Baroness Chakrabarti:

Moved by Baroness Chakrabarti

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

My Lords, I first thank noble Lords; so too does Cole Porter from the grave, because “how strange the change” would have been from “major” to “just a little bit more than minor”.

This second group deals with the concept of “reasonable excuse”, which noble Lords will remember is present in a number of the new criminal offences in the Bill. As noble Lords have heard, some, including locking on in particular, are very vague and dangerous. I have some amendments, with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that attempt to set straight a reversed burden of proof, inappropriate in criminal law, where the Government have sought to place the burden on the innocent cyclist with the bike lock or the protester, or whoever, to demonstrate that they had a reasonable excuse when, really, the lack of a reasonable excuse should be a component part of the criminal offence and, indeed, something that a police officer considers before arresting someone.

The noble Lord, Lord Paddick, has said eloquently many times in your Lordships’ House that criminal offences need to be fit for purpose not just in a courtroom or even during a charging decision in a police station, but on the ground when an officer is considering who to arrest. Therefore, it is important that the lack of a reasonable excuse be a component, core part of the offence and not something that a hapless bystander or protester has to prove.

The noble Lord, Lord Paddick, will speak to other amendments in this group that he has tabled. I support all of them, whether my name is there or not; it is there in spirit. I would like to be clear about that and, similarly, with attempts to improve these offences and improve the definition of “reasonable excuse”. But, on account of time, I just want to focus on and prioritise the importance of not supporting the government amendments or, should I say, the amendments that Ministers have now signed in the name of the noble and learned Lord, Lord Hope of Craighead.

It seems harsh, to say the least, to single out “protest” from all the potential excuses that may or may not be reasonable in a particular case and a particular set of circumstances. Why single out protest as something that can never be reasonable? That seems to me to be an attempt to take proportionality out of the mind of a decision-maker—not just a court but a police officer on the ground. I think that is a mistake.

The noble and learned Lord, Lord Hope, will no doubt cite very leading authority on circumstances in which proportionality is so clearly part of an offence that there is no need for second guessing at the arrest or prosecution stage. But that will not be the case in relation to some of these offences and, I venture, locking on in particular.

I will not attempt to repeat the eloquence of my noble friend Lord Coaker with the various descriptions of linking arms, but the idea that an offence that can be committed with such trivial activity should not have an element of proportionality put in the mind of a decision-maker is of huge concern to me.

Without further ado, I commend the various amendments that I have described, but also ask noble Lords not to support any attempt to single out protest as the one excuse that is never reasonable. That seems rather unreasonable to me. I beg to move.

My Lords, I support the noble Baroness on her amendments and am opposed to Amendment 8 from the Government and the noble and learned Lord, Lord Hope, which seeks to exclude and narrow down very dramatically the scope which, I submit, should be present in this offence for a defence of reasonable excuse.

Why should not a demonstration against measures concerning, for example, climate change as a question of fact and degree for the trial judge be adjudged reasonable, as was the case in DPP v Ziegler, which went to the Supreme Court. It is perfectly true and perfectly right that I should acknowledge this. Indeed, my noble and learned friend Lord Hope drew my attention way back at the end of last year to the latest Supreme Court decision, which he mentioned today with regard to group 1, in the Northern Ireland abortion case. It is a reference from the Attorney-General for Northern Ireland.

It is perfectly true to say that you can have crimes defined in such a way that they can properly be said to have taken account, in so far as is necessary, of Articles 10 and 11 of the convention. If the actus reus, the fact of the criminality, is established, that is the offence with no scope for a reasonable excuse. This watered-down version of that, in exclusion of the possibility of contending for the rights of protest and demonstration against matters of public concern and public debate, is a version of it, but it needs criminality of a serious sort—that countervailing interest—to justify any change to the ordinary position such as was arrived at in Ziegler, where the Crown or the prosecution has to disprove that you have a reasonable excuse, and a reasonable excuse, as in Ziegler, can perfectly well be a matter of public concern.

Respectfully, I simply remind your Lordships of the facts, which is that the Northern Ireland case did not question the actual result of Ziegler, which was to find reasonable excuse in the following circumstances. Basically, the facts were that a demonstration was concerned with objections to the arms trade. The demonstrators in that case, held to have acted lawfully, blocked off one side of a dual carriageway approach road to an exhibition centre. They prevented traffic from going to the centre and prevented the delivery of arms to the exhibition, and were there for 90 minutes before they were cleared by the police. That was found to be perfectly capable of providing the reasonable excuse defence, and so, I respectfully submit, should be the position here. It is then a matter for the court to judge the proportionality of the obstruction or disruption that occurs. I simply remind noble Lords of that.

It is very important not to depreciate in any way the rightly valued and historic rights of protest and demonstration. The fact is that they operate as a valuable safety valve. Not everyone who demonstrates is entirely logical, sensible or reasonable. Ratiocination is not necessarily behind it. There are disaffected, disillusioned and disenchanted people. Frankly, you weaken the defence of reasonable excuse and the position of the right to protest at your peril.

