Amendment 1

Public Order Bill - Committee (1st Day) – in the House of Lords at 3:51 pm on 16th November 2022.

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Baroness Chakrabarti:

Moved by Baroness Chakrabarti

1: Clause 1, page 1, line 5, at end insert “without reasonable excuse”Member's explanatory statementThis amendment makes the lack of a reasonable excuse a component part of the offence of locking on, thus placing the burden of proof upon the prosecution.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I will rise slowly to allow the mass exodus from the Chamber of noble Lords who are fascinated by the civil liberty implications of this terrible draft legislation. The exodus is nearly, if not quite, complete.

I have the unhappy duty of opening the first detailed debate on this Bill, which has so many problems. One of them is that it criminalises innocent, legitimate activity in a way that is so vague and broad it risks a great deal of potential injustice. It is really not appropriate for legislators in either place to allow this kind of shoddy work to pass, risking the liberties of our people, many years into the future.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I am sorry to interrupt at such an early stage. My noble friend rightly said that she has the unhappy duty to move this amendment. It is astonishing that we are considering the Bill and these amendments today. My noble friend has been very much involved in the detailed discussions in relation to the Bill. In view of the outright opposition, right across the country, to some of the provisions in the Bill, have the Government given my noble friend any indication that they propose not to proceed with the Bill? It is outrageous that we continue to consider these details and amendments, and I am sure that my noble friend would agree with me. Surely the Government have had second thoughts on this by now.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I am grateful, as always, to my noble friend, who has been a parliamentarian of distinction in both Houses, over many years, and who cares a great deal about our constitutional climate and integrity in this country. I regret to inform him that I have heard no such cause for comfort or indication of any reflection on the part of the Government in relation to the Bill. I agree with my noble friend that that is a matter of enormous regret. As it happens, I have not heard even a hint of potential listening or movement around the Bill’s detail, let alone what my noble friend and I would prefer, which is that this terrible attack on British liberty is dumped by a Government who have seen reason.

A case in point is the new proposed criminal offence of locking on. As noble Lords will remember, a person commits this offence if they

“attach themselves to another person, to an object or to land … attach a person to another person, to an object or to land, or … attach an object to another object or to land”.

That is very vague and broad. The Bill also says that a person commits this offence if

“that act causes, or is capable of causing, serious disruption”— it does not define this—

“to … two or more individuals, or … an organisation”,

and if they “intend” the act to have that disruptive consequence or

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

By the way, noble Lords in the Committee will remember the rather colourful and entertaining speech of my noble friend Lord Coaker when these provisions came this way the first time, before the current reheated version. It was either my noble friend Lord Coaker or my noble friend Lord Kennedy who talked about two people linking arms as they went down the road together. It was a rather colourful example of the two of them linking arms and going down the road together, which caused some amusement on all Benches in your Lordships’ House—they would perhaps take up a bit of space, if I can put it like that. But the idea that that simple, innocent act would potentially be impugned by an offence of the breadth that I have just set out is not a laughing matter, despite the amusing example.

The only crumb of comfort that the draftsmen and policymakers in the Home Department have offered is a defence—not part of the criminal offence itself—if the person charged proves that they had a “reasonable excuse” for this attachment, be it human to human, bicycle to railings or whatever. So the burden is put upon the accused person, rather than residing where it should in our criminal law: with the prosecution.

This is a terrible offence. The principle of burden flipping—reversing the burden of proof—is in relation to the new proposed offence of “locking on”, but it is present elsewhere with other offences. I object per se to reverse burdens; they are inherently very dangerous. They are sometimes necessary, but, when they are necessary, the actual conduct being impugned must be very tightly limited. It would be one thing to have an offensive weapon without a “reasonable excuse”—because you can license the holding of offensive weapons; that would make sense to me—but it does not make sense to include attaching yourself “to another person” or to property, linking arms with your chum, attaching your bicycle to railings, et cetera. These are all examples of conduct which can be potentially impugned by this criminal offence, and for which one could go to prison for nearly a year. This is totally outrageous and unacceptable.

I declare my interests as a council member of the all-party law reform group, Justice, and as a visiting professor of practice in the law department of the London School of Economics, which is down the road. I hope, if the Minister remains confident in the wisdom and integrity of this draft legislation, that he might consider coming to the LSE, this side of Christmas, to listen to the concerns of students, lawyers, journalists and peaceful dissenters. So, in addition to debating the Bill with me, he could hear their concerns directly, allowing for public debate as well as parliamentary debate in this Committee.

With my amendments in this group—Amendment 1, as well as other amendments applying to other offences—I have taken this defence of “without reasonable excuse” and put it into the main body of the offence. This would allow, initially, a police officer when seeking to arrest and, subsequently, a prosecutor both to be clear in their own minds that there was no “reasonable excuse”. If there were a potential “reasonable excuse”, it should be considered as part of the central element of this offence—for example, if I needed to lock my bicycle, or if I were just walking down the road with someone intimate or my friend and, because we are big chaps, we got in the way of a police officer, but we really had a “reasonable excuse” to be linking arms. This is a very modest but essential amendment, not just to this outrageous offence of “locking on”, which should not even be here, but to other offences in this awful Bill. With that, I beg to move.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 4:00 pm, 16th November 2022

My Lords, I have added my name to the other amendments in this group. If noble Lords will indulge me, as is usual with the first group of amendments, I will remind them why we have arrived at this point. The Government had already included draconian anti-protest measures in the Police, Crime, Sentencing and Courts Bill—including giving the police power to place restrictions on meetings and marches if they might be too noisy, including one-person protests—when, just before the Conservative Party conference in 2020, Insulate Britain began a series of protests, including dangerously and recklessly blocking motorways. Allowing a sentence of imprisonment for highway obstruction was proposed and agreed by this House, and now many Stop Oil protestors have been either sent to prison or remanded in custody pending trial.

