Amendment 319AA (to Amendment 319A)

Police, Crime, Sentencing and Courts Bill - Committee (11th Day) – in the House of Lords at 12:00 am on 24th November 2021.

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Lord Paddick:

Moved by Lord Paddick

319AA: In Amendment 319A, in subsection (1)(b), leave out “or is capable of causing”Member’s explanatory statementThis would limit the offence to an act that causes serious disruption.

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

My Lords, we now come to the most controversial part of the Bill: the Government’s new public order amendments. They have not been debated before in either House—and this debate started at 11.49 pm. Is this any way to conduct legislation?

I have amendments 319AA, 319AB, 319AC, 319BA, 319BB, 319BC, 319DA, 319DB, 319DC, 319L, 319M, 319N, 319P, 319Q, 319R, 319S, 319T and 319U in this group, all of which are, of course, amendments to the Government’s amendments. If I took just two minutes for each of those amendments, that would be 36 minutes. I will speak to each of the government amendments in turn; I will then add what Liberty has said to noble Lords in its excellent briefing on each amendment. I will then outline our proposed amendments to each government amendment in turn. We oppose all the Government’s amendments.

Government Amendment 319A concerns locking on. I have to ask: how much of a problem is this? Yes, it is inconvenient and annoying but it is temporary, and the police are becoming quite accomplished at unsticking. The amendment includes the phrase

“causes, or capable of causing, serious disruption” so there does not even need to be serious disruption for this offence to be committed. It refers to serious disruption to two or more people or an organisation. Is a counterdemonstration to stop Holocaust deniers marching past a synagogue, or an Islamophobic organisation marching past a mosque, causing serious disruption to two or more people or an organisation? What does “capable of causing” mean? If it were on a different road or at a different time, it would be capable of causing serious disruption. But if it is 3 am on a Sunday, is that still capable of causing serious disruption? It is difficult to say because “serious disruption” will be defined by the Secretary of State in regulations only after the Bill has received Royal Assent.

Amnesty has talked about case law having established that protestors have a right to choose the manner of conduct of their protest. That is an important aspect of freedom of assembly. I too will quote from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, which said that “most interviewees”—junior police officers—

“did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”

Can the Minister explain why the Government have gone against what the police want where this is concerned?

Our Amendment 319AA would leave out “is capable of causing” so that the offence applies only if there actually is serious disruption. Amendment 319AB leaves out

“or are reckless as to whether it will have such a consequence”,

so that there must be an intent to cause serious disruption, while Amendment 319AC’s insertion of

“not exceeding level 2 on the standard scale” is to probe whether an unlimited fine is proportionate to this offence.

Government Amendment 319B concerns going equipped to lock on. “Going equipped” offences have always been difficult as they often involve innocent articles where the intent has to be proved. You could buy a tube of superglue to repair a broken chair at home, then get caught up in a protest and be accused of going equipped for locking on, for example. Amnesty’s briefing asks, in relation to

“in the course of or in connection with”,

whether having a megaphone that might be used to shout encouragement to those intending to lock on is going equipped with something for use “in connection with” locking on. How broad is this offence?

Our Amendment 319BA would leave out “in connection with” to probe how broad that phrase is. I hope the Minister will be able to explain. Our Amendment 319BB would

“leave out ‘any person’ and insert ‘them’” so that the offence applies only if the person carrying the equipment intends to lock on, while our Amendment 319BC is to probe whether an unlimited fine is proportionate.

Government Amendment 319C contains an increased penalty for highway obstruction. As the Minister mentioned, it does not matter if the road is already blocked. This is sentence inflation again—more people in prison for non-violent offences. The current offence involves only a fine. I can understand that the Government might want to lock people up, but sit-down protests are an important part of freedom of expression and assembly. The chilling effect if people fear being sent to prison will be considerable.

Government Amendment 319D is about the obstruction of major transport works. This is a blatant and direct attack on climate change protesters, covering such projects as HS2, with its impact on biodiversity; new roads, which will create more traffic; and new airport runways, such as the third runway at Heathrow. So when the Prime Minister carries out his promise to lay down in front of the bulldozers, he will be committing this offence. Amnesty questions whether construction workers picketing such sites would be committing an offence. Could the noble Baroness say whether this would apply to them?

Our Amendment 319DA would remove an undertaker

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

because we feel that this is far too broad. Amendment 319DB would remove interfering with or moving apparatus, again because we think this offence is far too broad. Our Amendment 319DC probes whether an unlimited fine is proportionate for such an offence.

Government Amendment 319E provides the police the power to stop and search for anything made, adapted or intended for use in the course of or in connection with highway obstruction, public nuisance, locking on or the transport infrastructure offence. This is a massive expansion of an already contentious power—the power of the police to stop and search—at a time when trust and confidence in the police is low. It would apply the power to a whole range of new offences, providing the police with a whole new range of excuses to stop and search people. This power would allegedly be on the basis of reasonable suspicion, but other stop and search powers exercised on this basis result in the police allegedly “reasonably suspecting” black people eight times more than white people. The police did not ask for this power, and some do not want it, so why are the Government doing this?

Amnesty quotes the report from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, which says:

“Some of the most intrusive and contentious … powers are those that allow the police to use force and to stop and search people.”