It is true that an example was given at Second Reading where there may be countervailing interests. There is a strong public interest, for example, with regard to not carrying bladed articles. They should not be carried in public without good reason. In that case, the courts rightly held that that justified the burden of proof being on the defence to prove a reasonable excuse for carrying a bladed weapon. However, I respectfully submit that the criminality necessarily involved in an offence under this legislation, despite the sensible vote—if I may say so—on the first group, does not justify putting the burden on the defence. That should be for the Crown to disprove.

My Lords, I hesitate to participate in a legal argument when I am not legally qualified, particularly when I wrote this contribution in isolation at the weekend. However, there are two separate and distinct groups of amendments within this group. My amendments are about whether someone who has a reasonable excuse for their actions commits an offence or whether they should have a defence of reasonable excuse only once charged with the offence; in other words, does the reasonable excuse mean that they do not commit an offence, or should they be arrested and charged and only then have a defence of a reasonable excuse? The other amendments are about the definition of what amounts to a reasonable excuse.

On when reasonable excuse can be deployed, I have Amendments 7, 16, 26, 32 and 36 in this group, which are intended to have a similar effect to Amendments 2, 6, 11, 15, 18, 20, 25 and 34 in the name of the noble Baroness, Lady Chakrabarti. I am just as supportive of the noble Baroness’s amendments as of my own; in fact, bearing in mind that they have the support of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, I am sure that hers are to be preferred. My amendments are designed to ensure that a person does not commit the offence to which the amendments refer if the person committing the act in question has a reasonable excuse for their actions, instead of, as currently drafted, if a person has a reasonable excuse, they can use it as a defence only once charged.

The offences to which my amendments apply are: locking on, in Clause 1; tunnelling, in Clause 3; being present in a tunnel, in Clause 4; obstruction of major transport works, in Clause 6; and interference with key national infrastructure, in Clause 7. For example, Amendment 16 provides that a person does not commit an offence if they have a reasonable excuse for tunnelling. In Clause 3, the Government give an example of a reasonable excuse as being

“authorised by a person with an interest in land which entitled them to authorise its creation.”

Surely someone properly authorised to construct a tunnel should not be arrested and charged with tunnelling and only then be able to deploy that defence, when they are clearly not guilty of that offence from the outset.

The Minister may argue that the police will use their discretion, but we saw the case of the accredited and documented broadcast journalist Charlotte Lynch, who, while reporting on a Just Stop Oil protest, was arrested, handcuffed and held in police custody for five hours for conspiracy to commit a public nuisance. Using their discretion to avoid the detention of innocent people is not the police’s strongest suit—at least, not in public order situations. Perhaps I should remind the House that I am a former police officer.

The Minister may say that the police have to be able to act quickly and decisively in public order situations, and that determining whether or not someone has a reasonable excuse is difficult in such situations. If he were to say that, is the Government’s position that innocent, peaceful protesters should expect to be arrested and detained by the police, even if they have a reasonable excuse for their actions? The chilling effect on people’s right to protest would make such a stance reprehensible.

The other amendments in this group relate to the limitation of what amounts to a reasonable excuse, and I broadly agree with what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just said. Yet again the noble and learned Lord, Lord Hope of Craighead, has secured government support for his Amendments 8, 17, 18, 27, 28, 33 and 37. The Government seek to extend the proposed limitation to the offences of highway obstruction and public nuisance by means of Amendments 50 and 51 respectively, while the noble Lord, Lord Sandhurst, has come up with his own alternative, Amendment 55.

I was taken with the debate we had in Committee on this issue, as I said to the noble and learned Lord, Lord Hope, at the time. In summary, the noble and learned Lord suggested that, taken to its limits, provided that the reason for the protest was sufficiently serious, any criminal action, however serious, could be seen as reasonable. So, for example, if the purpose of the protest was to save the planet, surely nothing could be more serious and so protesters could argue that that gave them carte blanche to do whatever they wanted. Hence these amendments, signed by the Government, seek to remove any issue of current debate from constituting a reasonable excuse. The argument is that it is the legislature that should set out clearly the limits of reasonable excuse, rather than the courts, as recommended by the Constitution Committee.

In his letter of 23 January, the Minister cites two Supreme Courts cases, that of DPP v Ziegler and others, and, referenced by the Attorney-General for Northern Ireland, the Abortion Services (Safe Access Zones) Bill. As I keep saying, I am not a lawyer and I hesitate to offer a lay opinion, but in Ziegler the Minister rightly cites Articles 10 and 11 of the European Convention on Human Rights as offering some reasonable excuse for obstructing others. He then cites the judgment in the Northern Ireland case that, during a criminal trial, it is not always necessary to assess whether a conviction for an offence would be a proportionate interference with a defendant’s rights under Articles 9, 10 and 11. But my understanding is that this is the case only when the restriction of the exercise of convention rights is prescribed by the law in question, the law pursues a legitimate aim and the law is proportionate.

