My Lords, I have a duty, first, and then, I hope, the privilege to make some comments of my own. My noble friend Lord Hendy is unable to be here to speak to his Amendment 304, so, if the Committee does not mind, I will read his remarks in support of that before I make a few remarks of my own on this group.
He says the following: he is grateful to my noble friend Lord Hain for adding his name to the amendment and to me for reading these remarks. The Delegated Powers and Regulatory Reform Committee, under the excellent chairmanship of the noble Lord, Lord Blencathra, on which he has the privilege to serve, criticised in its report of 13 September Clauses 55, 56 and 61 of the Bill for the surrender of the definition of certain phrases to delegated legislation, thus bypassing the full scrutiny of primary legislation.
At Second Reading, the noble Lord, Lord Blencathra, emphasised that his committee took no position on the substantive provisions but recognised that they are contentious and should therefore be in the Bill. My noble friend Lord Hendy goes on to say that he and many other noble Lords supported that argument, but
the Government have not taken heed of this criticism, and the power remains to define by secondary legislation some very contentious phrases in these sections.
I continue to support the committee and the amendments brought by noble Lords—particularly that of the noble and learned Lord, Lord Judge—to obviate this procedural but fundamental flaw, but Amendment 304 goes beyond the procedural to the substance of Clause 56. That clause will be the basis for yet further restriction on the right to picket in an industrial dispute. That is objectionable because the right to picket, still extant in UK law, is already constrained in law in multiple ways which go far beyond those imposed on other kinds of public assembly. Further restrictions on the right are simply not warranted. It would be tedious to review the law on picketing today. Suffice to say, it is already highly regulated by statute, case law and its own code of practice.
By the Conspiracy, and Protection of Property Act 1875, 146 years ago, it ceased to be a criminal offence to attend
“at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information”,
although the use of violence, intimidation, damage to property, persistent following, watching and besetting were all made statutory offences. From this beginning, the right to picket was established. It has been further restricted many times since, including by the outlawing of picketing of domestic premises. The current formula is Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992. It reads:
“It is lawful for a person in contemplation or furtherance of a trade dispute to attend … at or near his own place of work, or … if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”
The Act defines both “place of work” and a “trade dispute”.
I should add in relation to the latter, in case any of your Lordships were unaware of it—which I doubt—that collective action
“in contemplation or furtherance of a trade dispute”
will not be lawful without the prior fulfilment of many statutory conditions. These include service of a highly complex notice of ballot on every relevant employer; a ballot in favour, which must conform with complicated and demanding thresholds on turnout and majority; and service of an equally complex notice of industrial action on every relevant employer. There are many provisions regulating all this in detail and many other requirements, such as the provision of mandatory qualified scrutineers, full postal balloting—no workplace or electronic voting is permitted—and so on.
Case law has held that Section 220 on the right to picket does not protect against private nuisance—interfering with someone’s enjoyment or use of land—nor against public nuisance in the form of violence, intimidation, molestation, excessive numbers, obstruction, blockade or an unreasonable obstruction of the highway. There is no exemption from the criminal law or the law of trespass, so this is all covered.
The Code of Practice on Picketing—the latest edition of which is from 2017—is taken into account by the courts and runs to 19 detailed pages of guidance. The code provides, among many other things, that
“pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate.”
In consequence, a requirement that there be no more than six persons on a picket line is applied as though it was statute law by both the police and the courts.
As if that is not enough, the Trade Union Act 2016 imposed yet further restrictions. The union must appoint a picket supervisor to supervise the picketing. They must be an official or other member of the union familiar with the code of practice and have taken reasonable steps to tell the police their name, where the picket is to take place and how they can be contacted. The picket supervisor must be in possession of a letter stating that the picketing is approved by the union, which must be shown to the employer if sought. This is very highly regulated.
The possibility of flying pickets and anything else that any of your Lordships might think requires restraint has already been closed off. Surely all this is enough. Picketing in recent years under this strict legislative regime has not thrown up problems which require further legislative redress, yet Clause 56 will give the police the power, in many sectors, virtually to extinguish life from the remains of this emaciated right.
Among other things, the clause gives power to a senior police officer to impose conditions on an assembly where the officer reasonably believes that noise generated by persons taking part may result in
“serious disruption to the life of the community”
or
“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”.
Senior officers seeking the meaning of these phrases will not find them in the Bill, which does not define either. Instead, the Bill will give power to the Secretary of State to create definitions by regulation. We can only guess how the Secretary of State might choose to define these phrases. However, we have a strong steer as to what she currently has in mind, because she has provided a draft set of regulations in relation to the meaning of the phrases. There is not, so far as I can ascertain, a draft of regulations to define
“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”,
but the draft regulations that deal with a
“serious disruption to the life of the community”
state:
“It may be regarded by the senior police officer as serious disruption to the life of the community if there is … a significant delay to the supply of a time-sensitive product impacting on the community, or … prolonged physical disruption to access to essential goods and services impacting on the community.”