Police suggested 19 new powers they wanted in connection with policing protests, and this was not one of them. One police officer told HMICFRS that

“a little inconvenience is more acceptable than a police state”,

and HMIC agreed with the sentiment. This amendment could result in black and other minority ethnic people being deterred from protesting, and police could seize banners, placards and all sorts of legitimate props used in protests.

Government Amendment 319F would provide the power to stop and search without suspicion. We have already proposed the removal of the last remaining stop and search power without suspicion, Section 60 of the Public Order Act. Section 44 of the Terrorism Act, another suspicionless stop and search power, has already been repealed, and Section 60 needs to follow. When we debated an amendment to a previous part of the Bill, we set out comprehensively why stop and search without suspicion should not be exercised for anything, as it is hugely damaging to police-community relations and ineffective. Disproportionality increases—from being eight times to 18 times more likely to be stopped and searched if you are black—and only one in 100 searches under Section 60 resulted in a weapon being found, the purpose for which it is now being used by the police. Objects can be seized, retained and disposed of, as set out in regulations. We have only just seen the proposed primary legislation, let alone the regulations. We cannot think of any useful amendments to this provision; we simply oppose these powers being included in the Bill.

Amendment 319J relates to obstructing the police exercising the new stop and search powers. With the greatest respect to the Government, this is yet another example of “What wizard ideas can we think up in line with the Home Secretary telling the Tory party conference she was going to get tough on protesters?” This is a power that the police have not asked for and where the evidence shows that harsher penalties do not deter offenders.

We opposed a similar new offence of obstructing the police in connection with serious violence prevention orders and oppose this now for similar reasons, which I do not intend to repeat here. A month in jail for obstructing a police officer without assaulting him under current legislation is more than enough.

I turn to government Amendment 319K on serious disruption prevention orders. I am beginning to wonder whether the Government need some lessons in how to be creative, rather than cutting and pasting existing parts of the Bill to make new ones. Here we are again, with orders that are similar to, but in some respects worse than, serious violence prevention orders, because these can be made on not only conviction for a “protest-related offence” but application by the police without conviction, on the balance of probabilities. Like serious violence prevention orders, they can be made using inadmissible evidence, they can be extended indefinitely and breaching them is a criminal offence with terms of imprisonment attached.

One of the purposes is to prevent a person aged 18 or over, referred to as “P”, committing a protest-related breach of an injunction. What is an injunction other than an order to stop P from doing something that is unlawful—in these circumstances, something unlawful in relation to a protest? The Minister will contradict me if I am wrong, but it seems that this new power, among other things, is to prevent someone who is already subject to an order preventing them doing something by the courts doing something in relation to a protest. I am not sure whether this is double jeopardy or just completely unnecessary. If they were to breach the injunction, they would most likely also be in breach of the serious disruption prevention order and could then be sentenced for breaching both the injunction and the “SDPO”. Is that a character from “Star Wars”?

In order to be subject to this proposed new order on conviction, the person must have been convicted of another protest-related offence that the court considers to be a protest-related offence on the balance of probabilities and relates to a different protest or a different day. The earlier offence must have happened within five years of the day of conviction for the offence for which the new order is being made, but the five-year period starts only when this new power comes into force and offences can be taken into account only if the person was over 16 at the time they were committed. The order can be imposed only if the person is 18 or over when it is made. If an offence was committed over a period of two or more days, or at some time during a period of two or more days, it must be considered to have been committed on the last of those two days. Is there a flowchart?

The order can be made whether P is sentenced or given a conditional discharge. It can be made based on evidence inadmissible in consideration of the protest-related offence. One of the reasons for imposing the new order can be to prevent P “causing or contributing to” another person committing a protest-related offence or breach of an injunction. What does that mean? Does shouting encouragement to others to engage in a sit-down protest amount to causing or contributing to another person committing a protest-related offence?

The order can require P to do anything described in the order or prohibit them doing anything described in the order. This includes prohibiting P using the internet to facilitate or encourage persons to carry out activities related to protest that are likely to result in serious disruption. The Secretary of State, by regulations —which we will not see until after Royal Assent—decides what serious disruption is, but who decides whether what P is doing on the internet is actually encouraging others to do something that is “likely” to cause serious disruption? How much of a restriction on free speech is this?

These orders cover 10 pages of amendments, mainly cut and pasted, with some variation, from serious violence reduction orders, but how are we, at this late stage, supposed to properly scrutinise these provisions? The Government may claim that we have had over a week, but have they not noticed that we were debating other proposals contained in this Bill until gone midnight on the last two Mondays, and last Wednesday our debates spanned 11 hours, including six hours without a break?

Amnesty says that this is an unprecedented and highly oppressive measure, tantamount to a ban on named individuals’ right to protest. In its report Getting the Balance Right? Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services said, of protest banning orders—which is what these are—

“such orders would neither be compatible with human rights legislation nor create an effective deterrent. All things considered, legislation creating protest banning orders would be legally very problematic because, however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order”.

Quoted on page 137 of the report, some senior police officers said that protest banning orders would

“‘unnecessarily curtail people’s democratic right to protest’” and that such orders would be

““a massive civil liberty infringement’”.

This is senior police officers quoted by HMICFRS. They further said that

“‘the proposal is a severe restriction on a person’s rights to protest and in reality, is unworkable’”.

