Motion A1 (as an amendment to Motion A)

Public Order Bill - Commons Amendments and Reasons – in the House of Lords at 3:30 pm on 14 March 2023.

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Lord Coaker:

Moved by Lord Coaker

At end insert “and do propose the following amendments to Amendment 1A—

1B: In subsection (1)(a), leave out “more than a minor” and insert “a significant”

1C: In subsection (1)(b), leave out “delay that is more than minor” and insert “significant delay”

1D: In subsection (1)(c), leave out “disruption that is more than minor” and insert “significant disruption””

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

My Lords, the Minister said that the noble and learned Lord, Lord Hope, proposed his amendment for “more than minor” and that was why the Government reintroduced it in the Commons and were supporting it again. Of course, that was lost when it was debated in your Lordships’ House and the Government have inserted “more than minor”—admittedly, with some flowers and curtains around it. I keep saying to noble Lords that it goes to the heart of the debate as to the threshold we wish to set where we start to undermine the right to protest. I still contend that the Government’s “more than minor” threshold is too low. Hence my Motion A1 would insert in subsection (1)(a) “significant” instead of “more than a minor”; in subsection (1)(b), it would leave out

“delay that is more than minor” and insert “significant delay”, and in subsection (1)(d), it would leave out

“disruption that is more than minor” and insert “significant disruption”. The point of that is, of course, to raise the threshold.

First, because I think it is important for noble Lords to understand, I want an assurance from the Minister that whatever we decide will be respected by the Government. To refer back to the Police, Crime, Sentencing and Courts Act 2022, Sections 73 and 74 define public nuisance and impose conditions on public processions, public assemblies and various sorts of activities, including defining what activity may result in serious disruption. Tucked away in those sections is the power for the Government to change any of that by regulation. I want a categorical assurance from the Minister that, were the Government to lose the amendments before us today, and they may win, and the Bill went back to the other place, or if the amendments that could not be reinserted in the Commons because they had been introduced in the Public Order Bill only in the Lords—namely, what we called the “slow walking” clause and the “reasonable excuse” amendments—were lost, the Government will not seek to overturn the expressed will of this Chamber and, I hope, eventually the will of the other place by using Sections 73 and 74 of that Act, which they could do. I would appreciate that.

The debate today centres on thresholds. At what level should we restrict the right to protest, above the laws that we already have? We already have a number of laws that restrict the right to protest and allow us to deal with protests as they occur. Indeed, many chief constables, including the chief constable of Manchester, have asked why we do not use the existing legislation. Notwithstanding that, the Government have panicked and come forward with the Bill to try to deal with what they perceive as a problem.

To make this real, I spent Sunday afternoon looking at various protests that have taken place around the country that, I contend, with a “more than minor” threshold would under the Bill be something that the police could arrest people for and stop. I ask everybody in this Chamber whether that is what people want, because I contend that it is what the “more than minor” threshold will mean, rather than the “significant” threshold that I am seeking to replace it with.

Let me quickly go through some of these protests that made the headlines, which would be illegal under the Bill. The first is “Protest in Oxford blocks major road in both directions”. I suggest that, before a court, that may not be significant but is more than minor. Next we have a “No HS2” protest. Some people may have more sympathy with that, but lots of protests have taken place with respect to that. “No nuclear power station” protests have taken place in Suffolk. Are they covered by the Bill? They come under “more than minor”, and I contest that offences would be committed under the Bill. East Sussex residents protested outside the housing department at the treatment of a road and blocked access. That is an offence under the Bill, and certainly above the “more than minor” threshold. Next is “Furious parents block road to protest poor enforcement of school street in north London”. I contend that that is an offence under the Bill. In the case of “Wellingborough: Protesters halt tree-felling plans”, they blocked the diggers and the cutters, which is not allowed under the Bill and is certainly more than minor. Two more are angry mothers blocking drivers over school drop-offs and unhappy Trowbridge residents turning out to block tree cutting. Under the Bill, some of these protests would be illegal and the police could potentially have the capacity to arrest.

