Amendment 2

Public Order Bill - Committee (1st Day) – in the House of Lords at 5:00 pm on 16th November 2022.

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Lord Paddick:

Moved by Lord Paddick

2: Clause 1, page 1, line 10, 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, in moving Amendment 2 in my name I will speak to the other 12 amendments in this group. Amendment 2, supported by the noble Lords, Lord Coaker and Lord Skidelsky, and the noble Baroness, Lady Chakrabarti, is related to the offence of locking on. I remind noble Lords that the Government’s Explanatory Notes suggest that

“Recent changes in the tactics employed by … protesters have highlighted some gaps in … legislation”, of which this is one. Suffragettes chained themselves to railings, so to suggest that this is a gap in legislation as a result of recent changes in tactics employed by protesters is nonsense. I expect the Minister will challenge such an assertion, but we can debate that when he responds.

This amendment would narrow the offence of locking on where such actions—attaching themselves or someone else to another person, an object or the road, for example, to cause serious disruption—by removing the wider offence of an act that

“is capable of causing, serious disruption”.

Can the Minister explain what “capable of causing” actually means? If someone locks on in a minor side road or at the entrance to a cul-de-sac, causing little or no disruption, but had similar action been taken on a busy major road it would have been capable of causing serious disruption, would they commit an offence in such circumstances? If they block a busy major road at 3 am when there is no traffic, whereas had it been 10 am they would have caused major disruption, does that amount to it being capable of causing serious disruption in another place and time? Amendment 2 seeks to restrict the offence of locking on to incidents where serious disruption is actually caused to probe what “capable of causing” means and how widely the offence would be applied.

Amendment 25 in my name would again remove “is capable of causing” in relation to the offence of tunnelling, for similar reasons. Can the Minister explain what sort of tunnel might be capable of causing serious disruption but does not actually do so? Why, in that case, does it need to be criminalised? Similarly, Amendment 36 in my name, supported by the noble Baronesses, Lady Chakrabarti and Lady Fox of Buckley, seeks to remove “is capable of causing” in relation to the offence of being present in a tunnel. Again, can the Minister explain how someone’s presence in a tunnel might be capable of causing serious disruption without actually doing so?

Amendment 3, in the name of the noble Lord, Lord Coaker, which we support and is signed by my noble friend Lady Ludford, similarly seeks to limit the scope of the offence by removing the reference to causing serious disruption to two or more people and replacing it with

“serious disruption to the life of the community”, as suggested by the Joint Committee on Human Rights. We support this amendment.

Amendment 4, in my name and supported by the noble Lords, Lord Coaker and Lord Skidelsky, seeks to restrict the offence to cases where there is an intent to cause serious disruption—not merely, as currently drafted in Clause 1(1)(c), being

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

Can the Minister give an example of when someone who does not intend to cause serious disruption should be guilty of the offence—in this case, of locking on —when they are simply exercising their right to protest?

Amendment 26, in my name, similarly seeks to narrow the tunnelling offence to cases where there is an intent to cause serious disruption, rather than where someone is merely “reckless” as to whether their tunnel might cause serious disruption. Can the Minister give an example of reckless tunnelling that might fall within the scope of the offence as drafted?

Similarly, Amendment 37, in my name and supported by the noble Baroness, Lady Fox of Buckley, seeks to narrow the definition of the offence of being present in a tunnel to cases where there is an intention to cause serious disruption. Would a journalist who goes to interview protestors in a tunnel be guilty of an offence of being reckless as to whether her presence in the tunnel might cause serious disruption, for example? Can the Minister provide any reassurance?

Amendment 6, in the name of the noble and learned Lord, Lord Hope of Craighead, and Amendment 23, in the name of the noble Baroness, Lady Chakrabarti, supported by the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Boycott, quite rightly attempt to place a definition of serious disruption on the face of the Bill, rather than asking us to sign a blank cheque where such a definition is decided by the Secretary of State subsequently by statutory instrument.

Similarly, in relation to the tunnelling offence and the being present in a tunnel offence, Amendments 27 and 38 in the name of the noble and learned Lord, Lord Hope of Craighead, seek to provide a definition on the face of the Bill of serious disruption in relation to tunnelling.

Amendment 17, in the name of the noble Lord, Lord Coaker, and supported by my noble friend Lady Ludford and the noble Lord, Lord Anderson, seeks to define

“serious disruption to the life of the community” in Amendment 3.

Finally in this group, Amendment 54, in the names of the noble Lord, Lord Coaker, and my noble friend Lady Ludford, to which we give qualified support—subject to what the noble Lord, Lord Ponsonby of Shulbrede, will say in explaining the amendment—seeks to provide a definition of serious disruption to major transport works, as suggested by the Joint Committee on Human Rights. However, we have concerns over the inclusion of “reckless” in this definition, for reasons I have previously explained.

I think noble Lords will see the complexity of this Bill and the problem we have in trying to cram so many amendments into one group. If the Minister is able to respond to each and every remark I have made, I will be astonished. I beg to move.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, my name is to Amendments 6, 27 and 38, which have been mentioned by the noble Lord, Lord Paddick. They answer a question which was posed by the noble Lord, Lord Skidelsky, who asked if there is a definition of “serious disruption” in the Bill. There is not, and my amendments seek to provide a definition. I am concerned about the meaning of words, which is always crucial in Bills of this kind.

