Public Order Bill - Report (1st Day) – in the House of Lords at 3:20 pm on 30th January 2023.
Moved by Lord Coaker
1: Before Clause 1, insert the following new Clause—“Meaning of “serious disruption”(1) In this Act, “serious disruption” means disruption causing significant harm to persons, organisations or the life of the community, in particular where—(a) it may result in a significant delay to the delivery of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including access to—(i) the supply of money, food, water, energy, or fuel,(ii) a system of communication,(iii) a place of worship,(iv) a transport facility,(v) an educational institution, or(vi) a service relating to health.(2) In subsection (1)(a), “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”Member’s explanatory statementThis new Clause defines the concept of “serious disruption” for the purposes of this Bill, which is the trigger for several new offences and powers.
My Lords, I start consideration on Report by moving my Amendment 1. I thank the noble Baroness, Lady Jones, the noble Lord, Lord Paddick, and my noble friend Lady Chakrabarti, for their support for this amendment regarding serious disruption and its meaning and relevance to this Bill’s new powers. I start by also thanking the Minister for his courtesy and usual help in discussing the Bill and its relevant parts, which have been very gratefully received. I also thank all his officials and other Ministers.
However, in thanking the Minister, I have to say how disappointed I was by the Minister in the other place, who said in an online article in the Telegraph over the weekend that our job as politicians “of all colours” was
“to stand up for the law-abiding majority whose lives were seriously disrupted by such protests”.
Who does not want to stand up for the law-abiding majority? I have never said, in any of the debates on this Bill, that the Government, or anyone who has opposed what I have said, want to ban protests, or accused any of them of being against the law-abiding majority. This is a genuine debate and discussion between people of different parties, across this House, on very serious issues on which we are seeking to improve and amend the Bill. There will be differences of opinion, but that does not mean that people are against the law-abiding majority, and that does not mean that people are not in favour of protest.
The debate is about clarity and thresholds; it is about where we draw the line—democracy at its best, thrashing out these issues and, yes, voting in the best traditions of a revising Chamber. It is my contention, and that of my party and others from other parties across the House, that the Bill has gone too far. My amendments have a higher threshold than there are in other amendments, such as Amendment 5—but there are others. There is a risk of the police, in my view and that of others, being given lots of new powers that, instead of providing clarity, will end up undermining and clamping down on peaceful and legitimate protests.
My Amendment 1 says that “serious disruption” must cause
“significant harm to persons, organisations or the life of the community, in particular” in certain situations, but not exclusively in those situations. That would keep the threshold at a relatively high level, not lower it. The EHRC says, in an article published today, that these new amendments have the potential to enable the police to block peaceful protests or to shut down non-disruptive protests.
I shall not go through every amendment in this group tabled by the noble and learned Lord, Lord Hope, and supported by the Government. The language of Amendment 5 is much the same as in many of the other amendments, as it seeks legal clarity on definitions that are offence specific. Amendment 5, for example, relates to locking on, which means attaching yourself to a person, object or land, as set out in Clause 1. There is no definition of “attach”, so it can be linking arms. Clause 1 goes on to say that the offence happens if this
“causes, or is capable of causing, serious disruption”.
I want us all to consider that when we decide how we should vote on these matters. In other words, on some of the specifics around these amendments, we have to remember that an offence does not even have to happen—it just has to be capable of happening, and that should trouble us all.
Amendment 5 has a threshold and uses language such as “prevent” or
“hinder to more than a minor degree the individuals or the organisation from carrying out their daily activities.”
The same threshold is set for all the offences in Clauses 1, 3 and 4. Goodness me. Many of us—noble Lords in this Chamber and others watching these proceedings—would have been arrested or would have fallen foul of the law under these provisions. Let me give one example from my background. I will not go into the miners’ strike—it is more recent than that.
I, along with a community group, stopped a bus, rerouted by the bus company, from going down a road through an estate where there were children’s play areas, parks, et cetera. Many in that community were determined to act together because they decided that the bus company was acting in a way that was irresponsible with regard to the lives of people in that community and put children’s lives at risk. So we blockaded the road, linked arms across it and stopped the bus coming down that road for a few days. As a result, the bus company changed back to the original route.
This Bill would have threatened that activity and protest, making it unlikely that I, as a politician and councillor representing that area, as well as mothers, parents, grandmothers, grandfathers and friends with their children, using pushchairs in the road, would have been able to do that because it was more than a minor hindrance. It stopped that bus going down the road. Who is to say that that was wrong? Who can also say, if we pass these amendments, that that action would not be made inappropriate?
Do not take my word for it. I stand here as a Labour politician, but sometimes I read ConservativeHome. I was doing so at the weekend to see what might be said, which is always interesting and worthwhile. An article from Policy Exchange says that,
“the amended offences would make criminal liability turn on proof of serious disruption, which makes the meaning of ‘minor’ hindrance and ‘daily activities’ loom large”.
Of course there is a debate. I am sure that people are going to say, “Well, if you look at Lord Coaker’s amendment, and the others that support it, what does ‘significant’ mean? What does this mean? What does that mean?” Of course, there are debates about what different words mean, but the Government are pretending that, by lowering the threshold and using the words that they have included, you get rid of the legal uncertainty. That is not the case because, instead of having a debate about “serious”, you have a debate about “minor”. What is a “hindrance”? All those debates will loom large as, as the ConservativeHome article suggests.
As I have said, on my Amendment 1 there will be debate on the meaning of “significant”. It sets the threshold higher, which is the point that I am trying to make in my amendment. It does not prevent protest that might be capable of hindering someone carrying out their daily activities. So the lower threshold for serious disruption in Amendment 5 and others means that more than minor hindrance to the carrying out of daily activities, or construction, maintenance works or other activities, could result in police intervention and arrest. Wheelchair activists chaining their wheelchairs together in certain circumstances could cause more than a minor hindrance to daily activities. It could stop someone shopping.
I have looked at various websites through the weekend and have seen lots of different people supporting tree protests, where people have roped or attached themselves to trees to prevent something happening. Who is to say that those protests will not be affected by the new amendments? I have seen fine, upstanding citizens—not just members of the Labour Party, Communist Party, Socialist Workers, Liberal Democrats, Greens or others of similar ilk but even Conservatives—join those protests. Well, they are going to get a shock when they wake up and find that their own Government have said, “What you are doing is illegal, the village green trees that have been outside the pub for 300 years are going and there is nothing that you can do about it because we have introduced measures and amendments that mean that such protests will not be able to happen”.
Are we really saying in this Chamber that the definition of “serious” is “more than minor” and not incompatible with Articles 10 and 11 of the European convention? At the heart of this is the question of what “more than minor” means, particularly if applied to Clause 1. If, as Liberty says, I chain myself to a traffic light, and if that hindered two or more people for 10 minutes from crossing the street to shop, would that be “more than minor”? There is no legal certainty in what is meant by “more than minor”, nor indeed in what is meant by “hinder”—remembering that “serious disruption” does not even have to happen for those offences to be committed.
The noble Lord spoke about legal certainty. Could he help the House on how a court is to determine whether disruption is “prolonged”? If there is locking on and I am unable to take my child to school or my mother-in-law to hospital for an hour, two hours, or 10 hours, is that prolonged?
That is the point I am making: there is of course going to be a debate about what various words mean. I have admitted it. I said to the noble Lord and to others that I have asked in the debate what “significant” means in certain situations. All I am saying is that I want to set the threshold higher; I want the threshold to be at a level at which “serious” can be used, rather than the “minor” level which the Government seek to introduce, supported by other noble Lords. Of course there will be a debate, whether about what I have put forward, or about “minor”, or about what “hindrance” means in certain situations. But this Chamber should be saying to the courts that what we mean by “prolonged” is that it has to happen not just once. It has to be more than a daily activity; it has to be something that impacts on the life of the community more than once or twice. That is what we are saying and that is why I am putting forward these amendments. I want the courts to realise that, when this Chamber passes these amendments, we are saying that serious means serious.