We also saw the massive protests that took place last July when summer holidays were affected. Thousands of lorry drivers across the country blocked the M4, the M5, the M32 and the A38 in protest at the cost of fuel. My contention is that under the Bill that is more than minor and those protesting against the cost of fuel would be liable to arrest more than they are now. If you are blocking five or six motorways, that is certainly more than minor. What else did I find? Farmers blocked roads in protests; tractors were used in response to falling milk prices. That would not be allowed under the Bill. Blocking a major road is certainly more than minor. There is example after example showing that the Bill puts at risk the rights of people to protest. It puts at risk one of the democratic traditions of our country.

I do not hold with the idea that the Minister seeks to ban protests. That is ridiculous: I have never said that. What I have said is that the Bill unnecessarily restricts the right to protest and unnecessarily causes uncertainty about what is allowed or not. Lowering the threshold would mean that activity that is currently allowable in some of the examples I have given would not be. That is because of the phrase “more than minor”.

I am sure that many noble Lords will wish to comment on that, but all I ask is for noble Lords to reflect that if a tractor turns up, a mother turns up or a group links arms, before anything has happened it could be illegal under the Bill—this is the point made by the noble and learned Baroness, Lady Butler-Sloss. It does not even have to have caused disruption; it simply has to be capable of causing disruption. You can turn up with five tractors and park in a car park, and if the police think you are going to do something, even if you have not done anything, they could stop it because it is capable of causing disruption.

The Government will say, “Of course, this is ridiculous —an overreaction. Stupid nonsense. Why on earth is that going to happen? Our police will not act in that way. Ridiculous. People will be shaking their heads in disbelief that anybody could posit that anything like this would happen in our country.” All I say is: why would you pass legislation that creates the potential and the risk for it to happen?

It is not the way to legislate. Existing laws are appropriate and satisfactory and could be used. They are not being used as effectively as they could be. The Government’s answer to Just Stop Oil, Extinction Rebellion and all that is to seek to pass a totally disproportionate piece of legislation. Through my Motion I am trying to mitigate the impact and effects of that. I beg to move.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, since the noble Lord was kind enough to mention my name, I should perhaps briefly explain the thinking behind the form of words the Government have introduced to this debate.

Before I do, I remind your Lordships of what the noble Lord, Lord Coaker, said at Third Reading—words that are worth listening to again. He said that

“the debates here and the changes made reflect a genuine attempt to address where the line should be drawn between the right to protest and the right of others to go about their daily lives.”—[Official Report, 21/2/23; cols. 1560-61.]

Those are valuable words and were worth saying again because they encapsulate exactly the dispute between us, which has been conducted with a great level of courtesy, certainly on the other side of the House and, I hope, on my side too, in trying to find a solution to the problem.

The words I chose were designed specifically to deal with the two groups of offences in the Bill, locking on and tunnelling. Those offences differ from the other kinds of protest activities. The noble Lord, Lord Coaker, has reminded us of a lot of examples of these. The whole purpose of those conducting these activities is to disrupt. That is their method of making their views known. That is quite different from people who assemble with flags, shouting, singing and so on, or who walk in a procession as their method of making their views known. If you make your views known by disrupting, the position is that you cross a line.

That line was identified by the Court of Appeal in the Colston case. It used the words “minor or trivial”. If that kind of activity goes beyond what is minor or trivial, you lose the protection of proportionality available under the European Convention on Human Rights—you have moved to something different—because the activity you are conducting is deliberate and the consequences of what you have done in the exercise of that deliberate decision are properly described as more than minor.

I was looking for a definition of the threshold because I took the view, rightly or wrongly, that when you are dealing with those categories of offences, there is a point—at a fairly early stage, as the Court of Appeal is indicating—where it should be available to the police to stop the activity. Tunnelling, for example, is designed to inflict economic harm on the body that is conducting the railway. We are talking about HS2, which has parliamentary backing. To inflict economic harm should not be allowed to continue for any longer than a minor interference.

Locking on is the same thing. Once it reaches a stage of going beyond minor, the sooner the police are free to take the necessary action, the better. It is their judgment, but the point of my amendment was to identify a threshold. The problem with “significant”, which is a perfectly respectable word for describing a state of affairs, is that it does not define a threshold. It defines a state of affairs. The police need a threshold to be clearly identified, which my words were designed to do.

