we should be told what it means, if it does not mean what it says—and I think that it does mean what it says—is in a definition clause within the primary legislation.

Photo of Lord Hope of Craighead Lord Hope of Craighead Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords), Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords)

My Lords, I put my name to Amendment 308 in the name of my noble and learned friend Lord Judge and shall say a few words in support of what he has just said. It was quite clear from the reply by the Minister to the previous group that these words, “serious disruption”, are the key to the proportionality of the clauses that we are considering. They are absolutely central to the whole proportionality of the scheme. Of course, if something does not amount to a serious disruption, the police take no action; if it does amount to that, within the ordinary meaning of the word, the police have authority to do so.

I mention that because, while I support entirely what my noble and learned friend has just said, there is an element of risk here, which I think the noble Lord, Lord Rosser, hinted at in his comments in the last group. It is the risk of lowering the threshold. Why else is the power being taken? If it is not in the present Home Secretary’s mind to lower the threshold, the risk is there. It is for that reason that I suggest there is a risk here that should be avoided.

There is also the point about the clarity of the legislation. One element of the rule of law is that the law should be accessible, and the more you attempt to define words by regulation and not in primary legislation, the more inaccessible the true meaning of the words becomes. It is not a way to go down—it is unnecessary, as my noble and learned friend said—and I hope very much that the Government do not proceed with this scheme.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

The noble and learned Lord is exactly right about this constitutional problem, but there is a further point to be made. In this context, it is not just the usual problem of allegedly unclear legislation that is then going to be sorted out by regulation later, and the relationship between the Executive and the legislature not as it should be. It is also in danger of interfering with police operational independence. To be explicit about this, my fear is that the police will take whatever view they take of what this legislation means in certain circumstances and do their best—and if a Home Secretary of the day, even well into the future, thinks that the police are being too lenient towards protesters, or perhaps there is a commotion in the media, regulations will be used further to define what “serious” and “disruption” mean so as to mandate the police effectively to be more heavy-handed than the natural meaning of the words would suggest.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, I can be relatively brief. Do not worry—it is a temporary blip.

Amendments 298, 308 and 319 question “serious disruption” being decided by the Secretary of State rather than being either defined in the Bill, as my noble friend Lord Beith proposes, or simply left to its natural meaning, as the noble and learned Lord, Lord Judge, suggests in his Amendment 308.

In the debate on the previous group, the noble Lord, Lord Rosser, quoted what the former Prime Minister and Home Secretary Theresa May said during Second Reading in the other place. The full quote is actually slightly longer than what the noble Lord quoted:

“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable … I would urge the Government to consider carefully the need to walk a fine line between being popular and populist. Our freedoms depend on it.”—[Official Report, Commons, 15/3/21; col. 78.]

Along with the right honourable Theresa May MP, we support these amendments.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords) 11:00 pm, 24th November 2021

My Lords, I very much support the amendments tabled here and the comments by the noble Lords, Lord Paddick and Lord Beith, the noble and learned Lords, Lord Judge and Lord Hope, and my noble friend Lady Chakrabarti.

I want to say a little more on the next group of amendments, so I will be quite specific with respect to this group. The example is used of the meaning of “serious disruption” and defining that in the Bill, but this is a problem right the way through Part 3. A number of terms are left either to future regulations or to the discretion of the police.

I will quote not the Delegated Powers and Regulatory Reform Committee but the Joint Committee on Human Rights, because I want to point out to the Committee the Government’s response, which points to a very real problem as we discuss the Bill. The Joint Committee on Human Rights says:

“Using multiple terms that are open to wide interpretation, such as ‘intensity’ and ‘serious unease’”— okay, it does not say “serious disruption”—

“leaves an excessive degree of judgment in the hands of a police officer. This is likely to prove challenging to the police, who already have significant responsibility for ensuring that demonstrations are lawful and safe. It will also give rise to uncertainty for those organising and participating in demonstrations and fails to provide convincing safeguards against arbitrary or discriminatory use of these powers.”

Surely that is why the noble Lord, Lord Beith, and the others who have spoken are trying to give some clarity—I think that was the word that the noble and learned Lord, Lord Hope, used—to the legislation, so that the police and others know exactly what the legislation says they can or cannot do. More importantly, this Parliament is legislating for what it thinks is appropriate.