I am a member of the Constitution Committee and in our scrutiny of the Bill we noted that the clauses which use the phrase “serious disruption” create offences which could result in severe penalties. Most of them may be taken summarily before a magistrate, but then they lead on to other things. They could, in due course, lead to a serious disruption prevention order and all that that involves. The committee took the view that a definition should be provided.

We looked at Section 78 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Lord, Lord Carlile, referred, but, in our view, if one has to go down the line of designing a new offence, that definition was not tailored to the offences that we are talking about in the Bill. Therefore, the committee’s recommendation was that the meaning of “serious disruption” should be clarified proportionately in relation to each of the offences where the phrase arises.

In regard to locking on, I seek to say that “serious disruption” means

“a prolonged disruption of access to places where the individuals or the organisation live or carry on business or to which for urgent reasons they wish to travel”— a hospital appointment, for example—

“or a significant delay in the delivery of time sensitive products or essential goods and services.”

So I have tried to design something that is very specific to the locking-on offence described in Clause 1.

My suggestion is that tunnelling, which arises in Clauses 3 and 4, should mean

“a significant interruption to any construction or maintenance works or other activities that are being, or are to be, performed or carried on by the individuals or the organisation on the ground above the tunnel or in its vicinity.”

These suggestions are put forward in the knowledge that one has to be extremely careful about defining an expression of this kind. You do not want a definition to be too narrow or too wide, and I have tried to strike a balance between the two.

One has to bear in mind that the purpose of a definition is to provide guidance to the protesters about what they can and cannot do, to the police, to prosecutors and especially to lay magistrates, who have to consider whether an offence has or has not been proved. Consistency of interpretation is also important, so that the effect of a definition will reduce the possibility of people taking a very soft view in one case and a very hard view in another. It directs attention to the purpose of the clause, and I therefore hope it would avoid too much discrepancy between the people who have to take the various decisions. That is the value of a defence.

I do not claim to have found the perfect solution; my aim is to invite the noble Lord and his Bill team to recognise the importance of providing a definition. If they agree with the suggestion that it is important to do so, and if my amendments are not acceptable, I invite them to come up with a more suitable, or perhaps more proportionate and carefully phrased, set of amendments than I have put forward. I hope I have made my position clear; it is about the meaning of words, which are of particular importance when one has regard to the significance of this particular phrase with which my amendments are concerned.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 5:15 pm, 16th November 2022

I cannot sit still any more. I am starting to feel sorry for the Minister, who is on a very sticky wicket because this is clearly rubbish legislation. I do not understand how it got through or who directed the civil servants to write it. It is absolute rubbish. We have heard all of the arguments about how it is so broadly written and will criminalise too many people—many more than the peaceful protesters whom the Government are trying to target. I just wonder where the idea came from. This is so right-wing; it is not an appropriate Bill for a democracy.

The noble Lord, Lord Paddick, has beautifully laid out the lack of a definition of “serious disruption”, and I cannot better that. But, for example, what about arresting the Government for serious disruption to the NHS over the last 12 years? I would support that. But we would obviously have to know exactly what “serious disruption” meant.

The criminal courts in this country are crumbling and cannot cope with the number of cases that they have at the moment. Yet here the Government will insist on more cases, sometimes on very specious grounds, which will clog up the courts even more and make life even more difficult for people who care about justice and law. I beg the Minister to meet with some of the more learned noble Lords here and perhaps start either to clarify the Bill or to scrap it altogether.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, I will make a very serious request of the Minister, who is dealing with this difficult Bill with great courtesy and who is very amenable to comment, even if he disagrees. I ask him to take the trouble, before he replies to this debate, to read Section 78 of the Police, Crime, Sentencing and Courts Act 2022—it is only one page, and I will lend him my iPad if he needs it. In this country, we have training for magistrates and judges, which is provided by the Judicial College— certainly for judges; indeed, I see the noble Lord, Lord Ponsonby, nodding that this is the case for magistrates as well. One of the reasons why this training is provided is to ensure consistency between courts around the country.

If there are two sets of legislation—this Bill and Section 78 of the 2022 Act—the Government cannot control who charges whom with what. It is quite likely that, in “Lonechester”, the police will charge someone who glued themselves to the passageway of the cathedral with this new law, while in “Scuddersfield” they will charge them with Section 78 of the 2022 Act. They are quite different: the Bill is basically a summary trial on these offences and has very low sentencing powers, but the 2022 Act, which we have already passed, has a maximum sentence of 10 years’ imprisonment, as the noble Lord, Lord Paddick, said. We cannot expect police officers to know these differences when they are busily rushing around trying to save the public from being stuck on the M25 for seven hours. But they can expect the law to make life easier for them by ensuring that it has that consistency. At the moment, we are breaking the rules which we generally set ourselves to scrutinise legislation so that we do not create ambiguity and inconsistency. In the context of what we are discussing now, nothing in the Bill is not covered under Section 78 of the 2022 Act, which has already had the scrutiny of your Lordships’ House.

Photo of The Bishop of Southwell and Nottingham The Bishop of Southwell and Nottingham Bishop

My Lords, in the absence of my right reverend friend the Bishop of St Albans, who is a signatory to Amendment 17 but unable to be present in the Chamber this afternoon, I am pleased to speak in its support, as it provides much- needed clarity to the law. I am also very grateful to the noble Lord, Lord Paddick, for explaining the amendments with such clarity at the beginning of this group.