The problem, and it is part of our debate with each other, is that in legislation we cannot use algorithms or numbers. We are driven to use adjectives, which are quite malleable creatures. They have a shade of meaning, and some people have different views as to what words such as “significant” mean. I would say that once you move beyond “minor” you have reached something that is significant.

That is the point: it is a state of affairs that you have reached, whereas my wording is to identify exactly the stage at which the threshold is crossed. As I said last time, “more” is absolutely crucial. I can well understand that “minor” excites fear and alarms but, with great respect, I do not think that is really justified. “Minor” has to be given full weight. In my submission, it achieves the object that I was trying to achieve and which I think that the Government have now accepted. It is the difference between a state of affairs and a threshold. In the end, that is the crucial point.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 3:45, 14 March 2023

My Lords, I thank the Government for Motion C—yes, I did say that. In very turbulent and polarised times in our country, it is a real pleasure to be able to welcome it. Noble Lords will notice that there is a fairly minor tweak to the original amendment passed by your Lordships’ House. We said that a constable should not exercise powers for the principal purpose of preventing someone reporting, and the Government have replaced “principal purpose” with “sole purpose”. I for one am convinced that the precious and vital protection for journalists and others reporting on protests, rather than participating in them, is provided. The Minister wrote and said that they do not think that this is necessary but are doing it anyway. That is not ungracious. It is gracious, because I happen to think that this protection is vital. The Government disagree but they are doing it, so I am happy to thank them.

I remind noble Lords, as the Minister did, that the provision is in response to real cases: real journalists were arrested and detained last November, some for many hours, just for doing their job. The offence used when it was suggested that journalists were giving the oxygen of publicity to protesters was the fairly vague conspiracy to cause a public nuisance. While the Government have been consistent in their position that additional protection is unnecessary, no one at any stage of proceedings on the Bill could point to a single legislative provision on the current statute book that gives this protection. Therefore, I am grateful to the Minister for the way in which he has engaged with this and responded, not least to what I think was the largest defeat that the Government suffered on the Bill last time.

I am particularly grateful to Charlotte Lynch, the LBC reporter who visited us last time, having experienced the really quite traumatic incident of being arrested, handcuffed, put in a police van and detained for seven hours. This causes her some anxiety even to this day. She carried on and reported on that experience, and that has been very important for future journalists in this country, I hope that noble Lords will agree.

I am grateful to the all-party group, Justice, and Tyrone Steele, who worked with us on this amendment. I am especially grateful to the five distinguished Conservative Members of your Lordships’ House, including the former governor of Hong Kong and a former leader of the Conservative Party, who did the very difficult thing of coming through the lobbies with Her Majesty’s Opposition. I give my absolute respect to them.

I am, of course, grateful to my noble friends, the Liberal Democrats and many Cross-Benchers who supported this vital protection. I give especial thanks to the co-signatories of the original journalists’ protection amendment, including the noble Baroness, Lady Boycott. It was a great comfort and support to have such a distinguished journalist and former newspaper editor on my side in this.

My enormous thanks also go to the noble and learned Lord, Lord Hope of Craighead. We disagree about some things, but not about this. In particular, I thank my co-signatory, the noble Lord, Lord Paddick, not only for co-signing this amendment and bringing his noble friends with him, but for a lifetime of public service in policing and in your Lordships’ House. He is the most diligent and distinguished face of the police service in this country. When we reform that service, it will better reflect his values. That career of public service could not be better demonstrated than by him being here today, after suffering such unspeakable loss in recent weeks.

I do not want to take your Lordships’ time on the next group, so will say now that I support the noble Lord, Lord Paddick, and my noble friend Lord Coaker in the remarks that they will make about suspicionless stop and search. Stop and search is always difficult and challenging for police community relations, but suspicionless stop and search is positively toxic and not something that we should be increasing in these troubled times in our country.

Finally, I come to the difficult question of the meaning of “serious disruption”, not for the purposes of some offences, but for the whole Bill. We have the narrow policy question of what the threshold should be before a number of criminal offences and intrusive police powers impugned what would otherwise be totally peaceful and innocent dissent. That is the narrow question.