Of course there will be a debate about what that actually means. It is the same as with any other law we pass—it does not matter which one. The noble Lord, Lord Pannick, has much more experience in this than I do, but, in the end, the courts will have to determine what it means. We will come on to “reasonable excuse” in a minute, but I think the courts would want to know that this House has debated it. I am saying that “serious” means more than minor, and that “prolonged” means more than daily. In the end, the courts will have to determine that. But I say to the noble Lord, Lord Pannick, that that would be true whatever wording we use in the Bill: there will be a debate in the courts as to what it actually means. I want the courts to debate what “serious” means and what “prolonged” means. I do not want them to debate what “minor” means because the threshold starts too low.
I think the noble Lord said, just before the intervention from the noble Lord, Lord Pannick, that it would not be necessary to prove serious disruption. That cannot be right, with respect; I hope it was a mistake on his part. I understand that the proposed new clause inserted by the amendment is to go before the definition of the offence, which includes the words “serious disruption”, which will have to be established. Is that correct?
Yes, of course. If I gave that impression, it was a mistake on my part. This is the whole point: there has to be “serious disruption”, as in my amendment. The debate—not the argument but the debate, as the noble Lord, Lord Pannick, just raised—is about what we actually mean by serious disruption. I thank the noble Lord, for pointing that out. If I said that, it was a mistake.
I am curious about this “serious disruption”. Quite honestly, if anyone has driven on the M4, the M25 or through the streets of London, they will know what serious disruption is, because we get it every single day from people using their cars. If we have any confusion about what serious disruption is, that is what it is: traffic jams. Perhaps we ought to lobby the Government to stop traffic jams, because they cause more delays to children getting to school, to ambulances getting to hospital, and so on. Please, can we just understand that serious disruption is something we all experience, every single day of our lives? What we are talking about here is not really serious disruption: this is people who care about the future of humankind, here in London and worldwide. Could we take it a bit more seriously?
I agree with my friend the noble Baroness about the importance of the issues. I think everyone in the Chamber is taking this seriously. There is a legitimate debate going on as to what “serious disruption” means. My friend is right to point out that we are discussing very serious issues, and we will talk about that when we come to “reasonable excuse” in particular. Before I am accused of being a hypocrite, I should say that I did drive here today—I thought I had better own up to that.
I turn to Amendments 48 and 49 and the Government’s response, we think, to slow walking, introduced at a very late stage—not in the Commons, and not even in Committee in this Chamber, but here on Report. It has been our contention that existing legislation, enforced robustly, would deal with many of the problems we have seen. As the chief constable of Greater Manchester said—and no doubt we will quote chief officers at each other, so let me start—in an article in the Telegraph on
“I think fundamentally, if people obstruct the highway they should be moved … very quickly”.
In other words, he argued for greater use of obstruction rather than a whole range of new powers, as contained in Amendments 48 and 49. We should remember that existing law, whatever the rights and wrongs of this, have led to Extinction Rebellion calling off its action.
In new subsection (3) as inserted by Amendment 48 and new subsection (4) as inserted by Amendment 49, there is the same argument about hindering that is more than minor, which I have just been through with respect to the meaning of “serious disruption”. In other words, the threshold for what constitutes “serious disruption” is being lowered.
I think all of us believe in the right to protest. Yes, sometimes we may get irritated when protests disrupt our lives, and clearly there have to be limits, but many of these amendments simply go too far; they will have a chilling effect on protests and protesters. It will undermine one of the fundamental freedoms we all enjoy: standing up to injustice as we see it. It is a price we pay for our democracy. Any interference with these freedoms poses an unacceptable threat to the right to protest, which is a fundamental cornerstone of our rights and our democracy. I beg to move.
My Lords, I remind the House that if this amendment is agreed to I cannot call Amendments 5, 14 or 24 due to pre-emption. As we are on Report, I remind noble Lords that they are allowed to speak only once.
My Lords, I support Amendment 1, and no less strongly I oppose Amendment 5 proposed by the Government, my noble and learned friend Lord Hope and others. I never feel comfortable at the opposite end of the spectrum from my noble and learned friend Lord Hope, but I trust that he feels at least as uncomfortable on the other end of the spectrum from me.
Before commenting briefly on the actual language of these rival amendments, let me make what seems to me to be a critical preliminary point, and it is this: the meaning of “serious disruption”—assuming it is to be defined by one of these proposed amendments—is closely related to the concept and discussion and issue of “reasonable excuse” and the rival proposed amendments to that. I recognise that “reasonable excuse” comes under the next group but it is important that it should not be ignored at this stage. As your Lordships will readily understand, the lower the threshold is set for what constitutes “serious disruption”, the less justification there is for narrowing down, let alone excluding, the defence of “reasonable excuse” or for putting the burden of that defence on the accused. It becomes highly relevant as to what is decided in group 1 when we get to group 2. I acknowledge that the converse is true too: the higher the threshold for what constitutes “serious disruption” then the readier the House may be to look at shifting the burden, as the Bill already does, on matters of that sort.
Let me now turn briefly to the proposed definitions. Is “serious disruption” really to mean no more than substantial—in other words, something that is merely more than to a minor degree—interference with someone’s daily activities, as proposed by the Government, such as somebody driving to the shops? “Hindrance”, which is the concept used in the proposed government amendment, is effectively just that: it is really no more than interference and inconvenience. What weight, one asks, is given in the Government’s proposed definition to the word “serious”? Is it to be suggested that this is sufficiently catered to merely by the “hindrance” in the definition having to be
“more than a minor degree”?
I would submit it is surely not.
I do not wish to damage the points made by the noble Lord, Lord Coaker, and I would risk doing so if I were to go on at any great length. Surely the preferable definition is that which is proposed in Amendment 1, “significant harm”, as illustrated in the amendment. It is that significant harm, not merely interference or inconvenience, against which this legislation is directed, and it is certainly only that which could possibly justify most of the regressive, repressive features of this Bill. I therefore support Amendment 1.
My Lords, I will first address the opening remarks of the noble Lord, Lord Coaker. As I have told the House before, I have considerable experience of public order policing and my view is that the police have sufficient powers without any of the measures contained in this Bill. In fact, that is the view of many serving police officers who were interviewed by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, some of whom referred to the powers that currently exist as an “armoury” of powers to use in public order policing. Now even the Just Stop Oil protesters say they are no longer going to protest in the way that they have before because too many of them are in prison. If too many of them are in prison, and they are not going to protest in the way that they have before, why do we need yet more powers for the police and more laws?
I have Amendments 3, 4, 12, 13, 22 and 23 in this group, which are nothing to do with the definition of “serious disruption”, so let me deal with these first. These amendments relate to the new offences of locking on, tunnelling and being present in a tunnel. The new offences include activity that is capable of causing serious disruption, even if no disruption whatsoever is caused—another example of giving the police the power to intervene in anticipation that serious disruption may be caused before a protest has even started.
Amendments 3, 12 and 22 restrict the offences to activities that actually cause serious disruption. The new offences are not only committed by those who intend to cause serious disruption, but also extend to those who are reckless as to whether serious disruption may be caused, even if they have no intention of causing serious disruption. Amendments 4, 13 and 23 remove the “reckless” element.
Amendments 5, 14 and 24—and part of Amendments 50 and 51, as we have heard—relate to the definition of “serious disruption”. The Minister will no doubt cite the Commissioner of Police of the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” was clearer. Amendment 1, to which I have added my name—[Interruption.]
That was a natural break in proceedings as I am now going on to talk about the definition of serious disruption.
As we have heard, Amendments 5, 14, 24 and part of Amendments 50 and 51 relate to the definition of serious disruption. The Minister will no doubt cite the Commissioner of Police for the Metropolis in saying that the police would find it helpful if the definition of “serious disruption” were clearer.
Amendment 1, to which I have added my name, provides greater clarity in relation to, what—with the best will in the world—will ultimately be a judgment call by the police. I respectfully suggest that
“Significant harm to persons, organisations or the life of the community” provides the clarity the police are seeking in ways that the alternative, from the noble and learned Lord, Lord Hope of Craighead, does not. It even provides examples of what might constitute “significant harm”.
I turn to the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The noble and learned Lord probably realised that he had gone too far in his definition when the Minister signed them. I am not a lawyer. At university, I studied philosophy, not law, but I am not sure that defining “serious” as being “more than minor” is that helpful or reasonable. Surely it begs the question, “Well, what is minor?” Does the noble and learned Lord define minor as “less than serious”?