I will make two main points. First, the Bill, in its present form, fails to provide a definition of what constitutes “serious disruption” to the “community”. I strongly support providing a strict statutory definition of this; it will give clearer guidelines to the police as to what is acceptable, as well as to those wishing to engage in lawful protest, and will provide much-needed democratic oversight to the Bill. Under the current law and the Bill as drafted, there is no clear definition of what disruption to the community means, and it would be subject to the discretion of the police themselves. A lack of clarity is not helpful to either the police or the community. As reported in evidence to the Bill Committee in the other place, many police officers have expressed a desire for clearer statutory guidance, and many are concerned that they will be asked to make decisions on matters which they do not have the confidence to make. If we are to reflect on the consequences of the amendment, we can see that it would mean that protesters would rightly be prevented from disruption to essential services—schools, hospitals or places of worship—but the right to reasonable democratic protest would still be protected.

Secondly, it is important that proposed new paragraph (c) in the amendment upholds the access to “a place of worship” as an essential service. I am very pleased that this amendment would enshrine freedom of religion or belief as a central part of the Bill. As we have been reminded over the pandemic, churches and other religious buildings offer essential services for their local community. Access to these buildings and the pastoral work of the clergy and other faith leaders should not be unreasonably hindered.

Churches are not unfamiliar with protests. Indeed, they have sometimes been a catalyst for good and even forthright protest inspired by principles of faith in the interest of the common good. The example of Jesus is a challenge and, I believe, an inspiration in this regard. Sadly, there have also been times when churches have been the focus of reasonable protest, challenging the Church when it and society have failed to exemplify the values that underpin faith. Either way, many protests over the centuries have happened inside or within the vicinity of our buildings. Churches are public buildings, places of sanctuary and refuge, there to serve all in their community. They are therefore to be considered essential places for people to meet, to worship and to nourish their faith, and for all who are seeking spiritual comfort or hope, often in difficult times. The right to attend a place of worship is therefore a vital human right enshrined in law in our country, and it is important that this law makes that clear. I once again express my wholehearted support for this amendment.

Photo of Lord Skidelsky Lord Skidelsky Crossbench

My Lords, I speak in support of Amendments 2 and 4 in the name of the noble Lord, Lord Paddick, to which I have added my name.

Amendment 2 is designed to raise the threshold required for the committing of the offence of causing a disruption. The clause leaves what is capable of causing disruption to purely subjective judgment, which is not satisfactory. I do not think that I have ever made a speech that insults members of the audience; I hope I never have. But such a speech may be reasonably deemed to be capable of causing a serious disruption—at least maybe in the other place, if not here. In other words, an event has to happen that is provocative in order to make it reasonable for the police to come to that conclusion. Whether it is provocative is the test of whether it is capable of causing disruption. Perhaps I can make a constructive suggestion here: every time the words “capable of causing disruption” appear, why do not the Government put in front of them “It is reasonable to believe that it is”?

On Amendment 4, the purpose is to make the intention to cause serious disruption the test of an offence. I strongly support that. I have become increasingly suspicious of the growing tendency to treat reckless speech—and suspicious, in fact, of the word “reckless” —or action as a criminal offence in itself, regardless of the intention of the speaker or actor. Of course I should consider the consequences of my words and actions—everyone should—but the line between reckless speech and free speech is a delicate one, and I would prefer to err on the side of free speech and peaceful protest.

Photo of Lord Hain Lord Hain Labour

My Lords, I support most, if not all, of the amendments in this group seeking to circumscribe the new powers over “serious disruption”, especially Amendment 23. I do so not to offer the kind of forensic advice and analysis that many much more eminent noble Lords have already given today, but to offer a general and a more personal view, because I think the Bill takes the state’s power to restrict the right to protest to unprecedented levels. Many of the clauses in the legislation bear a striking resemblance to anti-terror laws. Surely, this is no way to treat those exercising their fundamental rights to dissent in the liberal democracy that the Government claim the UK to be. It is more like a police state Bill, in my view, than a liberal democracy one; more something that Beijing’s autocracy would favour, as opposed to London’s democracy.

Noble Lords need not take my word for it. Please read the recent Financial Times article by the noble Baroness, Lady Cavendish of Little Venice, who elegantly but devastatingly demolishes the case for the Bill and its many clauses, including those we are discussing right now. The noble Baroness is no leftie: she was a policy adviser to Prime Minister David Cameron. Under this Government, the trajectory of public order legislation has slowly chipped away at people’s fundamental rights, weighting the balance of power heavily towards the state and its agencies. These amendments are trying to redress that a bit, but the legislation advances that trajectory, despite the ink barely being dry on the recently passed Police, Crime, Sentencing and Courts Act. It is a constant ratcheting up of restrictions at the expense of our freedoms and the health of our democracy.

The catch-all offence of “serious disruption” in the Bill, together with its companion, the Police, Crime, Sentencing and Courts Act, would have made illegal, and conceivably completely suppressed, the anti-apartheid protests I led in 1969-70 that stopped the all-white South African cricket tour scheduled for the summer of 1970, helping propel apartheid South Africa into international sporting isolation—only lifted after Nelson Mandela walked to freedom after his 27 years in prison. The protests I led would undoubtedly have constituted “serious disruption” as defined—albeit very loosely, as we have heard—in the Bill.

Some noble Lords might retort “And a good thing, too” to the idea that I would have been blocked, prosecuted and possibly jailed; many rugby and cricket fans at the time certainly wished I had been. But most people now accept Nelson Mandela’s assessment that apartheid would not have been defeated without such non-violent—I stress “non-violent”—direct action, including in sport. Most reasonable people doubt that a black Springbok captain could have led a multiracial team to lift the rugby World Cup in 2019 without South Africa’s sporting system being forced to rid itself of apartheid.