I have to say to the Minister—I do not know whether it is the noble Baroness or the noble Lord responding—that I was very disappointed in the response from the Government last month, before this Committee has discussed and thought about these amendments and listened to the arguments. Bear in mind that the Joint Committee on Human Rights referred to

“multiple terms that are open to wide interpretation”, so, whatever anybody’s view, there are numerous phrases that people are concerned about. The Government’s response before this Committee met today was: “We reject this entirely.” That is the first sentence of the Government’s response.

Before the debate has happened and any points have been made on amendments tabled by the noble Lords, Lord Beith and Lord Paddick, the noble and learned Lord, Lord Hope, and my noble friend Lady Chakrabarti, the Government have rejected it all. What is the point of debates, discussions, arguments, clashes of views and opinions and well-meant and well-intentioned differences if, before we have even discussed it, the Government do not believe that using multiple terms presents a problem and are rejecting that view? It is not a case of “we will consider this”.

I have been a Minister and the normal ministerial response is, “We’re considering this. Some good points have been made and we need to consider how this is best reflected as we take this forward”. You would certainly have said that before a debate or discussion. This is the Government’s own response to the JCHR report that says that using multiple terms is open to wide interpretation.

The concern of the noble Lord, Lord Beith, is that “serious disruption” should be in the Bill. The Government have already rejected it. There is no listening to the debate: “We reject this entirely.” Those are the first four words—unbelievable. I will not say any more than that, because this speaks for itself, but I would like to know from the noble Baroness the Minister, if she is replying, what the point is of us debating these amendments, even if the Government disagree. There is well-put, well-intentioned and sometimes brilliant analysis of some points, but the Government have already rejected it in response to a committee report that says there is a problem with using multiple terms. It is just unbelievable.

They are an elected Government in the other place, and they will get their way. This is a revising Chamber, the purpose of which is to suggest to the Government where they might improve the legislation, even if we do not agree with it. If the Government have rejected this before we have even discussed it, what is the point? “We reject this entirely.” I am speechless about it, to be honest.

In responding to this debate, can the Minister explain who signed that off? Which Minister signed it off? I presume, if I am being fair, that it was missed. But it is a hell of a thing to miss before a debate in Committee, where the use of multiple terms such as “serious disruption”, “alarm” and “distress” concerns us all. Even if the Bill passes, we need some clarity around those terms. I will leave it there. I have more to say on the other groups of amendments, but I very much support what all noble Lords, and my noble friend Lady Chakrabarti, said about this and look forward to the Minister’s response.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I have listened to the noble Lord loud and clear. Governments are urged to respond to Select Committee reports within two months, and only last week the noble Lord, Lord Faulkner, was pressing for the response to the DPRRC. I will say two things, and I will be brief, in response to the noble Lord, Lord Beith, and the two noble and learned Lords.

The Government are considering the DPRRC’s recommendation to list the definitions in the Bill, and I have listened to the points made loud and clear by the noble and learned Lords, Lord Judge and Lord Hope, and will consider them and the strength of their views. I assure noble Lords that we will publish our response to the DPRRC report very soon. With that, I hope the noble Lord, Lord Beith, will withdraw his amendment.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, much as I would welcome publication of the response, what matters is what it contains and whether, even at this stage, the Minister recognises that it is still possible and well within the Government’s capacity to make an appropriate amendment on Report. I am not asking her to make a commitment to that effect, because she has obviously not been given the authority to do that, but we clearly have to return to this. I hope that we can do so on the basis of the Government recognising the point made by the Committee.

This is the trigger that allows police involvement in setting quite challenging conditions regarding protest and noise, which worry us a great deal. This is the key trigger, so for it not to be clear in the Bill or used in the sense in which people normally use it and understand it in courts is to imperil one of the key operating features of the Government’s proposals. I am not in the least enthusiastic about the Government’s proposals, but I think they should be coherent and capable of working. For that to happen, the Minister needs to look at this carefully. We will await what she brings forward on Report with interest. I beg leave to withdraw the amendment.

Amendment 298 withdrawn.

Clause 55 agreed.

Clause 56: Imposing conditions on public assemblies

Amendments 299 to 308 not moved.

Clause 56 agreed.

Clause 57: Offences under sections 12 and 14 of the Public Order Act 1986

Amendments 309 to 313 not moved.

Clause 57 agreed.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

No. It is a clause stand part. I paused slightly, but if nobody wishes to speak to it—

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

Clause 58 stands on its own to be either agreed or not agreed. I think perhaps the noble Lord wishes to speak to an amendment. No?