Having taken a common-sense rather than legal approach, I thought that serious was the opposite of minor. They are at opposite ends of a spectrum, in the sense that black is the opposite of white, not just the next level up. There are 50 shades of grey, apparently, between black and white; anything lighter in tone than black is not white. To use another analogy, the definition of a serious injury is not “anything more than a minor injury”.
I am reminded of the story of a student at Oxford University where the rule was that cats could be kept as pets, but not dogs, so he called his dog “Cat”. Saying that “serious disruption” is “anything more than minor” does not make it serious, even if the noble and learned Lord wants to call it that.
Of course, if the Government want to ban all protest that prevents or would hinder individuals carrying out their daily activities to more than a minor degree, they should say that in the Bill. They should not try to disguise the fact by saying that anything more than minor is serious—that dark grey is white. More than a minor degree cannot reasonably be defined as serious. We will vote in support of Amendment 1 and, if necessary, against Amendments 5, 14 and 24.
Government Amendments 48 and 49 deserve additional mention, over and above their adoption of the noble and learned Lord’s definition of serious as anything more than minor.
The police are asking for clarity. Let me quote from Amendment 48. Among other things, proposed new subsection (3A)(c) states that
“(c) the senior police officer reasonably believes that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession mentioned in paragraph (a), and (d) the senior police officer reasonably believes—(i) in relation to a procession mentioned in paragraph (b)(i), that one of the conditions in subsection (1)(a) to (b) is met in relation to the procession, or (ii) in relation to an assembly mentioned in paragraph (b)(ii), that one of the conditions in section 14(1)(a) to (b) is met in relation to the assembly ... (3B) The senior police officer may—(a) give directions under subsection (1) in relation to—(i) the procession mentioned in subsection (3A)(a), and (ii) any procession mentioned in subsection (3A)(b)(i) in relation to which the condition in subsection (3A)(d)(i) is met, and (b) give directions under section 14(1A) in relation to any assembly mentioned in subsection (3A)(b)(ii) in relation to which the condition in subsection (3A)(d)(ii) is met.”
I am not sure that is the clarity the police are seeking.
These amendments go far beyond a too-weak definition of “serious disruption”. In considering whether a protest may result in serious disruption, the senior officer must have regard not just to the protest they are considering but to any other protest being held in the same area, even if they are organised by different people, involve different people, or
“are held or are intended to be held” on the same day. The next thing the police will be telling protesters is that they cannot protest in central London because “There have been a couple of protests this month already”.
What is more, the police can define what “in the same area” means. When the police were given powers to designate a delimited area for a limited time for stop and search without suspicion under Section 44 of the Terrorism Act 2000, they designated the whole of London every day for years. There is nothing in these amendments to stop the Metropolitan Police, for example, designating the whole of London as the area in which the cumulative impact of protests needs to be taken into account.
The police are asking for clarity, so can the Minister please explain proposed new subsection (2ZH)(a), to be introduced by Amendment 48? What does
“all disruption to the life of the community … that may occur regardless of whether the procession is held” mean? How can the life of a community be disrupted if a procession is not held?
These amendments would give the police extraordinary new powers to limit where, when and for how long marches and assemblies can take place, even if the protest is going to be peaceful and is not itself going to cause serious disruption, but, taken together with others in the area, even on a different day, may cause serious disruption. They would also allow the police to define what “area” means. These are yet more totally unjustified, unreasonable and excessive powers being given to a police service that no longer enjoys the confidence of large parts of society. We will vote against the amendments.
My Lords, we genuinely saw a demonstration there during an argument about what might constitute a “serious” or “minor” disruption. We could argue for ages whether it was “serious” or “minor”, but one thing I want to stress is why I support raising the threshold to the maximum and why I will support the amendments.
However, I want to ask the Minister, and the Government in general: who are the Bill and these amendments aimed at? Too much of the justification for the Bill that we heard in Committee, in newspaper articles since and in statements by Ministers, focused on the tactics of Just Stop Oil and Extinction Rebellion. Those organisations boasting that they wanted to maximise serious disruption to people’s lives to force and shock society into acting undoubtedly did not help those of us trying to be liberal about the right to protest. They did not exactly help my side of the argument, and I am certainly no fan of those tactics—but how on earth will the Bill confine itself to only those protesters? That is my point.
When we were talking earlier about serious disruption, the noble Baroness, Lady Jones of Moulsecoomb, made the point that those of us who get stuck in traffic jams know what serious disruption is. She used the point to illustrate that she feels there are too many cars on the roads, but in London—and not only London—there are lots of disputes concerning low-traffic neighbourhoods. Local people will tell you that, because the councils have put up obstacles and bollards on local roads, journeys that once took 15 minutes often take an hour and a half, and that that often goes against public consultations.
The mayor of Hackney boasted last week that he is going to block 75% of roads in Hackney, which I think is pretty serious disruption and so do local people. I mention this because lots of protests are now being planned by local people against low-traffic neighbourhoods. When I explained to some people, including two Conservative councillors, how this Bill could be used against the protests against low-traffic neighbourhoods, they said, “Don’t be ridiculous. This Bill is about stopping Extinction Rebellion.”
I want the Government to explain how they will confine this Bill to what they say it is about. Actually, it will affect anyone who wants to protest about anything, including Conservative councillors, while Home Secretaries, who will not necessarily be of the party opposite, will in future have enormous powers. I do not understand the logic of what the Government are trying to do; they are shooting themselves in the foot and confusing members of the public, who think that this will be directed only at one type of protester. It will not.
My Lords, I would have thought that the necessity for the Lord Speaker to retire for five minutes might be termed a “serious disruption” of the working of this House. However, the point I want to make, briefly, concerns the use of the phrase “capable of causing”. According to Amendment 48, a senior police officer will make the decision. What on earth will he base the decision on? It would certainly be easier with Just Stop Oil or Extinction Rebellion, but, as we know, there are many other processions and disturbances—particularly in London but right around the country—that he would not know to what they were leading or what they would be like. How on earth is he to assess whether they are capable of causing serious disruption? I find the issue very difficult to understand. I hope the Minister will explain what is really meant by a police officer deciding what is “capable of causing” serious disruption.
My Lords, it is a pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, and a daunting privilege, as always, to follow the noble and learned Lord, Lord Brown of Eaton-under-Heywood. My views on the necessity and desirability of this proposed anti-terror-style legislation are no secret. But whether noble Lords are for or against this Bill—whether they are for or against its new offences, including thought crimes, stop and search powers, including without suspicion, and banning orders, including without conviction—all noble Lords must agree that the concept of “serious disruption” has been used throughout the Bill as a justification and trigger for interferences with personal liberty.
So, “serious disruption” should be defined. However, His Majesty’s Government resisted any definition at all, all the way through the Commons stages of the Bill and in this House, until this late stage, notwithstanding attempts by some of us on this side to provide a single overarching definition very early on, in Committee, and despite even senior police requests for clarity. What a way to legislate, bearing in mind that we are here at all only because of late amendments to last year’s bus—sorry, Bill—the police et cetera Bill, which would have had this whole Bill dropped into it, again at a very late stage.
Just over a week ago, via a Sunday afternoon No. 10 press release—because No. 10 press officers never rest on Sundays—and with no amendment even attached to that press release, we learnt that there was to be some sort of definition so that
“police will not need to wait for disruption to take place”.
The government amendments and signatures to amendments from other noble Lords were not published until about 24 hours later, so there was a whole media round of debate the next morning—this was before the conviction of Police Constable Carrick—concerning unpublished amendments. I hope that the Minister will tell us when he first knew about this new approach of having a definition, and why it was heralded by press release rather than discussion in your Lordships’ House.
As for the substance of the issue, government amendments are confusingly piecemeal and set the bar too low before a number of intrusive police powers and vague criminal offences kick in: “more than minor” hindrance is not serious disruption. More than minor is not serious enough. They cannot be serious.
I face more than minor hindrance in congested London traffic every day or even when walking through the doors and corridors of your Lordships’ House at busy times. The definition of civil nuisance at English common law involves “substantial interference” with the use and enjoyment of my property. Should it really be harder to sue my neighbour for polluting my private land than it will be under the Government’s proposal to have my neighbour arrested for protesting against pollution in the public square? Obviously not—or at least, not in a country that prides itself on both civil liberty and people’s ability to rub along together and even disagree well.