Why do I make these point in relation to the specificity of these amendments? Remember that when I and many others ran on the pitch at Twickenham and elsewhere in late 1969 and early 1970, causing serious disruption to Springbok matches, the head of rugby in South Africa, Dr Danie Craven, said memorably:

“There will be a black Springbok over my dead body.”

Well, it was over his dead body, 50 years later, that there was indeed a black Springbok captain.

By the way, many protesters were arrested at the time, for “causing obstruction”, “breach of the peace” and other such offences. Indeed, I was prosecuted two years later for criminal conspiracy, spending four weeks at the Old Bailey, acquitted after a hung jury on the three most serious counts and merely fined £200 for conspiracy to sit peacefully on a tennis court for a couple of minutes in Bristol in July 1969, in a Davis Cup match between South Africa and Great Britain, causing what under this Bill would constitute “serious disruption” in the process. As it happens, I was not charged. It underlines the point that the noble Lord, Lord Carlile of Berriew, and others made: that there is a panoply of existing offences for which people can already be prosecuted—and, indeed, were prosecuted during the campaign that I led.

The police have plenty of powers already. These new ones are not necessary except, in my view, to act oppressively. Just think how they could be applied. When Dame Vera Lynn led local villagers, I think it was in the Sussex village of Ditchling, where she lived, to stop juggernauts coming through the village, polluting local streets, filling them up and blocking them, she could have been prosecuted for “serious disruption”. Is that an advertisement for freedom, liberty and British democracy? It does not apply only to radical protesters: it applies also to ordinary citizens exerting their ordinary rights.

The suffragettes would undoubtedly have been guilty of serious disruption; after all, they locked themselves on to Parliament’s railings, not with glue but with chains, and they are now applauded for their historic role in getting women the vote. Those demonstrators who in 1936 bravely blocked fascists seeking to intimidate local Jewish communities in the East End of London, specifically in Cable Street, undoubtedly caused serious disruption, yet they halted the spread of Mosley’s fascists and Blackshirts.

What I fear about this Bill, and particularly the detail of the serious disruption clause, is that it is on the wrong side of history. I applaud the forensic critiques that have already been made by many noble Lords in this debate, but I say to the Minister that he and the Government are on the wrong side of history and I urge them to think again.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 5:30 pm, 16th November 2022

My Lords, I have put my name to Amendments 36 and 37 in the name of the noble Lord, Lord Paddick. I could also have backed a number of other amendments. The noble Lord clearly explained lots of problems with the clauses discussed in this group. The only thing that I did not agree with—the noble Lord, Lord Hain, also said this—was when he compared present-day protesters with the suffragettes. The suffragettes were democrats without the vote; Just Stop Oil are anti-democrats with the vote. There is a real distinction there.

Although I have very serious reservations about this Bill and think it is unnecessary, we need to approach the discussion and debate going on outside this House with a little more humility. On the first group, a number of noble Lords raised the point that the country was up in arms about the Bill. I do not recognise that description; actually, many people in the country are up in arms about the Just Stop Oil protesters. They are so frustrated that we have people ruining their daily lives and getting in the way and that not enough is being done about it. My argument with the Government is that this is a crisis of policing, which they will not tackle and instead have introduced a whole new set of laws that we do not need.

As legislators, I understand the need for a definition of “serious disruption”, and the noble and learned Lord, Lord Hope of Craighead, explained the difficulties around defining it. But the people we are talking about who are locking themselves on, tunnelling and so on, boast that they are seriously disrupting things. They say, “What choice have we got? We’re involved in serious disruption.” They do not have a definitional problem; they say, “We’re trying to seriously disrupt the ways of life of everyone until we get our way and until you agree with us”.

So in some ways it is important that the Government do not exploit the fact that we have protesters who say “Our job is to seriously disrupt the lives of ordinary people” and ordinary people who are completed frustrated that nothing is being done about these people seriously disrupting their lives, and say that we need all these laws—because this is not the solution to that problem. It is a con, as I said in my Second Reading speech. An answer should be given to the point made by the noble Lord, Lord Horam, that, if the Government’s argument is that we do not have laws on the statute book that can deal with very specific issues, they have to be very clear about exactly why the laws do not work at present. If it is the Supreme Court, then say that—but at the moment there is a muddle on that question.

On the specific amendments dealing with “serious disruption”, given that we have protesters—I think they are more people who indulge in stunts, rather than protesters—who admit that they intend to cause serious disruption, I am concerned that there should be some intent to cause serious disruption, which is why Amendment 37 is important. The noble Lord, Lord Skidelsky, made a hugely important point about the way that the term “reckless” will be used to clamp down on this; the idea that your intention is read into it as being reckless indifference is one of the great ways that censorship is happening in this country. I am very nervous about having in law a situation where, whatever you intend, the law can decide that you intended something. That is why I support Amendment 37.

Amendment 36 would limit the offence to an act that actually causes serious disruption, rather than one that is capable of causing serious disruption. It seems to me that if something does not cause serious disruption, it is not serious disruption. It seems blatantly ridiculous for a Bill to criminalise something that is not seriously disruptive because it could be seriously disruptive at a different time and a different place.

I rather liked the example of what happened recently in Germany, where people locked on in the Volkswagen museum. They did not cause any serious disruption because the curators turned the lights out, turned the heating off and went home, leaving them there. As it happens, the protestors response to this was to complain that they had been left in the cold and that they could not order in food. Instead of draconian and criminalising bills, perhaps what we need is a bit more of that kind of attitude, both from the police and from institutions, which seem to stand by and do nothing as disruption occurs. However, I do not want the law to compensate for that spinelessness either.