My understanding is that the protection of the European Convention on Human Rights does not need to be considered in a criminal trial if, and only if, the offence explicitly restricts those convention rights: for example, being present in an abortion clinic buffer zone; that the offence pursues a legitimate aim, the protection of women seeking an abortion in that case; and that it is proportionate—in that case, being limited to 150 metres around the clinic. For me, the question is whether the amendments in the name of the noble and learned Lord, Lord Hope of Craighead, meet the three tests cited by the Supreme Court in the Northern Ireland case. If the noble and learned Lord’s amendment were accepted, taking Clause 8 as an example, the restriction of a person’s convention rights by excluding issues of current debate from being a reasonable excuse would clearly be prescribed in law. That would be the first condition. It might even be considered to be pursuing a legitimate aim, in preventing someone from causing serious disruption by locking on, but I believe it fails in being disproportionate, in that it would apply to every attempt to exercise a person’s convention rights, no matter what the circumstances.

Take, for example, the march against the war in Iraq in February 2003, where the official estimate was 750,000 participants—the BBC reported that over 1 million people took part. The march brought central London to a standstill and, by any definition, serious disruption was caused. Are we really saying that the purpose of the march, in that case the war in Iraq, then an issue of current debate, should not have been taken into account by the courts when considering whether the protesters had a reasonable excuse for causing serious disruption? I accept that this is a serious issue, but I do not accept that this is a serious solution, in that it fails the Supreme Court judgment’s third test of proportionality.

As with the case of serious disruption in the previous group, I believe the noble and learned Lord, Lord Hope of Craighead, goes too far, as evidenced by the Government’s support for his amendments. In terms of “reasonable excuse”, that there should be no difference between a dozen extremists blocking the roads around Trafalgar Square—because, for example, they believe Covid is a myth—and 1 million people blocking the roads around Trafalgar Square in protest against the war in Iraq, because the issue of current debate about which they are protesting cannot be taken into account when considering reasonable excuse, cannot be right.

The other concern I have with the noble and learned Lord’s amendments is

“as part of or in furtherance of … an issue of current debate”.

Would a protest by the Flat Earth Society that caused serious disruption be permitted, because they could argue that they have a reasonable excuse for their actions and it was not an issue of current debate, but protesters in favour of additional support for families facing the cost of living crisis would not be able to access a reasonable excuse defence?

The amendment in the name of the noble Lord, Lord Sandhurst, seeks to overthrow the judgment of the Supreme Court in DPP v Ziegler and others. If my understanding of the noble Lord’s amendment is correct, no protest that inconveniences members of the public would be lawful, nor could there be any reasonable excuse for such conduct. Needless to say, we do not support the noble Lord’s amendment.

I accept the Constitution Committee’s recommendation:

“It is constitutionally unsatisfactory to leave to the courts the task of determining what might be a ‘reasonable excuse’ without Parliament indicating what it intends the defence to cover.”

However, it surely cannot be the case that Parliament wants the courts to ignore what the protest is about when determining what might be a reasonable excuse. As my commander said when I presented my solution for rotating police officers between uniform and CID, “I don’t know what the answer is, but this isn’t it”. We oppose these amendments.

My Lords, in the temporary absence of the noble and learned Lord, Lord Hope, from the Chamber, I speak to the amendments in his name, to which my name and that of the noble Lord the Minister have also been added.

The Constitution Committee, in its report published on 11 November 2022, considered the question of “reasonable excuse”—which is used, as has already been pointed out, in a number of contexts in this part of the Bill—and pointed out that it was not defined. It also said, at paragraph 14 of its report, that the offence does already

“require intent, which may render redundant the need for a ‘reasonable excuse’”.

The committee considered it unsatisfactory to leave to the court the task of determining what might be a “reasonable excuse” without Parliament indicating what it intends the defence to cover. Including a “reasonable excuse” defence invites arguments as to whether certain, but not other, political motivations might constitute an excuse. What the committee recommended was that that,

“unless a precise definition of ‘reasonable excuse’ is provided then the ‘reasonable excuse’ defence” should be

“removed from Clauses 1, 3, 4 and 7”— apart from anything else, in the interest of legal certainty.

This was a report from a committee looking at the constitutional aspects of the Bill. It included, as the House will know, Peers from all parties and none. I confess to some uncertainty as to what the Government can have intended by originally including a defence of “reasonable excuse”. If you cause serious disruption by attaching yourself to an object or land or otherwise locking on, as defined in the Bill, and you do so intentionally or recklessly, what could provide a “reasonable excuse” for doing so?

It seems to me that probably the only excuse that could be offered would be that your cause is a noble one: in particular, that you are concerned about the damage to the planet caused by climate change. I see the noble Lord, Lord Deben, taking a close interest in this debate, but I am not suggesting for a moment that he would be inclined to lock himself on—but that has been the stance taken by Extinction Rebellion and Just Stop Oil, as we know. It could be argued that any demonstration, however serious the disruption, is justifiable if it contributes in some way to putting extra pressure on the Government to take appropriate steps to, if not completely turn back climate change, at least substantially reduce its effect.

I suspect that “reasonable excuse” was put in the Bill in an attempt to ensure that the Bill then complied with the Human Rights Act: in particular, that it did not contain provisions that, in the light of the Supreme Court’s decision on Ziegler, might be said to be in breach of a demonstrator’s convention rights. The Ziegler decision has been controversial. Policy Exchange, in particular, in a number of publications has pointed out the flaws in the judgment, or at least the flaws in how the judgment has been interpreted.

