Clause 3 - Obstruction etc of major transport works

Public Order Bill – in a Public Bill Committee at 2:00 pm on 14th June 2022.

Alert me about debates like this

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office) 2:00 pm, 14th June 2022

I beg to move amendment 35, in clause 3, page 2, line 26, leave out sub-paragraph (iii).

This amendment seeks to limit the range of acts potentially criminalised by this provision.

Photo of Peter Dowd Peter Dowd Labour, Bootle

With this it will be convenient to discuss amendment 36, in clause 3, page 2, line 29, leave out paragraph (b).

This amendment seeks to limit the range of acts potentially criminalised by this provision.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

I am speaking to the amendments, which we have some sympathy with, on behalf of the hon. Member for North East Fife, who is not in her place at the moment. We are moving on from the lock-on offences we debated this morning to a new offence of obstruction of major transport works. Amendments 35 and 36 would remove some of the language that perhaps makes the scope of the clause too broad. We have already covered the principle behind the objections to the present clauses, which are similar to those on locking on and being equipped to lock on. These clauses are broad, and indeed potentially infinite, but as was said this morning, restrictions on people’s fundamental rights must be limited to what is absolutely necessary.

I repeat that no one is denying that people who commit criminal acts should be arrested and charged—in many cases, we know that that is why protesters do what they do—but there are already laws to deal with these behaviours. The Public Order Act 1986 contains offences of organising or taking part in a prohibited trespassory assembly. Where a chief of police reasonably believes there will be a trespassory assembly that may result in serious disruption to the life of the community, they can place a pre-emptive ban on it, and breaching that ban is a crime.

The key point we seek to make in thew amendment is that there must be a balance. The Government should not go too far down the road of criminalising protest; that is not what happens in our democracy, and that is why the hon. Member for North East Fife tabled amendments 35 and 36.

Amendment 35 would limit the offence of obstruction to blocking the core activities of major transport works, removing clause 3(1)(a)(iii), which appears to be a catch-all for any protest near or relating to major works. Would that provision also catch construction workers who are on strike at their own places of work or a protest at the entrance to the land where works are being done?

Amendment 36 would remove reference to interfering with or moving apparatus, because the provision in the clause is broad and goes too far. The disruption from apparatus being moved is not such that the Government should seek to introduce legislation to stop peaceful protest.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

Amendments 35 and 36 take issue with the scope of the offence of obstructing major transport works. I understand that the hon. Lady is concerned about the wide scope of the offence, but it is clear from the evidence that the Government need to protect vital transport construction sites across the country. I think the whole Committee was shocked to hear evidence from HS2 that the cost of protest to the scheme was £122 million and likely to rise to £200 million.

Amendments 35 and 36 attempt to limit the potential acts that fall within the offence by removing references to any acts that obstruct steps “in connection with”, or “reasonably necessary” to facilitate, construction or maintenance of a particular project. They would also remove references to acts that interfere with, move or remove any apparatus that relates to the construction or maintenance of major transport projects.

As I said, I understand that there are concerns about the wide scope of this offence, but a balance needs to be struck. Protest against transport sites comes in many different forms and is constantly evolving, as a small minority seeks new ways to inflict further disruption. It is entirely proportionate for this offence to capture behaviour that obstructs any stage of these projects. Furthermore, it is right that this offence should protect from interference key machinery, materials and other necessary apparatus, without which construction or maintenance of projects cannot occur.

It is worth remembering that we are talking about projects that have been decided through a democratic process. In many ways, individuals seeking to impede such projects are latter-day King Canutes. seeking to stop something that has been decided by the House of Commons or other democratic process and should therefore be allowed to take its course.

Photo of Natalie Elphicke Natalie Elphicke Conservative, Dover

Does the Minister agree that the health and safety measures that are so vital to protect everyone, as well as equipment, on construction project sites are simply not respected by those seeking to disrupt, and that that puts everyone at risk?

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

My hon. Friend makes a powerful point, which we have seen throughout some of the protest tactics that we aim to deal by means of the Bill. They include a complete disregard for the safety not just of the protesters but of the workers on the sites affected and indeed the police, who have to go and remove the individuals.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

What is the Minister’s view on the Prime Minister’s intention to lie in front of bulldozers at the start of the construction of the third runway at Heathrow?