We also have a rather deeper and broader—almost philosophical—question of common sense and the English language. Is “serious” significant, as I believe, or simply more than minor? Is it a simple binary, like a child’s 18th birthday that turns them from a minor into someone who has majority; or is there a whole range of disruption that one can face in one’s life from something that is minor to something that is really quite a lot more than minor—that is significant?

This is a serious question and the threshold should be high. I am reminded of George Orwell’s famous essay “Politics and the English Language”—my favourite writing of his—in which he reminded us that distortion of language can quickly lead to abuses of power. This is a Public Order Bill and this ought to be a very serious threshold. However, if noble Lords prefer their literature to be accompanied by music, I will invoke not George Orwell but Cole Porter:

“There’s no love song finer, but how strange the change from major to minor”.

I urge all noble Lords who care about these things, who take a bipartisan approach to fundamental rights and freedoms in our country, as those distinguished five Conservatives did last time, to support Motion A1 in the name of my noble friend Lord Coaker.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I have been reflecting on the speeches which we have just heard. Listening to the noble and learned Lord, Lord Hope, and his point about the threshold, I have been thinking about what would be more than minor that was not significant. Looking at the examples that the noble Lord, Lord Coaker, gave, it seems to me that if one discovered people tunnelling under an area that was going to be HS2, that is not only more than minor; my goodness me, it seems to me to be significant. I was also thinking about the closing of four or five motorways. So far as I am concerned, that seems to be both more than minor and significant. I just wonder, rather hesitantly, whether we are arguing about a position where the difference between “more than minor” and “significant” is extremely small. I cannot at the moment think of a word that I would use that was more than minor but not significant. That is where I stand—a slightly different position, I confess, from what I said on the last occasion.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I hope I do not cause offence here, but I disagree strongly with the noble and learned Lord, Lord Hope of Craighead, and the noble and learned Baroness, Lady Butler-Sloss. I shall give the House a few words that would be more than minor but less than significant: it could be “reasonable”, “measured, “limited” or “tolerable”. There are all sorts of stages between “more than minor” and “significant”. As a veteran protester, I have probably passed quite a few red lines in the past, although I have never committed violence—so far.

I turn to Motion A1. Obviously I am upset, along with other noble Lords, I hope, at the fact that the other place immediately whips out all our good work and indeed our hard work. We spend time reading the Bill and thinking about it, which obviously the majority of people in the other place do not; they simply do whatever the Government tell them. I feel that the Government are trying to stop protest of virtually every kind—almost any protest imaginable—and that is so deeply oppressive that I could not possibly support it, so I wholeheartedly support Motion A1.

If the House will indulge me, I will mention the other two Motions as well so that I speak only once. I am horrified by Motion B2. I regret that Labour feels it cannot support Motion B1 in the name of the noble Lord, Lord Paddick. Sitting here, I have been thinking that I would vote against Motion B2, but that is probably too difficult. I do not even think I can abstain, so I think I am going to vote for it—but it will be through gritted teeth as it goes against all my libertarian views, and I am really annoyed with Labour for putting it in.

To finish on an upbeat note, there is Motion C. The Government make endless bad decisions. We are wallowing in an ocean of bad decisions nationally because of this Government, and some extremely unpleasant scenarios, with poverty and deprivation, are playing out because of them. But here they have done the right thing. It is incredible that the Government have come back with not just something that we generally asked for but with a slightly improved version of the Lords amendment, which I have to thank them for and say “Well done”—if that does not sound too patronising, or matronising. It is a win for civil liberties and the right of the public to be informed about protest and dissent.

On a final note, I have been saying that I am the mother of a journalist. That is a slight twist of the truth, because actually I am the mother of an editor, and I just know that she will be absolutely delighted with what the Government have done today.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar Conservative

My Lords, I declare an interest: I generally pay my mortgage by debating the difference between “significant” and “more than minor”, so I am on very familiar territory.