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

Okay, but I think I need to put Clause 58 to the Committee now. The question is—

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

I am sorry. On the Order Paper, it looks as though Clause 58 stand part is the lead amendment. Then there is a series of other amendments and clauses with it.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

Yes, but I must put the question first. The question is that Clause 58 stand part of the Bill.

Debate on whether Clause 58 should stand part of the Bill.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

I did actually pause originally, but nobody spoke.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

I am not used to standing up and speaking. If I was in the other place, I would have shouted out.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

Clearly. That is the problem. No, I am glad that we do not. It is sometimes a bit off-putting when there is a nobody shouting at me when I speak, but there we go.

The serious point I want to make is this. Obviously, we have come to Clauses 58 and 59, which relate to various changes to the law with respect to demonstrations outside Parliament. I want to make a general point, because I have not done that already. Some really fascinating points have been made about public protests: the right to protest and the need to balance that with people’s right to be able to go about their lawful business. Clause 58, headed “Obstruction of vehicular access to Parliament”, extends the area, while Clause 59 is headed “Power to specify other areas as controlled areas” and Clause 60 is headed “Intentionally or recklessly causing public nuisance”.

On Clauses 58 and 59, I think it was my noble friend Lord Dubs who made the point that many of us, including me, may well have not been able to protest if this law had been there. I am old enough to remember coming here, during a formative time for me as a local councillor in Cotgrave, which was a Nottinghamshire pit village, to demonstrate about pit closures, both in the mid-1980s, in and around the miners’ strike, and at the beginning of the 1990s, when the pit closure programme happened.

Those demonstrations around Parliament were part of the democratic right of the country to protest about what the Government were doing. It did not matter that it was a Conservative Government, because the protest was joined by people from all over the country who thought that the Government were wrong. As a result of that demonstration, the noble Lord, Lord Heseltine, as he is now—Michael Heseltine MP, as he was then—changed what the Government were doing. In particular, if I remember my own pit village in Cotgrave—obviously the colliery is long gone now—it was not only the fact that the mine was closing that people objected to, and there was a debate about that; it was the fact that people felt that their communities were being abandoned and that no proper support was being given.

We came to Parliament to put that point of view and there were thousands upon thousands of people from all over the country demonstrating. I do not know how—the noble Lord, Lord Paddick, is here; maybe he does—the police would have allowed that to take place in a way that is consistent with the legislation which this Committee is about to pass. There were so many people here. There was no violence, but there were lots of placards, there was lots of shouting, lots of fun, people dancing et cetera, and children galore, holding balloons and goodness knows what. It was like a jamboree as much as a demonstration, but it really made the point. Is that something we would want the legislation to stop? I am not sure that every Member of Parliament or Peer who wanted to get access to Parliament on that day would have been able to.

I am not saying that it is easy. I think it was the noble Baroness, Lady Fox, who said about the amendment I moved earlier that your support for a protest depends on whether you support what people are protesting about. If you agree with it, you tend not to mind the disruption. If you do not, you think the disruption is an outrage, and the police are caught in the middle of that. It is tricky, but I just wanted to make that general point.

I will tell you what I think. I think that the Government, in the face of pressure from wherever, have decided that they have to do something; that everything is out of control and a disaster, and the country is going to rack and ruin: “If we don’t do something, goodness only knows what the consequences will be”. Some of what I see irritates me, but you have to be really careful, and I wonder whether, in their desire to show that they are doing something about Extinction Rebellion, or others like that, the Government are moving the pendulum too far in favour of restricting the right to protest.

The Government will say that they are not doing that, and that is the debate that is taking place. Numerous noble Lords have made various points, and we will have to decide on that. But I tell you this: that clash of views about where the swing of the pendulum should stop will be much more balanced with the clash of views that is taking place in this Chamber and elsewhere. That is the key debate that is taking place; it is over where the pendulum should stop when it is swinging. I do not think that some of the demonstrations that I have been on, which commanded huge public support, would be allowed under the terms of this Bill. I wonder whether that is really what noble Lords in this Chamber would want.

I do not know the experience of people across the Chamber. I will not go on too much, given the time, but, for example, sometimes I read in the paper that people are outraged by protests happening. But then, in their local area, there are some well-loved trees that are to be chopped down to make way for a road and people rally around those trees and everybody says that it is a really good thing to save the trees. Under the process in the Bill, they may well have broken the law. We must be careful with this and similar measures.