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

The Prime Minister was then Mayor of London and made his views known in a light-hearted way to indicate his opposition. If he had lain down in front of the bulldozers on a project democratically decided by the House, he would have committed an offence. Having said that, it is fair to say that the leaders of all major parties at the time went and planted trees at Sipson in the hope that a forest would flourish there. We will see whether those trees last. In any event, for the reasons I have outlined, I urge the hon. Lady to withdraw the amendment, with which the Government cannot agree.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

Given that the amendment is not mine and I have only supported it in principle, I will not press it to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

I beg to move amendment 37, in clause 3, page 3, line 3, after “fine” insert

“not exceeding level 2 on the standard scale”.

A person convicted of an offence of obstructing major transport works may be subjected to a fine. Under this clause there is currently no limit on the fine that may be imposed. This amendment would place a maximum limit on the fine.

I think that if the hon. Member for North East Fife were here, she would say that this amendment makes the same point that she has made in previous amendments and that she has nothing to add.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

We oppose this amendment for the same reason I have given in consideration of previous amendments in a similar vein. Lowering the maximum fine for the offence to £500 is simply not proportionate. The penalties available under the Bill must be proportionate, otherwise they will not be a sufficient deterrent. I urge the hon. Lady to withdraw the amendment.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

Clause 3 introduces a new offence of obstructing the construction or maintenance of any major transport works. That would include if a person obstructs a construction worker

“in setting out the lines of any major transport works”, or

“taking any steps that are reasonably necessary for…facilitating, or in connection with, the construction or maintenance of any major transport works”.

It will also be an offence to interfere with, move or remove

“any apparatus which…relates to the construction…of any major transport works”.

There is a reasonable excuse defence, and the maximum penalty is 51 weeks imprisonment, or a fine, or both.

There is an interesting two-part definition of what constitutes major transport works for this offence. First it is transport infrastructure covered by Acts of Parliament which provide legislative authority, HS2 being the obvious example. The second is nationally significant infrastructure projects that have been granted development consent orders under section 114 of the Planning Act 2008. For example, that could be new airports or airport extensions, major road projects, or railway works.

Like other clauses, the clause is drawn far too broadly and risks having a chilling effect on protest. This clause seems particularly targeted at climate protesters. Megan Randles, Greenpeace UK’s political campaigner, said:

“Time and again, it’s activism that has dragged a reluctant UK government into confronting vital issues, whether it’s the climate crisis or women’s rights. Ministers who…talk about freedoms at every turn should rethink this attack on one of the most fundamental freedoms we have.”

Furthermore, this Bill arrives before the protest clauses in the Police, Crime, Sentencing and Courts Act 2022 have come into effect, and that seems illogical. Would it not make more sense to introduce into law the statutory instruments for those clauses before bringing in a new raft of proposals?

People across the country want to be able to protest against major transport projects or changes in their local area, such as a library closure, or changing woodland into a car park. That fundamental right must be protected, but so must our vital infrastructure and major transport works. There is a balance to be struck. When the measure was debated in the House of Lords, many Members of that House said that the offence of obstructing transport works in clause 3 was “overreaching” and “unnecessary”. Liberty has pointed out that such a low threshold risks disproportionately interfering with people’s rights under articles 10 and 11 of the European convention on human rights and the Human Rights Act.

The Joint Committee on Human Rights felt that there could be issues with the proportionality and necessity of the measures, and that their potential to stifle peaceful and legitimate protest could mean that they were in breach of articles 10 and 11. The Home Office says that the clause is proportionate because the court would take into account the specific facts, but Liberty points out that the Home Office’s human rights analysis says nothing about whether the offence is necessary or how, and the extent to which, it adequately weighs individuals’ fundamental rights to freedom of expression and assembly in the balance of rights.

In evidence, Sir Peter Fahy, who was the chief constable of Greater Manchester police, and before that the chief constable of Cheshire constabulary, said:

“I would still doubt whether the appetite would be there—the judicial appetite. Police officers are very wary…when cases get to court, the judiciary or the magistrates often give out very minor sentences—whatever might be allowed in the legislation. They find, as happened with the Sarah Everard case, that higher courts then disagree and bring in human rights legislation, or bring in a different interpretation that is in the legislation, which then completely takes the legs of the police from underneath them.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 53-54, Q116.]