Photo of Lord Marlesford Lord Marlesford Conservative

My Lords, having not spoken at Second Reading, but having listened to the debate, I want to contribute one thought which I think follows rather well from what the noble Baroness, Lady Fox, said. This debate on the definition of the word “serious” is really pretty sterile. Talking about the word “serious” is rather like talking about whether a work of art is good or not good. What we are really talking about is judgment, and the judgment of many different groups: of the demonstrators, of the police, and of the courts and within the courts—juries, magistrates and all the rest of it. All we are striving to do is to get what the people as a whole—who are demanding something better than what is happening at the moment—want: better solutions when things happen. I do not believe that we can be precise in laying down in law what is serious or not serious, but that does not mean that we cannot use the word “serious” as shorthand for the collective judgment of all those interests involved.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, the noble Lord, Lord Hain, with his proud record of disruption, cautioned us against forensic critiques. I am afraid that he is in for another one, but in my defence, I will make it very short.

The Minister hinted at the end of Second Reading that he would give thought to a definition of “serious disruption”, which I think would be useful. That is certainly what police witnesses suggested in another place, and what some of us, including my noble friend Lord Hogan-Howe, suggested at Second Reading. I am grateful to the Minister for the opportunity to discuss it yesterday.

I put my name to Amendment 17, recommended by the Joint Committee on Human Rights, which is based on part of the definitions in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022. Having now had a chance to review Amendments 6, 27, and 38, in the name of my noble and learned friend Lord Hope, I am minded to jump ship—I hope that does not make me a rat—because I think his amendments may be better adapted to the purposes of the Bill.

The particular merit of my noble and learned friend Lord Hope’s approach is to recognise that the offences in Clause 1 on the one hand and Clauses 3 and 4 on the other are very different in nature. Disruption consequent on locking on is liable to be caused to any individuals or organisation based or carrying on business in the locality, and it is right that the definition should acknowledge this. Equally, it seems right that the threshold should be a very high one: “prolonged disruption of access” to homes, workplaces or other places to which there is an urgent need to travel, or

“significant delay in the delivery of time sensitive products or essential goods and services.”

That latter condition about significant delay appears in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022 but has, for some reason, been omitted from the JCHR definition.

The tunnelling offences are of a different nature. The serious disruption that they seek to address is to “construction or maintenance works” or related activities. Amendments 27 and 38 appropriately reflect that narrower scope.

If the Government are going to come back with a definition, or definitions, of “serious disruption”, I hope they will see the force of doing it in this way. My noble and learned friend Lord Hope modestly suggested that they might be able to manage something more proportionate and carefully phrased than he did—all I can say is, good luck with that.

Photo of Lord Macdonald of River Glaven Lord Macdonald of River Glaven Crossbench 5:45 pm, 16th November 2022

My Lords, as a former prosecutor, I commend Amendment 6 to the Minister. I have no doubt at all that a definition along the lines of that pressed by the noble and learned Lord, Lord Hope of Craighead, would be of assistance to the police in judging their response to these sorts of events. A definition would certainly be of assistance to prosecutors in coming to a determination about what the appropriate charge is. It would assist judges in summing up cases to juries, and it would certainly assist juries in coming to fair conclusions by judging the conduct of defendants against an intelligible definition. If we do not have a definition, the danger is that people will be more at sea than they need be.

I have one other point. People who are proposing to go out and demonstrate are entitled to understand and to be able to predict with some confidence whether what they are proposing to do will be lawful or unlawful. This is an important aspect of the rule of law: that the law is predictable and the consequences attendant on the behaviour that demonstrators seek to engage in are predictable. This important aspect of the rule of law is clearly undermined by a lack of certainty in the Bill in the absence of a definition of one of its most important concepts—that of “serious disruption”.

Photo of Baroness Blower Baroness Blower Labour

My Lords, my noble friend Lady Chakrabarti is unable to be in her place for this group, which affords me the opportunity to speak to Amendment 23, which would include in the Bill a definition of “serious disruption”—a single definition, in contradistinction to the ideas proposed by the noble and learned Lord, Lord Hope.

Much turns on this phrase; it appears a grand total of 132 times, acting as a core component to several new and extremely broad criminal offences. As things stand, the consequence of “causing or contributing to” serious disruption of varying kinds could result in a prison sentence, unlimited fines or a variety of conditions imposed through what many are calling protest banning orders, including GPS ankle tagging, bans on internet usage, prohibitions on associating with certain people and, again, imprisonment—yet, as we all now know, nowhere in the Bill is “serious disruption” defined.

The former Minister, Kit Malthouse MP, claimed at Second Reading in the other place that

“the phrase ‘serious disruption to the community’ has been in use in the law since 1986 and is therefore a well-defined term in the courts, which of course is where the test would be applied under the legislation.”—[Official Report, Commons, 23/5/22; col. 106.]

I am afraid that I do not think that explanation suffices. The test to which the former Minister refers is that set out in the Public Order Act 1986, which is now almost four decades old. It relates to the imposition of conditions on public procession, assemblies and one-person protests. This Bill is very much wider, and that framework does not necessarily neatly map on to what is before the House today.

