Baroness Chakrabarti:

Moved by Baroness Chakrabarti

9: Leave out Clause 1

My Lord, we come to the next group, and I have put my name to leaving out Clauses 1 and 2, on locking on and going equipped. I will not rehearse the problems with the vague nature of the offence of locking on, which, at its lowest, could literally be linking arms; or going equipped, which is a thought crime that could criminalise people carrying all sorts of innocent items in their rucksacks—bicycle locks or even potentially, in the context of the way in which some journalists or photojournalists have been arrested of late, the camera they were going to use to photograph the locking on, because they knew there was a protest. The noble Lord, Lord Paddick, will speak to some amendments he has tabled in the group to tighten and improve some of the more serious offences, and the Minister will of course speak to the government amendments, which I do not believe, for once, are incredibly controversial. I beg to move.

I support the noble Baroness, Lady Chakrabarti. Quite honestly, we are trying to amend this awful piece of legislation and really, it is not enough: we should just kick it all out, including these government amendments.

My Lords, I have Amendments 19 and 31 in this group. As I explained in Committee, the offence of causing serious disruption by being present in a tunnel, as drafted in the Bill, could criminalise those in London Underground tunnels, for example. Amendment 19 is designed to restrict the offence to tunnels constructed in contravention of Clause 3: that is, a tunnel created to cause, or that is capable of causing, serious disruption. I am pleased to say that the Government agree, albeit that their alternative, Amendment 29, restricts the tunnels an offence can be committed in to

“a tunnel that was created for the purposes of, or in connection with, a protest”,

whether the tunnel was created in contravention of Clause 3 or not. They are not adopting my amendment, which covers any tunnel built in contravention of Clause 3.

I know one should not look a gift horse in the mouth, but can the Minister explain how being present in a tunnel that does not cause, and is not capable of causing, serious disruption—that is, a tunnel that was not created in contravention of Clause 3—can result in serious disruption being caused by a person being present in it? Why is it necessary to extend the definition of a relevant tunnel beyond tunnels created in contravention of Clause 3? Why should the House agree to government Amendments 21, 29 and 30 rather than my Amendment 19? I am sure the Minister will have been prepared to respond to that question. Maybe not, looking at him at the moment.

My Amendment 31 concerns the offence of being equipped for tunnelling in Clause 5. We believe that the offence of having an object

“with the intention that it may be used in the course of or in connection with the commission” of an offence of tunnelling is unnecessarily complicated. Can the Minister explain why the proposed alternative wording—having an object

“for use in the course or in connection with” the offence—is not sufficient? For example, Section 25 of the Theft Act 1968 states:

“A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat.”

What does

“with the intention that it may be used” mean? Either the person intends to use the object or they do not, even if they may end up not using it—for example, because it might prove to be unnecessary. “I’ve got this pickaxe in case the protest tunnel we’re building encounters rocks, but if there are no rocks I may not have to use it,” is still having the pickaxe for use in the course of or in connection with tunnelling.

The other amendments in the name of the noble Baroness, Lady Chakrabarti, supported by the noble Baroness, Lady Jones of Moulsecoomb, and the right reverend Prelate the Bishop of Bristol, seek to leave out Clauses 1 and 2. Locking on has been used for centuries as a form of protest, most notably by the suffragettes. This new offence is widely and vaguely drawn—for example, to include people attaching themselves to other people without defining what “attach” means. Not only is there a right to protest, there is also a long-standing acceptance that people should be able to protest in the way they see fit. The creation of a locking-on offence is not even supported by the majority of rank and file police officers, according to His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services:

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

As with the whole of the Bill, there is sufficient existing legislation to cover locking-on activity, whether it is highway obstruction, for which the penalty now includes a term of imprisonment, or public nuisance, where the maximum penalty is a prison sentence of 10 years. Can the Minister explain the circumstances in which locking-on activity would not be covered by any existing legislation?

As for Clause 2 and the offence of being equipped for locking on, as currently drafted, the offence of having something

“with the intention that it may be used in the course of or in connection with the commission” of a locking-on offence by any person, not just the person in possession of the object, could cover a whole range of everyday objects that someone is innocently in possession of. While the offence presumably requires the prosecution to prove

“the intention that it may be used in the course of or in connection with” an offence of locking on, the power of the police to arrest is merely based on a reasonable cause to suspect that an offence may have been committed—a very low bar. As I said in the debate on a similar clause in what was then the Police, Crime, Sentencing and Courts Bill, you could buy a tube of superglue to repair a broken chair at home, get caught up in a protest and be accused of going equipped for locking on.

From my own extensive knowledge of policing, I say that if you have a tube of superglue in your pocket while innocently trying to negotiate your way around a protest and are stopped and searched by the police, as this Bill will allow, and if you then believe you can convince a police officer that they do not have sufficient cause to suspect you are going equipped to lock on and, as a result, that you should not be arrested, that would represent a triumph of hope over experience. We support Amendments 9 and 10.