However, the then Home Secretary felt that she had to say something to appease Tory supporters at the Conservative Party conference: that she would introduce even more draconian anti-protest measures. Despite the PCSC Bill having already passed through the Commons, the Government introduced these even more draconian anti-protest measures, those we have before us today, as amendments in Committee of the PCSC Bill in this House. Apart from custodial sentences for highway obstruction, this House rejected all these measures on Report of the PCSC Bill.

Apart from the new stop and search powers, which some police officers and His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services suggested the Government might introduce, but which the Home Office left out of the original PCSC Bill, none of the measures that we are being asked to agree to today in this Bill was requested by the police, none of the measures was supported by HMICFRS, and some that were considered, such as serious disruption prevention orders, were rejected as contrary to human rights, unworkable and likely to be ineffective.

I have Amendments 8, 29, 40, 55 and 60 in this group, which all relate to reasonable excuse. We saw, with the arrest and detention by the police of a journalist who was reporting on recent protests, the potential danger of only allowing a reasonable excuse defence to be deployed once charged, as the Government propose in this Bill. In other legislation, a person does not commit an offence if they have a reasonable excuse, and therefore cannot be lawfully arrested and detained. I might not go as far as the noble Baroness, Lady Chakrabarti, in saying that it should be for the prosecution to prove that the protestor did not have a reasonable excuse. I am reminded of the wording of Section 1 of the Prevention of Crime Act 1953, where

“Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence”.

If the Government are looking for compromise, as they should in the face of the opposition already expressed to these measures in this House in its consideration of the PCSC Bill and in the views expressed on this Bill at Second Reading, maybe this should be an option that they consider.

This is even more important than the offensive weapon example, in that these are basic human rights under Articles 10 and 11 of the European Convention on Human Rights—the rights of expression and assembly. To allow people who are exercising their human rights, who have a reasonable excuse for what they are doing, to be deprived of those rights by being arrested and detained, as the Government propose, but where the reasonable excuse for exercising their rights can only be considered once they have been charged, cannot be right.

In Clause 3(2), for example, the proposed legislation says, in relation to tunnelling,

“It is a defence … to prove that they had a reasonable excuse for creating, or participating in the creation of, the tunnel.”

Clause 3(3) says,

“a person is to be treated as having a reasonable excuse … if the creation of the tunnel was authorised by a person with an interest in land which entitled them to authorise its creation.”

I am sure that the Minister will correct me if I have this wrong but, say a landowner instructs workers to build a tunnel on her land, which she owns, before it is subject to a compulsory purchase order to facilitate a development, in order to disrupt the development, which she objects to, she and her workers can be arrested, detained and charged, and only then can they deploy the reasonable excuse defence that the Government provide for in the Bill. How can that be right?

In relation to the obstruction of major transport works, the Bill provides specifically, in Clause 6(2)(b), that if the action

“was done wholly or mainly in contemplation or furtherance of a trade dispute”, the person has a reasonable excuse, but Clause 6(2) says that

“It is a defence for a person charged with an offence”.

Again, the Minister will correct me if I am wrong, but does that mean that lawful pickets, on a picket line, can be arrested by the police, detained, and charged and can deploy the reasonable excuse defence only once charged? The Minister may say that the police would not arrest those engaged in lawful picketing—even though the proposed legislation would allow it—but, presumably, the Minister also believes that a mainstream journalist, with an accredited press pass, reporting on a protest, would not be arrested and detained for five hours by the police, and would also deny that. Similar arguments apply in relation to Amendment 60 to Clause 7.

We have seen from the arrest of the journalist that the police cannot always be trusted in every circumstance to use their judgment and not use the powers given to them in legislation. If someone has a reasonable excuse for their actions—we will come to a discussion of what amounts to a reasonable excuse in the next group—such as an accredited press card holder reporting on a protest, they should not have a defence once arrested, detained and charged, but the police should not be allowed to arrest and detain them in the first place. That is the desired effect of the amendments in this group and we strongly support them.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, I put my name to Amendments 1 and 7 in the name of the noble Baroness, Lady Chakrabarti, and I support to similar effect Amendment 8 in the name of the noble Lord, Lord Paddick, which coincides with that proposed by the Joint Committee on Human Rights. They relate, of course, to the locking-on offence in Clause 1, which, as the noble Baroness said, is an offence for which the actus reus is extraordinarily broad. You do not have to attach yourself to railings to commit it; it is enough to “attach an object”—any object—

“to another object or to land.”

Nor is there any requirement that serious disruption be caused; it is enough that the act

“is capable of causing, serious disruption”, a term undefined, at least so far, and that you are “reckless” as to whether it does so.

When I raised this point at Second Reading, the Minister was good enough to say that he would write to me on it, and I thank him for doing so. He makes the point in his letter that the defendant has personal knowledge of the facts, making it reasonable for him to have to establish them. I agree with that: no one, I understand, objects to the evidential burden resting on the defendant, and I apprehend that that is what the noble Lord, Lord Paddick, was just saying, but it is clear from the letter that the Government’s intention is to go further and to place the legal burden on the defendant of proving lawful excuse.