If that is the case, why on earth are the Government introducing the orders, other than to fulfil a rash promise made by the Home Secretary at the Conservative Party conference?

As an illustration of how broad these proposals are, Liberty gave the following example—these are my own words. Somebody could be subjected to a SDPO who has never been convicted of an offence, who attended two protests in the past five years and, at those protests, based on inadmissible hearsay and on the balance of probabilities, contributed towards someone else doing something that was likely to result in serious disruption in order to prevent the person subject to the SDPO contributing towards another person doing something that was likely to result in serious disruption at some point in the future.

My Amendments 319L and 319M would change the burden of proof for imposing a SDPO to “beyond reasonable doubt” rather than “on the balance of probabilities”. Amendment 319N would remove the ability for a SDPO to be imposed unless the person has been convicted of a protest-related offence. Amendment 319P is to probe whether an unlimited fine for breaching a SDPO is proportionate.

Overall, these are outrageous proposals with serious consequences in terms of police powers, infringement of civil liberties and the creation of new offences, introduced in a wholly unacceptable way at the last minute at the Committee stage in the House of Lords, where the other place will have very little, if any, time to properly consider them, either in Committee or on the Floor of the House. These government amendments must be withdrawn and seriously reconsidered.

Photo of Lord Beith Lord Beith Liberal Democrat 12:15 pm, 24th November 2021

My Lords, I strongly support my noble friend. When I came to this House, I was told that this was a place in which, line by line, we scrutinise legislation to make sure that, whatever its policy objectives, it is properly constructed, workable law. I was also told that we pay particular attention to things that have not been debated fully in the Commons. I came here happily, ready to try to assist in that sort of thing.

That is not what we are doing now. These proposed new clauses have not been considered by the House of Commons. They were not sent to us from the House of Commons; nor were they tabled when they could have been. In her introductory remarks, the Minister did not give us any indication as to why we are getting them at this stage and why they were not tabled in the Commons, or at least at the beginning of Committee stage in the Lords. It seems to me that political considerations have taken precedence over all considerations relating to making good law and, indeed, policing protests satisfactorily and effectively.

This is so unsatisfactory because this group of proposed new clauses covers at least five fundamental issues, to which my noble friend referred. The new offence of locking on is a completely new offence with no obvious precedent in existing law; it therefore requires pretty careful consideration, first, as to whether it is necessary and, secondly, as to what the consequences will be of having on the statute book provisions as bizarre-sounding as some of them are. I will not trouble the Committee with the details at this late hour, but locking on and

“being equipped for locking on” are wholly new elements being introduced into our criminal law.

Then we have “search without suspicion”. We succeeded in excising that from other, earlier legislation, but here it comes back to us. Subsection (7) of the new clause proposed by Amendment 319F states:

“A constable may, in the exercise of the powers conferred by subsection (6), stop any person or vehicle and make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person or vehicle is carrying a prohibited object.”

Should the person concerned, perhaps out of the sort of anxiety that has arisen after the Sarah Everard case, feel that they are being asked to do something unreasonable, perhaps even dangerous, they must remember this:

“A person commits an offence if the person intentionally obstructs a constable in the exercise of the constable’s powers under section (Powers to stop and search without suspicion).”

This is very discomforting language to find in legislation.

That is two fundamental issues already. Then we have “obstruction of highway”. The Minister explained the reason for one of the odder provisions in that proposed new clause, but it has a rather bizarre effect. Let us say that the road outside your house has been blocked for a week or two by some public undertaking supposedly carrying out works, although you never see any workmen there or anything happening; that is a fairly regular occurrence. You decide with your neighbours to protest about this, so you all gather in the road and effectively block the road, perhaps to the machine that the company has at least brought along. If the company says to you, “You’re blocking the road”, and you say, “No, you’re blocking the road. We’re protesting at you blocking the road”, you are still committing an offence because you are blocking the road—even though it is already blocked. That is what is provided for under this legislation. Sometimes one must look at the secondary consequences of legislating badly.

Then there is “Obstruction etc of major transport works”. I tried to assist the Minister in making this a little clearer; she was very helpful in producing the note that she had been given. However, again, there is a slightly bizarre effect. Having announced that we will not get the rest of HS2 to serve us in the north but, in various other ways, lines will be improved and some bits of new railway will be put in, none of that is covered by any of the provisions referred to, as far as I can see—not that the people of the north are eager to stop rail improvement. Perhaps some of these issues will not arise but, again, if you try to write legislation around an individual set of circumstances that has arisen, you get into trouble. You turn into general law attempts to deal with very specific cases.

Then we come to the issue to which my noble friend Lord Paddick gave particular attention: serious disruption prevention orders. Here, again, I must refer to the work of the Delegated Powers and Regulatory Reform Committee. It described the orders, some of their features and the fact that they can be imposed on people who have not been convicted of any offence—the orders are not limited to the prevention of criminal conduct, either—by saying that the proposed new clause

“allows the Secretary of State to issue guidance to chief officers of police and chief constables in relation to SDPOs, including … identifying persons in respect of whom it may be appropriate for applications for SDPOs to be made”.

I am genuinely puzzled as to what that means or what the consequences will be.

