Clause 12 - Serious disruption prevention order made on conviction

Public Order Bill – in a Public Bill Committee at 2:00 pm on 16 June 2022.

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

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

Clause 12 will protect the British public from the small minority of protesters who are determined to repeatedly inflict disruption on those who simply wish to go about their daily lives. In 2021, approximately 170 Insulate Britain protesters were arrested about 980 times for obstructing motorways. That means that each protester was arrested on average nearly six times, on separate occasions. It is clear that something needs to be done to prevent these people from returning time and time again to ruin the daily life of the wider public, and to stop them cocking a snook at our justice system.

We have heard, and no doubt will hear more, criticism of serious disruption prevention orders, but there is one big misconception that I want to address: the claim that SDPOs ban protests. Critics have referred to the report by Her Majesty’s inspectorate of constabulary and fire and rescue services about the policing of protest, which found protest banning orders to be incompatible with human rights legislation, and we heard that during our evidence day. But the clue is in the name: HMICFRS considered orders that sought to outright ban people from protesting. SDPOs only enable the independent judiciary to place necessary and proportionate conditions on people to prevent them from engaging in criminal acts of protest and causing serious disruption time and time again. Those conditions could include curfews or electronic monitoring. Most importantly, they will be for the courts, not Government, to decide.

Under this clause, an SDPO can be imposed on a person convicted of a protest-related offence where, in the past five years, that person has been convicted of another offence or has committed other specified protest-related behaviour. A breach of an order will be a criminal offence, punishable by an unlimited fine, six months’ imprisonment, or both. An SDPO can be made if the court is satisfied, on the balance of probabilities, that the person has, on two or more occasions, been convicted of a protest-related offence; has been found in contempt of court for a protest-related breach of an injunction; has caused or contributed to a protest-related criminal offence or breach of an injunction; or has carried out, or caused or contributed to the carrying out by another person of, protest-related activities that resulted, or were likely to result, in serious disruption.

Along with the stop-and-search measures, these measures provide pre-emptive powers for the police. Officers will be able to interrupt and arrest those who breach the conditions of their SDPO before they have the opportunity to commit another disruptive act. SDPOs mirror many characteristics of injunctions, which the Opposition parties have been so keen for us and others to use. I urge that clause 12 stand part of the Bill.

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

A raft of clauses relate to serious disruption prevention orders, but clauses 12 and 13 are the most significant, so I will direct focus my attention on them. The shadow Home Secretary, my right hon. Friend Yvette Cooper, and I put our names to amendment 12, which would have left out the entirety of clause 12.

The clause, as we know, creates a new civil order—the serious disruption prevention order. These orders can be imposed on individuals who have a previous conviction for a protest-related offence and who have participated in another protest within a five-year period. There is a very broad list of conditions that may be met, including that the offender has been convicted of another protest-related offence; has been found in contempt of court for a protest-related breach of an injunction; has carried out activities related to a protest that resulted, or were likely to result, in serious disruption to two or more individuals or to an organisation; has caused or contributed to any other person committing a protest-related offence or protest-related breach of an injunction; or has caused or contributed to the carrying out by any other person of activities related to a protest that resulted, or were likely to result, in serious disruption to two or more individuals or to an organisation. That means that someone can be given an order if they have one previous protest-related offence and just contribute to another person’s activities, which were likely to result in serious disruption to only two people. As in so much of the Bill, that is a low threshold for such a restriction on someone’s rights.

Serious disruption prevention orders can last anywhere from a week to two years, with the potential to be renewed indefinitely. They can ban individuals from protesting, associating with certain people at certain times, and using the internet in certain ways. Those subject to the orders might have to report to certain places at certain times, and even be electronically monitored. If they fail to fulfil one of the requirements without a reasonable excuse, provide the police with false information, or violate a prohibition in the SDPO, they will have committed a crime. The consequence is a maximum of 51 weeks’ imprisonment, a fine, or both.

When we debated these clauses previously, we had, as the Minister referred to, a conversation about protest banning orders and the work that has gone into looking at them. In the evidence session, the Minister said of SDPOs that

“this measure is a conditional order, which may place restrictions or conditions on somebody’s ability to operate in a protest environment.”

However, the restrictions are significantly broader than just being prevented from attending protests. Martha Spurrier from Liberty pointed out that

“the serious disruption prevention orders have the capacity to be absolute bans in the same way as the protest banning orders...under judicial supervision—but... to a low standard of proof.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 69, Q131.]

Again, the Government are extending to peaceful protest powers that we would normally make available just for serious violence and terrorism.