Since the Supreme Court decision on Ziegler, there have been other cases which seemed significantly to water down its effect—the case of Cuciurean and the Colston statue case. However, the recent decision in the Northern Ireland abortion case, handed down in on 7 December 2022—after the Bill had progressed a long way in your Lordships’ House—has made it perfectly clear that Ziegler needs to be very substantially qualified. The ingredients of an offence can themselves ensure that it will be compatible with convention rights even if it does not include a defence of reasonable or lawful excuse.

It would be perfectly convention-compliant, in my view, to remove the defence of reasonable or lawful excuse altogether. I have to say that was my original preference, but I have been persuaded that it is better to retain the defence giving the possibility of a reasonable excuse that is restricted in the way the amendment allows. It would not be enough to say in relation to the offence that there is a worthwhile cause, such as combating climate change, and then to say that that is a reasonable excuse and have us ask a fact-finding tribunal, whether it be magistrates or even a jury, to give its views as to whether a reasonable excuse exists in the circumstances.

On the analysis of the relevant jurisprudence, the Supreme Court in the Northern Ireland case referred, among other cases, to the well-known animal defenders case decided in 2013. That case, and the European Court of Human Rights case law, shows that the state is granted a margin of appreciation in these areas. It would be a question of law rather than fact whether an offence sufficiently reflects the principle of proportionality. The prosecution will have to establish a serious disruption. It will also need to establish intention or, at least, recklessness. It seems entirely consistent with the Northern Ireland case that there is no need, as a matter of law, to provide for the free-ranging and imprecise defence of reasonable excuse.

The right to protest is extremely important. It is reflected in the ECHR, just as it was in the common law before the Human Rights Act was enacted, but this right should be balanced with the right of our citizens to go about their everyday life without interference. Inconvenience is something we should be prepared to put up with but where there is serious disruption involved, defined as the amendment which succeeded in the previous debate says, it should not be an answer for a defendant to say: my cause is so important that it trumps your right to go to hospital, to take your children to school or to go to work. This amendment is consistent with the law and with what the vast majority of the population would want.

My Lords, I support the amendments in the names of the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Brown. They would require the police to prove that a person charged with an offence lacked reasonable excuse, rather than the person charged to prove that they had a reasonable excuse. In other words, they restore the presumption of innocence rather than guilt.

The presumption of innocence is not just an archaic legal point. The intricate legal arguments are worthy of great respect but I do not think they get to the heart of the matter. Presumption of innocence is a cardinal principle of a liberal society—a cardinal political principle. Governments and law-enforcement agencies are always disposed to believe that their citizens are potential lawbreakers, I am afraid, so placing the burden of proof on the police is an essential safeguard for civil liberties. That seems to me the crucial point because unless that cardinal political principle is there, you are reducing the extent to which the police are answerable to the courts—and lawyers should be very interested in that point. You are reducing their accountability to the courts and that is why, in systems such as those in Russia and China, there is very rarely an acquittal because the presumption is that the person charged with an offence is guilty. The bias is then all in favour of the conviction rather than the acquittal. It is on the basis that this group of amendments embodies a fundamental political principle that I support it.

I wonder whether I could suggest to the House that we have to think a little beyond the precise legal issues we have been concentrating on. First, I was drawn into this discussion by a previous speaker—the noble Lord, Lord Faulks—but I would remind him of my constant demand that we should take seriously the words of the Green vice-Chancellor of Germany, who made it absolutely clear that behaviour which meant that ambulances could not get to hospitals and suchlike was unacceptable as well as counterproductive. I do not think anybody would suggest that I have ever been a supporter of that kind of thing, and I do not think the noble Lord would have said that.

However, the Government have to face two very important questions. The first is on the point referring to the march of a million people, which of its nature is bound to discommode large numbers of other people. But as somebody who voted against a three-line Whip and against the Iraq war, it seems to me that unless you can accept that something so appallingly wrong can result in large numbers of people saying, “Not in my name”, you really cannot run a democracy. That is absolutely essential, so I need to know from the Government how they would explain that their particular way of looking at this would not have made illegal a march against the Iraq war. If that is not covered, then it seems that any of us who happen to believe in some fundamental issues will find it very difficult to support the Government.

The second thing the Government have to explain is how they see the position in which this puts the police. I have to say this carefully, but the truth is that the police’s reputation is practically at its lowest ever. We have to ask whether this is the right moment, in any way, to put them in the small “p” political position of making these kinds of decisions. That is why I voted against that ludicrous thing we introduced, which was that you could be prevented from making a noise. The concept was that, somehow or other, the police were going to say that if your protest was too noisy, they could stop it before it was started. I have never been on a protest that was not noisy and meant to be so; its noisiness was essential. But we passed that provision, which was and is nonsense. It will never be imposed but the Government argued for it, so they are in a slight difficulty here. The argument I used against that was not only that it was barmy, which was obvious, but that it would put the police in an embarrassing position at a time when the police are themselves—

Will my noble friend give way?

If I can just finish that sentence—when the police are themselves in a difficult position. I give way to my long-lasting jouster.

Does my noble friend not agree that the insertion of the words in this amendment would place upon the police the initial duty of deciding what is or is not a reasonable excuse?