I am particularly concerned by the advice of the committee that says,

“We consider that new section 342V”,

which is the equivalent of Amendment 319K,

“contains an extreme example of a power to issue guidance on the exercise of statutory functions. It allows the Secretary of State to influence the exercise by the police of functions that could prove to be highly controversial—including identifying persons in respect of whom the courts may make serious disruption prevention orders under which people who have not been convicted of any offence—and are not considered to be at risk of offending—may nonetheless be made subject to restrictions on liberty backed by criminal penalties.”

That is very serious and I am sure the Minister will have thought about it and seen the report, by this stage. I am concerned to know what she has to say about it. I regard this new material as being inappropriately introduced to the Bill at far too late a stage and very dangerous.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 12:30 pm, 24th November 2021

My Lords, I apologise. I forgot to speak to five more amendments: Amendments 319Q, 319R, 319S, 319T and 319U, which remove the ability for SDPOs to be renewed.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I will be brief and not repeat the valid and chilling points that have already been made. I just say this: for me to even attempt a line-by-line examination of this whole suite of new amendments would result in not just the Leader coming in to censor me again, but me probably being arrested. I am not going to do that, but I will try to say two things that noble Lords have not said yet.

On locking on and in particular going equipped for locking on, and stop and search with or without suspicion of locking on, I am worried not about the glue referred to by the noble Lord, Lord Paddick, but about people with bicycle locks. I am worried about young people going about their business, sometimes riding to a demonstration or being in the vicinity of potential demonstrations, carrying bicycle locks. I cannot see how they are not potentially in jeopardy, en masse, of both the stop and search powers, and going equipped.

Secondly, as a former Home Office lawyer and a director of Liberty, to me, this suite of measures, which could be a Bill in itself, looks, smells and tastes a lot like anti-terror legislation of the kind that I have always opposed as being disproportionate and counterproductive. Whether it is the new orders, the stop and search powers, including suspicion, or offences including thought crimes, this new Bill within a Bill looks like some of the anti-terror powers that, when they were introduced, noble Lords opposite and elsewhere, and I and some of my noble friends—forgive me, I hope—looked the other way. Those powers have inspired what we see here, but this time they are not for terrorists but protesters.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

My Lords, the Minister gave a powerful justification for upgrading and updating the criminal law to deal with these new forms of protest. She made the point that the general public have had enough, and we recognise that. We have all seen instances of workers begging protesters to let them through to go to work, parents trying to get ill children to hospitals and so on. We have seen frustration turn to fury and people often taking action on their own, dragging protesters away as the police have stood by. At least this section of the Bill makes sense to me based on that motivation, but we have spent hours and hours on previous sections on banning the types of protest in Part 3, which was justified on the basis that it was dealing with those kinds of actions, when in fact none of the measures that we previously discussed would deal with them at all.

The measures that we previously discussed in Part 3 elicited some very fine speeches about the right to protest. I was struck most recently by the speech by the noble Lord, Lord Coaker, which I related to. We were probably on the same miners’ demos. It properly and entirely understood why people were demanding the right to protest. All those fine words were effectively shot down by the Minister on the basis that these are things that we need to do to deal with Extinction Rebellion and these different kinds of protest. In fact, the only dealings that I had when I got caught up in an Extinction Rebellion protest—I mean that I was trying to get through it, rather than that I was on it, in case anyone panics—was when they were doing a five-hour silent vigil in mime. There was no noise involved. But we have spent all that time discussing how noise is going to trigger the police having a huge amount of power to deal with those people.

I find it utterly galling, because now we have a set of amendments, and at least I can understand why the Government have brought them in—and the public will think that they will tackle what they are furious about—and we should therefore, in this House, be able to scrutinise them line by line, as has been explained. People will probably like the locking-on offence—I say “people”, meaning that there might be popular support for it. But the noble Lords, Lord Paddick and Lord Beith, have done a really good take-down of what the consequences of these measures would be beyond the headlines, and people might be less keen on the equipped to lock-on offence. Certainly, when they work out the frightening aspects of the serious disruption prevention orders, they might want to think again. The “causing and contributing to” aspect, as the noble Lord, Lord Paddick, noted, really is a very serious threat to free speech—absolutely. And this is a Government who claim all the time that they are here to defend free speech, but they are introducing, without even casually noting it, something that would absolutely have a damaging effect on free speech.

Maybe I am wrong, and maybe the Government could persuade us that these special kinds of protests need special laws, in which case we should have hours and hours to discuss it. Instead, here we are, fed up, having discussed a whole range of other legislation that was supposed to deal with these issues when in fact, it did not; and now, the things which might deal with those issues we do not have time to discuss. It is frustrating for all of us.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

When Boris Johnson was Mayor of London, he brought in a rule about not drinking on the tube, which was a solution in search of a problem—because it was not a problem at the time. But it immediately made me want to run out, buy a bottle of gin and go drinking on the tube, because it was such a stupid rule. This provision is a little bit like that: I do not really want to carry a tube of superglue around, but I have on many occasions carried a bike lock. It is absolutely ludicrous.

When the Minister read out the list of amendments, my heart sank. Although I had looked at them all individually, somehow hearing them one after the other made me feel that this is totally wrong. If the Government do not withdraw all these amendments, we should vote against the Bill in its entirety.