I add that it is surprising that the Government should be content to allow legal uncertainty and let the courts, through lengthy and expensive litigation, rather than through Parliament, set the parameters of what actions they wish to criminalise. The lack of a definition of serious disruption in the Bill is an obvious and, in my view, critical deficiency and one which Members on all sides of this House and those in the other place have identified on several occasions.

The Joint Committee on Human Rights remarked in its report:

“It is unclear who or what would need to be seriously disrupted, what level of disruption is needed before it becomes serious and how these questions are meant to be determined by protesters and police officers on the ground—or even the courts.”

At Second Reading, the noble Lord, Lord Anderson, made apt reference to both the Joint Committee report and the evidence to the other place from West Midlands Police, who called for

“as much precision … as possible”—[Public Order Bill Committee, 9/6/22; col. 58.]">Official Report, Commons, Public Order Bill Committee, 9/6/22; col. 58.] in defining serious disruption. The noble Lord, Lord Hogan-Howe, who has much experience of police operations in response to protests through his time as Metropolitan Police Commissioner echoed this call for clarity. In another place, Sir Charles Walker condemned the overall thrust of the Bill, no doubt worsened by this vague and all-encompassing term, calling it “unconservative”.

Therefore, it was heartening to hear at Second Reading the Minister recognise the House’s “strength of feeling” on this issue and that

“a clear definition could bring benefits”.—[Official Report, 1/11/22; col. 204.]

This amendment would deliver such benefits, giving legal certainty and precision to what are otherwise vague and, frankly, highly draconian offences. It does so by clarifying that before the Bill’s offences are engaged, significant harm must be caused to persons, property or, per the Public Order Act 1986, the life of the community. It sets the bar at an appropriately high level, stating that “significant harm” must be

“more than mere inconvenience, irritation or annoyance”.

The example of people joining arms to walk down the street has already been given, so I will not repeat that. Under the amendment’s proposed definition, these ordinary everyday behaviours would be rendered safe from undue criminalisation. The definition also requires that significant harm must be

“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence, provided for under this Act.”

We have seen the police exercise existing powers inappropriately and disproportionately—I will not go into the case of Charlotte Lynch yet again, but it is one such.

This amendment is designed to prevent the future misuse of any new offences and powers created. Its benefits are threefold, giving guidance to the police in exercising their powers; safety to the public, who should be free to enjoy their right to protest free from prosecution; and clarity to the courts when they must interpret the law.

The criminal law acts as a powerful and coercive tool by which dividing lines are set between conduct Parliament has deemed acceptable or unacceptable. As the former senior Law Lord and eminent jurist, Lord Bingham, posited in the 2003 case, R v H and the Secretary of State for the Home Department, its purpose is

“to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society”.

Clear definitions are therefore indispensable, for without them, how is the public expected to understand what is proscribed, from what they are being deterred or what Parliament has concluded is sufficiently damaging to the interests of society?

I strongly believe that the Bill should be voted down in its entirety. It represents a dangerous and authoritarian boost to the state’s power to curtail the vital right to protest peacefully. However, this amendment’s definition would go some way to remedying one of the Bill’s many critical flaws. I therefore commend it to the House.

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

My Lords, I will speak to the amendments in my name and the name of my noble friend Lord Coaker. This debate has been about the threshold for committing an offence, the meaning of the phrase “serious disruption”, which is not defined in the Bill, and the need for the intent of an offence for an offence to be committed. The key overarching issue is the drafting of good law and not broad, poorly defined offences and powers which the police then have to try to navigate.

I turn first to Amendment 3, as drafted and recommended by the JCHR. It would change that threshold to causing serious disruption to the life of the community. This is supported by the National Police Chiefs’ Council, which in its written evidence stated

“In addition, we believe using the definition of ‘serious disruption to the community’ may be preferable to ‘two or more people, or an organisation’, as the former is more widely understood and will allow more effective application consistent with human rights legislation.”

In the Commons Committee stage, the Minister, Kit Malthouse, referenced disruption to the life of the community as the threshold for the offence of locking on. He said that some behaviour

“would not necessarily cause serious disruption to the life of the community, and would therefore not necessarily constitute an offence under the Bill.”—[Public Order Bill Committee, 14/6/22; col. 93.]">Official Report, Commons, Public Order Bill Committee, 14/6/22; col. 93.]

So it seems that the Minister already agrees that there may be a more appropriate threshold.

Moving on to Amendment 17, this is a JCHR recommendation that goes hand-in-hand with Amendment 3 to provide a definition of serious disruption to the life of the community in the Bill. I recognise that the noble Lord, Lord Anderson, has jumped ship and is supporting the noble and learned Lord, Lord Hope. I reserve my judgment; I may do the same at a later stage but, for the moment, I will press ahead with Amendment 17. It is one option, as drafted by the JCHR. It replicates the definition eventually added by the Government to the PCSC Act but, as we have heard, this group contains multiple possibilities for how the necessary level of disruption could be appropriately and clearly defined.

Turning again to the evidence submitted by the National Police Chiefs’ Council, it has requested clarity to allow it to respond operationally, saying:

“Within public order legislation ‘serious disorder, serious damage to property and serious disruption to the life of the community or intimidation of others’ is a key phrase. The elements of serious disorder, serious damage and intimidation are accepted and clear. However, the term ‘serious disruption’ has been subject to much discussion and debate. Within any new legislation we would welcome clarity or guidance about the threshold and interpretation of this to allow operational commanders to best apply their operational responses.”

This amendment is about clarity, as well as passing laws that can be easily understood by both the public and the police.