I do not disagree, since that is what it says. I am merely saying that I want the Government to be clear about what they are doing by involving the police at what may not be the most sensible time.

The last thing I want to say to the Government is this. There are many serious issues which, in a democracy, we have to ask the Government and the Opposition to deal with. Some of those serious issues are not being satisfactorily dealt with and, in a democracy, there comes a moment when a Government have to say to themselves, “We are so unable to deal with this that we will have to accept that there will be a significant increase in the public demonstration against where we are”.

The Government are pretty close to that on climate change—if I may say so as chairman of the Climate Change Committee. Therefore, I want the Government to think. If they insist on the further restriction of protest, they had better think very clearly about the policies they are carrying through on issues about which the public as a whole feel very strongly. It is not an excuse to say, “My view is so important that it is therefore a good excuse for marching”, otherwise the Flat Earth Society or the Jehovah’s Witnesses are in a position to be able to hold us all to ransom. In many areas, the Government have to realise that their policies must in some way reflect the deep-held worries and concerns of the public, or it does not matter how many laws they pass, because they will not be obeyed.

The noble Lord, Lord Deben, has made some very important points, particularly in relation to the police. It is worth elaborating for a couple more sentences. The fact is that the police already have great powers to deal with demonstrations and simply do not use them, as he suggested—partly because the police do not carry a huge amount of trust. The fact is also that these demonstrations reflect a huge amount of feeling among the public, and the police do not wish to stand out against those very strong feelings. Adding further powers for the police is not going to be helpful because the police will simply not use them for the reasons that the noble Lord, Lord Deben, very brilliantly—as always—pointed out. My main argument against these powers is that there is no point in them. They are designed to frighten people not to go out on protests. The police do not want these powers; they know that they would not use them. Therefore, they should not be introduced by Parliament.

My Lords, I will speak to my Amendment 55. I am grateful to follow the speech of my noble friend Lord Faulks. My amendment addresses the legal difficulties caused by the judgment of the Supreme Court in 2021 in the case of Ziegler, in respect of offences in which it will be, and will remain, a defence for a person charged to prove that they had a lawful or reasonable excuse for the act in question.

The judgment in Ziegler concerned Section 137 of the Highways Act 1980, which makes it an offence for a person

“without lawful authority or excuse” wilfully to obstruct

“free passage along a highway”.

The Supreme Court ruled that the exercise of the convention rights to freedom of expression and freedom of assembly and association—which might loosely be summarised as the right to protest—constituted a lawful excuse. This has the effect that, before a person may be convicted of obstructing the highway, the prosecution must prove that a conviction would be a proportionate and thus justified interference with that person’s convention rights. In practice, this has caused real difficulties for the police, who at times have appeared paralysed. It has made it difficult for judges to run trials fairly and for magistrates to reach decisions.

My amendment leaves in the word “reasonable”. It does not make it a strict offence to obstruct the highway. You can still do it if you have a “lawful authority or excuse”. What is to be judged in future would be the duration and nature of what is done, not the fact that you have what you consider to be a high motive—whether it is flat-earth or anti-abortion protesters, it does not matter. It is not about whether you are a good person, or you think you are a good person; it is about what you are actually doing and whether you are stopping ambulances and people going about their daily lives unreasonably and for too long.

The amendment means that conduct being intended or designed to influence government or public opinion will not, of itself, make it reasonable or lawful. That is consistent with the jurisprudence of the Strasbourg court. I stress that the court has said:

“In a democratic society based on the rule of law, the ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”.

However, the law protects only the right to peaceful assembly. Articles 10 and 11 of the convention establish that public authorities are entitled to interfere with the right to protest for legitimate purposes such as the prevention of disorder, the prevention of crime and—importantly—the protection of the rights and freedoms of others. It is not about stopping every march, but about stopping prolonged obstruction. That is what we are about.

The Strasbourg court has gone on to rule that the rights of the public include the right to move freely on public roads without restriction, so there are two rights here; you have a right to protest, but the general public also have a right to move freely on public roads without restriction. It is a balancing exercise. The court has further recognised that states have a wide margin of appreciation in determining necessity when it comes to taking action against those who deliberately disrupt traffic or other aspects of normal life.

The right to protest in a public place exists, but it is not unfettered. It must be balanced against the rights of your fellow citizens. If the public are to be protected in the face of these novel types of protest we have not seen before, which in their duration and nature go far beyond what is fair and reasonable, the police must be able to intervene and not be paralysed by anxiety. Peaceful assembly and ordinary marches will still be protected. The public will still have to suffer and tolerate a measure of inconvenience and delay, but that will be within bounds.

My amendment would end the state of affairs in which persons who obstruct the highway, damage property or seek to avoid arrest can distort and upset the proper balance by asserting their motive. Peaceful protest will be permitted, but the balance will be restored. That is why, at the end of the amendment, it makes it plain that

“this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.

Henceforth, if my amendment is adopted, your assertion of a high motive will not suffice. You will be judged by what you did, how long it went on for, and the effect on other people.