The Minister talked about protestors, referring to the issue of whatever their cause may be. But the HS2 protestors, of whom I consider myself one, have actually been trying to save precious things for the nation. It is not fun to be out on a picket line, being shoved around by security guards and hassled by the police constantly. I was standing next to one man on a picket line who said, “I retired last year and I thought I would be birdwatching, but here I am holding a placard”. Those are the sorts of people who have been protesting about HS2; they have been trying to save precious eco-systems for the nation, for all of us, and to prevent the chopping down of ancient woodlands. We really cannot dismiss these people as troublemakers, deserving of all these amendments. I admire the attempts of the noble Lord, Lord Paddick, to improve these measures, but it is a hopeless case.

The Government are very quick to talk about the views of the public and what the public want, perhaps from a few clips on TV and a few emails, but on the sewage amendment to the Environment Bill, they had thousands and thousands of emails, but they absolutely ignored them and carried on allowing sewage to be pumped into our rivers and on to our coastline. So please do not tell me that the public want this. The public did not want sewage, but the Government ignored that. The Government pick and choose to suit themselves what they design legislation around.

As the noble Lord, Lord Beith, mentioned, there is also the late tabling of these amendments. It is a democratic outrage. They are of such legal significance and such a threat to people’s human rights that they should be the subject of a whole Bill, with public discussion about it, public consultation, human rights declarations and equalities impact assessments. Every MP should be furious that they have been bypassed, because the only scrutiny they will get is, if they are lucky, a quick 20 minutes during ping-pong to find out what they are all about. Because they are whipped, they will probably not pay any attention to it anyway. This is nothing more than a naked attack on civil liberties and a crackdown on protest, and we must oppose it for both what it is and how it is being done.

Photo of Lord Oates Lord Oates Liberal Democrat Lords Spokesperson (Energy and Climate Change)

My Lords, I will speak specifically to government Amendments 319F to 319J on powers to stop and search without suspicion, and Amendment 319K and subsequent amendments on serious disruption orders. Before I do, I add to the comments made by just about all noble Lords on the outrageous way in which the Government have proceeded in this matter. To bring this number of amendments, introducing, as they do, among other things, unlimited fines, wide-ranging suspicionless stop and search powers, the creation of criminal liability on the basis of the civil burden of proof, with powers of indefinite renewal, at such a late stage in the Bill and at this time of night amounts to absolute contempt of Parliament. I may not get to say this often when we are in Parliament together, but on this matter I agree with every word that the noble Baroness, Lady Fox, had to say.

I turn to powers to stop and search without suspicion. As the Minister explained it and as other noble Lords have commented, this provides an extraordinary power, exercisable by any police officer in an area where an inspector or above has delegated that locality, under a whole series of offences. We already know how stop and search powers are abused. We know how disproportionate they are. My noble friend Lord Paddick set out the stark figures.

You do not have to take it from the Liberal Democrat Benches or the other Opposition Benches. We have heard a lot quoted from the former Prime Minister and Home Secretary this evening, but it is worth reminding the Committee of the issues that she has highlighted over suspicionless stop and search and the dangers that causes: the undermining of trust in the police and all the problems that come with that.

The noble Baroness, Lady Chakrabarti, raised the important point that people on bicycles travel with locks. We all have locks on our bicycles. I should be interested to know the Government’s answer. Government Amendment 319J provides for 51-week imprisonment—nearly a year—for anyone who obstructs a police officer who, without suspicion, demands the right to search them. This is not how you stop protest; it is how you cause it.

As if that is not enough, we have heard about government Amendment 319K, which introduces serious disruption prevention orders, creating criminal liability based on the civil burden of proof, and imposing a series of potential restrictions on individuals. The penalty for breaching any of those conditions is imprisonment. As my noble friend Lord Paddick said, these are protest banning orders, and they have no place in our society.

As others have said, we cannot do justice to scrutinising this; we cannot go through every line, it is absurd. In Amendment 342M, I read:

“This condition in this subsection is that the court is satisfied on the balance of probabilities that … on at least two occasions in the relevant period, P has … been convicted of a protest-related offence … been found in contempt of court for a protest-related breach of an injunction … carried out activities”— it goes on and on. Here is just one question: why does the court have to be satisfied on the balance of probabilities that somebody has been convicted of something? Surely the court can determine that. Is this written wrongly? Is “the balance of probabilities” supposed to come after subsection (2)(a)(ii)? What does it mean? Why is the court deciding on the balance of probabilities whether someone has been found in contempt of court? That is absurd. But we cannot go through all this. There are probably even more absurd things in it.

The Government have introduced a series of measures which seriously call into question civil liberties in this country, in particular the right to protest. They have done so at a massively late stage in a Bill, and begun the discussion at midnight. If the Government had any sense of decorum, or wished to show some respect to this House and, more to the point, to the people of this country—who may demand action but also demand that the people who govern them act with care and consideration—they would let their legislators properly scrutinise the things that they put before them. We have not been given that chance. The Government should withdraw these amendments, and if they insist on bringing them back, doing so in a form that can be properly debated by both Houses of Parliament.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee 12:45 pm, 24th November 2021

My Lords, the noble Baroness, Lady Jones, gave some well-deserved compliments to my noble friend Lord Paddick, but he was not trying to improve these proposed clauses. He was trying to show why they should not go forward, and he did.