Instead, the single overarching and more rigorous Amendment 1 defines “serious disruption” as
“causing significant harm to persons, organisations or the life of the community”.
That is the overarching definition, and it includes “significant delay” in the delivery of goods and “prolonged disruption” of access to services, as set out in the Public Order Act 1986. To help the noble Lord, Lord Pannick, the concept of prolonged disruption is already in the 1986 Act as amended by last year’s bus, the police et cetera Act, so that is not a novel concept. We are really talking about significant harm instead of more than minor hindrance. I urge all noble Lords, whether they are for or against the Bill in principle, to vote for that.
I would like to speak next because my amendments have been mentioned and it is probably best that I explain what they are. I stress that the amendments under discussion are my amendments: they are Amendments 5, 14 and 24 in this group, which substantially repeat amendments I tabled in Committee. There is a certain amount of revision of the words but essentially, I am making the same point as I did in Committee. They seek to give effect to a recommendation by the Constitution Committee, of which I am a member. I am grateful to the noble Lord, Lord Faulks, who, as I speak, is still a member of that committee, for adding his name to the amendments.
The committee noted that the three clauses concerning locking on, tunnelling and being present in a tunnel—the offences that are the target of my amendments—use the term “serious disruption” to describe the nature of the conduct that the Bill seeks to criminalise. The committee noted that this could result in severe penalties, such as providing the basis for a serious disruption prevention order, and took the view that a definition should be provided. On that issue, I think there is a wide measure of agreement across the House—perhaps with the exception of the noble Lord, Lord Paddick—that a definition is needed because of the nature of these offences and the consequences that follow from them.
I would like to clarify that I wholeheartedly support Amendment 1, which is a definition of “serious disruption”.
So there is agreement that a definition is needed because of the nature of the crime and the consequences that follow from it. The committee noted that a definition was given in Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act 2022, to which the noble Baroness, Lady Chakrabarti, has referred. Those sections deal with the imposition of conditions on public processions and public assemblies. The amendment in the name of the noble Lord, Lord Coaker, seeks to adopt the same definition for the purposes of the Bill.
I am sorry to be a hindrance to the noble and learned Lord, although I hope no more than a minor hindrance. The concept of “prolonged disruption” is a tiny part of the definition, but my noble friend Lord Coaker’s Amendment 1 does not replicate the definition in Section 73 of the 1986 Act. The new overarching principle that we would introduce with Amendment 1 is
“significant harm to persons, organisations or the life of the community”, and that is not in the 1986 Act. It is not the provision that is limited in that Act to processions or indeed assemblies.
I am grateful to the noble Baroness and accept her correction. Of course the catalogue that follows is very much the catalogue that we see in the 2022 Act, and it was that which took our attention in the committee. Our view was that the definition is not suitable for use in the Bill because of locking on and, especially, tunnelling. The committee said that the definition should be tailored to the very different offences with which we are concerned in the Bill, and recommended that the meaning of the phrase should be clarified in a proportionate way—for a reason that I will come back to, because the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that point—in relation to each offence. That is what my amendments seek to do. I suggest that they are more in keeping with what the Constitution Committee was contemplating than the amendment by the noble Lord, Lord Coaker.
I have tried to provide definitions that are tailored to each of those three offences and are short, simple, proportionate and easy to understand. After all, this is a situation where guidance is needed for use by all those to whom the offences are addressed. That audience includes members of the public who wish to exercise their freedom to protest; the police, who have to deal with these activities; and the magistrates, before whom most of any prosecutions under these clauses will be tried.
At the end of my speech in Committee, my aim was to invite the Minister and his Bill team to recognise the importance of the issue and, if my amendments were not acceptable, to come up with a more suitable but just as effective form of words. As noble Lords can imagine, as we so often issue invitations of that kind and those words were uttered more in hope than expectation, it was rather to my surprise that on this occasion my hope was realised when the Bill team began to take an interest in what I was seeking to do. I am grateful to them and to the Ministers in the other place and in this House for the discussions that then followed, which helped me to improve and finalise my wording. I cannot claim that I have found an absolutely perfect solution, but I think what I have done is achieve the best that can be done. Certainly, it is very much better than the alternative that is before your Lordships.
Let us look at tunnelling, for example. This is, after all, meant to be an overarching definition to supply the needs of three offences: one is locking on, the other two are tunnelling. What does the amendment really tell us about tunnelling and what the police and others should be looking at? It tells us that
“‘serious disruption’ means disruption causing significant harm to persons, organisations or the life of the community”.
The closest the effect of tunnelling comes to this, thinking particularly of HS2, is “harm to … organisations”. The problem is that the amendment does not really say what that means, and that is the question; that guidance is missing. The long catalogue of examples, of the kind of things that may result from processions and assemblies, is no help at all. As a lawyer, I am concerned with the proper drafting of things that are being produced by this House as definitions. It should really do the job it is designed to do: providing definitions that are appropriate for the language found elsewhere in the particular Bill.
My amendment, to which the noble Lord, Lord Anderson, has very kindly added his name, in the case of tunnelling refers instead to preventing or hindering to no more
“than a minor degree any construction or maintenance works or other activities that are being … performed … on the ground above the tunnel or in its vicinity.”
My amendment directs attention to what is really happening on the ground. I believe that is very much more helpful than the language in Amendment 1.
Of course, I recognise that I am using the words
“to more than a minor degree”, whereas the amendment in the name of the noble Lord, Lord Coaker, uses the words “causing significant harm”. It has been suggested that this is a lower threshold, but that is to misunderstand the words that I have used. The key word in my phrase is “more”. My point is that the disruption becomes significant when it is “more than minor”—what is “more than minor” is significant. What everyone wants to know in a situation where the disruption is likely to continue for some time, which is the case with these three offences, is at what point it reaches the stage when it is appropriate that the police should intervene because the disruption has become significant. My point is that it reaches that stage when it is “more than minor”.
We are dealing with words, about which we can argue, and I notice that the noble Baroness, Lady Chakrabarti, is shaking her head—
My Lords, the noble and learned Lord says that “more than minor” is “significant”. Would he say that “more than minor” is not “serious”; it is “significant”?
These are the words we are dealing with. “Significant” is the word in the Amendment 1 and it is defining “serious disruption”, but we are trying to find words that define what we mean by “serious disruption” in the case of these three offences, which is my point. I come back to the point that the important word is “more”, because I am trying to establish the threshold at which it is right that the police should intervene. The problem with “significant”, of course, is that can mean different things to different people in different contexts.
I think the difference between us is that the noble and learned Lord is suggesting that there is a binary: there is “minor” and there is “significant”, and therefore anything “more than minor” must be “significant” or—forget “significant”—“serious”. To understand the intention behind our amendment, one needs to think about “significant harm”—“harm” as in damage. Harm and damage, and significant harm and damage, are well understood in the law, as he knows. As for his concerns about the long list, it is a replication of provisions previously in the 1986 Act for assemblies and processions. To reiterate, it is a non-exhaustive list of examples. The crucial part of our definition is “significant harm”. I think an ordinary person on the street would understand “significant harm” as more serious a minor hindrance or one iota more than a minor hindrance.
I was looking to identify the threshold at which one reaches the point where, on my approach, one moves beyond a minor disturbance to something that becomes significant. That is why I use “more” for the point at which, I suggest, given these particular offences, it is right that the police should then intervene. I asked the question: once one reaches that point, in the case of the tunnelling, why should that go on and on? People are arguing about whether we have reached the stage where the harm is caused is significant without the further guidance of being directed to the point at which it becomes significant.
The problem with the words that the noble Baroness is addressing to me is that they can mean a range of things within the compass of the word “significant”. I am trying to direct attention to the particular offences and consequences that follow from the activities being carried on. That is why I suggest that “more” is the most important and significant part of my formula.
As for locking on, the other of the three offences, I do not have a long catalogue of things that may be affected. There is always a risk that something might be missed out, so I have tried to capture what is put at risk by the omnibus words “their daily activities”. But here again, the threshold that I am seeking to identify is to be found in the words
“more than a minor degree”, for the reasons that I have explained. Again, the question is: why should the police wait any longer once that threshold is reached?