My Lords, as the House has just heard from my noble friend Lord Sandhurst, the area of law we are dealing with is the proportionate interference with convention rights. I respectfully agree with him that the decision of the Supreme Court in Ziegler raises the question of the correct balance and makes it important for the House to legislate in this area. However, it is my misfortune to disagree with him that we should take this opportunity to overturn the decision in Ziegler. Rather, I respectfully commend the approach of the noble and learned Lord, Lord Hope of Craighead, which has been set out for us this evening by the noble Lord, Lord Faulks.

Critically, the presumption of innocence is at the heart of our judicial process, and I do not think that any of these amendments cut across that. There are three reasons why I suggest that the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which is supported by the Government, ought to be accepted. The first is the point made by the Constitution Committee that we need precision in this area. Secondly, there is the fundamental point that we should not be leaving this to the police or the courts to decide on a case-by-case basis; as Parliament, we should take the opportunity, and indeed the responsibility, to draw the bounds of the offences in this area. Thirdly, we need to remember that, at the moment, Section 3 of the Human Rights Act requires the court to read any legislation, if possible, consistently with the convention. Absent, I suggest, the amendment of the noble and learned Lord, Lord Hope of Craighead, there is a real risk that the court will read down clauses to make them consistent with how it considers convention rights should be applied.

On the basis of the approach of the noble and learned Lord, Lord Hope, there is scope for reasonable excuse, but it is limited. That means we do not run the risk of the courts deciding cases on an unanticipated, or perhaps even incorrect, basis. We also do not need—despite my noble friend Lord Sandhurst’s amendment—to overturn the Ziegler case; what we will have, however, is a consistent, clear and precise approach to criminal law, which is precisely what we ought to have. I accept that some of my colleagues at the Bar may not be particularly happy with that, but, in this area and perhaps in others, their loss may indeed be the law’s gain.

My Lords, in supporting Amendment 2 tabled by my noble friend Lady Chakrabarti and the noble and learned Lord, Lord Brown, and the points they have made, I will focus my remarks on Amendment 8 and the amendments consequent to it which seek to define a “reasonable excuse defence”.

I start by saying that I cannot really believe the mess the Government have got themselves into on both the definition of “serious disruption”, which we discussed previously, and the definition of a “reasonable excuse defence” we are discussing now. Nobody disagrees with the noble Lord, Lord Faulks—again, I agree with the Constitution Committee, as, I think, do most of us—but it would be extremely helpful if there were a definition of “reasonable excuse defence” in the Bill. I do not think that is a point of disagreement between us; the Constitution Committee itself recommends that. However, let us look at Amendment 8 as an example of the wording that is also used in Amendments 17, 27, 33, 50 and 51, as well as in other related offences. What protest ever takes place that is not part of a current dispute? Who protests because they are happy about something? I have not seen any demonstrations saying how brilliant this or that is; there might be an example, but, usually, a dispute happens and then people protest it—that is logical. But in each of these amendments, you cannot use “an issue of current debate” as a reasonable excuse in any circumstance. That is what we are being asked to agree to in Clauses 1, 3, 4 and 7 and some of the later clauses. Those clauses currently contain the reasonable excuse defence; the Constitution Committee says, quite rightly, that it would help if that were defined; and the definition the Government have supported says that you cannot use a current dispute as an excuse. I could go on at great length, but it makes the point by itself—it is ludicrous. That is the amendment the Government are supporting and that they are asking people to vote for.

Somebody asked for an example. I gave an example earlier from my own situation, but I will give another. Wheelchair activists locking themselves to Parliament’s Gates—I am not certain, but I believe that this has happened—is an example of locking on. While that would cause quite serious disruption to the actions of Parliament, particularly if it meant that people could not come in, they cannot use the fact that they were protesting about disability rights, or the lack of them, as a reasonable excuse for doing it. That is ludicrous and ridiculous, but it is what the amendment the Government are supporting says.

Then there are all the other issues; for example, the noble Lord, Lord Deben, mentioned climate. Of course, nobody agrees with the serious disruption we have seen over the last year—that is a fallacious and ridiculous argument; we all agree that much of that went too far—but you cannot legislate on “serious disruption”, as we discussed in the previous group of amendments, or on “reasonable excuse”, the subject of this group, on the basis that you are fed up with a few people and therefore you are going to do something about it by coming up with a definition that simply does not make sense. I say this in jest: goodness only knows what the previous Prime Minister but one would have made of this. If noble Lords remember, he said, with respect to the third runway at Heathrow, that he was going to “lie down in front” of the first bulldozer. That would have been something: he would have been arrested for that; his own party would have passed legislation to arrest him for that.

In view of the time, I will not go on at great length. Including wilful obstruction of the highway in the Bill would mean that nobody could protest against any road that is currently under dispute. Imagine that the council or the Government come along and decide that there will be a motorway or road right through the middle of the most beautiful countryside in the area where you live. As that is an issue of current dispute, you will not be able to do anything about it and you will not be able to use a reasonable excuse defence to protest against it. I know that people will say that that is the wilful obstruction of the highway—they can argue about tunnels and so on—but, under this amendment, you will not be able to do anything about it or use a reasonable excuse defence, because it is an issue of current dispute. That is a nonsense. What about a railway line? I have seen Conservative MPs trying to obstruct, stop or delay HS2—even though the Government say that it is the Labour Party, Green activists or people who dress peculiarly, et cetera, who do it—but, under this amendment, they would not be allowed to do that.