There are many points that puzzle me, but I will ask about two. First, on prevention orders, is the phrase “causing or contributing to” used elsewhere in legislation? Certainly, “contributing” is a vaguer term than I have come across elsewhere. Would it extend to financial contributions? Is a response to a crowdfunding appeal caught by it?

The second point, to which my noble friend Lord Beith referred, relates to Amendment 319J. It refers a person who

“intentionally obstructs a constable in the exercise of the constable’s powers”.

How does that fit with the advice given after Sarah Everard’s abduction and murder about requiring another constable to be called, flagging down a bus, and so on? I simply do not understand the policy.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Shadow Chief Whip (Lords), Shadow Spokesperson (Housing), Shadow Spokesperson (Communities and Local Government), Deputy Chairman of Committees

My Lords, this is my first contribution on this Bill in your Lordships’ House. It is nice to be back.

I am pleased to join my noble friends replying to the debate by setting out the position of the Opposition on the new clauses before us. First, I want to say that this is no way to do business, as has been said. To introduce clauses of such magnitude, complexity and controversy to a Bill in the House of Lords, with the Bill already having left the elected House, is just wrong. It is no way to treat the House of Commons, where the Government have a huge majority; no way to treat the House of Lords; no way to treat Parliament; and, as we have heard from the noble Lord, Lord Oates, no way to treat the public, whatever their view on the matters before us today.

If the Government felt that they needed these powers, they should have introduced a separate Bill in the Commons and treated Parliament, not least the elected House, with some respect. None of us wants to be here at this late hour but the Government have left us no opportunity to do otherwise.

I make it clear that we do not support these clauses that have been added to the Bill in Committee today, and we expect the Government to withdraw them. I also want to be clear that when we come to the Motion on the order in which we will consider the clauses on Report, we expect that these clauses will not be considered until the new year in the last part of our Report-stage consideration of the Bill. If the government Motion does not put that down clearly, I will move a Motion to achieve just that, and I think we will be successful in getting that Motion through the House. I hope the Minister can confirm that these clauses will be debated in the new year at the end of Report.

The Government are creating problems for themselves, and we have seen by their actions in recent weeks that that is nothing new. As I said, the Government are introducing at the last minute clauses that we are not able to consider properly, even today. They were published just a week ago. That is totally unacceptable.

I want to be clear that I condemn the actions of the Insulate Britain protesters. Their tactics are wrong and counterproductive. We have seen images of protesters gluing themselves to roads and people desperate to get their relatives to hospital, and that is completely wrong. I support the right to protest. I have protested, marched, sung, waved placards, stood in line and locked arms with the best of them, and have been doing so for 43 years. Having strong views, being passionate about what you believe in and making your voice heard are good things in a democracy; that is what living in a democracy is about. The Government must recognise that, even though sometimes the protesters do things they do not like. That can be irritating—as my noble friend Lord Coaker said, we can all be irritated when we cannot get across the bridge to come into Parliament or go down the road—but, equally, the way that this has been done is counterproductive and completely wrong.

My honourable friend the Member for Tottenham, Mr David Lammy, said:

“The police have got to have the powers to deal with these issues … endangering lives, creating a situation in which an ambulance travelling with a patient can’t get to the hospital—someone ended up with paralysis as a result of some of these actions—I’m afraid is totally, totally unacceptable.”

I agree with him entirely on that. It is right that the police have the powers that they need to deal with this unacceptable behaviour—but what powers do they genuinely need? What powers are missing? What powers would be effective? What would be the impact of what the Government are suggesting?

It is crucial to remember that although we are responding only to one particularly crass protest, the law that we are debating tonight would not apply to that one crass protest but to all peaceful protest, and that is the issue here. We must be thoughtful and get it right, and that is why the Government’s handling of this issue is so wrong. For me, the key question is: is none of the powers at the disposal of the police and law enforcement today fit for purpose? Is there nothing that can be done? I have key concerns about stop and search and the proposed disruption orders, and a number of questions for the Minister.

I hope that she can set out for us the organisations—the police forces, the National Police Chiefs’ Council or the police and crime commissioners—that have been demanding these powers and these specific tools in front of us tonight. Can the Minister give us more details about why the protesters cannot be dealt with under Acts such as the Public Order Act 1986? Why is it not sufficient? I thought—maybe I am wrong—that, under that Act, if a senior police officer reasonably believes that actions will give cause for serious disruption, they can give directions about where a protest can be held and for how long, and it is an offence to breach those conditions. Can that not limit this action? Maybe I am wrong, and they have got that.

Regarding lock-ons, are we really suggesting that if I go on a protest with my noble friend Lord Coaker, and we hold arms together—lock on—we are committing an offence? Are we suggesting that?

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Shadow Chief Whip (Lords), Shadow Spokesperson (Housing), Shadow Spokesperson (Communities and Local Government), Deputy Chairman of Committees

Yes, absolutely. Are we really suggesting that? Lock-ons are not new, but what is the basis being used here for dealing with these protesters? Is it only, for example, about taking attachments such as glue or locks? I think I have a padlock sitting on my desk in the office; this is just nonsense. These clauses would affect just two people together; that would have prevented the suffragettes protesting. When we do tours in Parliament, we often stop in St Stephen’s Hall and show our guests the statue that the suffragettes locked themselves on to; we talk about it. Clearly that would have been an offence then, and it is an offence now. If you locked yourself on to the Downing Street gate, I am sure that would be an offence now, so why do we not have the powers already?

