Amendment 54

Public Order Bill - Report (2nd Day) – in the House of Lords at 5:08 pm on 7 February 2023.

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Baroness Chakrabarti:

Moved by Baroness Chakrabarti

54: After Clause 18, insert the following new Clause—“Protection for journalists and others monitoring protestsA constable may not exercise any police power for the principal purpose of preventing a person from observing or otherwise reporting on a protest or the exercise of police powers in relation to—(a) a protest-related offence,(b) a protest-related breach of an injunction, or(c) activities related to a protest.”Member's explanatory statementThis new Clause would protect journalists, legal observers, academics, and bystanders who observe or report on protests or the police’s use of powers related to protests.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, we now come to the totally uncontroversial matter of protecting journalists from abuse of police power. This is an amendment in my name and also those of the noble Baroness, Lady Boycott, the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Hope of Craighead. We are honoured to have as our guest today the young LBC reporter Charlotte Lynch, who was arrested by Hertfordshire police for doing her job last November. The noble Baroness, Lady Boycott, will explain.

Photo of Baroness Boycott Baroness Boycott Crossbench

I shall be brief, because I know that time is of the essence. I begin by reading a very short extract from a news report for 28 November 2022—a couple of months ago:

The BBC said Chinese police had assaulted one of its journalists covering a protest in the commercial hub of Shanghai and detained him for several hours, drawing criticism from Britain’s government, which described his detention as ‘shocking’ … ‘The BBC is extremely concerned about the treatment of our journalist Ed Lawrence, who was arrested and handcuffed while covering the protests in Shanghai,’ the British public service broadcaster said in a statement late on Sunday.”

I shall substitute a few words here to make the point. I substitute “Charlotte Lynch” for “Ed Lawrence”, “the M25 in Hertfordshire” for “Shanghai”, and LBC for the BBC—and another world. Charlotte, like Ed Lawrence was handcuffed for doing her job. She was held in a cell with a bucket for a toilet for five hours; she was fingerprinted and her DNA was taken, and she was not allowed to speak to anyone. Her arrest took place just two weeks before Ed Lawrence’s. Is this the kind of world we want to live in?

As many noble Lords know, I have been a journalist and a newspaper editor. I have sent people to cover wars and protests, and I believe fundamentally in the right of anyone in the world, especially in our country, to protest about things they believe in. You protest only when you cannot get anywhere with anything else, when letters to MPs, to the local council and the newspaper have been explored and you take to the streets. But just as this is a fundamental right, so is it more than just a fundamental right—it is a duty— of journalists to report on demonstrations, because demonstrations are where we see where society is fracturing and where people really care. I cannot believe, as a former newspaper editor, that I would now have to think that it might be more dangerous to send a journalist to Trafalgar Square than to Tahrir Square. I urge noble Lords to vote for this amendment.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, it is hard to overemphasise the importance of this amendment. It is firmly rooted in Article 10 of the European Convention on Human Rights, which provides that:

“Everyone has the right to freedom of expression. This right shall include freedom to … receive … information and ideas without interference by public authority”.

The word “everyone” which begins that article is extremely important because it applies the rights to everybody, whoever they may be. It may be suggested that the point being made by the amendment is so obvious that it is unnecessary, but I simply do not believe that. In the highly charged atmosphere of the kind of public protest we are contemplating in these proceedings, it is too big a risk to leave this without having it stated in the Bill and made part of our law. It should not be necessary, but I believe it is necessary, and it is firmly rooted, as I say, in Article 10 and those very important words. I support this amendment.

Photo of Lord Garnier Lord Garnier Conservative

My Lords, I could not put a cigarette paper between the arguments of the two previous speakers and those I would like to make. If we are not careful, we will move to preventing the media from creating fair and accurate reports of our courts and even of this place. I do not believe I am exaggerating in linking the two sets of arguments and I very much support this amendment.

Photo of Lord Hogan-Howe Lord Hogan-Howe Crossbench

My Lords, I do not support the amendment, and I do this at some danger, because one of my roommates in the Lords is proposing it. I do not support it for a reason of principle and a reason of practice. First, on the reason of principle, I quite agree that a journalist should not be arrested for doing their job: it is very obvious that this should not happen. However, if I understand it correctly, the only reason a journalist might be challenged about their behaviour is if they are doing an act contrary to the Bill—in other words, they are locking on or they are protesting in a way that is illegal. That is the behaviour that is being challenged.