I take the point made by the noble Lord, Lord Faulks: in the end, the courts will wrestle with what a “reasonable excuse defence” means. I understand that, but surely it cannot be right that, under the terms of many of the amendments in this group, including Amendment 8, this House will be able to say, “You cannot use the reasonable excuse defence where it is linked to a current dispute”.

I finish with the point I started with: what protest is not about a current dispute? I cannot think of any, because people do not protest unless there is a dispute, yet the Government are saying to us that that is part of the definition they want to pass. The Minister has a really tough job defending the indefensible here. I am interested to hear what he has to say, as, I am sure, are most of us. But how on earth can he put before this House an issue as serious as the noble Lord, Lord Faulks, has said it is—I accept that—and then provide a definition that just does not make sense. The Government are in a real mess, and they ought to get themselves out of it pretty quick.

My Lords, clearly, I intend to shed some light. The noble Lord, Lord Coaker, has generated a lot of heat on the purpose of “reasonable excuse”. I begin by thanking the noble and learned Lord, Lord Hope, for tabling his amendments. These exclude protest as a reasonable excuse for the criminal offences within the Bill. We would say that this amendment is consistent with the reasoning of the Court of Appeal in the Colston case in relation to the criminal damage allegations that were at issue in that case.

These amendments implement the Constitution Committee’s recommendation that instances of “reasonable excuse” in the Bill are defined. I thank the committee for its thoughtful analysis in this regard, which has helpfully informed much of today’s debate. The amendments from the noble and learned Lord also follow from the Supreme Court’s recent judgment that a lack of reasonable excuse in criminal offences is not necessarily incompatible with the European Convention on Human Rights. The noble Lord, Lord Faulks, has set out a compelling case for these amendments, so I will try to refrain from repeating the same points. Similarly, the noble Lord, Lord Wolfson, has very cogently set out the case for these amendments, and I will not repeat the points he made.

In summary: the Government support these amendments. They are necessary to ensure that these criminal offences serve their purpose. The entire reason we are legislating is to make it clear that locking on, tunnelling, and disrupting infrastructure are illegitimate tactics of protest. Now that we are satisfied that it is compatible with the European Convention on Human Rights to carve out protest as a reasonable excuse for these offences, we should do so. Parliament should make it explicitly clear that protest is not of itself a reasonable excuse for these offences. Not doing so will simply lead to protracted litigation in the courts. This much is clear from the Supreme Court’s decision in the Northern Ireland abortion clinics case.

Following from the noble and learned Lord’s amendments, the Government have tabled two more. The first similarly carves out protest from the offence of public nuisance. I take the opportunity to remind the House that the former common-law offence did not have a reasonable excuse for the offence at all. One was included in the statute on the recommendation of the Law Commission. Similarly to the offences within this Bill, and keeping in line with recent case law, we should now carve protest out of the offence.

The second amendment carves protest out of the lawful excuse for the offence of wilfully obstructing the highway. However, recognising that the offence is a low-level one, we do not carve it out in its entirety. Instead, the amendment removes protest from the reasonable excuse only where “more than” serious disruption is caused. The hope was to ensure consistency in the law; we sought to replicate the same proposed threshold of “serious disruption” in this offence. Therefore, protesters will still be able to obstruct highways to a certain degree. This, in the Government’s view, strikes the right balance between the rights of the public and the rights of protesters—an exercise that the noble Lord, Lord Sandhurst, rightly reminded the House is a fundamental part of the consideration of human rights.

Despite the definition proposed by the noble and learned Lord, Lord Hope, now not standing part of the Bill, there is still a need to clarify the circumstances in which obstructing a highway is not a legitimate exercise of one’s Article 10 and 11 rights. I would expect the precise wording to be settled as the matter is debated further by Parliament, and in such a manner as to ensure consistency and clarity for protesters, the police and the courts.

On the question from the noble Lord, Lord Deben, on the impact of such an amendment on a march such as that against the Iraq war, which we saw under the Blair Administration: under Section 3 of the Human Rights Act, this measure will still have to be read compatibly with the ECHR—a point the noble Lord, Lord Wolfson, made. Therefore, the point at which arrest and prosecution would be a proportionate interference with people’s Article 10 and 11 rights depends on the circumstances of each protest.

My noble friend Lord Sandhurst has tabled a similar amendment to those of the noble and learned Lord, Lord Hope, and the Government.

I do not think I understand what my noble friend is saying. Is he saying that a march against the Iraq war would be acceptable? After all, it was about current issues. Very few issues were more current at the time. How would people know in advance that it would be acceptable? That is quite important, too.

The reasonable excuse defence arises only once there has been a decision by the police to prosecute. The fact of the march itself is something that the authorities would have to judge, and they would have to do so in accordance with their obligations to act lawfully and in pursuance of their obligations under the Human Rights Act, including those under the provisions of that Act.