The letter explains that there are times when the evidential and legal burden of proof may legitimately fall on the defendant, notwithstanding the presumption of innocence. One of those times, as the Minister said, is when you are carrying a bladed article in a public place. You may then be expected to prove that you had good reason to avoid conviction under Section 139(4) of the Criminal Justice Act 1988. But as the court said in the relevant case, L v DPP:

“There is a strong interest in bladed articles not being carried in public without good reason”.

The public interest in objects not being attached to other objects is less strong, to put it mildly, particularly against the background of the fundamental right to protest.

As Lord Bingham went on to say in Sheldrake, now the leading case on reverse burdens, security concerns do not absolve the state from its duty to observe basic standards of fairness. There are cases not referred to in the Minister’s letter, such as DPP v Wright, a Hunting Act prosecution, in which it was held to be oppressive, disproportionate, unfair and unnecessary to impose a legal burden on the defendant. Then there is the point well made by the Joint Committee on Human Rights: if the reasonable excuse is an afterthought, rather than an ingredient of the offence, protesters will be liable to be arrested whether they had a reasonable excuse or not. It is undesirable in principle for the possible defence to arise for consideration only after arrest or charge.

The curious thing about this debate, it seems to me, is that it is unlikely to affect the ease of conviction one way or the other. Once it is accepted that a protester may legitimately be asked to bear the evidential burden, then the legal burden, whatever the legal significance of the point, will rarely matter much in practice. The court will take its own view on whether the excuse is reasonable or not and not usually spend much time on the technical issue of burden of proof. Indeed, that was another point made by Lord Justice Pill in the L v DPP case, on which the Government relied in the Minister’s letter to me. In other cases where the Government have overstepped the mark by putting a legal burden on the defendant when they should not have done so, Section 3 of the Human Rights Act has come to their rescue, by enabling the reverse burden to be interpreted as a merely evidential burden that does not get in the way of the presumption of innocence. That emergency cord will not be available to the Government if the courts rule against them on reverse burden after the Bill of Rights has removed Section 3, as appears to be their intention.

I approach this issue in a spirit not so much of crusading zeal as of some bafflement that the Government would take such a legally risky course for so little practical advantage. I suggest that the orthodox approach to these offences is also the fairer approach for members of the public, and the safer approach for police, prosecutors and the Government. The prosecution should simply have to prove its case in the normal way.

Photo of Lord Skidelsky Lord Skidelsky Crossbench 4:15 pm, 16th November 2022

My Lords, I am happy to add my name to the group of amendments in the name of the noble Baroness, Lady Chakrabarti, in perhaps a more crusading spirit than the noble Lord, Lord Anderson.

If asked, most people would say that the most important principle in our legal system is that a person is presumed innocent until proven guilty. They would be surprised, and should be alarmed, by the extent to which this principle has been steadily eroded in our legal practice, of which this clause is a good example. As the clause stands, a defendant would have to prove in court that they had a reasonable excuse for committing the offence specified in Clause 1(1)(a).

Our amendment is designed to ensure that the police must prove in court that the defendant had no reasonable excuse for committing the offence. In other words, the police would need to prove that A and B, charged with walking down a street linking arms, had no reasonable excuse for doing so. As the burden of proof will fall on the police, they are less likely to arrest and charge people indiscriminately without a reasonable cause for doing so.

It is a very important point. The effect of this amendment will be to diminish the number of people detained and arrested for no offence. If we can achieve that, it will be an important thing to have done.

Photo of Baroness Blower Baroness Blower Labour

My Lords, my noble friend Lord Hendy has added his name to Amendment 60. In his unavoidable absence, I will speak to that amendment in words which are largely his, although I support and endorse all the amendments in this group.

The purpose of Amendment 60 is simple: to make more effective the protection the Government intend to provide for those with a reasonable excuse or those engaged in a trade dispute in the current version of Clause 7. I will focus specifically on trade disputes, with which I have some affinity.

By way of preliminary, it should be noted that the phrase

“in contemplation or furtherance of a trade dispute” originated in the Trade Disputes Act 1906. It is now found in the Trade Union and Labour Relations (Consolidation) Act 1992, where is also found the definition of a trade dispute. For the purposes of today’s debate, it is sufficient to say that trade disputes encompass disputes over terms and conditions of employment and certain other industrial relations matters.

As drafted, Clause 6 recognises that obstruction or interference, which constitute the offence in subsection (1), may well be applicable to those picketing in the course of a trade dispute. Clause 6(2) seeks to exclude pickets from being found guilty of the subsection (1) offence. However, the way the subsection is drafted means that a person in such a situation, as we have heard, may be arrested, charged and brought before the court. It is only when presenting their defence that the trade dispute defence will achieve the protection afforded by the Bill.

Those who have signed this amendment and the rest of us who support it hope that, if someone is acting in contemplation or furtherance of a trade dispute, they will not be liable, as we have heard from the noble Lord, Lord Paddick, to be arrested, charged or brought to court for a subsection (1) offence. The defence should kick in before that point.

It is important to bear in mind three points. First, the right to picket in contemplation or furtherance of a trade dispute is a statutory right, now set out in Section 220 of the consolidation Act of 1992 but with its origins in the Conspiracy, and Protection of Property Act 1875. The price of the right to picket was that no protection was given for the offences created by the 1875 Act, such as “watching and besetting”, fascinatingly; nor has it been given for the array of other potential offences such as obstructing a public highway or an officer in the exercise of his duty, or more serious offences.