They go on to say that a
“‘time-sensitive product’ includes newspapers and perishable items”
and
“‘essential goods and services’ means … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … a place of worship … an educational facility … a service relating to health, or … another critical public service.”
If pickets in a trade dispute are successful in persuading workers not to cross the picket line, it is obvious that, depending on the nature of the employer’s business, picketing may involve significant delay to the supply of time-sensitive products or prolonged physical disruption to access to essential goods and services. Accordingly, under Clause 56, the assiduous senior police officer may well impose conditions on workers who legitimately but noisily picket their place of work in order to persuade others not to work during a lawful industrial dispute in relevant sectors. Such relevant sectors will be where the workplace is involved in the production or delivery of food, water, power, railways, buses, places, lorries, ships, newspapers, mail, TV, radio, film, education, health, local government and so on. It is hard to think of many workplaces at all that will not be included.
Though the Explanatory Notes to the Bill do not expressly refer to picketing in an industrial dispute, it is plain that these draft regulations have given the game away. Clause 56 is precisely aimed at picketing in a lawful industrial dispute, whatever other assemblies may also be impacted. Accordingly, Amendment 304 proposes to exclude lawful picketing—subject to all of that regulatory regime that my noble friend Lord Hendy sets out—in legitimate trade disputes from these additional restraints. The Minister is invited to agree the amendment in order to exempt picketing from this intended regime, given that it is so closely regulated.
I am grateful to the Committee for its patience in listening to my noble friend Lord Hendy’s rationale for Amendment 304. Perhaps I may be indulged in making just a few comments of my own about this whole group. I shall try not to hyperbolise but do my best to disagree well with the noble Baroness opposite. I do not think that noble Lords who have spoken and expressed their concern so far have hyperbolised. Let me try to explain why some of us are so desperately concerned about the impact on freedom of expression and freedom of association of Part 3 of this draft legislation.
If we take existing tests, there is so much law already on the statute book, some of it passed by Conservative Governments, much of it passed by Labour Governments—much of which I objected to at the time, alongside friends of mine in the Conservative Party. I may be wearing a red dress now, but it was not always the case; I hope noble Lords opposite will understand that. Free speech is a two-way street and, in my lifetime, no Government have been perfect when it comes to protecting it.
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The existing test in, for example, the Public Order Act, for the police to impose conditions on sessions or assemblies is about a threshold of serious public disorder, serious damage to property or serious disruption to the life of the community. That is a certain threshold. With Part 3 of the Bill, we are moving from that threshold of serious disruption or serious damage to noise, which may result in
“serious disruption to … an organisation”,
or noise which will have a relevant and “significant impact”—not disruption but an impact—
“on persons in the vicinity”.
That could be a wholly peaceful protest that makes some noise outside a sweatshop or a place that sells Chinese clothing. It could apply to a one-person protest outside that shop saying to people, “Please don’t buy this clothing, because it comes from China and there have been terrible human rights violations, and we are also very worried about climate catastrophe.” There may be a bit of noise and a bit of an impact, but a significant one, because consumers may say, “Actually, I don’t want to buy those clothes any more.”
That one person made some noise. I am making some noise now. I hope it is not intimidating anybody, but I am making some noise now to make that impact. I have the privilege of doing it in this protected space. People who get to write columns in newspapers have that privilege, too, but what about the people who do not have the platforms that we have? What about people who have to take to the streets—peaceably, not even going as far as the suffragettes? I am not talking about putting bricks through windows; that is already covered by damage to property. We are not talking about damage to property or harm to people in the sense of violence; we are talking about noise—that is, communication—and impact. You listened to me and you no longer want to buy that product or behave in that way. You have been persuaded by my noise; by my communication I have made an impact. Is that not the essence of the right to freedom of expression?
We have talked about the conditions and whether people ought to know about them. We are talking about imprisonment for up to 51 weeks. I do not think it is hyperbolic to suggest that this legislation, if passed unamended, will be as notorious as was the Cat and Mouse Act in the context of the suffragettes. I am not saying that because this is a Conservative Government; I am saying it because it is a Government of the United Kingdom, who ought to be setting examples to the world. We could all cite our favourite protests from history. I think the suffragettes are popular on both sides of this Committee. Some of us will cite the anti-apartheid movement or the civil rights marches in the United States—pick your favourite protesters, your legendary protests on whatever side of whatever argument, it does not matter. As I said to the noble Baroness, Lady Fox, on the previous group, I will defend the protest rights of people I really disagree with.
I once thought that people such as the present Prime Minister agreed, because I can remember when he was not Prime Minister but a journalist and passionately defended free speech. He, like me, disagreed with the Labour Government for wanting to suppress it and for wanting to lock people up for long periods without charge or trial. He was going to eat his identity card if he was forced to have one, et cetera.
Why is it not a two-way street any more? How are we to send a signal to Russia, China and other countries about the right to protest, as we try to? The Foreign Office's website has all sorts of condemnations of behaviour that would be allowed—