The problem with the word “significant” is this: what is the opposite of significant? It is insignificant. There is therefore a constant debate in the courts when something, generally a contract, is said to be significant. Does it mean substantial—that is, quite a lot—or does it mean not insignificant, in other words more than de minimis? That is the problem with a word such as “significant”. For those reasons, I respectfully endorse the approach of the noble and learned Lord, Lord Hope of Craighead. We need a test here that is easy to apply.

Elsewhere in the law, we have the concept of significant risk. Of course, that is even more difficult, because there you are talking about risk—something that might happen—whereas here, in Motion 1A, we are talking about something that has happened or is happening. The noble and learned Baroness, Lady Butler-Sloss, asked what the difference was between “more than minor” and “significant”. In the Court of Appeal case of R v Lang, Lady Justice Rose, who is now in the Supreme Court, said in her judgment:

“The risk identified must be significant. This is a higher threshold than mere possibility of occurrence”— that is, a risk case—

“and in our view can be taken to mean … ‘noteworthy, of considerable amount or importance’”.

Even in that definition, there is a difference, I would suggest, between “noteworthy” and “of considerable amount”—and that is in the context of a risk, not something that is actually happening.

I would strongly endorse the approach of the noble and learned Lord, Lord Hope. What we are dealing with here is not a risk; it is something that is actually happening. We do not want a test of “reasonable” or “tolerable”, where it is all in the eye of the beholder. We need a test where you can see it and you know whether it exists or not, and I would suggest that, for those reasons, “more than minor” really hits the nail on the head.

Photo of Lord Faulks Lord Faulks Non-affiliated 4:00, 14 March 2023

My Lords, I respectfully agree with what the noble Lord has just said. The House may remember that the whole question of the definition of “serious disruption” emanated in part from a recommendation of your Lordships’ Constitution Committee. I supported an amendment put down by the noble and learned Lord, Lord Hope. I think the Opposition then accepted that it would be useful to define “serious disruption”. So, there was a measure of agreement, and what we were concerned with was where the threshold lay.

It is clear that the amendment the Government are seeking to put into the Bill is lawful. There had been some doubt, but various decisions, including the decision on Ziegler and the subsequent decision in the Northern Ireland case, show that this is well within the legality required by the European Court of Human Rights. The question is: how do you balance the undoubted right to demonstrate—I do not think there is any doubt that everybody in this House accepts the fundamental importance of that right—against the rights of others to go about their business, to go to hospital, to go to school and to do all the other important things? They must put up with inconvenience, but whether their lives should be seriously disrupted is a different question.

What worries me about the amendment put forward by the noble Lord, Lord Coaker, is that, for example, it would require there to be a “prolonged disruption” before we get to the stage that an offence has been committed or, more realistically, that the police can do anything about it. Imprecision in adjectives is of course inevitable, but “prolonged” worries me. We have to achieve a difficult balance in this legislation, and it seems to me that that put forward by the noble and learned Lord, Lord Hope, is the right one.

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

My Lords, one thing that is significant is when the noble Baroness, Lady Chakrabarti, congratulates the Government. I think that is a significant and not minor moment. But she was right to do so; the importance of journalistic freedom cannot be overestimated, and I would like to thank the noble Lords who put that amendment forward on this Bill and turned something which has been discomfiting into something positive at the end of it all. So that is very positive.

I also want to note that, when I was considering how I was going to intervene today, I actually said to colleagues that it was terrible that the noble Lord, Lord Paddick, would not be with us, because I would have been relying on him to give us a steer. Then I walked in and he was in his place, and I would like to pay tribute to his courage for being here and the reassurance it gives many of us. That really takes some courage.

On the substantive point, I think that the noble Lord, Lord Coaker, did us a great service when he spent his weekend not demonstrating but looking at everybody else’s demonstrations on an average weekend, as it were, and laying them out for us. They were not particularly big, glamorous or headline-grabbing demonstrations, but all of them undoubtedly caused disruption to the people in the local area, in the way that he explained, and blocked roads quite substantially.