Of course, we have powers, so I want to understand why we need to do this. Many people have mentioned the pledge by the Prime Minister in the 2015 election. He was going to

“lie down … in front of those bulldozers” to stop the third runway. He has pledged other things as well. He would be potentially criminalising himself if he went and did that.

On suspicion-less stop and search, and the serious disruption prevention orders, the Government are mirroring laws that currently exist for serious violence and knife crime. Unless I am wrong, and I am sure the Minister will correct me if I am, these measures apply to peaceful protesters, not people carrying knives or causing violence, and that is a huge issue for us. The noble Lord, Lord Beith, referred to the report of the Delegated Powers and Regulatory Reform Committee, chaired by the noble Lord, Lord Blencathra, a Member on the Conservative Benches. I looked at some of the points made by the committee. It said:

“We consider that new section 342V contains an extreme example of a power to issue guidance on the exercise of statutory functions. It allows the Secretary of State to influence the exercise by the police of functions that could prove to be highly controversial—including identifying persons in respect of whom the courts may make serious disruption prevention orders under which people who have not been convicted of any offence—and are not considered to be at risk of offending—may nonetheless be made subject to restrictions on liberty backed by criminal penalties.”

That is pretty extreme, and that is being suggested by the party opposite. I hope that the Government will read very carefully what is being suggested here by the committee.

In conclusion, it is very important that we do not consider these issues until the new year. These are very controversial proposals, whether you agree with them or not, and the fact that we are debating them at 1 o’clock in the morning is not a good place for any of us to be. We need to ensure that they are discussed in the new year and that we keep scrutinising them. I hope the Government will listen to the debate tonight and to the report from the Delegated Powers Committee, and will come back on Report to ensure they temper these measures, because at the moment they are totally unacceptable and would not be passed by the House.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 1:00 am, 24th November 2021

My Lords, I thank all noble Lords who have spoken to these amendments. Amendment 319AA would limit the offence of locking on—on the point made by the noble Lord, Lord Paddick, the deputy commissioner has in fact welcomed this offence—to cases where serious disruption had been caused, thereby excluding from the ambit of the offence cases where the use of a lock-on has not caused serious disruption but where the conduct is capable of doing so. Removing this element of the offence would make it possible for those who engage in such behaviour to evade prosecution. This could happen if they were quickly removed by the police or if they removed themselves from the lock-on after having caused some disruption which did not meet the threshold of “serious”.

In a similar vein, it is necessary that the offence can be committed if a person locks on and was reckless as to whether it would cause serious disruption. Amendment 319AB would remove this and have the offence be committed only if there was intent to cause serious disruption. If this amendment were made, a person who is aware of the risk of causing serious disruption but unreasonably took that risk anyway would not be captured by the offence.

What matters here is the protester’s intention and/or the impact of their actions. It may simply be fortuitous that the action of locking on did not cause serious disruption, but, if that was the intent, we believe the offence should apply. Equally, if there was not an intention to cause serious disruption but it was a risk of which they were aware and they unreasonably took that risk, again we believe that such conduct should be covered by the new offence.

A few noble Lords talked about bikes, specifically people innocently going about their business with a bike lock. It is a defence for a person to prove that they had a reasonable excuse for carrying the equipment in question. For example, carrying a bike lock for the purposes of locking one’s bike to a designated space for bikes could be considered a reasonable excuse. The prosecution must also demonstrate that the person intended to use the item in the course of or in connection with the lock-on offence.

A couple of noble Lords asked whether this was a ban on protests. HMICFRS concluded that protest banning orders would not be compatible with human rights, but the report considered only orders that would outright ban an individual from protesting. The two are quite different. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related offences, breaches of injunctions and serious disruption. Depending on the individual circumstances, this might mean that the court will not consider it necessary to stop individuals attending protests. Also, a court as a public authority must not act incompatibly with protesters’ Article 10 and Article 11 rights. This means that the court must decide whether making an SDPO is proportionate in an individual case.

Amendments 319AC, 319BC, 319DC and 319P seek to probe the maximum fine for the new offences created by the government amendments. What were level 5 fines, or a maximum of £5,000, were replaced in 2015 as a result of reforms introduced by the coalition Government through the Legal Aid, Sentencing and Punishment of Offenders Act 2012. We think that an unlimited fine is appropriate in the case of these new offences; a level 1 or level 2 fine, as proposed by the noble Lord, would not, in our view, reflect the seriousness of the conduct in question. An unlimited maximum fine allows courts to determine the level of any fine on a case-by-case basis, having regard to the gravity of the offence and the ability of the offender to pay.

Amendment 319BA probes what objects it will be a criminal offence to possess under the “in connection with” limb of the going equipped to lock-on offence. This could include items that supported the deployment of a lock-on but did not form a part of it—for example, tools to set up structures to be used in the course of a lock-on.