Since 1875, the right to picket has been regulated and restricted by many amendments to the relevant law, the latest being several requirements imposed by the Trade Union Act 2016, now found in Section 220A of the Trade Union and Labour Relations (Consolidation) Act 1992. This leads to the second point: the amendment seeks only to strengthen the protection against this specific offence; all other potential offences which might occur in the course of a trade dispute remain open to charge. The amendment does not seek to enlarge the right to picket.

The final point is this: a picket in the course of a dispute is not a secret activity; it is not one of which local police will be unaware. The very purpose of a picket—and I can attest to this from having stood on many of them myself—in the words of Section 220 of the 1992 Act is that of

“peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”

To this end, pickets draw attention to themselves, to their union, and to the dispute they seek to further in the hope of persuading others not to cross the picket line. Your Lordships will be familiar with images of picket lines, and over the last few months, perhaps even familiar with actual pickets. The police will have no difficulty in recognising those acting in contemplation or furtherance of a trade dispute long before they, no doubt vociferously, proclaim it.

More than that, under Section 220A, a picket supervisor must be appointed by the union. She or he must be familiar with the very extensive Code of Practice on Picketing, and, most importantly for our purposes, she or he must take reasonable steps to tell the police his or her name, where the picketing will take place, and how he or she may be contacted. The section also requires that the picket supervisor must be in attendance on the picket or able to attend at short notice. She or he must be in possession of a letter of authority from the union which must be produced on demand; significantly hedged about, therefore.

It is right that in the creation of this new offence the Government have not sought to encroach on the protection of the right to picket in industrial disputes, a right which is also protected by Article 11 of the European Convention on Human Rights, and hence the Human Rights Act 1998. This amendment is exceedingly modest: it asks that the protection be made effective by preventing a picket from being charged with a new offence.

Photo of Lord Balfe Lord Balfe Conservative

My Lords, it is a pleasure to follow the noble Baroness, Lady Blower, and even more of a pleasure to reflect on the words of our good friend, the noble Lord, Lord Hendy. Before he came into this House, I do not think that we had quite the same level of wisdom and knowledge about the details of trade union legislation.

I too rise to ask that the Minister gives serious consideration to accepting Amendment 60; all it does is make it quite clear that a person, picket or trade union does not commit an offence under the clause by removing the words:

“It is a defence for a person charged with”— they should not ever be “charged with”. This is a perfectly legitimate action undertaken by people in pursuance of a trade dispute, and quite reasonable. So I ask the Minister to look very carefully at Amendment 60, and when it comes back, to see whether this amendment cannot be accepted, because it is a very sensible amendment.

One could make virtually the same speech on many of the clauses in the Bill. I do wonder: what are we trying to achieve? Most of the things in the Bill are already offences. If we have a problem, it is that the police do not seem to think that it is worth prosecuting them—of course, we saw in the last few days that glorious picture of 11 rather bewildered policemen standing in the middle of the M25, gazing at a gantry.

This is not a sensible way to make laws; I am not sure that it appeals even to the Daily Mail. A lot of the Bill is reflex action stuff. It is man-in-the-pub stuff: “Oh, we don’t like this”—of course we do not want people to stick themselves to the pavement, but the law already exists. Between now and Report, I ask the Minister to have a very careful look at what we are trying to achieve, whether the Bill achieves it and, in particular, Amendment 60 and the Bill’s effect on the trade union movement—I probably should have declared that I am the president of a TUC-affiliated trade union —and its many voluntary workers who spend their leisure time trying to improve the lives of their colleagues. Please can the Minister have another look?

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, it is a pleasure to follow the noble Lord, Lord Balfe. I absolutely agree with his fundamental point that here we are trying to create offences which are not necessary because there are already adequate offences to deal with these situations. I do not understand why the police have not used those existing offences in entirely appropriate situations.

I apologise for not having been able to speak at Second Reading, and I will try to be very brief now as a result. We have a situation here in which we are responding to someone else saying to us, “Something has to be done.” There are often situations in which, when we hear those words, the answer should be, “No, it doesn’t; we just need to do the things we have rather better”, and not produce a load of speciality legislation that will barely be used.

Sitting just behind me is a former Director of Public Prosecutions, my noble friend Lord Macdonald of River Glaven. I have heard him, very recently in fact, talk in another setting of the discretion not to prosecute that is vested in prosecutors. I apprehend that in many of the cases we are thinking of here, the police will NFA—no further action—a lot of them. If they do get to the Crown Prosecution Service because the police have not NFAd them, Crown prosecutors will NFA them using the second part of the CPS code test; namely, the public interest. It is very important, is it not, for us and the authorities which we invest with these powers to be proportionate in their use of them?

I absolutely agree with the noble Baroness, Lady Chakrabarti, and others who have said that it is much better in principle for the whole burden and standard of proof to fall on the prosecution. However, I agree with my noble friend Lord Anderson that there is a bit of dancing on pins about that; it does not really make much difference in the end.

We should not be creating offences where, if they are summary offences, lay magistrates are going to find it very difficult to square their consciences with convicting people charged with them, and where—this is the worst possible scenario—if they are triable by jury, the jury may refuse to convict when there is overwhelming evidence that the offence was committed. Juries have done that recently, not least in relation to the Colston statue case in Bristol.

If your Lordships will allow me one quotation, I return in the end to some of the very wise words of Dr Martin Luther King, who said:

“One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”

That does not mean that a member of Just Stop Oil has the right to block the M25; the just or unjust law they would be dealing with is not the Government’s policies on oil but whether it should be a crime to obstruct the highway, so it will not actually help them very much in those cases. What I really want to say is that I think we will spend many hours today talking about issues that we really should not be troubling ourselves with at all.