That is important because, throughout the discussions on this Bill, it has always felt as though we have had in our sights the likes of Extinction Rebellion and Just Stop Oil. The noble and learned Lord, Lord Hope, explained well that their aim is to disrupt, not even to protest. That is their tactic and their raison d’être. It has caused a lot of problems for me as somebody who supports the right to protest very strongly, and it has certainly aggravated the British public in all sorts of ways.

The reason the intervention from the noble Lord, Lord Coaker, was so useful was that it remembered the laws of unintended consequences. I say to the Government that those groups are not the only people who are going to be caught up by this law, which is why I would like us to make the threshold higher. The Government will not always be the Government—if we are talking about things being “prolonged”, it might not be that long. There will be all sorts of different people out on streets protesting. Sometimes it might even involve members of the Government at the moment and their supporters.

All the protests the noble Lord described covered all types of members of the British public who felt the need to take to the streets one way or another. They are voters of all parties and voters of none. They might well be disruptive, but they are certainly not using disruption as a tactic. My concern, straightforwardly, is that they are not criminalised by this law in an unintended way because we had one group of protesters in mind and forgot the wide variety of protesters who support all parties across the board. I anticipate there will be more protesters in turbulent times ahead.

My final point on Motion A1 is, as the noble and learned Lord, Lord Hope of Craighead, said, when you are making laws, you cannot use algorithms or numbers, so you are using words. We are having an argument about words. It is tricky and I cannot pretend that, when I hear the noble and learned Lords speak, I always understand the way language is understood by courts. However, I was thinking about how language might be understood by the police. They are the people who will potentially, as has already been explained, look at a bunch of tractors or what have you and say, “That is capable of causing disruption which is more than minor”. This seems to be a much lower threshold than thinking it will cause “significant” disruption. I would like the word “significant” there so that the police pause and do not just say “It’s more than minor: let’s stop it”. They should pause and think that something has to be quite serious. Is that not the way the language will be understood? As a consequence—maybe I am wrong, and they are all legal scholars—my fear is that they will read those words and see it in a particular way. Therefore, there will be the unintended consequences of sweeping up people who, after all, are democratically demonstrating.

Finally—because I realise that this is what is done and so that I do not speak on Motion D—despite supporting wholeheartedly the Labour amendment, I am disappointed with Motion D1 from the Labour Party. I think I understand what is meant by conduct which is

“frivolous or vexatious, beyond a genuine expression of their right to protest.”

However, it seems to be an unnecessary concession and I will find it very hard to vote for. Beyond that I urge everyone to support the amendment in the name of the noble Lord, Lord Coaker, in this group.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I will be very brief. I want to thank my noble friend on the Front Bench for the way in which he reacted to what I will always refer to as the Charlotte Lynch amendment. It was moved very elegantly by the noble Baroness, Lady Chakrabarti, and the Government listened.

This amendment is an illustration of the value of your Lordships’ House and of the fact that there is no point or purpose to your Lordships’ House unless, from time to time, the Government are indeed defeated, are obliged to take a very serious view of a serious defeat and react accordingly. My noble friend has reacted accordingly and graciously, and, for that reason, I am extremely grateful that a most important amendment is now part of a very important Bill.

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

My Lords, with the leave of the House, before I start, I thank all noble Lords from all sides of the House, the doorkeepers, the attendants, the security and the police officers, who have shown such kindness towards me following the sudden, unexpected and so far unexplained death of my husband. I am very grateful.

As the Minister and the noble Lord, Lord Coaker, have explained, the definition of “serious disruption” underpins the entire Public Order Bill. It is an element of many of the new offences and the trigger for the use of new draconian police powers, which we will debate in the next two groups. The police asked for clarity, as there was no definition of “serious disruption” in the Bill that originally came to us from the other place, and we joined forces with His Majesty’s Official Opposition to provide a reasoned and reasonable definition of “serious disruption” that gave clear guidance to the police—Lords Amendment 1—which was agreed by this House. The Commons disagreed with our amendment and substituted Amendment 1A as an amendment in lieu.

On the point made by the noble Lord, Lord Wolfson of Tredegar, about the problem with ambiguity around the word “significant”, the fact is that the original amendment this House passed had examples clearly explaining to the police what we meant, so that ambiguity was not there in the original amendment passed by this House.

