The amendments in this group to which my name is one of those attached would, based on recommendations by the Joint Committee on Human Rights, remove the proposed new trigger for imposing conditions on public processions based on noise and provide that a person who breaches a condition after deliberately or recklessly avoiding knowledge of the relevant condition can face criminal liability, but without extending the criminal offence to cover persons who breach conditions accidentally. In other words, that amendment would remove the offence of breaching a condition that you “ought to have known” was there. My name is also attached to the notifications opposing Clauses 55, 56, 57 and 61, which concern imposing conditions on public processions and public assemblies, “Offences under sections 12 and 14 of the Public Order Act 1986”, and “Imposing conditions on one-person protests”, respectively.
The Prime Minister said that he would sit in front of the bulldozers to protest against and seek to prevent the construction of a third runway at Heathrow. Can the Government, in their response, say whether he could have been arrested and prosecuted under existing legislation for doing that? If not, could such an arrest and prosecution for that activity be made under the legislation the Government are now pursuing in the Bill? It would be somewhat ironic if the Government were now seeking to introduce legislation to enable action to be taken against the kind of protest that the Prime Minister was only too happy to commit himself to undertaking—presumably, as a democratic right in a democracy.
Likewise, we saw protests against the increase in fuel prices recently, with drivers of goods vehicle trailers going at 5 mph along a motorway, resulting in significant delays to traffic. Can the Government say whether that action could have led to arrests being made and prosecutions taking place under existing legislation? If not, could such arrests be made and prosecutions pursued under the legislation that the Government now propose?
It is important to be clear about the extent to which existing laws do, or do not, enable action to be taken against the kind of protest to which I have referred, along with recent protests by Insulate Britain, and thus whether the issue is the way and extent to which existing legislation is applied and enforced, rather than a need for legislation of the kind now proposed. Insulate Britain protesters have ended up with custodial sentences under existing legislation.
As my noble friend Lord Blunkett wrote in April of this year:
“Protest might be inconvenient for politicians, but it acts as a pressure valve, allowing citizens to express their views and vent frustrations that could otherwise boil over … If we suppress protest, we could see more anger towards institutions including the police, the judiciary and parliament.”
Protest needs to be peaceful and tolerated, and accepted as a democratic right, against which we have to balance the rights of others to go about their daily business. We do not believe that the Government’s proposals in the Bill deliver those goals and reject the attempts to amend the Public Order Act 1986 with this loosely drafted legislation, which would restrict democratic rights to peaceful protest.
Clause 55 imposes conditions on public processions, including powers for the Secretary of State to define
“serious disruption to the life of the community”
or to the activities of an organisation carried out in the “vicinity” of a public procession, as well as powers for the police to impose conditions when they believe that noise might have
“a significant impact on persons in the vicinity”
or may result in
“serious disruption to the activities of an organisation”.
With that reference to noise, it would appear that it is now also protestors and not only children whom some people think should be seen and not heard.
Clause 56 allows the police to place any necessary condition on a public assembly as they can now with a public procession. Clause 57 removes the need for an organiser or participant to have “knowingly” breached a condition and increases the maximum sentences for the offence. Further clauses impose conditions on one-person protests and make significant changes to the police powers contained in the Public Order Act to respond to protest by expanding the types of protests on which the police could impose conditions.
The Bill also widens the types of conditions that the police can place on static protests, since it would significantly lower the legal tests that must be met for the police to issue conditions on protests. The police would be able to issue conditions on protests where they are noisy enough to cause “intimidation or harassment” or
“serious unease, alarm or distress”
to bystanders.
Before using their amended powers to issue conditions on a protest, the police would have to consider the “likely number of persons” affected by the protest, the “likely duration” of the impact and its “likely intensity”. The clause would also widen the types of conditions that the police can issue on static protests to match their powers relating to protest marches. They would also be able to issue any condition on static protests that they think necessary to prevent
“disorder, damage, disruption, impact or intimidation”.
These powers would also amend the offence of failing to comply with a condition imposed by the police on a protest. They would remove the legal test that requires protestors “knowingly” to breach a condition to commit an offence. People would commit the amended offence if they disobeyed a condition that they “ought” to have known was in force. Finally, these powers will allow the police to issue conditions on one-person protests. Currently, protests must involve at least two people to engage police powers.