Clauses 58 and 59 in part respond to previous recommendations from the JCHR to ensure that democratic institutions are protected, including the right of people with business here to access the parliamentary estate. The clauses do not follow the JCHR’s recommendations to put a specific statutory duty on police to protect access to Parliament. Instead, the Government have opted to make obstructing the access of vehicles to Parliament a prohibited activity and to expand the controlled area.

In response to the Government’s proposals, the JCHR said that protecting access to Parliament

“does not mean there should be an outright ban on protest in the area. Instead the police should balance the rights of protesters against the need to ensure the effective functioning of democratic institutions … To ensure the rights of protesters, the police should use the new power regarding vehicles only when necessary to ensure access to and from the Parliamentary estate, rather than to impose general restrictions on protests in the vicinity of Parliament.”

What safeguards will be in place on the use of this power to ensure that it is used to protect access to Parliament but not to prevent protest? This is the heart of government and people should be able to protest. I am proud of the fact that, outside the legislature of our country, people can come from all parts of the country to protest. I know that it is a pain. I have not been that pleased when I have had to go about three bridges down the River Thames, or whatever, but, once you get over the initial anger, you sometimes think that it is good that that can happen. We are a great democracy, a proud country, and we talk about other countries and say, “Look at what is happening there: it is a disgrace. They cannot even protest.” I am not suggesting for one minute that we are an authoritarian country—do not get me wrong—but sometimes inconvenience and disruption may be the small price that you pay for democratic rights to protest. Again, it comes back to a question of balance, so I ask the Minister about safeguards.

The Explanatory Notes state:

“Clause 60 gives effect to recommendations made by the Law Commission … that the common law offence of public nuisance should be replaced by a statutory offence”.

However, as raised by the Bar Council and the JCHR, the Law Commission’s report specifically did not include protests and raised freedom of assembly as an instance in which behaviour would not be unlawful. The JCHR has raised a number of concerns about the clause and I look forward to hearing from my noble friend Lord Dubs on his amendments in this group.

I finish on the lack of clarity on what the clause is trying to achieve and in what situations it will apply. We all want to know about the seeming contradiction between what the Law Commission has said and the way in which the Government have used it to justify the change in Clause 60 and what the Bar Council says about it. I appreciate the balance that the Government are trying to strike, but we need to hear a little more from them about the new restrictions in Clauses 58 and 59, the various amendments to do with Clause 60 and how the right to protest, particularly at the seat of government, will be protected in a way that will preserve the democratic freedoms of this country, which we have all respected in the past and should be a source of pride for us.

Photo of Lord Dubs Lord Dubs Labour 11:15 pm, 24th November 2021

My Lords, I support what my noble friend Lord Coaker has just said, but perhaps I may say a brief word about Amendments 315 and 316. They are there to improve the drafting of the offence to make it clear, first, that it is committed only when serious harm is done to the public, rather than to any one person, which is what the Bill’s wording is now, and, secondly, that when considering the reasonable excuse that the defence supplies, the court should take into account the importance of the rights guaranteed by Articles 10 and 11 of the ECHR. In other words, put simply, it is not about any one person but the public, and the courts should look at Articles 10 and 11 when coming to any decision about whether an offence has been committed.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, for me, this is getting like election night. Any politician in the room will tell you that it is when you are really tired but you are so wired that you cannot possibly sleep anyway.

I have signed three of these amendments but I wanted to speak mainly to Amendment 315A. I am concerned about this whole part of the Bill, because it is far too broad and risks criminalising a host of innocent behaviour. We heard earlier about the right to move around. Today, I was stopped by the police outside and could not go for nearly 250 yards on the pavement because a band was going through. I love an Army brass band—it is absolutely fine—so I joined the crowds on the other side of the road who were all pushing and shoving. We often take away the right to move around, sometimes for good causes. I would argue that protest is a good cause.

As regards stopping traffic, let us remember that traffic jams cost us billions of pounds every year and millions of people are inconvenienced, with long times added to their journeys to work—working people who are delayed by traffic jams. This morning outside the Marlin Hotel on Westminster Bridge Road, three Mercedes were parked in the bus lane. The buses had to go around them, slowing all the traffic. What are the Government doing about that sort of thing? I contacted the police and sent them the registration numbers, so let us hope that they were caught.