Instead of defining “serious disruption” as causing

“significant harm to persons, organisations or the life of the community”,

which would include, for example, preventing an ambulance taking a patient to a hospital, the Government have substituted, as we have heard,

“more than a minor degree” for “significant harm”. With the greatest respect to the noble and learned Lord, Lord Hope of Craighead, and to address the concerns of the noble and learned Baroness, Lady Butler-Sloss, I will repeat what I said on Report: on a spectrum of seriousness, “minor” is at one end and “serious” is at the other. I say that as a former police officer speaking about how the police might interpret the legislation. For example, a minor injury is a reddening of the skin, and a serious injury is a broken limb or inflicting a fatal injury. My interpretation, as a former police officer, of what is being said in the Bill is that disrupting to

“more than a minor degree” cannot reasonably be said to be “serious disruption”; it is far too low a threshold. While I understand that the noble and learned Lord wanted to establish a threshold—the exact point at which the law would be broken—our argument is that that point is far too low. We therefore support Motion A1 in the name of the noble Lord, Lord Coaker, and we will support him if he decides to divide the House on his Motion A1.

I join the noble Baroness, Lady Chakrabarti, in saying that I am grateful to the Minister for Amendment 17A, mentioned in Motion C, which we support. It is right to protect observers of protests from being prevented from carrying out their work by the police.

Finally, I thank the noble Baronesses, Lady Chakrabarti and Lady Fox of Buckley, for their kind words about my public service, but I reassure the House that this is not my valedictory speech.

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

My Lords, again, I thank all noble Lords for participating in this debate and for the scrutiny they continue to bring to bear on these important measures.

Before I get on to the amendments, the noble Lord, Lord Coaker, asked about the Government’s intentions for Section 73 of the PCSC Act. For the benefit of the House, Sections 73 and 74 of the Police, Crime, Sentencing and Courts Act contain delegated powers which allow the Secretary of State to amend the definitions of

“serious disruption to the life of the community” and

“serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession” for the purpose of Sections 12 and 14 of the Public Order Act 1986.

The police have the ability to place necessary and proportionate restrictions on public assemblies and processions to prevent these harms from occurring. The Government are always looking to protect the public from harm, including unjustifiable disruption, and we are open to using all the tools available to do so. However, and to be clear, these regulation-making powers do not interfere with the Public Order Bill currently being debated. They do not permit this or any future Government to make changes to the meaning of “serious disruption” in this Bill.

I have set out clearly the arguments in defence of the Government’s Amendment 1A and why I believe this establishes an appropriate threshold for “serious disruption”. I think it is worth pointing out, as the noble and learned Lord, Lord Hope, reminded us, that that threshold applies to the offences in the Bill—locking on, tunnelling, and so on.

I will not detain the House for longer than necessary, not least because the noble and learned Lord, Lord Hope, the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Faulks, and my noble friend Lord Wolfson have put this much more eloquently than I can. I encourage the noble Lord, Lord Coaker, to withdraw his Motion and hope that your Lordships will support the Government’s Amendment 1A to ensure that both the police and the courts have this appropriate threshold, which strikes the right balance between the rights of protesters and the rights of the public.

I think this debate has highlighted the point that ultimately it will be for the police and the courts to assess whether an individual’s acts are in scope. Any threshold will inherently be somewhat subjective and there is no way around this, as I think my noble friend Lord Wolfson pointed out. This term provides a reference point for the police and courts when determining whether one’s actions exceed the protections of the ECHR, and it is based in case law.

Finally, I will touch on government Amendment 17A. I hope noble Lords are wholly satisfied and I appreciate the indications that they are. The Government have accepted the principle of Amendment 17, while adding a clarification. I particularly thank the noble Baroness, Lady Chakrabarti—and, of course, others—for her not insignificant thanks.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords) 4:15, 14 March 2023

My Lords, I join others in thanking the Minister for listening, and my noble friend Lady Chakrabarti and the noble Baroness, Lady Boycott, for the amendment on journalists. The Government are to be congratulated for moving on that and for responding to people’s very real concerns.