My Lords, I shall speak very briefly in support of the amendment to remove Clauses 1 and 2 that my right reverend friend the Bishop of Bristol signed. She regrets that she cannot be in her place today. As the noble Baroness, Lady Chakrabarti, said, establishing new offences of locking on and being equipped for locking on have very significant consequences for the right to protest. A few days ago I got an email from a retired vicar in my diocese. He wrote to tell me he is awaiting sentencing: he has just been convicted of obstruction by gluing himself to a road during a protest by an environmental group. The judge has warned him and his co-defendants that they may go to prison. I cite his case not to approve of his actions—which I fear may serve to reduce public support for his cause rather than increase it—but because it clearly indicates to me that the police already have sufficient powers to intervene against those who are taking an active part in such protests. Anything extra, as the noble Lord, Lord Paddick, has just so eloquently illustrated, is superfluous.

I would like to add to my noble friend’s very precise definition of the drawbacks of this clause. In more general terms, its provisions will lead to situations in which people do not know they are breaking the law and are then accused by the police of doing so. I should have said they do not know they might be breaking the law because of its broad terms. That is a very unhelpful situation should it arise; in my submission, it will arise quite frequently. The sorts of things that are covered by this provision are everyday household items—as my noble friend pointed out—such as glue or a padlock. I referred in earlier debates to the practice of young people of placing a padlock on a bridge—as a sign that they are eternally joined with each other—and throwing the key into the river so that it cannot be taken off again. Imagine the conversation you would have with a police officer when you are trying to explain those circumstances, and he thinks you are on your way to a protest.

I am afraid that a secondary element to this general argument is that we have been reminded recently that some police officers abuse their powers—and a minority of police officers have clearly been doing so in a number of cases—and then here are more powers which are rather too easily abused. It is very easy to say to someone, “You are resisting my clear observation that you are carrying something that could be used in a protest.” A new situation is being created in which police officers are given more power over, for example, women, who are encouraged to be cautious about getting into a police car or accompanying a police officer if he says she had better go with him. This is allowing more situations with that kind of problem to arise. It is all completely unnecessary: existing powers can be used in all the threatening or worrying circumstances which this clause seeks to address. We do not need it but, worse than that, it is potentially damaging.

My Lords, I will make only a very brief intervention. I agree with what my noble friend said in her introduction of this group, and also what the noble Lord, Lord Paddick, said about his Amendments 19 and 31. I am looking forward to the Minister’s explanation of Amendment 29 and how that is a more appropriate amendment than Amendments 19 and 31.

One thing I can add to this interesting short debate is as a magistrate who deals regularly with the issue of reasonable excuse, and it is something we have got used to dealing with over many years. The context in which I see that excuse is when someone is carrying a knife or a bladed article. That is almost invariably the defence that one hears when one is in court. That is something that we are used to dealing with. It is also something that there is a lot of public interest in, so changing definitions and giving more scope to more complex laws does not help the courts. The courts have, in these contexts, the defence of reasonable excuse and they are well used to dealing with it. Nevertheless, the amendments in this group have been well presented and I look forward to the Minister’s response.

My Lords, the amendments in this group take issue with offences listed in the first five clauses of the Bill, so it might be helpful to set out exactly why the Bill is so necessary and how it differs from existing public order legislation. The Bill seeks to speed up the ability of police to pre-empt, intervene and respond to the evolving tactics we have seen from—what can best be described as—a selfish minority of protesters. It also seeks to establish clear stand-alone offences, which target disruptive and dangerous behaviour, and impose sentences that are proportionate to the harm caused.

I have heard many times that the police already have the powers necessary to deal with disruptive behaviour, such as tunnelling or locking on. I disagree. We have only to look at the high levels of disruption as recently as a few months ago to see that more needs to be done. The Bill provides police with the powers necessary to combat these specific offences while ensuring that those who seek to cause serious disruption on private, as well as public, land are held to account. It is completely unfair that the hard-working public have to face misery and disruption caused by individuals locking on to a road or tunnelling under a building site, only to see the perpetrators arrested several hours after beginning their actions and then let off with a light sentence.

Clauses 1 and 2 are a key part of the Government’s plans to protect the public from the dangerous and disruptive protest tactic of locking on. We have seen protesters who use locking on and who tunnel be acquitted on technicalities. Therefore, it is important to have clear, stand-alone offences for locking on and tunnelling. This ensures that those intent on causing serious disruption for others can be brought to justice quickly and given a proportionate penalty that reflects the harms they have caused. The “going equipped to lock on” and the “going equipped to tunnel” offences enable the police to intervene earlier to prevent serious disruption. Dealing with a tunnel or a lock-on is extremely resource-intensive, taking hours of police time, which could be much better spent tackling other crimes and disorder on our streets. Surely noble Lords would agree that enabling the police to act before the acts are committed is in everyone’s best interests.

The Government are on the side of the public and will act to ensure that the public are protected from these disruptive acts. We welcome Extinction Rebellion’s sensible new year’s resolution to

“prioritise attendance over arrest and relationships over roadblocks”.