Amendment 23, spoken to very powerfully by my noble friends Lady Blower and Lord Hain, would provide a definition of serious disruption as actions

“causing significant harm to persons, property or the life of the community.”

It specifies that serious harm must mean

“more than mere inconvenience, irritation or annoyance”

and be action

“of a kind that strictly necessitates interference with the rights and freedoms curtailed by proportionate exercise of a power, or prosecution for an offence” provided here. I support that amendment as well.

Amendment 54 is again a JCHR recommendation. It adds, first, a threshold of causing serious disruption, and secondly, a requirement that there was an intent to cause serious disruption to the offence of obstructing major transport works. The JCHR said that

“there is no requirement that the offending conduct could be capable of causing significant disruption and there is no requirement that these actions be carried out with any particular intention of causing obstruction or disruption. This means that inadvertent actions could result in arrest or even a criminal penalty.”

Across this group of amendments, the question of intent is integral to the debates that we have been having. The question of whether it is intended or reckless is really key to these debates. Can the Minister say something more about what recklessness covers? It is a phrase that is used in many other aspects of law, but how will the police be expected to prove that a person has been acting recklessly or not?

A number of other amendments in this group would remove the words “is capable of causing” from narrow offences to actions which cause serious disruption. Is it the case that without that change, a person could commit an offence under the Bill without any disruption actually being caused and where they did not even set out with an intention of causing any disruption? Is that a correct interpretation of the Bill as currently drafted?

This has been a wide-ranging debate which has gone to the heart of a number of the issues within the Bill. I look forward to the Minister’s response.

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department 6:00 pm, 16th November 2022

My Lords, I once again thank your Lordships for all the contributions made in this debate. We turn to a series of amendments which seek to raise the threshold for the corresponding offences. Amendments 2 and 4 target the lock-on offence; Amendments 25 and 26 target the tunnelling offence; Amendments 36 and 37 target the offence of being present in a tunnel; and Amendment 54 targets the offence of obstruction of major transport works.

Before I deal with some of the questions concerning those amendments, I will just say two things. First, on the subject of the suffragettes, I entirely agree with the distinction the noble Baroness, Lady Fox, made between the protesters we see now and the suffragettes. Secondly, while we are slightly off the subject, I will make a few comments about the journalist who was arrested, who has been referred to twice. Clearly, the arrest of journalists lawfully reporting on events should not have happened—I want to make that very clear. I understand that an independent investigation into the arrests has been commissioned by the relevant police force. However, we do not agree that more powers will lead to further arrests of journalists: the issue lies with the training of journalists—a subject to which we will return.

A noble Lord:

Police.

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

The training of police— I am sorry.

The scope of the offences is drafted as such to ensure that all kinds of behaviour that protestors engage in to cause misery and disruption can be captured. Amendments 2 and 4 would mean the offence would not account for situations where, for example, a person has locked on to a dangerous structure but is removed by the police before maximum disruption can be inflicted. Amendments 25 and 26 would mean the offence would not account for situations where, for example, a person has started creating a tunnel but is removed before maximum disruption can be caused. Amendments 36 and 37 would not account for situations where, for example, a person is present in a tunnel with the intent to cause serious disruption but is removed by the police before the tunnel can reach the designated area where maximum disruption can be inflicted.

Amendment 54, tabled by the noble Lord, Lord Coaker, and the noble Baroness, Lady Ludford, seeks to add a threshold of causing “significant disruption” to the offence of interfering with key national infrastructure. I am not sure whether the amendment should say “serious” disruption rather than “significant” disruption, as I note that the JCHR’s own explanatory statement stated the former. That would echo the threshold for other offences in the Bill. If Amendment 54 is intended to add a threshold of serious disruption, I would argue that while we assess that it is right for the lock-on offences and certain other protest-related offences to include serious disruption within their scope, we do not see it as necessary here.

As I have stated already, protestors have been able to cause huge damage to major projects such as HS2. While much attention has been focused on how protest activity across HS2 sites causes massive disruption to the project, protestors have also engaged in many more minor disruptive acts, such as disrupting ecological surveys, damaging construction vehicles or blocking access points to construction sites. While some of these acts may not meet the threshold of serious and/or significant disruption, they still have a significant impact on the project and its costs. The Government view such actions as serious and completely unacceptable criminal activity. The offence as drafted seeks to deter individuals from targeting these projects while giving the police powers that are more sufficient in order to respond.

Before I get onto the amendments dealing with serious disruption, I accepted the invitation of the noble Lord, Lord Carlile, to read Section 78, and I will have a go at answering. Because many Just Stop Oil protesters have been arrested for public nuisance and obstruction of the highway, it has been asked why, in light of that, we need to introduce the measures in the Bill. The fact is that we are not solely interested in the process on the M25: the Bill was conceived before Just Stop Oil protesters were dangling off gantries. There are other unjustifiable protests, such as those targeting HS2, which I have just discussed. The criminal offences in the Bill extend to private land; currently, those who lock on or tunnel are only committing aggravated trespass, which carries a relatively low sentence. As it is a broad offence, I am sure that many here in the Chamber today would not welcome the sentences for aggravated trespass being increased. Finally, the pre-emptive measures in the Bill will improve the response to criminal protest. They were in fact conceived following discussion with the Metropolitan Police Service on what would have improved their response to Extinction Rebellion-style protests.

Amendments 3, 6, 17, 23, 27 and 38, all seek to provide a definition of serious disruption. I thank all noble Lords for these amendments, particularly the noble Lord, Lord Anderson—although I note that he is potentially deserting his—for our constructive engagement so far. I also thank the noble and learned Lord, Lord Hope of Craighead, for his thoughtful contribution to this debate.