Photo of Lord Horam Lord Horam Conservative 4:30 pm, 16th November 2022

My Lords, I shall follow up on precisely the point that the noble Lord, Lord Carlile, has just made about whether we are wasting our time on something which we should not really be discussing because the offence is already there. As a non-lawyer, I tread with some trepidation in this area, as the Committee will understand, but I would like to have clarified the extent to which the law to deal with this problem already exists. This has concerned me.

I took part at Second Reading and I was very interested in the comments made by the noble Lord, Lord Hogan-Howe, who has operational experience in dealing with problems similar to this, if not this particular problem. No doubt there were similar efforts of a similar kind before this business of locking on to block roads. In his remarks, he said that until recently,

“obstructing the highway has always been a simple offence—an absolute offence. No intent required”.

That had been the position, apparently. However, I gather from his speech that subsequently the Court of Appeal was overruled by the Supreme Court, which said that, if a protest is obstructive, the circumstances of that protest should be taken into account. The noble Lord also said:

“Crucially, it means that protesting in a way that obstructs road users is not automatically a criminal offence.”—[Official Report, 1/11/22; col. 174.]

Therefore, as a lay man, it seems to me that some doubt has been bought into the question of whether an ordinary police officer, acting as he thinks sensible, has the right to stop someone obstructing the highway, even if he thinks the cause is just. There seems to be some doubt, so I hope that when he comes to wind up my noble friend can clear this up. If there is no doubt here, why are we discussing all this? If there is some doubt, there is every reason to have the Bill and this clause. It seems to me that in that situation we need clarity.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

If I am to be corrected, I am, but may I just offer a view? It is an offence to wilfully obstruct the highway. Of course, if you obstruct it because a person in your car is having a heart attack and needs attention, there will probably be a reasonable excuse for the obstruction and that is a defence. However, it is a summary offence to obstruct the highway, punishable by imprisonment.

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

Before the noble Lord continues, I ask him to point to the provisions in this Bill that make up for the problem relating to highway obstruction that the noble Lord, Lord Hogan-Howe, identified. Having read this in detail, my understanding is that nothing in the Bill addresses the noble Lord’s concern. Therefore, the question remains: why are we discussing this?

Photo of Lord Horam Lord Horam Conservative

The Bill addresses this point, but we could spend for ever on that. None the less, I understand that the Bill is designed to bring clarity to the issue of whether a police officer is within his rights to deal with an obstruction, for whatever cause that obstruction may occur. To answer the point made by the noble Lord, Lord Carlile; clearly, in the situation he outlined, the police officer would exercise his common sense and would not arrest the person in question. Therefore, it seems to me that, if we seek clarity, the more we add bits and pieces to the legislation that put down reasons why people may have a right to protest—for some reason which they bring forward—we simply fudge the whole issue and deduct from the clarity that we need. At the end of the day, people really do want this clarified: they want to know what the rights and duties of the police officer are, and that they are accordingly following those thoroughly.

Photo of Lord Macdonald of River Glaven Lord Macdonald of River Glaven Crossbench

My Lords, the extent to which there are gaps in our current legislation that require filling by this legislation is a substantial question. I, for one, will listen very carefully to what the Minister has to say about this, because it seems to me that it is incumbent on the Government to point out what those gaps and loopholes are, and where those gaps and loopholes are being exploited. If the reality is that we have sufficient legislation in place but it is simply not being rigorously applied, that is no argument at all for new legislation: it is an argument for the current legislation to be properly applied. I am absolutely confident that we have legislation to deal with people who climb up on to motorway gantries and cause 50,000 or 60,000 cars to be blocked from travelling around the M25. With respect, I defy the Government to argue with any persuasive force that we do not have legislation to deal with that.

So far as the point made by the noble Lord on the recent Supreme Court judgment in Ziegler is concerned, that reasoning would of course apply to every clause in this legislation. All that the court was saying was that when individuals are arrested for an offence in circumstances where they are exercising their Article 10 free expression rights, a proportionate examination has to be undertaken by the court as to whether the inconvenience, for example, that they are causing is so minimal that it is overwhelmed by their Article 10 rights to protest and that they should therefore be allowed to do so. Of course that is right and it would apply to every clause in the Bill. If the disruption is significant, it will almost always, in my judgment, overcome any Article 10 defence. But I ask, particularly in respect of the offence of locking on: where are the gaps that the Government say exist that need filling by this clause and subsequent clauses in the Bill?

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, I shall open by thanking the noble Lord, Lord Paddick, for setting the scene and the background to this group of amendments. I agree with the way that he set out the history of this group of amendments. I also thank my noble friend Lady Chakrabarti for the way she set out her amendments and commented on the other amendments. I agree with her assessment that the Bill, as drafted, is vague and broad—and that it is vague and broad in a dangerous way. I agree with those central points.

Throughout the Bill, a number of clauses state that it is a defence for a person charged with an offence under the clause to

“prove that they had a reasonable excuse” for their actions. As we have heard, the JCHR flagged this as a reverse of the burden of proof, so that rather than the prosecution having to prove that a person’s actions were done without a reasonable excuse and so were unlawful, it is for the defendant to prove, after they have been charged, that they had a reasonable excuse for their actions. This is in contrast to an offence such as obstruction of the highway, which we have just heard about, where the prosecution must prove that the defendant did not have lawful authority or excuse for their actions. For the new locking-on offence, the burden of proof would be on the defendant to show that he or she had a reasonable excuse.