Secondly, whether or not you accept that argument for journalists, I do not understand how you define these other people in a way that the police will understand, particularly in a protest. An observer, somebody who is monitoring: how are the police to know who these people are? I guess that as soon as a protester is challenged, they might decide that they are a monitor, an observer or any of the groups that might be protected.

I understand the principle behind it. None of us wants to stop people holding the police to account, but that is not really the problem. Even if you accept that journalists should be protected in this way, I do not understand how you define the group in a way that allows the police properly to do their job without asking people how they fall into this category—they are not registered anywhere. Journalists complain that many people now claim to be journalists but are merely reporting online. Is that group included in this definition as well?

It is partly a problem of definition and partly the fact that journalists, unless they are committing a criminal offence, should not be challenged about their behaviour. I get that they are there to record the event, but I am not sure that this protection is needed, for the reason given by the noble and learned Lord, Lord Hope: there is a protection in the convention that should allow them access to that defence anyway. I cannot support this amendment.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 5:15, 7 February 2023

My Lords, I disagree very strongly with the noble Lord, because I think he is wrong. Once you give the police the idea that it is okay to arrest a journalist, why would we expect them to understand—you cannot deny that the police quite often misuse the law because they do not understand it—that they can do so only if they are gluing their hands or something like that? In any case, what journalist would do that? I cannot think that they would want to.

Photo of Lord Hogan-Howe Lord Hogan-Howe Crossbench

Mistakes are made; people are arrested wrongly. The police find acute problem-solving solutions when everyone else talks about “in six months’ time”. Someone has to make a decision; sometimes they make the wrong one—they happen to be human beings—and that is a problem. There is no general defence of being a journalist to any criminal offence. There is protection of legally privileged material, including journalistic material, and the Police and Criminal Evidence Act provides quite proper protection for that. However, that is not the same as providing a general defence for criminal behaviour to a journalist. In my view, that is what this proposes.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

I speak as the mother of a journalist, so I have a vested interest here, but journalists do not go along to protests to join them but to watch and report on them. The Hertfordshire police and crime commissioner, David Lloyd, with whom I had the displeasure of sharing a panel the day after this all happened, said that protesters should not have the oxygen of publicity. That was his attitude: “Freedom of the press is fine, but not for protesters.” That is utterly unreasonable, as are the noble Lord’s comments. I support this very strongly. I do not see why anyone here would have a problem with it, except the Government. What are they frightened of? What do they think journalists will report that would look so bad for them? Obviously, almost anything.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I support what the noble Lord, Lord Hogan-Howe, has said. This is really a matter of definition. We all agree that journalists should not be arrested while doing their job, but it is very difficult for a policeman to distinguish between A and B—

Photo of Viscount Hailsham Viscount Hailsham Conservative

Yes, but I do not think the noble Baroness has focused on the point that a lot of demonstrators would represent themselves as journalists to avoid the prescriptive provisions of the Bill. That is what the noble Lord, Lord Hogan-Howe, was talking about, and he is wholly right.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

I thank the noble Viscount for giving way. The word “journalist” is not in the amendment—just “a person”, who is defined as “observing or otherwise reporting”. That is what it says, and it is very clear.

Photo of Viscount Hailsham Viscount Hailsham Conservative

I appreciate that. I did not realise that the noble and learned Lord was intervening—I apologise for not sitting down at once. The point is surely that we are dealing with the need to protect journalists. The risk is that any demonstrator involved will say that they are a journalist or otherwise fall within the protection of this proposed new clause. That is what worries me.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

My Lords, if anything illustrates why this amendment is needed, it is the last few exchanges. A number of noble Lords are already suspicious that people reporting on a demonstration are really malevolently pretending to be doing so. The noble Lord, Lord Hogan-Howe, said that the police have said to him that people will pretend to be reporting and asked how they would know. That is the difficulty. If the police start off suspicious that journalists are really just people pretending to be journalists to get away with locking on and being disruptive, we have a problem.

What this amendment will do, and it is important to do so, is to state that it is a legitimate pursuit to be reporting on a demonstration, whatever your opinion of the demonstration. I have heard people say that all the people reporting on a demonstration who are not officially working for the BBC or LBC are actually demonstrators, but there are people who are opposed to, for example, Just Stop Oil who are reporting on it because they are trying to get support against the demonstrators. That is what is ironic. The point is that they are reporting. In a democracy, we need to know about such things. One of the great things about technology is that you can sometimes see it and know about it because somebody is there reporting on it or filming it.