The Bill includes many ambiguous clauses and will no doubt cause lots of legal argument in the effort to define what they mean. That puts the police in an impossible situation. There is no real drive from them for the government measures that we are discussing in this group of amendments. They do not need more legislation because they already have the powers in place, under the Public Order Act 1986, to impose conditions and to prohibit protests. Good policing is done with discretion. The Bill tries to require the police to do certain things that they may not want to do or may not feel are appropriate.
It is our belief that the powers in the Bill threaten the fundamental balance between the police and the people. The most severe clauses are not actually what the police asked for. We believe that these new broad and vaguely worded proposals would impede the ability of the police, rather than help them in their job. These clauses put way too much power into the hands of the Home Secretary, and the powers threaten our fundamental right to peaceful protest. The proposals risk making protests ineffective and curtail fundamental rights of citizens in a democracy that allow people to express their concerns about the Government of the day or other issues that they feel passionately about.
The provisions of the Bill put more power in the hands of the Home Secretary, who, in the future, may use these powers in an authoritarian way, further impacting on people’s rights. On the power of the Home Secretary to make regulations on the meaning of
“serious disruption to the activities of an organisation … or … the life of the community”,
the former Prime Minister and Home Secretary Theresa May said at Second Reading in the Commons:
“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”—[Official Report, Commons, 15/3/21; col. 78.]
Throughout our history, protests and marches have led to significant changes for the better in this country. If the provisions of the Bill had been in place, would they have been stopped for causing annoyance or being too noisy? There is no doubt that those who disagreed with the objectives of the protestors might well have claimed that they were being caused annoyance and found them too noisy.
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Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, to which the noble Lord, Lord Paddick, referred, reported on public order measures in its inspection report Getting the Balance Right? On public order legislation, the inspectorate called for a
“modest reset of the scales”.
I do not believe the measures in this Bill constitute a “modest reset”. The support for new powers on public order was qualified support for the five government proposals that the inspectorate was asked to respond to. The report said that the vast majority of police forces were happy with the existing legislation and it was mainly the Met Police that wanted new powers to deal with very specific events, mainly large-scale peaceful Extinction Rebellion protests.
In the evidence session before the Commons Committee on the Bill, the author of this report said:
“We were very clear in what we said that any reset should be modest. We also said that, because of article 10 and article 11 rights, some degree of disruption is not just an inevitable by-product, it is sometimes the whole point of the exercise of protest, and on that basis, it has to be encouraged.”
He went on to say that what the Government propose
“clearly aims to set a lower bar. Personally, when I reviewed it, I did not think the bar was necessarily the problem. There is just as much of a problem with educating and training the police officers and making sure they understand how article 10 and 11 rights can be properly tempered. It was a question of training and understanding
as much as it was of where the bar was for disruption.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill, 18/5/21; cols. 52-53.]
Despite that, however, these clauses widen the legislation significantly, which will simply make the job of the police in enforcing it more complex. For example, they will have to determine what is annoying. No doubt many people are annoyed to a greater or lesser degree when a protest blocks or takes over a street, but lowering the threshold in the way proposed in the Bill will create a situation in which there could be very little protest that would be lawfully allowed.
The police are already sometimes challenged on why they did not do more to stop a protest which was causing disruption. Under the provisions of these clauses, the political pressure on the police to act is only likely to intensify. Why do the Government want to make the police the gatekeepers for public protest when they should be putting them in a position in which the rules are neither too confusing nor too broad, since that will only lead to disparity in how the Bill is implemented, and more flashpoints. Why do we need to go down this road when the police already have the power to break up protests that cause harm, serious public disorder, serious damage to property or serious disruption to the life of a community?
Sir Peter Fahy, former chief constable of Greater Manchester Police, has said that the legislation includes “some really dodgy definitions” that the police are supposed to make sense of. The police will find themselves in impossible situations, having to make judgments about, for example, what constitutes “significant”, “relevant” and “impact”. There are likely to be different interpretations in different forces, and possibly within the same force, since the officer on duty who has to make the call may well have a different view from another officer on duty on another day. What one person considers to be noise might not be the same for another person.
Tolerating dissent and accepting peaceful protest as a right is a British value of which we should be proud, since it is central to our democracy. The Bill, as it has come to this House from the Commons, puts that at serious risk, since it creates uncertainty by giving too much discretion to the police, which they do not want, and too much power to a Home Secretary and thus a Government—which presumably they do want. As the shadow Home Secretary said in the Commons at Third Reading:
“It is a Bill that destroys the fine British tradition of protecting the right to protest … Our laws of protest have always been a balance, and the way this proposed law disturbs it is wrong.”—[Official Report, Commons, 5/7/21; col. 697.]