I come back to the point about proportionality that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned, and the reasonable excuse point. Proportionality is very important and the threshold has to be put into the right place, because we need to consider at what point the interference with the convention rights of freedom of expression and freedom of assembly and association becomes disproportionate.
In its judgment in the recent Northern Ireland abortion services case, delivered last December, the Supreme Court said in paragraph 34:
“It is possible for a general legislative measure in itself to ensure that its application in individual circumstances will meet the requirements of proportionality … without any need for the evaluation of the circumstances in the individual case”.
In other words, there is then no issue for a jury to consider or a magistrate to address his or her mind to; it will have been sufficiently addressed if the issue identified in the legislation is in the right place.
As to whether that is so, some guidance can be found in a decision of the Grand Chamber of the Strasbourg court in a Lithuanian case called Kudrevičius in 2015. That case was about a demonstration by farmers, of which a number have happened in recent years. They had gathered in a number of groups to block the traffic on a number of public highways. The court said that in that case the disruption of traffic that resulted could not
“be described as a side-effect of a meeting … in a public place, but rather as the result of intentional action by the farmers”— in other words, they were intending to disrupt the highway—and that
“physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities” of others, the court said,
“is not at the core of” the right to freedom of assembly. That in itself, however, was not enough to remove their participation entirely from the scope of the protection.
That is the background for what the court then decided. It said that “Contracting States”, which included ourselves,
“enjoy a wide margin of appreciation in their … taking measures to restrict such conduct” and that the farmers’ intention—a serious disruption of the highways to a more significant extent
“than that caused by the normal exercise of the right of peaceful assembly in a public place”— was enough to enable the Court to conclude that the criminal sanction which was imposed there was not disproportionate. That is an example of a case which went across the border from being a side-effect of what was happening to something that was a deliberate obstruction of traffic, which is what locking on is all about, and a deliberate interruption of, let us say, the HS2 development, which is what the tunnelling is all about.
My approach also has the support of a decision by the Divisional Court in March last year in a case called Cuciurean. That case was about tunnelling. It affected only a small part of the HS2 project, it lasted for only two and a half days and the cost of removal was less than £200,000. However, the prosecution for aggravated trespass was upheld as not amounting to a disproportionate interference with the protester’s rights. I am sorry to weary your Lordships with those references, but, having looked at those and other case law, I believe that the position I have adopted in these amendments strikes the correct balance for the proportionate treatment of the rights we are talking about.
Of course, I hope that the noble Lord, Lord Coaker, will not press his amendment—although I have no doubt he will feel he should—because I believe it is not fit for purpose. It is not right to introduce a general definition of that kind, which is perhaps all right for one of three offences but is completely out of place for the other two. It is not good legislation. We try in this House to improve legislation. With the greatest respect to the noble Lord, I do not think his amendment improves it. On the contrary, I suggest that my amendments do improve it and, when the time comes, if I have the opportunity to do so, I will seek to test the opinion of the House.
My Lords, I admire the noble and learned Lord, Lord Hope, for trying to convince us. I support and have signed Amendment 1. I cannot argue the law—I cannot argue how many angels dance on the head of a pin—but I can question the politics. My concern about the politics of the whole Bill is that the Government are seeking to be “regressive” and “repressive”—these words have been used. This is nasty legislation.
You have to ask: is it appropriate for a few dozen protesters? Is this heavy-handed legislation appropriate for that number of people who occasionally disrupt our lives? I would argue that it is not. It is almost as if this legislation is perhaps designed instead to prevent millions of people protesting, because the Government know they have lost the confidence of the public in Britain. In a recent poll, two-thirds of people thought that the Government were corrupt. That suggests that any legislation this Government try to bring in is possibly not very well designed for the majority of people in Britain. They are giving very heavy powers to the police when we have already seen that the public do not trust the police, and they are giving more powers to Ministers—and we do not trust Ministers.
It is very heavy legislation. I am worried that the Government are actually bringing legislation for when there are general strikes and hundreds of thousands of people on the streets protesting about the collapsing and soon-to-be privatised health system or the fact that everybody’s pay is getting squeezed apart from the pay of the bankers and the wealthy. I worry that they are bringing in these laws for far more people that just the protesters. Quite honestly, who would not agree with Insulate Britain? It is the smartest thing we can possibly do if we are worried about our energy crisis. So it seems that the Government are not really focused on the protests we have had so far; they are focusing on protests we might have in the future.
We are going to vote very soon on whether to declare a protest illegal if it disrupts somebody. The whole point of protest is that it disrupts life to some point, so that you notice and start debating it and it gets reported in the newspapers. It is incredibly important, in a sense, that protest is disruptive. I heard the noble and learned Lord, Lord Hope, say that Amendment 1 was not suitable, but I have taken advice from lawyers and I think it is entirely suitable, so I will be voting for it. My big concern in this House is that we have a Government who are simply out of control. They talk about protesters being out of control, but it is the Government who are out of control.
My Lords, as the noble and learned Lord, Lord Hope, said, the Constitution Committee considered that a definition of “serious disruption” would be useful. I think there is a measure of agreement around the House that it would be, but the debate is about how best to define it. The amendment tabled by the noble and learned Lord, Lord Hope, to which I have added my name, is an attempt to provide that clarification. I can well imagine a court asking itself, “What is a serious disruption?”, and looking to see whether Parliament has given any help. None is provided at the moment. So I welcome that the Government have accepted, albeit somewhat at the 11th hour, that a definition will be useful.
Amendment 1, moved by the noble Lord, Lord Coaker, and which has the support of others who have already spoken to it, places the bar high. When combined with the necessity of proving not only intention or recklessness on behalf of the putative offender but the absence of a reasonable excuse, which—if the amendment tabled by the noble Baroness, Lady Chakrabarti, is accepted—is a prerequisite before you get to the other elements in the offence, it seems to me that, with all those requirements combined, it would be very difficult, if not impossible, to establish that an offence had been committed. That may well be the underlying purpose behind the combination of amendments. The opposition parties may not approve of the legislation, and, if they cannot get rid of it altogether, they may wish to emasculate it to such an extent that, practically, it cannot be relied upon. That is a perfectly tenable point of view, but not one that I share—and neither do the general public, I think, having seen the effect of some recent demonstrations.
The definition proposed by the noble and learned Lord, Lord Hope, does not place the bar as high as the noble Lord, Lord Coaker, does in his amendment. The former provides for an act that
“will result in, or will be capable of causing, serious disruption if it prevents or would hinder to more than a minor degree”— he emphasised that last phrase—
“the individuals or the organisation from carrying out their daily activities.”
Clearly, that would exclude mere inconvenience, but it would include “disrupting”—that is an important word—people going to work, hospital, a funeral or a sporting event or taking a child to school; in other words, their “daily activities”. If they were inconvenienced only to a minor degree, that would not be a serious disruption, but the amendment tabled by the noble and learned Lord, Lord Hope, would, I suggest, be a useful guide to courts in determining what amounts to a serious disruption. If it is suggested that it sets the bar too low, we should bear in mind those additional requirements: mere accidental interference is not enough. We should bear in mind, too, how those are bespoke amendments to deal with locking on or tunnelling; they are not general or vague attempts to raise the bar to a particular level.
I also think the opposition parties may wish to bear in mind what the Labour Party shadow Justice Secretary said in connection to this:
“Our brave emergency services are being held up from helping those in distress, and lives have been put at risk. On top of that, the public has been stopped from going about their everyday business.”
I do not suppose that the Opposition would wish to disassociate themselves from that. It seems entirely consistent with the amendments tabled by the noble and learned Lord, Lord Hope, on serious disruption—and, when we come to them, on “reasonable excuse”.