Amendment 319BB would limit the offence such that a person would only be guilty of going equipped to lock on if they are carrying the equipment to commit the lock-on offence themselves. This would mean that a group of protesters could each legally carry items to lock on for use by others in the group.

Amendment 319DA would limit the scope of the offence to where a person obstructs the setting out of lines for major transport works or actual construction or maintenance. We think that it is necessary to include acts that obstruct steps necessary for facilitating construction. This would include steps such as environmental surveys and the translocation of species. If protesters delay ecological surveys into nesting or hibernation season, construction works may be delayed by a period of a year, potentially adding millions to the cost of HS2.

Amendment 319DB seeks further to narrow the scope of the offence to omit activity where a person interferes with, moves or removes any apparatus necessary for the works. This amendment would enable protesters to interfere with works without committing the offence simply by interfering with equipment rather than the relevant works. It is necessary that this limb of the offence remains.

Finally, turning to the amendments on serious disruption prevention orders, one of the circumstances in which an order can be imposed is when at least two protest-related offences have been committed. Amendments 319L and 319M seek to raise the burden of proof for demonstrating that two offences were protest related from “on the balance of probabilities” to “beyond reasonable doubt”. We have had this debate before, including in the context of serious violence reduction orders, and it is our view that these are civil orders and that it is therefore entirely appropriate for the civil standard of proof to apply in the making of an order. It is already the case that the court must consider the SDPO necessary to prevent a person committing harmful protest-related acts. In the event of a prosecution for breach of an order, of course the prosecution would need to prove the case beyond reasonable doubt.

Amendment 319N removes the ability of the courts to impose an SDPO on application. We think it is essential that the courts should have the power to impose an order in such circumstances. It will allow SDPOs to be placed on those who are intent on causing unjustifiable disruption at a protest but who have not met the criteria for an SDPO on conviction. It is entirely right that, where there is sufficient evidence of a pattern of behaviour that an SDPO be imposed. The public should not have to risk unjustifiable disruption caused by an individual who the police knew was likely to cause such disruption simply because they did not have two prior protest-related convictions. This would mean that even if someone had two convictions, if the application was not made at the time of the second conviction, an application could not be made until they were convicted of a third protest-related offence. This approach is consistent with other risk-based civil orders that may be made in the absence of a conviction—for example, domestic abuse protection orders.

Amendments 319Q to 319U remove the ability for a court to renew an SDPO. Where there is strong evidence that that an individual would go on to cause serious disruption, it is appropriate that the facility exists for SDPOs to be renewed.

Very finally, on the point raised by the noble Lord, Lord Beith, on the DPRRC report, we consider that the negative procedure for the SDPO’s statutory guidance to be appropriate, but we are studying the report and will respond soon.

The question of causing or contributing to felt like a bit of an exam question at the end of quite a long day. I have three Acts in which causing or contributing feature: the Water Act 2014, the Climate Change Act 2008 and the Football Spectators Act 1989. On the question of the noble Lord, Lord Kennedy, about whether these measures will be taken in the new year, the answer is yes.

I am obviously disappointed that the noble Lords, Lord Paddick and Lord Kennedy, have signified their objections to the amendments tabled today but, given that, I will not move them. However, the Committee should be in no doubt that we will retable them for Report and, if necessary, seek the opinion of the House. With that, I beg leave to withdraw Amendment 319A.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Shadow Chief Whip (Lords), Shadow Spokesperson (Housing), Shadow Spokesperson (Communities and Local Government), Deputy Chairman of Committees

Before the noble Baroness sits down, I want to be absolutely clear about something. I am sure that the answer must be yes, but it would be good to hear it from her, as this is my first time speaking from the Dispatch Box on this Bill. On these SDPOs, I always thought that we operated on the basis that you were innocent until proven guilty in this country; we would all defend that right. These orders can be imposed and have an effect on people who are totally innocent of any crime whatever. Can she confirm that, as it is good to get it absolutely clear on the record? If that is the case, as I am sure it is, that is totally outrageous.

That and other reasons are exactly why we need to ensure that there is the maximum amount of time to enable this House and people outside it to discuss and debate these issues. For that reason, I think it is absolutely right that these amendments be withdrawn. Can these orders be imposed on totally innocent people who have committed no crime?

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

Does the noble Lord want a response on the nature of the orders?

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Shadow Chief Whip (Lords), Shadow Spokesperson (Housing), Shadow Spokesperson (Communities and Local Government), Deputy Chairman of Committees

I want confirmation that the Government intend to bring orders in which would be imposed on totally innocent people who have committed no crime.

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

They are civil orders; they are preventive measures.

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

If I can assist the House, the first amendment moved in the group was that of the noble Baroness, not mine.

Amendment 319AA (to Amendment 319A) withdrawn.

Amendment 319A withdrawn.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

Amendments 319AB and 319AC are not called because they were amendments to the amendment.

Amendment 319B not moved.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

Amendments 319BA to 319BC are not called because they were amendments to the amendment.

Amendments 319C and 319D not moved.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

Amendments 319DA to 319DC are not called because they were amendments to the amendment.

Amendments 319E to 319K not moved.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

Amendments 319L to 319U are not called because they were amendments to Amendment 319K.

Amendments 320 and 320A not moved.

Clauses 171 and 172 agreed.

Schedule 20: Minor amendments in relation to the sentencing consolidation