Will the Minister respond to the idea that if the courts take into account human rights legislation, they may not see as proportionate the punishments introduced by these new provisions? Surely, he does not want to give the police the difficult job of interpreting and applying to peaceful protesters such complex and broadly drawn powers, only to have the courts disagree with them.

During the Lords Report stage of the Police, Crime, Sentencing and Courts Bill, when these offences were first proposed, the JCHR raised a concern about their excessive breadth. For example, the proposed new offence of obstructing major transport works would potentially cover a wide range of minor acts, including moving any apparatus that relates to the construction or maintenance of major transport works, and even moving any apparatus that belongs to a person acting under the authority of the person in charge of the works. The Bill contains no requirement that these acts are committed with any disruption or disruptive intention. Will the Minister explain how he understands the term “apparatus”? I think it would be helpful to the Committee to understand how far this goes. The terms “interfere”, “move” and “remove” are also very broad. Perhaps he can shed some light on the kinds of actions that would be covered by those terms.

Amnesty says:

“This provision fails the three-part test of legality, necessity and proportionality. The language is again vague and so broad that even coincidental obstruction of construction work by a big march that just happens to pass through a street where such works are ongoing could be covered in its scope.”

The problem, as articulated by those who gave evidence, is that our vital public infrastructure, such as HS2, should not be seriously disrupted to the detriment of the community and our national life, but we must also protect the rights to free speech and public protest. We believe that the Bill does not manage to deliver either of those objectives. During the evidence sessions, Steve Griffiths, managing director of London Stansted airport, said a couple of times that he was not the expert on legislation. He said:

“I am probably not qualified to comment intensely on the Bill”.–– [Official Report, Public Order Public Bill Committee, 9 June 2022; c. 34, Q60.]

Another thing we do not understand about the legislation—we covered this briefly this morning—is that using the term “serious disruption to two or more people” is not a sensible way to draft legislation. We need a better definition of serious disruption to start with and to make sure that any legislation we pass is targeted only on the kinds of cases we heard about in the evidence session.

With the deportation flight protest that Mr Griffiths spoke to us about last week, the problem was not that the protesters could not be arrested and people could not be taken away. They were arrested and they were removed. The issue was with the charge that was laid when they went to court. The disruption that those 1,700 people faced that day would not change if the new offence had existed at the time and it is likely that these protesters would not have been deterred from protesting since they were already breaking existing laws.

The police and courts already have a range of powers that they can use in the minority of cases that involve serious disruption or criminal activity. These include wilful obstruction of a highway, criminal damage, aggravated trespass, public nuisance, breach of the peace, breach of conditions on processions and static protests, harassment, threatening, abusive and disorderly behaviour, trespassory assemblies, preventing others from going about their lawful business and injunctions. John Groves from HS2 acknowledged that in the evidence session:

“We have recorded 1,600 incidents against HS2 since the end of 2017. All of that is unlawful activity—trespass, violence against staff, criminal damage.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 18, Q28.]

We think there is a strong case for using injunctions where appropriate to deal with the kind of disruption we saw from protesters at HS2. Chris Noble, the NPCC lead for protest, said:

“Injunctions have been used increasingly frequently, but the challenge is framing them appropriately and securing them within a reasonable timescale so they can have maximum impact.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 8, Q7.]

As we heard, HS2 has asked the court to grant a full route-wide injunction, which will have some effect on the behaviour of illegal protesters. Not only can they potentially act as a deterrent but, crucially, they include judicial oversight, which ensures that powers are not misused. The Government could be working to ensure that more effective partnerships are in place to ensure that companies co-operate and that the police and authorities have the capacity, training and guidance in place.

I want to make it clear again that we are horrified by illegal disruption. Some £126 million of taxpayers’ money is spent on protester removal or the cost to HS2 of dangerous and illegal protest. It is not a question of whether we agree or not but a question of what we should do about it. The Bill will not fix these problems, it will not speed up the removal of protesters who are causing serious disruption and it will not be a deterrent for those who want to break the law, for whom fines are of no consequence.

We heard from witnesses such as Steve Griffiths about the large number of people affected by the protests and the scale of the disruption, but that does not mean that we should accept broad-brush legislation that will not even address these issues. The new offences are unlikely to act as a deterrent for the hardline repeat offender protesters we are talking about. Their objective, often, is to be arrested. The more offences for which it is easier to be arrested might be the effect they desire.