Such a reverse burden of proof may be inconsistent not only with Articles 10 and 11 but with the presumption of innocence—a central principle of criminal justice and an aspect of Article 6 of the ECHR and the right to a fair trial. This is because requiring the defendant to prove something, even on the balance of probabilities, may result in a conviction despite there being an element of doubt, and it is hard to see why a reverse burden is necessary or appropriate in this case. The noble Lord, Lord Anderson, gave the example of a bladed article and the reverse burden of proof in that context. It is of course a defence I am very familiar with as a sitting magistrate in London. It is of course right that the court will take its own view on whether the reverse burden of proof is reasonable in these circumstances.

I agree with the point made by my noble friend Lady Chakrabarti that the better situation is that a police officer, when considering whether to charge, at that point takes into account whether there is a reasonable excuse, rather than it being subsequently resolved in a court case—although I also acknowledge the legal point made by the noble Lords, Lord Carlile and Lord Anderson, that it is not always simple to distinguish between the two. Nevertheless, the point is that the police officer should take into account a potential reasonable excuse defence before deciding whether to charge.

To summarise this debate, two noble Lords made points that I thought were particularly resonant. The noble Lord, Lord Carlile, asked whether this was speciality legislation for ever more exotic offences that can be extremely annoying to the general public. As many noble Lords have said in this debate, there is existing legislation to deal with those offences, and there is scepticism that the police are feeling able to use the legislation that is already within their power. The noble Lord, Lord McDonald, challenged the Minister to give examples of the gaps in the existing laws: in fact, he defied the Minister to go ahead and give those examples.

I also want to comment briefly on my noble friend Lady Blower’s speech on Amendment 60, which of course I agreed with. I also agreed with the point made by the noble Lord, Lord Balfe, that in the case of industrial action it should not be a reasonable excuse. The offences should never be charged in the first place. It is the same point, in a sense, that the potential use of a reasonable excuse should be taken into account right at the beginning of the process rather than once you get to a court case.

Although the amendments focus on particular detailed provisions in this Bill, I think a challenge has been laid down to the Minister to give examples and to say why this is necessary when we have a plethora of laws which are being used. The demonstrators on the M25 have moved on partly because of the sentences that have been given to them, so what is the necessity of pursuing this legislation?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

My Lords, I thank all noble Lords who have spoken in this debate, to which I have listened carefully. Before I turn to the specific amendments in the group, I shall start by setting out the case for Clauses 1 to 8 and why I disagree with the general thrust of many of the amendments that we are going to discuss today that seek to make these offences less effective.

Before I do that, I shall go on to a couple of general points. The noble Lord, Lord Paddick, said that this House had already rejected these measures, but one of the main criticisms that noble Lords made during the passage of the Police, Crime, Sentencing and Courts Bill was that the measures had not been debated in the House of Commons. The elected House has now had an opportunity to scrutinise this legislation and vote on the Government’s proposals and has supported its move into the House of Lords.

A number of noble Lords mentioned compatibility with the ECHR. I reaffirm that it is the Government’s view that the measures in this Bill are compatible with the ECHR, namely the rights to freedom of expression, assembly and association. However, these rights are not absolute. They do not extend to wreaking havoc on the lives of others. Of course, however, as with all existing public order powers, the police will absolutely need to act compatibly with the human rights of protesters when using those powers.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

It appears from his general introduction that the Minister is going to proceed with this Bill. Surely, in the light of the overwhelming view on both sides of the House that existing legislation is entirely adequate—with one slight hesitation from the noble Lord, Lord Horam—it is a waste of the Minister’s valuable time and this House’s time to proceed with this. Will he now quickly have a rethink and withdraw this Bill?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

Well, I thank the noble Lord for that, and the answer is, of course, no.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

That is a very clear answer. I wonder whether the Minister could give, perhaps, a sentence or two of explanation as to why he does not think that it would be a wise move to withdraw this Bill, since all its aspects are already covered by existing legislation.

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department 4:45 pm, 16th November 2022

My Lords, it is reasonable to say at this point that we are about to have two days of quite detailed explanation on that, so I am afraid that that is as far as I can go on this.

Returning to the more general points that have been made so far in this debate, particularly as to why the police need these powers, what existing powers they have, and so on and so forth, we will be returning to this in a much later group, and I intend to speak in much more detail on it. From a general point of view, recent protests were clear that they had as their aim the intent of causing as much disruption as possible through the use of what can only be described as guerrilla tactics. These measures give the police the proactive powers necessary to respond to these dangerous and disruptive tactics quickly. We are going to work closely with our partners in the police to ensure that they have the support and resources in place that they need to use these powers.

Again, as my noble friend Lord Horam remarked, too often we have seen protesters acquitted on grounds of technicalities or get penalties that do not reflect the harm that they have caused to others. We want simple, stand-alone offences that ensure that those who cause this level of disruption and misery can be convicted and receive a penalty proportionate to the harm that they have caused. I will return more specifically to the legislation in a later group; I hope that will be acceptable.

To give one example of this type of behaviour, just two Just Stop Oil activists climbed the suspension cables of the Queen Elizabeth II bridge in the early hours of 17 October this year. They caused its closure for more than 36 hours. Once discovered, the Essex Police attended and closed the carriageway so that officers could safely leave their vehicles in an attempt to engage with the activists. It was later advised by National Highways to keep the road closed for the safety of the protesters, road users and responding partners. The closure of the carriageway meant that the entirety of the clockwise traffic from Essex to Kent that usually utilises the QE2 bridge had to be diverted through the east bore of the Dartford Tunnel, halving the usual counter-clockwise Kent-Essex traffic capacity that would normally use all the tunnels at the Dartford crossing. This had a number of knock-on impacts in terms of the emergency services and local communities and businesses. I am sure that we are all familiar with what those were.