I thank the noble and learned Lord, Lord Hope, for saying that there is a genuine attempt within this Chamber to deal with what is clearly quite a difficult issue, with genuine differences between people. It has been well argued and well debated. That has never been an issue. There is an issue about where the threshold is but there has never been an issue about the genuine nature of that and I welcome his point.

I also thank the noble and learned Lord, Lord Hope, the noble Lord, Lord Wolfson, and many other noble Lords practised in the law for my speed course in trying to understand what some aspects of it mean. I think the point made by the noble Lord, Lord Paddick, the noble Baroness, Lady Fox, and my noble friend Lady Chakrabarti, and indeed by the Minister in his response just now, goes to the heart of it. The Minister said—and I have not got this completely right so I hope he will correct me if I am wrong—that in the end there will be an element of subjectivity in the police and the courts.

That is the very point made by the noble Lord, Lord Paddick, the noble Baroness, Lady Fox, and my noble friend Lady Chakrabarti. If there is an element of subjectivity, if a police officer or Vernon Coaker is walking down the street and you said that something is “significant”, I would see that as more serious than something that is “more than minor”. I cannot argue it with all the case law that the noble Lord, Lord Wolfson, used. I cannot use the legal terminology that the noble and learned Lord, Lord Hope, and many others would use. But I absolutely defy anybody to prove to me that 130,000, or however many there are, police officers across our country would not see “more than minor” as a lower threshold than “significant”. I just do not believe it.

The Minister himself said that there would be subjectivity. Of course, there will be subjectivity, which is why I raised the examples that I did. The Government have panicked. It was outrageous what happened with Just Stop Oil and Extinction Rebellion—and none of us supported the disruption caused by that. Many of us in this Chamber asked why the police were not using the powers on obstruction that they had and quickly sorting it out by using those powers. They should have had the confidence to use them and to know that this Chamber and the other place would be behind them, sorting those protesters out and dealing with the issue in the way it should have been done.

The Government’s response through the Public Order Bill and some of these measures will impact on people who should not be impacted on in any way, especially if you have a definition of “more than minor”. A police officer will go to those people who are driving tractors and protesting about milk, they will go to people slowing lorries down on the motorway because of fuel prices, and they will go to parents blocking roads because of school playgrounds—they absolutely will. If people start getting cross, as they inevitably will, the police will say, “Well, this is more than minor”, and do something about it—rather than what they would do if they had a threshold of “significant”. That will be the practical reality of the legislation that this Government are asking this Chamber to pass, supported by the other place. It is simply not tenable, and simply not good legislation; it will have consequences that the Government do not intend for it.

There was one thing on which I disagreed with the noble and learned Lord, Lord Hope, when he talked about disruption. I have not been on many protests that have not caused disruption, and I suspect that not many noble Lords have been on protests that have not caused some sort of disruption. I do not want to be controversial, but sometimes the point is to cause some disruption—that is the absolute point. I am sure that there are many noble Lords, not just behind me but on other Benches, who have been on demonstrations and protests and have caused disruption. The argument is over whether that is serious disruption—and according to the Bill it has to be serious; well, “more than minor” —whereas I am saying that it should be “significant”. At the end of the day, that is the point of difference between us.

All I say in closing is that the police, in policing the Public Order Act, as it will become, will treat “more than minor” at a much lower level in dealing with protests than they would if “significant” was in the Bill. For me, that trumps any arguments of case law or that the courts will have problems defining it. The courts always have problems defining things, and that is why, in the end, you have courts, because they will use their best judgment to define it—but I would rather they had to define “significant” than “more than minor” in dealing with protests. I wish to test the opinion of the House.

Ayes 222, Noes 233.

Division number 1 Public Order Bill - Commons Amendments and Reasons — Motion A1 (as an amendment to Motion A)

Aye: 220 Members of the House of Lords

No: 231 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Motion A1 disagreed.

Motion A agreed.

Photo of Baroness Watkins of Tavistock Baroness Watkins of Tavistock Deputy Chairman of Committees 4:35, 14 March 2023

Before I call Motion B, I draw noble Lords’ attention to the revised version of Motion B2, published today on a supplementary sheet. The difference is that Amendment 6E has been added.