Liberty’s briefing quoted Lord Beith, saying that,

“if you try to write legislation around an individual set of circumstances that has arisen, you get into trouble. You turn into general law attempts to deal with very specific cases.”

The reality is that the Bill will not make it easier to minimise the disruption from protests on major transport works. It will just bring more and more people who are peacefully protesting into the criminal justice system.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice) 2:15 pm, 14th June 2022

It is a pleasure to serve under your chairmanship, Mr Dowd. I am extremely concerned about the unintended consequences that will result from the introduction not just of this clause but of the other provisions as more and more people are criminalised, as my hon. Friend the Member for Croydon Central said. We have already heard from police chief Chris Noble about the additional stresses the Bill’s contents will have on the police service and the difficulty the police may well have in interpreting which action they can take in which circumstances.

As the Government strive to build up the number of officers, and to replace at least some of those whom consecutive Governments have got rid of, we can expect more arrests, more charges, and perhaps even more convictions, and there will be a knock-on effect on our prisons. I have another interest, alongside that of improving public protection: my nephew Lewis Cunningham, who lives in Beverley, starts his police training in September. I am sure that colleagues across the House will join me in wishing him well. [Hon. Members: “Hear, hear!”] I thank them for that.

My hon. Friend the Member for Croydon Central has outlined in great detail the flaws in the clause and in the rest of the Bill. There will be another major knock-on effect of the Government’s measures, which will potentially criminalise thousands of people: the measures will affect our courts, which still have dire backlogs. The most recent statistics from Her Majesty’s inspectorate of constabulary and fire and rescue services reveal that the Crown court backlog remains great, and despite various measures having been put in place—they range from extra sitting days to Nightingale courts—it will take years to get the backlog down to a reasonable and manageable level. In the autumn Budget statement, the Treasury claimed that the backlog was caused by the coronavirus pandemic. That is completely false.

Photo of Peter Dowd Peter Dowd Labour, Bootle

Order. I appreciate that this is an important matter, but I must ask the Member to stick to the clause, which is on the obstruction of major transport works.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

I accept the reprimand, Mr Dowd, but I wanted to emphasise that the Bill has unintended consequences. It will have a knock-on effect on the number of arrests made, the number of police available, the number of court days required, and the number of officers called to court. Those are all consequences of this legislation, which I submit is totally unnecessary, and will criminalise many people. The crisis in the justice system could have been avoided, but this legislation may add to the problem. I am skipping over some of the stuff in my notes that relates directly to courts.

The Chancellor talked about providing more police officers; the same 20,000 were promised years ago, many of whom remain to be recruited. If that promise is fulfilled and more people are brought to justice—I keep saying this—it will mean more officers in court, more arrests, and more stress on the system. The Government need to account for that. We have seen some changes. There have been supportive comments from some people in the justice system, but the bottom line is that the impact on the courts will be tremendous. A National Audit Office report says,

The Ministry has removed the limit on the number of Crown Court sitting days, but their use relies on courts having enough physical and judicial capacity.”

That capacity does not exist.

Photo of Peter Dowd Peter Dowd Labour, Bootle

Order. I appreciate the wider ramifications of the issue, but I must exhort the Member to focus his attention on the clause.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

I recognise that, Mr Dowd, but the whole system is in crisis, and the point that I am trying to get across is that the Government have not properly addressed the Bill’s impact on the entire justice system. We cannot look at these measures in isolation; we have to look at their effect across the whole system. The measures could needlessly criminalise hundreds, if not thousands, of people, so we have to consider their knock-on effects.

The crisis in the system means that justice can often be denied, even to those impacted by protesters or those locking on. Those affected deserve justice; unfortunately, it will have to come in the longer term, given the breakdown in the system.

I was going to quote former Member Anna Soubry on the problems that she had in court, but I will not. The Government must look at these measures in the round, rather than in isolation. Resources will need to be available across the piece, and there is no provision in this clause, or any other clause, to ensure that the entire system operates effectively. The time for action is well past. I submit to the Minister that instead of messing around with clauses as simple as this one, the Government should start tackling the crisis in policing, the rise in violent crime, the epidemic in antisocial behaviour and the massive courts backlog.