I assure the House that I absolutely recognise the benefits that a clear definition of serious disruption could bring. However, we have faced some difficulties when trying to define serious disruption. That is because being too prescriptive in our definition risks creating a loophole which would provide those intent on causing as much disruption as possible an opportunity to evade arrest and prosecution. I would also say that, as drafted, some of these amendments offer a narrower definition of serious disruption than the Police, Crime, Sentencing and Courts Act provides for under

“serious disruption to the life of the community.”

None of that is to say that I dismiss the principle of these amendments. There is a balance to be struck between a definition which is too broad and one which is too prescriptive. We will consider these amendments in detail to ensure that they accurately reflect the disruption that the Government seek to target while providing clarity to the police and others, as many noble Lords have mentioned, and we will continue to work with all interested noble Lords on this important matter.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

Is there a prospect of the Minister coming up with definitions in time for Report, to prevent us having to discuss this all over again? It would be a great help if he could come forward with his definitions, if he is going to proceed along this line.

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

I will certainly endeavour to—I can make no promises. I am sorry: the noble Lord, Lord Ponsonby, asked me about recklessness, which I forgot to answer. The definition of reckless is to capture those for whom we cannot prove that they intended to cause disruption but who were clearly happy to cause it. I hope that clarifies the matter to some extent. For now, I ask the noble Lord to withdraw his amendment.

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

My Lords, I thank all noble Lords for their contributions to this debate. The noble and learned Lord, Lord Hope of Craighead, made some very important points. He is a member of the Constitution Committee. He said that convictions for these offences could lead to more serious consequences such as serious disruption prevention orders and that some of the conditions that could be imposed under those orders are quite draconian, such as 12 months of electronic tagging. He made the important point that because the offences are very different in nature, there should perhaps be a tailored definition of serious disruption depending on what offence we are talking about.

The noble Lord, Lord Carlile of Berriew, made a very important point about creating ambiguity between the provisions in this Bill and Section 78 of the Police, Crime, Sentencing and Courts Act 2022. The Minister’s attempt to explain why Section 78 could not be relied on does not hold water. He started talking about offences of aggravated trespass and having low sentences, but Section 78 has a far more serious penalty than any of the offences contained in the provisions here, so I do not understand why we need new offences that have serious sentences attached to them when Section 78 can provide much stiffer penalties than any offence in this Bill. That does not seem to make any sense.

The right reverend Prelate the Bishop of Southwell and Nottingham made an important point about places of worship. The noble Lord, Lord Hain, made an important point too. I greatly respect the role that he played in overturning apartheid in South Africa, but I am not sure he can say with confidence that what he did amounted to serious disruption when we do not have a definition of serious disruption in the Bill. The noble Baroness, Lady Fox, supported by the Minister, talked about suffragettes and how they were very different from the protesters at this time, but that was not the point I was making. My point was that suffragettes locked on and the Government are saying that this new offence of locking on is a response to new tactics employed by protesters. Well, that is what the suffragettes did. That is the only point I was trying to make.

As for nothing being done, the police have been arresting stop oil protesters even before they have caused serious disruption. They have been arresting them for conspiracy to cause public nuisance. Whether it is for causing public nuisance under the famous Section 78 or highway obstruction, for which they can now be sent to prison, protesters are being remanded in custody by courts which are not confident that they would not go on to repeat the offences for which they have been arrested. Some of them have been sentenced to prison for highway obstruction. So I do not think it is the case that the police are not doing anything, or that existing legislation cannot be used effectively by the police.

The noble Lord, Lord Anderson, supported the idea of tailored definitions, hence his wavering, if I can put it that way, in terms of his own amendment. The noble Lord, Lord Macdonald of River Glaven, reinforced the point about clarity and predictability. People need to know whether they are going to break the law if they do something, which is why we need these definitions.

The infamous Section 78 of the Police, Crime, Sentencing and Courts Act talks about serious harm, rather than serious disruption, but it is defined in the Act. So, if the Government can define serious harm in that Act, why can they not define serious disruption in this legislation? The noble Baroness, Lady Blower, talked about what the Minister said in the other place about there being a definition of serious disruption under the Public Order Act 1986. I agree with the noble Baroness that it is out of date and dubiously applicable in the circumstances set out in this Bill. Even the noble Lord, Lord Hogan-Howe, talked at Second Reading about the importance of clarity, and police witnesses at Committee stage in the other place said that as much precision as possible is desirable, yet the Minister seems completely ambiguous about whether the Government are going to define serious disruption in the Bill in response to the question asked by the noble and learned Lord. The noble Lord, Lord Ponsonby of Shulbrede, said that the National Police Chiefs’ Council is in favour of the definition of serious disruption to the life of the community put forward by the Joint Committee on Human Rights, so surely there is at least a lead for the Government to follow.

The Minister then prayed in aid the HS2 project and all the problems that it had faced. My understanding is that the HS2 project has obtained a nationwide injunction in the High Court against interference with its projects in any place in any circumstances, so why is there a need for this new legislation when there is already a practical example of how major infrastructure projects, such as HS2, can protect themselves through civil injunctions?

There is clearly going to be a lot of work for us to do when it comes to Report. I have to say that I find the Minister’s responses to the very detailed and powerful concerns expressed by noble Lords all around the Committee a little thin. I hope we can get to some substance on Report, because we are not getting it here. At the moment, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendments 3 and 4 not moved.