The definitions in the Bill of serious harm are a mess because serious annoyance cannot be a crime—it is too difficult to define. You cannot put people in jail for just being annoying. I am sure that sometimes we would all like to, but you cannot do it. I am particularly worried, after the way in which Covid was policed early on, about the inclusion of disease in the new public nuisance offence. At the start of Covid—and possibly all the way through—every prosecution was wrongful. That was partly because—and I will be generous to the Government for once—the Government were confused and blurred the lines between law, guidance, advice and so on. As I have said before in your Lordships’ House, it was hard for the police because they did not know what they should be doing and became a bit overzealous. That may have been well intentioned but it was not appropriate. There were wrongful prosecutions and convictions as a result. Let us be a bit more careful about the definitions in the Bill, because I think that they will cause more problems.

We are all boasting about our qualifications for going on demonstrations and that sort of thing. My first demo was in 1968 for CND, of which I am still a member, and we are still fighting nuclear weapons—but that is another issue. I argue that the Government are taking chaos and ambiguity to new heights and I urge them not to allow the dangerous and confusing language in the Bill to go through because it is certain to lead to injustice.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 11:30 pm, 24th November 2021

My Lords, as we have heard, this group contains two completely different issues: protection of the routes around Parliament and potential places where Parliament may sit while renovation work is undertaken; and the new statutory offence of public nuisance. How putting these two issues into one group is supposed to save time, I have no idea.

Clause 58 is about the obstruction of vehicular access to Parliament. Noble Lords, particularly those with mobility issues, have had difficulty accessing Parliament, particularly during Extinction Rebellion demonstrations, although I would not describe the Prime Minister being hindered from attending Prime Minister’s Questions in September 2020 as someone with mobility issues, unless you are talking about levelling up. It is a bit late for subtle jokes like that.

These provisions go much further. They expand obstruction to include

“making the passage of a vehicle more difficult.”

Presumably, any delay caused, even slow-moving traffic, would be covered by such an offence, and this could potentially criminalise any protest within the expanded controlled zone outlined in these proposals. Protests that have resulted in Members of Parliament being prevented from accessing Parliament have been few and far between, which suggests that the existing provisions are adequate. Clause 58 is unnecessary.

Clause 59 allows the Secretary of State to move the controlled area in the event of either House of Parliament being relocated because of building works under the restoration and renewal programme. This enables the Secretary of State to impose restrictions on protest to whatever area she thinks fit, however wide, by regulations. Parliament has no chance to question or vary the extent of the controlled area; it must either accept or reject the proposal made by the Secretary of State. The clause also gives the Secretary of State power to

“make provision for any other enactment, or any instrument made under an enactment, to have effect with modifications in consequence of regulations” under this provision. This is too much power given in regulations to the Secretary of State, who could effectively ban protest almost anywhere within a wide area around any place where Parliament may be relocated to. Clause 59 is too broad and should not stand part of the Bill in its current form.

Parliament is at the heart of democracy in this country, but what about other institutions and organisations that are also important to the democratic process? What about news broadcasters or print journalists who hold politicians generally, and the Government in particular, to account? Where is the protection from protests aimed at disrupting a free media, such as the blockading or invading of television news and radio studios and newspaper printworks? This looks very much like protecting the Government and Government Ministers while doing nothing to protect those who hold the Government and Government Ministers to account.

Clause 60 creates a new statutory offence of public nuisance, as recommended by the Law Commission, but the provision appears to be far too wide and could potentially impact on all protests. Liberty’s briefing quotes Lord Justice Laws, who said in the case of Tabernacle v the Secretary of State for Defence in 2009:

“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.”

If someone is seriously annoyed or inconvenienced, or is put at risk of being seriously annoyed or inconvenienced, by someone doing something, that person commits an offence if they intend to seriously annoy or inconvenience the public or a section of the public.

Almost every protest could be criminalised by this provision, and not just public protests on the streets, as the noble Lord, Lord Coaker, has said. Are the Government a “section of the public”? If they are, take me away now. As a minority party in this House, we are, very often, unable to change what the Government plan to do, but we can seriously annoy the Government by pointing out the error of their ways and by holding them to account for their actions. Even if we do not have the intention of doing the Government serious harm—maybe—we may be at least reckless as to what harm it causes. Are we too to be criminalised by this provision, however much some noble Lords might like us to be?