Photo of Peter Dowd Peter Dowd Labour, Bootle

I must ask the Member to stick to the clause. I have asked three times now.

Photo of Alex Cunningham Alex Cunningham Shadow Minister (Justice)

With that third reprimand, Chair, I shall wind up my remarks.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

I think we can take from that that the hon. Gentleman is voting against the clause. As the hon. Member for Croydon Central says, the clause creates a new offence of obstructing major transport works. We heard in strong evidence from the police, High Speed 2 and others why the offence is needed, and why the offence should ensure that all stages of construction and maintenance are protected from disruptive action, including necessary steps prior to construction, such as ecological surveys, and why the offence should also cover the removal of, or interference with, apparatus needed for construction.

I reassure the hon. Lady that “apparatus” is a usual term in legal circles; any strict definition in the Bill might result in the Bill not being future-proof, or in its being too definitive in a way that protesters could find a way around. I am sure that it will not be beyond the wit of courts to interpret what “apparatus” means. When they do, anyone found guilty of the offence will face a maximum penalty of six months’ imprisonment, an unlimited fine or both.

As with other offences in the Bill, we have provided a reasonable excuse defence. In reference to something the hon. Lady said earlier, there is a defence for trade disputes, so those on strike will have a defence against this kind of offence. As she pointed out, “major transport works” are defined as works that have either been authorised by an Act of Parliament, such as HS2, or by a development consent order under section 114 of the Planning Act 2008, such as the Silvertown tunnel. The definition ensures that transport works of strategic importance in England and Wales are protected.

The hon. Lady raised the issue of human rights. That is a common issue that courts have to address when looking at offences committed by all sorts of people in all sorts of circumstances, and it is something we are used to. I confess that I am confused by the hon. Lady’s position. She is encouraging and supportive of national injunctions, which carry unlimited fines and prison terms that depend on the views of the judge at the time. They also provide less protection for the accused, as judges generally require a lower burden of proof in deciding whether the case is proven. Of course, we heard strong evidence last week that injunctions are cumbersome, long-winded, expensive for people to put in place and unpredictable in their efficacy.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

We will talk properly about injunctions under the new clauses, because we have a new clause on that. To clarify, we are not calling for big thing called a national injunction; we are calling for a national approach to dealing with all the complications that arise when there is a large infrastructure issue, and when we might need local authorities and the private sector, working with Government, to do what is needed as quickly as possible. We did not suggest a national injunction that is one chunk of a thing.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office)

Maybe I misheard the Leader of the Opposition on the television when he called for exactly that: a national injunction. The hon. Lady has neatly pointed out the complexity—for example, in HS2, there are different landowners, geographies, areas and phases of development—of obtaining an injunction that covers the whole of the works. The point still stands that, as far as I can see, she is content for people to be punished and to go to prison under an injunction, but strangely not under a criminal charge. I do not understand that asymmetry. As far as I can see, a criminal court has greater protections for our fellow citizens who are accused of such crimes—not least a higher burden of proof—than the civil courts, where injunctions are heard.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office)

The Minister made that point to several of the people who gave evidence to us, but they did not accept it. Our point is that the Bill automatically criminalises things that are not criminal offences. An injunction is time-limited, specific, and pertains to an area where serious disruption is being caused; that is not the same as a lock-on offence, which might just be some women locking arms and therefore automatically committing a criminal offence. Those are very different things.

Photo of Kit Malthouse Kit Malthouse The Minister of State, Home Department, The Minister of State, Ministry of Justice, Minister of State (Ministry of Justice and Home Office) 2:30 pm, 14th June 2022

Part of the hon. Lady’s repeated case is that there are already plenty of criminal offences with which we could charge all these people. There is no one yet who she thinks should not have been charged with an offence. Some of them, I am afraid, seem to get off on technicalities and through loopholes; I outlined a couple of examples. High Speed 2 in particular expressed frustration at the police’s inability to get some charges to stick. We are trying to satisfy the hon. Lady’s requirement for more specificity in charging decisions, as well as creating a sentencing regime that we hope will act as a deterrent. It is unacceptable that a handful of individuals repeatedly delay and add costs to important works that have been through the democratic process. They are vital to the levelling-up agenda, and the measures in the clause will support them.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.