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

Perhaps I can reiterate the point that I made, because I am interested in the hon. Lady’s view, although I know we want to get through a lot this afternoon. Other than, for example, the condition of electronic monitoring, which we will come to, what would be the difference between an injunction, on which she is so keen and which could be used as a complete ban on attending any protest, and an SPDO, which has many more safety measures around it?

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

I do not think that an SPDO has much more safety around it. The conditions under which someone can get an order—which I have just read out—include that they have caused, or contributed to, the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals. Conditions could be put on people and, if those people were deemed to have not adhered to them, new conditions could continue indefinitely, or people could go to prison or be fined. There is a specific condition that is put on an individual, with a very broad and legally difficult to identify range of conditions that would then be possible. It is different.

Police officers themselves, whom we turn to so often, said that an SPDO is

“a severe restriction on a person’s rights to protest and in reality, is unworkable”.

It is worth reflecting on what the inspectorate said about protest banning orders:

“We agree with the police and Home Office that such orders would neither be compatible with human rights legislation nor create an effective deterrent. All things considered, legislation creating protest banning orders would be legally very problematic because, however many safeguards might be put in place, a banning order would completely remove an individual’s right to attend a protest. It is difficult to envisage a case where less intrusive measures could not be taken to address the risk that an individual poses, and where a court would therefore accept that it was proportionate to impose a banning order.”

The inspectorate’s report also said:

“This proposal essentially takes away a person’s right to protest and…we believe it unlikely the measure would work as hoped.”

In the evidence sessions, the National Police Chiefs’ Council protest lead said:

“unless we knew the exact circumstances of the individual it would be hard to say how exactly the orders could be justified.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 15, Q23.]

Senior officers noted that protest banning orders would

“unnecessarily curtail people’s democratic right to protest” and be

“a massive civil rights infringement”.

In the words of Liberty, the orders are

“an unprecedented and highly draconian measure that stand to extinguish named individuals’ fundamental right to protest as well as their ability to participate in a political community. They will also have the effect of subjecting individuals and wider communities to intrusive surveillance.”

It is worth digging down a little into the detail of these prevention orders. For example, would buying a lock, paint or superglue, observing a protest from afar or holding a banner be enough to contribute to a protest-related offence? As the noble Lord Paddick noted at Report stage of the Police, Crime, Sentencing and Courts Bill, when these measures were first introduced,

“you do not even have to have been to a protest to be banned from future ones.”—[Official Report, House of Lords, 17 January 2022; Vol. 817, c. 1439.]

That is where we are.

Restrictions imposed via a serious disruption prevention order are not necessarily directed at preventing anything criminal, but at preventing the facilitation of non-criminal protest-related activities, which could include sharing songs or chants, flag designs or just some information about where protests are being held. Underpinning our concerns is the wide and diffuse definition of serious disruption, and the power of the Secretary of State to redefine it.

For those given an SDPO, there are a wide set of requirements and prohibitions, which, again, might interfere with rights to respect for private and family life and to freedom of thought, belief and religion, expression, and assembly. Individuals might be prevented from associating with particular people or community members. They might not be able to possess locks, paint or glue. Crucially, they would not be allowed to participate in protests. They might also not be allowed to worship—the Quakers see direct action as a crucial part of their faith. Although there is a safeguard in the Bill, it does not match up to the overreach that the clauses represent.

The enforcement of an SDPO is also potentially problematic. Let us take electronic monitoring. There is the potential for 24/7 GPS tracking under the Bill. We are unclear whether that is proportionate for the undefined prevention of serious disruption.

Failing to comply with an SDPO could result in a maximum of 51 weeks in prison, a fine, or both, but none of the breaches is criminal without an SDPO. The clause criminalises potentially normal activities. When we consider that there is no limit to the number of times that an SDPO can be renewed by the court, we risk people being pushed into a cycle of criminalisation and indefinite periods of not being able to protest or associate with people, look on the internet or take part in other normal parts of life.

For something that places really serious restrictions on a person’s liberty, the court can make an SDPO if it is satisfied

“on the balance of probabilities that the current offence is a protest-related offence”, rather than that being beyond reasonable doubt. That is the civil standard of proof. SDPOs on conviction can be made on the basis of lower-quality evidence.

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

I am conscious of the point the hon. Lady is making about the infringement of people’s liberties. Will she accept that this is not a novel concept and in fact happens already? For example, she will remember the incident where anti-lockdown protesters chased and harassed a journalist outside Downing Street. When that happened, those protesters got a fine and unpaid work, but the judge also banned them from attending near Parliament and in Whitehall for 18 months as part of the condition of their punishment. This concept is not a novel one. In many ways, codifying this seems a sensible thing to do, rather than leaving it entirely to judicial discretion.