We should stick by the principle of journalistic freedom. Those people who say people pretend to be journalists to get off scot free show how the Bill is already poisoning the well and making anybody associated with a demonstration in any capacity seem dodgy. What is dodgy is making that conclusion.

Photo of Lord Hogan-Howe Lord Hogan-Howe Crossbench

May I respond to the noble Baroness, because I think she misrepresented what I said? I think I said that the officer would be intervening because of criminal behaviour, not because someone was a journalist or was suspected of being one. That would be the reason. There may be cases where an officer has intervened because they thought someone was a journalist and they did not want it to be recorded. I am not saying that has never happened; that would be wrong. There is no doubt about that. My point was only that the only reason for an officer to intervene should be—in principle, from the law—because the person is committing a criminal offence. That is what the Bill is all about: defining what is criminal and what is not. Therefore, I do not think it is fair to represent what I said as picking on someone because they are a journalist.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I wonder if I could help the noble Lord, Lord Hogan-Howe, because he has not, with respect, read the amendment—or at least not very carefully. To be clear, there would be nothing to prevent the arrest of a journalist, filmmaker, legal observer or anybody else if the officer suspected the commission of a criminal offence, including offences in the Bill that I disagree with. The protection is only against the use of police powers for the primary purpose of preventing the reporting. That is a judgment that is left to the officer, but what he cannot do is to say, “You’re a reporter. You’re giving protesters the oxygen of publicity, and I’m gonna arrest you.” That is the protection given here to people such as Charlotte Lynch, who could not possibly have been reasonably suspected of locking on or committing any other criminal offence. Such people could be suspected only of what they were actually doing: their job as reporters in a free society.

Photo of Lord Hogan-Howe Lord Hogan-Howe Crossbench

And how is an officer to know?

Photo of Lord Davies of Gower Lord Davies of Gower Lord in Waiting (HM Household) (Whip)

My Lords, I remind noble Lords that this is Report stage and they have one opportunity to speak.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I am glad that my noble friend has just said that, because it was the point I was going to make. I will make one brief intervention. I was always brought up on the proposition that it is better that someone who is guilty goes free than that someone who is innocent is punished. That ought to be our guiding principle, particularly when we are dealing with such sensitive issues and such an important Bill.

When the noble Baroness, Lady Boycott, spoke very briefly, and very powerfully, she began with a story from China. We do not want to be bracketed with that. We talk a lot in this House about the importance of freedom of speech, and we mean it—passionately. However, freedom of speech cannot exist properly unless there is a free press. It may often say things that we deplore or get the balance wrong, but it must have that freedom. A free society depends upon a free Parliament and free speech, and it depends upon a free press and free broadcasting. We are going in the wrong direction with this issue if we do not accept the amendment that has been signed by a very distinguished Law Lord: the noble and learned Lord, Lord Hope of Craighead. I would take his advice on this as much as I would take anyone’s. It would be better if the Government did not oppose this amendment.

Photo of Lord Patten of Barnes Lord Patten of Barnes Conservative

I would like to follow what my noble friend just said, or at least the beginning of his remarks following the speech by the noble Baroness, Lady Boycott. If the Chinese Communist Party, through its quisling administration in Hong Kong, was introducing legislation like this, we would denounce it. The Foreign Office would denounce it—it would be in its six-monthly report about attacks on freedom of speech and attacks on freedom in Hong Kong—and we would all cheer. It is astonishing that we are proposing in this country the sort of thing which we would denounce if the Chinese Communist Party were doing it in Hong Kong.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar Conservative

My Lords, I may be labouring under a misapprehension, but surely there is a critical difference between this country and China. As I understand it, the proposed new clause would prevent a constable exercising a police power for the principal purpose of preventing someone observing or reporting on a protest. If we do not pass this amendment, that act—that is, arresting somebody for the principal purpose of preventing reporting on a protest—would still be unlawful: it would be an abuse of police powers to do that. The difference is that here we are being asked to pass legislation to make illegal that which is already unlawful. That is the concern I have with it. When I was a Minister, I was frequently told, “You should add this clause and that clause to send a signal”, and I kept saying, “The statute book is not a form of semaphore.” My problem with this clause is nothing to do with the content of it; I just have a problem with passing legislation to make unlawful that which is already unlawful.