The Government will point to the “reasonable excuse” defence contained in the provisions, but that applies only once a person has been charged with an offence under these provisions. The provisions do not say that a person commits an offence if, without reasonable excuse, the person does an act. Therefore, the police would be justified in arresting and charging people who believed that they had a reasonable excuse because the reasonable excuse provision applies only once a person has been charged.

We oppose in its entirety this provision as drafted, but we have Amendment 314, which removes the obstruction of

“a section of the public in their exercise of a right that may be exercised or enjoyed by the public at large” from these provisions, to at least narrow the extent of this proposed new offence. A counterdemonstration against a far-right group, for example, would be caught by the provisions of this new offence as drafted, but not as we suggest that it should be amended. We support Amendment 315, as far as it goes, in attempting to ensure that the serious harm applies not just to one person but must be caused to the public, further limiting the extent of the offence.

We also support Amendment 315A tabled by the noble Baroness, Lady Morrissey, to leave out serious harm to a person if, as a result, the person suffers disease. As the noble Baroness, Lady Jones of Moulsecoomb, has said, we saw during the coronavirus pandemic, particularly with the attempt the ban the vigil for Sarah Everard on Clapham Common, restrictions on protest on public health grounds. That is why the police intervened in the Sarah Everard vigil. They felt that there was a public health risk. Although the provisions under which the Sarah Everard vigil was done have been repealed, this appears to be an attempt to reintroduce them. As drafted, it matters not whether the protesters intend to spread disease. They must only be reckless as to whether it would have such a consequence.

We also support Amendment 316—again, as far as it goes—but we would prefer there to be a reasonable excuse provision added to the offence itself, as I have said before, rather than protesters, for example, having to raise their reasonable excuse in court. People such as protesters, who have a reasonable excuse, should not be arrested in the first place. They should not be charged, and they should not have to appear in court. With respect to the noble and learned Lord, Lord Etherton, I am sure that his amendment is right, but I am not sure that it is necessary. However, I am sure that the Minister will enlighten us.

This clause needs to be withdrawn and thought through again.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I am grateful to all noble Lords who have spoken in this debate on Clauses 58 to 60. These three clauses will help ensure unimpeded vehicular access to Parliament and implement the Law Commission’s recommendation to codify in statute the common-law offence of public nuisance.

The noble Lord, Lord Coaker, mentioned pressure from “wherever” regarding Clause 58. In fact, the clause gives effect to a recommendation by the Joint Committee on Human Rights, of which Harriet Harman is chair, to protect the right of access to the Parliamentary Estate for those with business there, including, of course, Members of your Lordships’ House. The clause amends the Police Reform and Social Responsibility Act 2011 to allow a police officer to direct an individual to cease, or not begin, obstructing vehicular access to the Parliamentary Estate. If a person does not comply with a direction, they will be committing an offence and may be arrested. Currently, parliamentarians and others conducting business in the Palace can face delays in entering and leaving Parliament via vehicular entrances, both impeding the functioning of our democracy and creating a security risk, with vehicles held stationary while police clear the way.

I should stress at this point that this power does not stop people protesting in the vicinity of the Palace of Westminster. Those who want to protest outside Parliament can continue to do so but, if asked by a police officer, must allow the passage of vehicles through the Palace’s gates or face the consequences.

Should Parliament need to relocate for any reason, such as the ongoing restoration and renewal works, Clause 59 provides the Home Secretary with the power to designate a new controlled area around Parliament’s new temporary location. This would ensure that the protections afforded by the Police Reform and Social Responsibility Act 2011, as amended by this Bill, applied wherever Parliament relocated to.

Clause 60 implements the Law Commission’s recommendation that the common-law offence of public nuisance should be codified in statute. We heard last week calls for the Government to be more diligent in implementing Law Commission recommendations, so I hope noble Lords will support and welcome this measure. Putting the long-standing common-law offence of public nuisance into statute will provide clarity to the police and potential offenders, giving clear notice of what conduct is forbidden.

We have followed the Law Commission’s recommendation as closely as possible. In doing so, we are narrowing the scope of the existing common-law offence. That is being achieved by retaining the use of the terms “distress”, “annoyance”, “inconvenience” and “loss of amenity” within scope of the offence but by requiring that these harms be “serious”. We are also increasing the fault element of the offence. Currently, a person would be guilty through negligence; under the new offence, that is raised to intent or recklessness. Finally, we have made it a defence for a person to prove that they had a reasonable excuse for their act or omission that caused a public nuisance.