I return to the amendment from the noble Lord, Lord Sandhurst, which seeks to remove protest from the reasonable and lawful excuses of all criminal offences. While I appreciate the elegance of addressing the protest as a reasonable excuse question in one fell swoop and agree with the sentiment behind it—and find interesting the research in the Policy Exchange paper—I cannot support the amendment. Some offences, such as minor obstruction of the highway or the most minor of damage, such as that caused by water-soluble paints or dyes, can be a legitimate exercise of Article 10 and 11 rights.

The burden of proof was debated at length in Committee. The government position remains that the burden of proof should rest on the defendant. They are aware of all the facts pertinent to their case. As I made clear in Committee, it is not a novel concept for the burden of proof to rest on the individual.

I turn to the amendments in the name of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. These take issue with the reasonable excuse defence and seek to shift the burden of proving such a defence for the criminal offences from the defendant to the prosecution, making it a key element of the offence. Amendment 35, tabled by the noble Baroness, Lady Chakrabarti, also adds

“support for … a trade dispute” to the protected activities of acts

“wholly or mainly in contemplation or furtherance of a trade dispute” under Clause 7. The government position remains that the burden of proof should rest on the defendant. While I understand the sentiment, Amendment 35 is not necessary as we assess that support for a trade dispute would already be captured under the defence.

I also want to address one of the criticisms that was made in Committee, which I believe has inspired some of the amendments of the noble Lord, Lord Paddick. As I made clear in Committee, the reasonable excuse defence resting on the individual does not, and would not, mean that those suspected of committing the offences would be arrested and charged without consideration of whether or not they had a reasonable excuse for their actions. With regard to the arrests, Code G of the Police and Criminal Evidence Act 1984 states that the use of the power of arrest requires the belief that an individual is committing, has committed or is about to commit an offence, and that the arrest is necessary.

With regard to charging decisions, the Crown Prosecution Service has to consider whether there is a realistic prospect of conviction at trial, and whether the suspect has a reasonable excuse will factor clearly in that decision-making process. This obligation on Crown prosecutors is set out in the Crown Prosecution Service’s Code for Crown Prosecutors in paragraphs 4.6 and 4.7. Any reasonable excuse defence that a suspect may have will be considered as part of these processes.

Finally, I have considered the proposal in the amendment from the noble Baroness, Lady Chakrabarti, to include support for a trade dispute as a reasonable excuse. I do not believe that it is necessary, as an act in support of a trade dispute is, in essence, in furtherance of one and therefore already in scope of the defence. As with the last group, I encourage all noble Lords to support the amendments from the noble and learned Lord, Lord Hope, and the Government and to reject the others.

The Minister said that the Northern Ireland Supreme Court case shows that the amendments are consistent with the European Convention on Human Rights. I made the point that the proportionality test that the Supreme Court made in that case was on the basis that the convention rights were restricted only within 150 metres of an abortion clinic and not outside that, whereas these amendments would apply universally and therefore, in my judgment, are disproportionate. The Minister did not address that issue.

I entirely understand that that is the noble Lord’s view. The test of proportionality will, of course, be decided on the facts of each case as it arises, which will be matters that will feed into the decisions taken by the police and CPS in the charging process.

I am grateful to all noble Lords who spoke in an incredibly thoughtful debate—your Lordships’ House at its best, if I may say so. Noble Lords will forgive me if I do not mention everyone, for obvious reasons of time, but I am particularly grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for explaining that sometimes reverse burdens make sense when the criminality is just so obvious, such as carrying a bladed article in public, but that linking arms is generally not thought of as the same kind of criminality.

I am also grateful to the noble and self-deprecating Lord, Lord Paddick. He may not be a lawyer, but he is certainly a better lawyer than many of us lawyers would be police officers, I suspect. His brilliant exposition of the Northern Ireland case in particular, including by way of his last intervention, demonstrates that Ziegler is not dead. As we have heard from many noble Lords in this thoughtful debate, protest is not a trump card; it will not always be a reasonable excuse for criminality. But sometimes it might be. It is not irrelevant to these matters. Good law is about rules and discretion and, without the right amount of discretion, injustice will follow.

Most of all, I am grateful to the noble Lord, Lord Deben, because it was his particular thought experiment that made me most concerned about a mass demonstration such as the one on Iraq—but it could be on another subject under another Government in future. We are talking about a mass demonstration where, quite deliberately, the police do not run around arresting everybody; they use their discretion in the public interest not to do so, so as not to cause a very hazardous situation to human beings and public order, or because they simply would not be able to arrest a large number of people.

In my development of the thought experiment from the noble Lord, Lord Deben, instead of just not arresting people and just ensuring that people are safe, certain police officers arrest only a certain type of person—say, only people in wheelchairs, or only women, who are easier to arrest, or, dare I say it, only people of a certain race. If those people alone were then prosecuted and were not permitted to argue a reasonable excuse that they were just on the demonstration like everybody else, I suggest that a grave injustice would follow. The fact of the protest is never a trump card, but sometimes it is highly pertinent.

I shall not press the amendments in my name to a Division, because I have decided, on the basis of this debate, that the priority in the time that we have is to vote against the government amendments, which is what I would urge all those concerned about this to do.

Amendment 2 withdrawn.

Amendments 3 and 4 not moved.

I am unable to put Amendment 5, by reason of pre-emption.

Amendment 5 not moved.

Amendments 6 and 7 not moved.