Of course, I entirely accept that the right to protest is fundamental, and we must, as citizens, be prepared to put up with inconvenience caused by those exercising that important democratic right. We may find it noisy and annoying—depending on how much we sympathise with the cause, even very annoying—but that would not be enough to be a serious disruption. It must be something more than annoying, but less than the very high hurdle which must be surmounted by the wording of the amendment moved by the noble Lord, Lord Coaker. Ultimately, it may come down to whether your Lordships consider that the right to protest is so fundamental that it must trump the rights of ordinary people going about their everyday lives. It is a difficult balance to strike, but although I profoundly respect the right to protest and have sympathy for many of the relevant causes, it seems to me that one has to counterbalance that with the rights of others to go about their lives—those rights are entitled to protection, too, and this amendment attempts to achieve a balance between those respective rights.
My Lords, I am also glad that your Lordships’ House is trying to explain for the benefit of protesters and police what is meant by “serious disruption”, even if we are not finding it very easy.
I will start with the new tunnelling offences in Clauses 3 and 4, which, as I said in Committee in support of the consistent approach of the noble and learned Lord, Lord Hope, are in a very particular category. The key point, recognised in Amendments 14 and 24, is that the disruption liable to be caused by tunnelling is not to the general public but to construction or maintenance works. Delays to the delivery of time-sensitive products, and prolonged disruption of access to a rather specific range of goods and services specified in Amendment 1 of the noble Lord, Lord Coaker, are not really to the point. The one-size-fits-all approach in Amendment 1 is neither designed for nor appropriate to the tunnelling offences. I would add that to require disruption to be “more than minor” in order to constitute the new offences seems quite sufficiently generous to tunnellers who are seeking to disrupt those engaged in lawfully organised works. That is why I put my name to Amendments 14 and 24 and shall support them if they are put to a vote.
The arguments are more finely balanced in relation to Amendment 5. The locking-on offence, as the noble Lord, Lord Coaker, has said, can be constituted by a remarkably wide range of actions. I am wary of a test that is too easy to satisfy, bearing in mind that serious disruption, or the prospect of serious disruption, is the trigger for the no-suspicion stop and search power, and for SDPOs, the whole existence of which is controversial, at least to me. But I take comfort from the fact that, as the noble and learned Lord, Lord Hope, has explained, hindrance to the public needs to be significant before it can meet the test of being more than minor. Indeed, “significant”, not “substantial”, is the very word used in Amendment 1 when it refers not only to “significant harm” but to “significant delay”.
The recent Policy Exchange briefing, to which the noble Lord, Lord Coaker, referred, complains that the “more than minor” test may be interpreted in the light of the Strasbourg case law
“so as to maximise the space for protest”.
I agree that it will have to be interpreted in conformity with the ECHR. Policy Exchange seems dismayed by that; I am rather encouraged by it. When the definition offered by the noble and learned Lord, Lord Hope, is criticised from one side for being too easy to satisfy and from the other for being too difficult to satisfy, perhaps it is not too wide of the mark, even in this more sensitive context.
My main point is that whatever view noble Lords may take of Amendment 5, the case for Amendments 14 and 24 is a strong one. I hope we will have the chance to vote for them.
Before my noble friend sits down, would he agree that there is no particular reason why Amendment 1—although plainly it would pre-empt Amendment 5—should pre-empt Amendments 14 and 24?
I believe the Deputy Speaker so directed at the outset of this debate—but I will be corrected if I am wrong about that.
My Lords, I would like to ask the noble Lord, and not from a musical perspective, whether if we change the words “more than minor” to “major” we might not make some progress, because surely that is what they mean.
I am conscious that an expert musician will certainly know the difference between minor and major. I take refuge in the fact that there is no such amendment before us, so perhaps I do not need to answer that today.
My Lords, the right to protest in a democracy is of central importance, but I cannot see that there is much of a right to glue yourself to another person or object in order to disrupt the daily lives of other people. That is what we are talking about here. There are many ways of protesting in our democracy without locking yourself on—without disrupting the lives of others. The conduct with which these clauses are concerned is very often, as the noble Baroness, Lady Jones, accepted, for the very purpose of disrupting the lives of others. I think that such conduct should not be unlawful, as Amendment 1 proposes, only if it causes prolonged disruption.
Preventing people going to work or taking their children to school or relatives to hospital should be unlawful. That is, as far as I can see, more at the minor end and sufficiently strong to outweigh the interests of the protesters, as the cases cited by the noble and learned Lord, Lord Hope, demonstrate.
I suggest that the House bears in mind one further point. There is a danger, when we consider all these amendments, that we do so by reference to protest with which we may sympathise—maybe environmental causes. But the protest may also be by those whose causes are far less attractive and far more damaging to a democratic society. Such protesters may also decide to lock on, and the law needs to deter and penalise them.
My Lords, I would like to think about how we got here. First, there has been a series of events over the past few years during which people criticised the police, the CPS and the Government for not intervening when people were seriously disrupted. That is why we are having this debate. We could go through various cases, whether it is Heathrow, the M25 or the taxis around Parliament Square, when the drivers were kind enough to leave a lane around the outside; that was their decision, a point I shall come back to. Therefore, people have complained that the police have not been intervening.
One reason why the police have not been intervening concerns the offence that they usually rely on: obstruction of the highway, which is a very simple and absolute offence. There is no intent to be proved; all that needs to happen is obstruction of the highway. The Supreme Court has had to consider that simple offence, and it concluded that there was more to consider than whether the highway was blocked. It asked whether there was an alternative route and other action could have been taken by the police. There was lots of talk about intent in respect of what is really a very simple offence. Usually the penalty is a fine; very rarely is imprisonment imposed.
The second reason why this issue is having to be considered is that the public have got angry and sometimes started to take action themselves when the police have not, which is always dangerous. We can all recall seeing film of someone sat on the top of a tube carriage and the crowd dragging him off. That is very dangerous for everybody involved—a terrible situation, and it should not happen. We have seen cases where the motorways have been blocked, and the people at the front have started to intervene because they are fed up with waiting. It appears that nobody is going to do anything and, in any case—
Certainly in Committee, the point was made—and I wonder what the noble Lord felt about it—that this was a crisis of policing, with the police not enacting laws we already have. It is entirely fair that the public have got frustrated, demanding that something should be done. If the police are uncertain what to do with a huge armoury of public order offences that could be used and sometimes are used, but in a fairly arbitrary fashion, why will giving them more powers and laws solve the problem of not using the ones they already have? That will disillusion the public even more with the whole process of criminal justice.
The noble Baroness makes a good point. I was going to come on to a point that she made, but the point the police are making is that, if there is a lack of precision around something as simple as obstructing the highway, can we help them? People have alluded to the fact that the police have asked for help, and that is one of the things Parliament can do: explain more clearly how obstruction can be a protest that is beyond the criminal boundary, particularly when political motives are involved. Generally, the police will try not to get involved in that, which why they are seeking help in asking for more legislation, rather than less, although in general I think they would say that they do not need any more legislation.
The noble Lord, Lord Coaker, explained very well why he would like to approach this issue in a different way. The problem I have with his amendment is that it refers to a “prolonged disruption”, as the noble Lord, Lord Pannick, said. I particularly do not like its reference to health. What if someone is having a heart attack or another very serious medical issue that involves minutes rather than hours—or days, in some cases?
Just to be clear one more time, prolonged disruption is just an example. One does not need prolonged disruption for significant harm to be caused to a person, an organisation or the life of the community. I cannot think of a more significant harm than a person with a heart attack not being able to be transported in an ambulance.
That is what the amendment says: “prolonged”.
Who is going to decide? The noble Lord, Lord Paddick, made this point: people may have lost confidence in the police, for reasons that we understand. However, the alternative appears to be that we leave it in the hands of the protesters to decide how long they will stay. That is unacceptable. If the state is going to have a view on these matters, it is for the state to decide, not the protesters. Of course they will have a view, which may be different, but they have to take the consequences if they get that line wrong. That is not happening at the moment.
The noble Baroness, Lady Jones, said that we could all be disrupted. She has often made that point and I have often disagreed with her. She says that we are always disrupted every day, certainly in London—not the rest of country, frankly—by congestion and, therefore, why should we criminalise protest that only does the same thing? I hope that I am fairly representing her argument.
Nearly. Pollution kills people but we are not trying to legalise unlawful killing. One could pursue that argument to its logical extent, but I do not accept that someone intentionally blocking someone else’s path is the same thing as someone suffering the consequences of congestion. I expect that the noble Baroness is going to say something.