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

My Lords, there cannot be any legitimate objection to journalists, legal observers, academics or even members of the public who want to observe and report on protests or on the police’s use of their powers related to protests. We have seen in incident after incident how video footage of police action, whether from officers’ own body-worn video or that taken by concerned members of the public, has provided important evidence in holding both protesters and police officers to account for their actions. The need for this amendment is amply evidenced by the arrest and detention of the accredited and documented broadcast journalist, Charlotte Lynch, while reporting on a Just Stop Oil protest. It is all very well for noble Lords to say, “Well, if somebody was arrested in the way that Charlotte Lynch was arrested, it was unlawful”, but the fact is that Charlotte Lynch was taken out of the game for five hours and detained in a police cell, where she could not observe what was going on. We need upfront protection for journalists and observers, and not to rely on a defence that they can put after they have been handcuffed, arrested, and put in a police cell even though they are in possession of a police-accredited press pass. We support this amendment and will vote for it if the noble Baroness divides the House.

Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench

My Lords, there is something to be said for semaphore in the wider sense. That is, one of the problems that I think many noble Lords have had with the Bill is that it is sending a signal, as the noble Lord, Lord Patten, just suggested, against freedom of expression. Certainly, we need clarity in making law—I have changed my mind on two amendments today thanks to the interventions of the noble and learned Lord, Lord Hope. However, I will not change my mind on this one, because I think back to those women who were dragged around at the protest after Sarah Everard’s murder and who themselves filmed what was going on, to the disgust of the whole nation. Sometimes semaphore is very important. We are looking not just at the fine lines of the law today but at the message we are sending to the population: that we are a free society and that we want a free press. I will support the amendment.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords) 5:30, 7 February 2023

My Lords, we support the amendment moved by my noble friend Lady Chakrabarti and if she divides the House, we will support her in the Division Lobbies. As the noble Lord, Lord Cormack, said, a free press is the hallmark of a democratic society; we should remind ourselves of that. In doing so, I reflect again on the really important point made by my noble friend. The amendment is not concerned with the police using their powers proportionately, where appropriate, if criminal behaviour is taking place. It states:

“A constable may not exercise any police power for the principal purpose of preventing a person from observing or otherwise reporting on a protest”.

It is not saying that there is carte blanche for anybody who is observing to do anything they want around a protest, to exploit it for their own reasons and to conduct criminal activity, or that it would prevent the police doing anything about that; far from it. It seeks to allow reporters and others to observe and report to the wider public, to different sections of the country and beyond, who may not even be there or understand what the protest is about. That is important, and this must be an unfettered, protected power. That is why we support the amendment, which is extremely important, among the many other extremely important amendments we are discussing today.

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

My Lords, I apologise for my slightly tardy arrival.

Amendment 54, tabled by the noble Baronesses, Lady Chakrabarti and Lady Boycott, and the noble Lord, Lord Paddick, seeks to establish a specific safeguard for journalists and bystanders during protests. It follows the wrongful arrest and detention of the LBC journalist Charlotte Lynch in November. May I reassure the House that it is not okay? I agree with the noble Baroness, Lady Jones, that it is absolutely not okay to arrest a journalist who is doing their job.

I thank the noble Baroness, Lady Chakrabarti, for tabling this amendment, and agree with the need for journalists and innocent bystanders to be adequately safeguarded during protests. The Government are clear that the role of members of the press must be respected. It is vital that journalists be able to do their job freely and without restriction. I agree with the noble Baroness, Lady Fox, the noble Lord, Lord Coaker, and my noble friend Lord Cormack that a free press is the hallmark of a civilised society.

The police can exercise their powers only in circumstances where they have reasonable grounds to do so. Hertfordshire Constabulary has accepted that its wrongful arrests of journalists on the M25 were unlawful. Noble Lords will be aware that an independent review was conducted into Hertfordshire Constabulary’s arrest of journalists during the M25 protests. With your Lordships’ indulgence, I will go into a little of the detail on that. Cambridgeshire Constabulary’s report specifies that:

“The power of arrest is principally governed by PACE 1984 and to be lawful, the arrest must be necessary by reference to statutory powers set out within PACE 1984. Code G provides additional rules and guidance on the use of the power of arrest. Of particular relevance to this operation, it is important to observe the judgement laid out following O’Hara v Chief Constable of Royal Ulster Constabulary 1996—an officer cannot exercise the power of arrest based on instruction from a superior officer. In order to satisfy the requirements under section 24 of PACE 1984, the superior officer must convey sufficient information in order for the arresting officer to develop reasonable grounds.”