The noble Lord, Lord Paddick, raised a hypothetical example of a landowner in respect of a tunnel.

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

Before the Minister continues, can he point to which part of this Bill would be deployed against the two Just Stop Oil activists who climbed on the QE2 bridge?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

Well, we are about to go into a good deal of discussion about things such as serious disruption, key national infrastructure and so on, which form essential parts of this Bill. I am not a policeman, but I imagine that the police are perfectly capable of utilising those aspects of the Bill.

I come to the hypothetical example of the landowner that the noble Lord raised earlier. It is worth pointing out, in relation to the entire Bill, that the threshold is “serious disruption”. In the case that the noble Lord outlined, that is clearly not the case, so there would be no case.

I move on to the measures in Clauses 1 to 8. As well as the measures we will discuss next week, the police will have the proactive powers necessary to respond quickly to these dangerous and disruptive tactics.

I turn to the specific amendments in the group. Amendments 1, 7, 8, 24, 28, 29, 35, 39, 40, 55 and 59, in the names of the noble Lords, Lord Paddick, Lord Anderson of Ipswich, Lord Skidelsky and Lord Coaker, and the noble Baroness, Lady Chakrabarti, seek to move the burden of proof for a reasonable excuse from the defendant to the prosecution, making it a key element of the offence. We will debate the subjects that the noble Baroness, Lady Blower, raised with regard to trade disputes in the fourth group today, so I will defer specific answers to those questions until the debate on that group.

Whether or not someone has a reasonable excuse for their actions is very specific to each particular incident, so we see it as entirely appropriate that the defendant, who has committed the offence in the first place and has personal knowledge of these facts, is required to prove them. It is also the case that the burden of proof resting on the individual is not a novel concept. There are multiple offences where this is the case, including—as the noble Lord, Lord Anderson, pointed out—the defence of good reason for possessing a bladed article in a public place under Section 139 of the Criminal Justice Act 1988.

The noble Baroness, Lady Chakrabarti, raised the example of linking arms. Of course linking arms itself is not an offence; it is an offence and applicable only if the act

“causes, or is capable of causing, serious disruption to … two or more individuals, or … an organisation”.

Groups of protesters linking arms and obstructing roads or buildings can cause just as much disruption as those who use other equipment to lock on. For example, it is not right that groups of people who glue themselves to roads may fall under this offence but those who link arms and cause just as much disruption do not.

On the question from the noble Lord, Lord Anderson, on why the burden of proof being on the defendant is in the public interest, we have seen people cause so much serious disruption and then continue to burden the prosecution with more and more requirements to prove things. Surely it is right that, where people have caused this kind of disruption, they should demonstrate that they had a reasonable excuse.

With these offences, the prosecution will still need to prove all the elements of the offence to the criminal standard of proof, including that the act

“causes, or is capable of causing, serious disruption”, as I just explained, and that the defendant intended or was reckless as to serious harm disruption. For those reasons, I respectfully disagree with the amendments.

Photo of Lord Skidelsky Lord Skidelsky Crossbench

Does the Bill define serious disruption?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

Again, we will come back to that in some detail in the debate on a later group. The amendments have been grouped thematically today so there will be a bit of overlap, for which I apologise. For now, I respectfully disagree with these amendments and ask that they not be pressed.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

Will the Minister at some point explain to us why Section 78 of the Police, Crime, Sentencing and Courts Act 2022, introduced by this Government, does not meet exactly the requirements discussed in this Bill? It is not an ancient Act of Parliament but a new one, and it seems to me to fit the bill proportionately.

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

Can the Minister address the issue of people being arrested and detained, and being allowed to deploy a reasonable excuse defence only once charged, as opposed to someone not committing an offence if they have a reasonable excuse, which is the normal process with most legislation?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

My Lords, I think I have gone into reasonable detail on the reasonable excuse situation, so I will rest my comments there for now.

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

I am sorry to disagree with the Minister, but he addressed the issue of whether the burden of proof was on the prosecution or on the defence. He did not address, in any shape or form, police being allowed to arrest and detain people and their being allowed to deploy the reasonable excuse defence only once charged.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

If the Minister is going to come back to my noble friend, could he do so in this Chamber? That question is absolutely fundamental to the discussion on the Bill. To have the answer in writing, available in the Library if one goes to look for it, is in our view not adequate.

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

This is Committee, so we are allowed this sort of debate. I want to reinforce what the noble Lord, Lord Carlile, said about Section 78 of the Police, Crime, Sentencing and Courts Act. It says:

“A person commits an offence if … the person … does an act, or … omits to do an act that they are required to do by any enactment or rule of law … the person’s act or omission … obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and … the person intends that their act or omission will have a consequence mentioned in paragraph (b)”.

That covers, completely and perfectly, the people on the gantry of the QEII Bridge. The maximum sentence for that activity is up to 10 years in prison. None of the provisions in this Bill goes anywhere near 10 years in prison. Why do the Government not rely on existing legislation rather than creating all these other offences?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

My Lords, I think I have already gone into that. As I say, the Bill creates another set of offences designed to deal with evolving protests, but I will come back on the specific point about the PCSC Act.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I am almost speechless. I do not blame the Minister, but those briefing him really need to consider what we have been discussing today; we are talking about the rights and freedoms of people in this country, and it is a very serious issue.