Photo of Sarah Jones Sarah Jones Shadow Minister (Home Office) 2:15, 16 June 2022

I will come in a moment to similar orders that I think the police are struggling with in terms of how they are implemented. I hope to make a point about some of the problems with these measures as they stand.

Amnesty’s written evidence states:

“Even where based on previous convictions, these provisions are wholly disproportionate—they restrict the exercise of a fundamental right of peaceful assembly based on past conduct and there is no requirement that the past conduct be of a serious nature. Given the extremely broad and vaguely defined list of potential convictions that could be used to impose an SDPO, this provision…will risk depriving a large number of people for up to five 5 years of a fundamental universal human right.”

We heard from Amnesty in the evidence sessions about how there is

“a disconnect…between the statements that the UK puts out internationally and the role we see ourselves playing in the world community, and the kinds of measures we are putting in place on our own domestic legislative front.”––[Official Report, Public Order Public Bill Committee, 9 June 2022; c. 65, Q124.]

Amnesty noted Lord Ahmad’s closing remarks at the 49th session of the Human Rights Council. He made reference to the resolution about the need to promote and respect the rights of human rights defenders around the world. He said that the resolution essentially requires that all states refrain from measures that excessively criminalise human rights defenders and their rights to freedom of expression.

Amnesty’s written evidence states that it is

“striking to note that many of the provisions in the”

Public Order Bill

“mirror similar public order provisions in countries considered by the UK to be overly repressive, including through placing undue restrictions on the rights to freedom of assembly.”

When the Police, Crime, Sentencing and Courts Bill comes into force, the Government could stop protesters singing the Ukrainian national anthem too loudly in the street, while the SDPOs in clause 12 mirror the restrictions in countries where laws prohibit certain categories of people from organising protests. The UK’s reputation on the world stage as a beacon of democracy, freedom of expression and a style of policing that works through a social contract with the public based on consent is at risk of being undermined by the provisions in this Bill. As Amnesty wrote,

“The UK often uses its voice on the international stage to condemn repressive policies in a number of countries.” — quite right. We should not have such policies in this country.

Serious disruption prevention orders, as we know and as the Minister has just said, mirror the kinds of orders that the Government have brought in to deal with other things, such as serious violence. Serious violence reduction orders were in the Police, Crime, Sentencing and Courts Bill and are yet to be implemented. They will be piloted first.

Knife crime prevention orders were in a previous Bill, and I was a member of that Bill Committee. It would be useful to look at how knife crime prevention orders are working in practice, because it does not look at the moment as though they are working. An article from last September said that the pilot had failed to result in a single court action during the first six weeks of the 14-month trial that started last July. The PA news agency’s freedom of information request showed that only two orders were applied for by the Met during the first six weeks of the trial, and both were turned down by magistrates.

Knife crime prevention orders have challenges in themselves. We debated at the time how we would enforce them if we put a condition on somebody that they have to attend a certain place. For example, in the knife crime situation, they have to attend a meeting with a youth worker every week. If they do not attend, is it really the job of the youth worker to intervene in the criminal situation and report to the police that the individual has not turned up? The point of the youth worker is to build relationships with that individual. We know that there are significant problems. Does the Minister have any more information on how knife crime prevention orders are working? There could be similar issues.

As the Minister has acknowledged and as we have said many times, it is a very small proportion of hard-line protesters who are causing disruption and who we are trying to deal with. Our concern is that the Government are introducing wide-ranging laws on protest that will potentially bring a large number of peaceful protesters into the criminal justice system, as well as applying disproportionate penalties when there are already significant laws in place.

One point about the existing laws that I have not made yet, which is brought out in places such as the Matt Parr report, is that there are some offences for which we do not gather data. We do not know, for example, how many times the police have made applications to prohibit trespassory assemblies, so in some cases, we know that there are offences but do not have the numbers on how often they are used.

I will conclude by saying, as I have said many times, that there is a British way to deal with these things—and clause 12 does not sit happily alongside it.

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

The fount of these orders is the antisocial behaviour order, which as you will remember, Mr Mundell, was introduced by the then Labour Government in 1998. Alarmingly, I do not think that the hon. Lady has paid enough attention to the high bar that all this conduct must cause serious disruption. She also seems to have little faith in the ability of our independent judiciary to form a judgment about when the orders should be applied.

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

Division number 4 Public Order Bill — Clause 12 - Serious disruption prevention order made on conviction

Aye: 7 MPs

No: 6 MPs

Aye: A-Z by last name

No: A-Z by last name

The Committee divided: Ayes 7, Noes 6.

Question accordingly agreed to.

Clause 12 ordered to stand part of the Bill.