In a disruption, people can turn off their engines. In traffic, they keep them running.
I am sorry—I was looking at my notes and missed that. Would it be terrible if the noble Baroness repeated it, so that I can properly respond?
The noble Lord is so profound. I said that when there is disruption, people know that it is going to last some time, so they can turn off their engines. What happens in traffic is that people leave their engines running, which is, of course, highly polluting, as he said.
The Met Police, after the disruption on motorways into London, put out a tweet asking people to report instances of being unable to get their children to school, medical emergencies or whatever. The stream of replies after the tweet was nothing to do with people objecting to the disruption; they were supporting the action. So the Met Police might have got that slightly wrong.
My final point is that although I cannot support the amendment of the noble Lord, Lord Coaker, for the reasons I have explained, I support the amendment of the noble and learned Lord, Lord Hope. However, the challenge made by the noble Lord, Lord Paddick, is that “minor” sounds intuitively contentious when referring to something serious, and it is an unusual bar by which to define something. The noble and learned Lord I think acknowledged that there may be more work to do on that.
I did stress that the word “more” is important. I agree that the word “minor” raises issues, but the “more” point is crucial to an understanding of my formula.
I accept that point and I would of course never tangle with a lawyer. However, I am just saying that at an intuitive level, even describing something as “more than minor” may be a concern and there may be a different form of words. In fact, I thought that noble Lords might have been able to group around the form of words the noble and learned Lord used in his speech, be it “significant” or “major”, as was suggested. It may be that we broadly agree that “serious disruption” is not okay. That is why we are struggling to find the exact definition in the amendments.
Finally, we should not leave the police with too many problems in terms of intent, recklessness or reasonable excuse. If we have a simple definition of an offence but then have to worry about intent or recklessness, the situation will, I suspect, become almost impossible and we will be back to where we started. That would be a concern.
My Lords, I just gently remind the House of the rules of debate on Report, which say:
“On Report, no Lords Member may speak more than once to an amendment, except: the mover of the amendment”.
Intervening repeatedly on other Members is not really in keeping with the rules of debate on Report.
My Lords, at Second Reading and in Committee there was much discussion on the meaning of “serious disruption”, and many noble Lords spoke to the need to provide a clear definition in the Bill. I thank all noble Lords who have participated in what has been a fascinating debate. At Second Reading, I agreed with many of the comments made by your Lordships and committed to take the matter away. What we are debating today is the matter of thresholds, as all noble Lords who spoke noted. The debate is not about whether these measures ban protests: quite simply, they do not, and I thank the noble Lord, Lord Coaker, for his comments emphasising that fact. We are trying to ascertain the point to which protesters can disrupt the lives of the general public. This Government’s position is clear: we are on the side of the public.
I thank the noble Lord, Lord Coaker, for tabling his amendment, which provides a definition of “serious disruption” for offences in the Bill. I agree with the purpose of his amendment but do not believe that the threshold is appropriate. The Government want to protect the rights of the public to go about their daily lives without let or hindrance. I do not believe that his amendment supports this aim; therefore, I cannot support it. I make no secret of what the Government are trying to do. We are listening to the public, who are fed up with seeing, day after day, protesters blocking roads: they make children late for school; they make people miss hospital appointments; and they make small businesses struggle. Any change in law must address this, and I do not believe that the noble’s Lord’s proposed threshold does.
In this vein, I turn to the amendments tabled by the noble and learned Lord, Lord Hope of Craighead, which also provide a definition of “serious disruption”, but for the specific offences of locking on, tunnelling and causing disruption by being present in a tunnel. His amendments follow the judgment handed down by the Court of Appeal following the Colston statue case. The court found that the right to protest does not extend to acts of criminal damage that are violent or where the damage is to more than a minor or trivial degree:
“We cannot conceive that the Convention could be used to protect from prosecution and conviction those who damage private property to any degree than is other than trivial.”
We agree with the judiciary and believe that this threshold should be consistent across the statute book. Although the court concerned itself with the matter of damage to private property, the same principles apply to obstructing the public from enjoying their right to go about their business without hindrance. That is why the Government support the noble and learned Lord’s amendments; I am very pleased we were able to surprise him in that regard. They provide a threshold for “serious disruption” that is rooted in case law. I thank him for tabling this amendment and, indeed, for explaining it in such a detailed and precise way. It provides both clarity to the law and a threshold that addresses the public’s frustration with disruptive protests.
I will now speak to government Amendments 48 and 49. The Commissioner of the Metropolitan Police Service has asked for further legislative clarity on police powers to manage public processions and assemblies. These powers are conferred by Section 12 of the Public Order Act 1986 for processions and Section 14 for assemblies. They allow the police to place reasonable and necessary conditions on protests to prevent specific harms from occurring. One of these harms is
“serious disruption to the life of the community”.
These two amendments provide clarity to this phrase for both Sections 12 and 14. The noble Lord, Lord Paddick, was quite right in anticipating that I would be quoting Sir Mark Rowley, who said:
“I welcome the Government’s proposal to introduce a legal definition of ‘serious disruption’ and ‘reasonable excuse’. In practical terms, Parliament providing such clarity will create a clearer line for police to enforce when protests impact upon others who simply wish to go about their lawful business.”
These amendments, supported by the police, prioritise the rights of the law-abiding majority. First, they carry over the noble and learned Lord’s definition of “serious disruption”. Secondly, they define the meaning of “community”. Thirdly, the police may consider the absolute impact of the disruption caused to the public. Fourthly, they allow the police to consider the cumulative disruption caused by protests. Finally, they allow the officer responsible for managing the protest to place conditions on more than one connected procession or assembly. In answer to the comments of the noble Lord, Lord Paddick, that these are too complicated, I say that the Home Office will work closely with the NPCC and the College of Policing to ensure that appropriate guidance and training are developed. Mirroring the definition of the noble and learned Lord, Lord Hope, will provide consistency across the statute book. As I have said, this is welcomed by the police. I point out that the definition specifies that the disruption is caused by physical means only.
The noble Lord, Lord Coaker, raised in the Policy Exchange paper the use of “minor” in the definition. These amendments protect the daily activities of the public; it is clear that the public are fed up with the disruption caused by protesters, and that is what these amendments address. Many protests that do not disrupt the lives of others occur on a regular basis. The noble Lord, Lord Hogan-Howe, made a very good point: that we should not allow the protesters themselves to determine the scale of disruption. Many protesters are able to express themselves and place pressure for change without blocking roads.
Currently the term “community” is undefined. The police should be able to use their powers to protect anyone who is detrimentally impacted by serious disruption from protests, not just those who live, work or access amenities where the protest occurs. The police must consider the absolute disruption caused to the public, as opposed to the disruption relative to what is typical for an area. The measure will give officers the confidence that they can use to respond to disruptive protests, even in areas routinely subject to spontaneous disruption such as traffic jams. To prioritise the rights of the public, the amendment allows the police to consider the cumulative impact of protests and separate protests. It is wrong that the public must repeatedly put up with disruptive protests, in part because each time there is a new protest, the police must consider the level of disruption afresh and in isolation from what has previously happened and what may be planned. If multiple protests cumulatively ruin the daily activities of a community, they must be considered collectively. Following from this, if the police are to manage the collective impact of protests, they must be able to apply the conditions on separate but connected protests. For example, a large protest campaign made up of multiple small protests that disrupt a large area should be subject to blanket conditions. Allowing the police to consider the cumulative impact of protests by requiring them to manage each individually complicates the operational response unnecessarily. Collectively, these measures will allow the police to protect the public from the disruptive minority who use tactics such as blocking roads and slow walks. The public are clear that they want the police to protect them from these tactics. In turn, the police have asked for clarity and law to confidently and quickly take action and make arrests where appropriate. The Government have listened to both, and I hope this House does the same and supports the amendment.