I thank all noble Lords who have participated in this debate on the first group. I particularly thank the noble Lord, Lord Paddick, for, as always, bringing his policing expertise as well as his parliamentary skills to the debate. I also thank him for mentioning Charlotte Lynch, the LBC journalist who was arrested last week beside the M25 with a valid press card and with a microphone that was clearly branded with the name of her broadcaster. She offered her press card to the police, who then slapped handcuffs on her. They took her mobile phone from her and started scrolling to see who she might have been speaking to. Perhaps she had been tipped off about the protest by protesters; that is what journalists do in a free society. She was subjected to a body search and taken to Stevenage police station. She was detained in the police station in a cell with an open toilet and a simple bed for five hours, and was eventually let go without a police interview. Records show that they arrested her for the offence of “conspiracy to cause a public nuisance”. That happened under the existing law.

Now, without addressing concerns about incidents of that kind, and in the wake of what happened to Sarah Everard and all the crises there have been in public trust in policing in this country, the Government are proposing this suite of new offences—yet the Minister has not been able to identify the gap that those offences are supposed to address. That is a matter of considerable concern—a concern which was mentioned by almost every speaker in this debate, with the exception of the noble Lord, Lord Horam, and the Minister himself. The noble Lord, Lord Horam, called for clarity in the law, but I am afraid I was not totally clear which provisions or amendments he was addressing.

The noble Lord, Lord Anderson of Ipswich, gave a master class on issues of burdens of proof and reverse burdens, which are sometimes used in law. However, I remind the Minister that, when they are used in law, it is in relation to very tight offences that are problematic per se, such as carrying a blade or point in a public place. Most members of the public understand that that is not innocent activity; it is incumbent on somebody to explain why they needed to be carrying that knife in the street. That is not the case with carrying a bicycle chain or linking arms with a friend. That is innocent activity per se that is rendered criminal in certain circumstances, and so it is particularly dangerous to flip the burden of proof. Further, on the point made by the noble Lord, Lord Paddick, it is essential that the person should be able to say to the police officer before they are arrested—not seven hours later, in Stevenage police station—that they have a legitimate reason for what they have done. I ask the Minister to think about Charlotte Lynch when he reflects on the powers that he is being asked to justify by others in this Chamber.

I apologise to the noble Lord, Lord Anderson of Ipswich, for my crusading zeal rather than his forensic brilliance, but his master class on the nature of these offences and defences, and how essential it is to have clarity, is worth re-reading.

I totally agreed with the noble Lord, Lord Skidelsky, about the presumption of innocence and the way that it is being further eroded by the proposals in this Bill.

Although the Minister said he would address my noble friend Lady Blower’s point about a trade dispute defence in a further group, I think it would be a great opportunity for him to use that time to reflect on the fact that that amendment, as opposed to some of mine, is in tune with government policy. My understanding is that the Government do not actually intend—whatever else they intend and whatever our differences—to criminalise lawful pickets in the new Clause 7. Therefore, it would not hurt to accept my noble friend’s argument, and that of my noble friend Lord Hendy, and put in the Bill that clarity and comfort around lawful trade union activity related to that particular offence. The Minister has given himself time to discuss this with colleagues and perhaps address it before we come to the later group.

I absolutely want to associate myself with the comments of the noble Lord, Lord Balfe, about the legislation generally and Amendment 60 in particular. He said it all when he said this is “reflex action stuff”. This is reflex action legislation. My noble friend Lord Ponsonby called it specialty legislation—more and more exotic new offences addressing activity that is already criminalised because something must be done. The danger with that approach to legislation is that it leads to more arrests of the innocent. It does not deal with the guilty, who are criminalised already and sometimes need to be tackled. As the noble Lord, Lord Carlile of Berriew, said, we need to address the current law better.

Photo of Lord Balfe Lord Balfe Conservative 5:00 pm, 16th November 2022

I suggest to my noble friend that it also leads to juries being less and less likely to convict because they see these offences as being very spurious.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I could not agree more with the noble Lord, Lord Balfe. Again, it echoes something that the noble Lord, Lord Carlile of Berriew, said. He will forgive me if I summarise his excellent contributions: let us not bring the law into disrepute—not in this place. We are not an elected House, but we are a scrutinising Chamber; we have the time and expertise to make sure that we do not bring our statute book into disrepute. That is where we agree, across the Benches and across this Committee.

I totally agree with the noble Lord, Lord Macdonald of River Glaven, that having proportionality in our law is not a problem; it is a benefit. Ministers should not work so hard to squeeze out the judgment and proportionality that must be employed by decision-makers, including police officers and courts.

I will stop there, save to say once more to the Minister that he has not been well served in some of his briefing. Respectfully, it is perfectly legitimate for Members in this Committee to begin by asking the Government to justify why they are legislating and where there is a gap in the existing law, because that central point has not been addressed in this hour of debate. If we do not address it, there will be more cases like that of Charlotte Lynch, and others who are not journalists—in some cases they are bystanders and in some cases they are peaceful dissenters. There is plenty of police power on the statute book and some of it has been abused. There are plenty of criminal offences and some of them have not been used when perhaps they might. It really is for the Government to justify interfering further with the spirit of British liberty. With that, I will—for now only—beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Photo of Lord Geddes Lord Geddes Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, before calling Amendment 2, I must advise the Committee that if it is agreed to I will not be able to call Amendment 3 due to pre-emption.