I went into that in some detail because Section 24 —“Arrest without warrant: constables”—is very clear. A constable may arrest without warrant

“anyone who is about to commit an offence; anyone who is in the act of committing an offence; anyone whom he has reasonable grounds for suspecting to be about to commit an offence; anyone whom he has reasonable grounds for suspecting to be committing an offence. If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.”

Under those criteria, I struggle to see how the primary purpose of being a journalist, which the noble Baroness, Lady Chakrabarti, referred to, and reporting on a protest, would ever constitute reasonable grounds.

Going back to the Cambridge case, the constabulary also specified that code G of PACE 1984 gives some separate guidance on necessity criteria:

“The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person.”

It is very clear. We are all protected by those rules and that includes journalists. The review revealed that the issue was one of training and proposed several recommendations to fix this, including ensuring that all public safety officers and commanders carry out the College of Policing and National Union of Journalists awareness training. The constabulary has promptly implemented these recommendations. This is not an issue of law but one of training and guidance, which is already being addressed.

Photo of Lord Garnier Lord Garnier Conservative

My Lords, PACE is nearly 40 years old. Is not the training completed?

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

My noble and learned friend makes a very fair point, but the College of Policing and the National Union of Journalists awareness training is a little more recent than the 40 year-old PACE codes.

The College of Policing’s initial learning curriculum includes a package of content on effectively dealing with the media in a policing context. In addition, the authorised professional practice for public order contains a section on the interaction of the police with members of the media. This includes the recognition of press identification. It should also be noted that it is entirely legitimate for a police officer to inquire why an individual may be recording at the scene of a criminal offence if they deem it appropriate. We do not want to suggest that this is unlawful.

In light of those factors, while I completely understand the direction and purpose of the amendment, we do not support it because we do not deem it to be necessary. These defences are already covered in law.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

My Lords, I am grateful to all noble Lords who have spoken in this short but vital debate. Once more to respond to the noble Lord, Lord Hogan-Howe, who I am not sure has read the amendment

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

This amendment is not about preventing the arrest of anybody, journalist or otherwise, who is reasonably suspected of committing a criminal offence, including offences in this Bill. There is no definitional problem, because what is defined is the purpose of the arrest, not the identity of the person. This is important because even after Charlotte Lynch’s arrest, a Conservative police and crime commissioner took to the airwaves to say, “You are giving the oxygen of publicity to protesters.” In other words, “You are complicit in this kind of disruptive action by reporting it.”

If a senior Conservative police and crime commissioner took that view, it is perhaps understandable that some hard-working, hard-pressed police officers in difficult times might take the same view. The offence for which Miss Lynch was arrested was the very open-textured “conspiracy to cause a public nuisance”. Therefore, if a journalist has been tipped off that there is to be a demonstration that may or may not turn out to be disruptive and they go to do their job of reporting, some police officers, it would seem, and others may believe that in some sense to be complicity in causing or conspiracy to cause a public nuisance.

I also want to thank the Minister and his Bill team for meeting me just yesterday—although of course the Home Office press office had already told various media outlets that the Home Office was doubling down on this amendment. At that meeting, I asked the Minister and his colleagues to explain the basis for Ms Lynch’s arrest being unlawful. By the way, many other journalists have recently been arrested; what was the basis for these being unlawful arrests? I got the answer that noble Lords just got from the Minister.

What is said to be unlawful about Ms Lynch’s arrest is not that she is a journalist, but that individual officers were taking direction from their superiors and not exercising their own judgment. That is a technical and very important matter, but it is not the issue at stake here. I asked the Bill team and the Minister: where is the authority, the legal provision, in primary or even secondary legislation, that says that journalists should not be arrested, for example for conspiracy to cause a public nuisance, just for reporting on something that itself may be a public nuisance? There was no authority and no provision offered. So vague assertions about PACE codes that do not even deal with my specific point are really not going to cut it—not on something as important as free reporting in a free society.

I have moved this amendment and I seek to test the opinion of your Lordships’ House.

Ayes 283, Noes 192.

Division number 4 Public Order Bill - Report (2nd Day) — Amendment 54

Aye: 281 Members of the House of Lords

No: 190 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Amendment 54 agreed.

Amendment 55 not moved.

Clause 19: Serious disruption prevention order made on conviction