I will speak collectively to the amendments tabled by the noble Lord, Lord Paddick. These measures do two things to the locking-on and tunnelling offences. First, they lower the threshold of the offence so that acts capable of causing serious disruption are not in scope. Secondly, they alter the mens rea so that only intentional acts, and not reckless ones, are in scope of the offence. It is clear that the public do not want to see police officers sit by while criminal protesters disrupt their lives; lowering the threshold would mean that the police will have to do so. Why should an officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause serious disruption to the public? As for the mens rea, as I have said already, the Government are concerned with the disruption caused to the public. It does not matter whether it is caused recklessly or intentionally; what matters is the impact it has on people’s daily lives. For all these reasons, I encourage all noble Lords to support the amendments in the name of the noble and learned Lord, Lord Hope, and those by the Government and reject the others.
Can the Minister deal with the issue of “be capable of causing” as opposed to actual disruption?
I did deal with that when I was talking a little about the tunnelling and locking-on offences. Why should the officer stand by and watch someone lock on or dig a tunnel that is clearly going to cause, or be capable of causing, serious disruption to the public? Certainly in terms of tunnelling, I think that is very clear.
My Lords, I thank all noble Lords who have participated in this really interesting and thoughtful debate. I thank the Minister for his response. I do not want to go through every single contribution; I do not wish to be rude to anybody who I do not respond to, but I want to make and reinforce a couple of particular points. I totally agree with the noble Lord, Lord Faulks. I repeat that the attempt by this Chamber to define “serious disruption” on the face of the Bill, as the Constitution Committee asked it to do, is a really important step forward and to try and do. The debate between us is where we set the threshold and how we define “serious disruption”. Perhaps this debate should have taken place on the Bill a few months ago, but it is taking place now and is particularly important.
Before coming on to a couple of points about the amendments, I worry—the noble Baroness, Lady Fox, was quite right to point this issue out—that one gets the impression that the Government, faced with protests that all of us have been annoyed, frustrated and angry about, want to be seen, both initially and with the amendments that have just been brought forward, to be doing something about it. The Prime Minister’s announcement two weeks ago was a typical example. I do not believe that the Home Office would have known anything about that. From what I know, the Prime Minister thought, “I’m not having all this, with Just Stop Oil and Extinction Rebellion, and people moaning about protesters being out of control—we need to do something. Put it out there that we’re going introduce new amendments to the Public Order Bill at Report stage in the House of Lords, and ring up the Home Office in the morning and tell them we’re doing it.”
That is exactly what happened, in my view, though I will be contradicted by the Minister, who will say that he knew all about it and was consulted on Sunday afternoon, with the Minister of State, about all the amendments that were going to be put forward, that he amended and adapted them, and that he contributed to the press release. I was so disappointed that the noble Lord, Lord Sharpe, was not on the radio, explaining it all on the “Today” programme on that Monday morning; that would have convinced me that it was not a prime ministerial coup against the Home Office. That is no way for new amendments to be introduced into the Bill. That is the serious point I am trying to make through humour.
The whole debate is about the threshold. The noble and learned Lord, Lord Hope, made a really interesting contribution. In debating with the noble and learned Lord—I have never been a deputy chair of the Supreme Court—he said that my amendment is deficient. It is a fair criticism to make but what I am seeking to do, with the support of the noble Lord, Lord Paddick, and the noble Baronesses, Lady Jones and Lady Chakrabarti, is to say that such is the importance of protest that we want “serious disruption” to have a high threshold to be proved.
The first part of the amendment is an attempt to deal with the point made by the noble and learned Lord, Lord Hope, and others in the Constitution Committee. We took advice to make it relevant to this Bill. We asked people how to make it relevant and they said that the inclusion of the first three lines of the amendment makes it relevant. The noble and learned Lord, Lord Hope, may criticise me by saying that that is not the case, but that is the advice that we had. I say to the noble and learned Lord—this is where I criticise the amendment from him, supported by others—that the Constitution Committee quite rightly says that serious disruption should be put in Bill, but it also says that it
“should be clarified in the Bill in a proportionate way”.
My contention to the Chamber is that the threshold proposed by the noble and learned Lord, Lord Hope, and others is not proportionate. It sets the bar so low that, even as we debated this amendment, noble Lords proposed that it would be better if the noble and learned Lord had said major rather than minor. The noble and learned Lord, Lord Hope, had to say that he did not just mean minor and that it is word “more” in front of it that is extremely important. In other words, we start to debate what the court itself would be debating, whatever the words would be. That was the point I was making to the noble Lord, Lord Pannick, when he had a go at my amendment—though he did not put it quite like that; noble Lords do not put it in the way that I might in debates. The noble Lord, Lord Pannick, made the very interesting point that my amendment did not deal with that. I am making the point that, however you define it—in the way that the noble and learned Lord, Lord Hope, suggests or the way that I suggest—it is the courts that will define it in the end. The courts will have to determine whether that threshold has been met.
My contention is that by using “more than minor” and “a hindrance”, the noble Lord, Lord Hope, has set the bar at a low threshold. As the noble and learned Baroness, Lady Buter-Sloss, has just said, a hindrance is something that does not have to have occurred. It does not have to have caused serious disruption; it simply has to be capable of causing it. How on earth are you going to work that out in a court? If these amendments are passed, we are going to pass clauses, with offences linked to them, which will allow a court to actually convict someone on the basis that something was potentially capable of causing serious disruption—good luck with that. I want a serious threshold.
This is a serious group of amendments. I say to all noble Lords, when considering how they will vote—I will push Amendment 1 to a Division—that although these amendments have been introduced in the light of the serious disruption we have seen that we all think is unacceptable, that this is no way to legislate. It is no way to legislate to say, “I’m so irritated. I’ve got to be seen to be doing something; it doesn’t matter whether it’s needed”. We believe that the police have existing powers for this. The chief constable of Greater Manchester said that it was no wonder people were annoyed with them: the police should use the existing powers that they have. The question for this Chamber is why the confidence of the police has been eroded to such an extent that they will not use the powers they have got because they are so worried about what the impact of that will be. That is the fundamental question. You can give the police whatever powers you want, but if they do not have the confidence to use them, they will not use them, and they will not make any difference.
Let me tell you what will happen: we are going to pass bad legislation with respect to serious disruption and, in a few months, a year or two years, at a protest such as the one I identified, people will link arms. Under the Bill, you do not have to glue yourself; you can attach yourself by holding each other’s arms. I do not know what protests people have been on, but who has not done that? I would think that even lots of Members on the opposite side of the Chamber will have linked arms about something. I can think of a few protests—I will not mention them—where many noble Lords opposite will have linked arms. I suspect that many of them would have been on a road, and that many of them would have blocked the traffic by linking arms. I have certainly seen a few outside here doing that—and not necessarily Labour supporters, from what I saw of them.
My point is that we are going to pass legislation under which protests that all of us would regard as reasonable and acceptable are going to be made illegal. I will use one last example and then stop. Again, I use the example of a bus company in an area where I was the local councillor which changed its route to run a bus right through the middle of an estate—past children’s playgrounds, nurseries and a housing estate. We objected to that; the community objected to it. To get the bus company to change its mind, we linked arms across the road to stop the bus coming down it. There were people going to work on that bus, and I do not know who else, but we stopped it going down that road. That was not just me, as a Labour agitator; it was mums, grandmums and—I know I said this in my original remarks but it is so important—ordinary people, standing up against the reckless decision of a bus company which took no notice of the safety of children. It wanted the bus to go down there and we were not having it. We linked arms and we stopped that bus coming down the road. I would say to the noble and learned Lord, Lord Hope, that this hindrance was “more than minor”, but I do not know—it might have to be “major”.
The point I am making is that we changed the bus company’s mind. It moved from having that bus going through an estate, past children, to going on its original route. That protest would be banned under the Bill; it would not be allowed by what the Government are proposing here. Even if serious disruption is defined in the way that the noble and learned Lord, Lord Hope, wants, it would not be allowed. There are countless examples of such protests. I ask each and every one of your Lordships to think about times where they may have protested or taken action. I tell you that, for each of us, there will be times which, under this legislation, would not have been allowed.
That is why my Amendment 1 is so important. It seeks to say to the courts, the police and others that people have a right to protest, and that there must be proof of serious disruption to stop a protest. In the end, it comes down to whether your Lordships want a low bar, as the noble and learned Lord, Lord Hope, wants, or a higher bar, as Amendment 1 proposes. Amendment 1 seeks to protect the right to protest and as such this Chamber should support it.
Ayes 243, Noes 221.