However, Just Stop Oil and Insulate Britain are digging their heels in and have committed to continue trampling on the lives of others. Faced with this threat, it is clear to me that Clauses 1 and 2 should stand part of the Bill. Therefore, I respectfully ask the noble Baroness, Lady Chakrabarti, to withdraw Amendment 9.

Amendment 19, tabled by the noble Lord, Lord Paddick, limits the extent of the offence of causing serious disruption by being present in a tunnel to tunnels which have been created through the commission of the offence of causing serious disruption by tunnelling. I thank the noble Lord for tabling this amendment and accept the need for clarity in distinguishing between those who cause serious disruption in a tunnel created for the purposes of or in connection with a protest, and those who cause serious disruption in tunnels such as the London Underground tunnels.

My noble friend Lord Murray previously committed to considering this matter further: subsequently, the Government have tabled Amendments 21, 29 and 30. These amendments provide that the offence of causing serious disruption by being present in a tunnel, as defined by Clause 4, is committed

“only in relation to a tunnel that was created for the purposes of, or in connection with, a protest.”

The Government’s amendments provide clarity in the legislation on the scope of the offence. This means that people who cause serious disruption in tunnels not created for the purpose of or in connection with a protest—such as the London Underground tunnels—would not fall within the scope of Clause 4. In contrast to Amendment 19, it also includes no additional burden for the courts when prosecuting offences under Clause 4, in that they would not be required to show that an offence has occurred under Clause 3 as well.

Finally, Amendment 31 raises the threshold at which an object may be captured within the scope of the “going equipped to a tunnel” offence, as doing so would limit the effectiveness of the offence. We are trying to ensure that the police can act proactively before these harmful tactics are used. The amendment in the name of the noble Lord, Lord Paddick, raises the threshold for intervention too high. In light of this, I hope noble Lords will support the amendments in the Government’s name and reject the other amendments in this group.

I am grateful to all noble Lords who spoke in this short debate. I believe it was such a short debate because so much of the argument has been rehearsed in the first two groups. I thank the Minister for the tone of his remarks. The reason that so many noble Lords voted as they did in the first two groups is because of their profound concerns about the breadth and vagueness of these offences. The brevity of this debate is in no sense any indication of support for, for example, locking on—an offence that could find a courting couple, if that is not too antiquated a term, who linked arms being accused of being capable of causing disruption to police officers and, if an argument ensues, finding themselves in the territory of locking on. It was a revelation in one of the debates on the Bill when the Minister, the noble Lord, Lord Sharpe of Epsom—who is now in his place—said, in response to a challenge by one of my noble friends, that, yes, linking arms could be attachment.

There are reasons why, for example, people in wheelchairs might attach themselves to the wheelchair in order to feel safer during a busy demonstration. There are so many unintended consequences. Even if one thought it were legitimate to create specific—or bespoke, which is the phrase normally used by my noble friend Lord Ponsonby—offences to tackle the suffragettes of the future, this offence is so broad and so vague that it would catch people who do not even intend militant protest at all.

With respect to the Minister, when he tells us that the events of recent months make this legislation necessary, how does that square with the comments of the right reverend Prelate the Bishop of Manchester? Gluing yourself to the road, with the intended consequence of being caught, has already led to prosecution and conviction. Legislating does not stop bad things happening but, with bad legislation, more bad things will happen. The law will be brought into disrepute, and the relationship between the police and the public will be further fractured at a time when it is under grave strain for a number of reasons that we need not rehearse.

In the light of the first two votes, His Majesty’s Government are going to have to do some serious thinking before the further passage of this Bill on these offences, the definition of “serious disruption”, the issue of “reasonable excuse”, and the need to protect journalists such as Charlotte Lynch, who the noble Lord, Lord Paddick, mentioned earlier, and a number of others who have been arrested under existing offences, including conspiracy to cause a public nuisance—no reasonable excuse for them before detention in a police station for many hours. The Government are going to have to think again.

In closing—because we may not get to the journalist protection amendment this evening—when the Home Secretary Ms Braverman appeared before the noble Baroness, Lady Hamwee, who is in her place, as chair of the Justice and Home Affairs Committee, before Christmas, she very kindly agreed to consider the subsequent amendment in my name and that of the noble Baroness, Lady Boycott, to give specific protection to journalists. I have not yet heard a response from the Home Office. I have followed up with emails to the Home Secretary and to the public correspondence section of the Home Office. I hope that, before we reach that later amendment, there could be some consideration, as was promised to your Lordship’s Justice and Home Affairs Committee before Christmas.

I shall withdraw my opposition to Clause 1 standing part for the reasons I gave. I have every confidence that, in the light of the last two votes, which may have come as a surprise to them, the Government will sensibly now give some consideration to the way forward for this Bill.

Amendment 9 withdrawn.

Clause 2: Offence of being equipped for locking on

Amendment 10 not moved.

Clause 3: Offence of causing serious disruption by tunnelling

Amendments 11 to 18 not moved.

Clause 4: Offence of causing serious disruption by being present in a tunnel

Amendments 19 and 20 not moved.