The Law Commission’s report stated that as the offence is intended to address serious cases for which other offences are not adequate, if a maximum sentence is set then it should be high enough to cover these cases. We have therefore set the maximum custodial sentence at 10 years. It is worth noting that that is lower than the current unlimited maximum sentence available under the common-law offence.

I turn to the amendments tabled to Clause 60, beginning with Amendment 314 in the name of the noble Lord, Lord Paddick. As the clause is currently drafted, the offence is committed if a person’s act or omission causes serious harm to the public or a section of the public, or obstructs the public in the exercise or enjoyment of their rights. The amendment would limit the scope of the offence to only where serious harm is caused to the public. That would significantly narrow the scope of the offence. Most forms of public nuisance will, by their nature, impact on only a section of the public rather than the public generally.

However, I believe it is right that the offence be committed if it affects a section of the public. It is a fundamental part of the common-law offence of public nuisance that not every member of the public need be affected but a section of the public must be. Similarly, the offence should include where the rights of the public are infringed; the Law Commission concluded it is right to do so. For example, the effect of excessive and persistent noise or the release of a foul-smelling substance or gas in a public place may affect only a small number of local residents but potentially affects any member of the public who enters the relevant area.

Amendment 315 flows from a JCHR recommendation that aims to clarify that this offence is not committed if serious harm is caused to a person. That would be achieved by removing the word “person” from the definition of “serious harm”. I understand that the noble Lord is trying to clear up ambiguity as to whether an offence of public nuisance can be committed to a person, but I remain to be persuaded that the amendment is strictly necessary. Subsection (1) of the clause already sets out that the offence of public nuisance can be committed only against the public or a section of the public, with the references to persons in the definition of “serious harm” being an interpretive provision that does not affect the scope of the offence. That said, I am ready to consider this point further ahead of the next stage.

The amendment would also raise the threshold at which the offence is committed where an individual put the public at risk of serious harm. The amendment would raise that to “serious” risk of serious harm. We have followed the Law Commission’s recommendations in setting the scope of the offence and the thresholds at which it will be committed. The commission conducted a rigorous consultation on the offence, and it is right that, in this instance, we follow the recommendations set out in the report.

Amendment 315A is in the name of my noble friend Lady Morrissey. It would remove causing disease from the definition of “serious harm”. The harm of causing disease sits alongside causing death and personal injury to the public or a section of the public as an injury in scope of the offence. Again, we have followed the Law Commission’s advice. It is only right that, if someone can be guilty of public nuisance by causing or risking death or injury to the public, they can also be guilty should they endanger the public by exposing them to a highly contagious disease. Although thankfully not a threat we face today, in 1815 a woman was convicted of the common-law offence after she carried her smallpox-infected child through a public highway.

Amendment 316 seeks to give effect to another JCHR recommendation. It would add a provision to ensure that the right to protest is considered when determining if a defendant has a reasonable excuse for their act or omission which led to a charge of public nuisance. As we have stated in our response to the JCHR’s report, the Human Rights Act 1998 already provides that public authorities must not act in a way that is incompatible with any European convention right. Courts must consider defendants’ convention rights; therefore, this amendment is unnecessary as it provides no further protections than those already granted under the Human Rights Act.

Finally, I turn to Amendment 317 in the name of the noble and learned Lord, Lord Etherton, which I understand is to highlight the difference between this new criminal offence of public nuisance and the tort of public nuisance. The existing common-law tort of public nuisance will continue to exist. Subsection (8)(b) provides that the clause does not affect the civil liability of any person for an act or omission which constitutes public nuisance and subsection (8)(c) clarifies that the clause does not affect the ability to take action under any enactment against a person for an act or omission which constitutes public nuisance. I will reflect on this amendment.

In conclusion, I hope noble Lords are satisfied as to why I believe these amendments are unnecessary and will support the Government’s efforts to faithfully implement the recommendation of the Law Commission. I commend Clauses 58 to 60 to the Committee.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

We will get there.

Clause 58 agreed.

Clause 59 agreed.

Clause 60: Intentionally or recklessly causing public nuisance

Amendments 314 to 317 not moved.

Clause 60 agreed.

Clause 61: Imposing conditions on one-person protests

Amendments 318 and 319 not moved.

Clause 61 agreed.