My Lords, the offences and powers in Part 1 of the Bill, which are about entering a prohibited place, are incredibly wide and were detached to significant areas of the British countryside such as Ministry of Defence land covered by public footpaths frequented by tourists, hikers and dog walkers. My amendments in this group aim to guard against innocent members of the public inadvertently committing a criminal offence and to tighten up the conditions for the police to exercise their powers.
It does seem disproportionate to apply the restrictions, and police powers and criminal offences, to land, vehicles and buildings which do not disclose any significant risk to the safety or interests of the UK. Of course, under Clause 8, the Government would give themselves powers to declare additional land, buildings or vehicles
to come under the definition of prohibited places. It may not be possible for the public even to know how much of this land and how many vehicles and buildings are Ministry of Defence property and prohibited places. They could risk committing an offence without being aware that they were approaching a Ministry of Defence car, which may have no markings at all, or walking along a coastal path which was Ministry of Defence property. My noble friend Lord Marks was talking in the previous group, or maybe the one before, about how dangerous it is to have wide definitions in criminal law. That is intrinsically bad but imagine if we got a truly authoritarian Government in this country.
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So there are dangers to the principles of legal certainty and the rule of law associated with the proposed offence of being in a place where a person cannot reasonably know that they are not allowed to be. Let us say they are walking along a footpath, looking at the beautiful view and the landscape. To discover that they are committing a criminal offence would be a very nasty surprise. Indeed, the place could be simultaneously prohibited and yet accessible to the public through being a footpath. That is doubtless why the Law Commission report recommended that the Minister be under a duty to place signs around prohibited places, to ensure that people know that they might be entering such a place where these offences would apply. That is the object of Amendment 29.
All of the amendments in my name are on the question of ensuring a proportionate interference with normal human rights and freedoms, even without getting into people who want to protest or do some other lawful activity—other than tourists, walkers and dog-walkers out for a nice day.
There needs to be a test whereby places are prohibited only if they are of particular defence or national security sensitivity. One of the dangers that we talk about, particularly in Amendments 23 and 33, is that these powers and criminal offences could apply in allowing the police to order a person to leave
“an area adjacent to a prohibited place”.
What does that mean? How close do you need to be? That could be a vast area of countryside adjacent to a prohibited place—is it 20, 50 or 100 yards, or 10 miles? This is a very dangerous phrase and should certainly come out.
I turn to the other amendments. Amendment 24 asks for a police constable to have
“authorisation from a more senior officer before exercising powers under Clause 6”.
Amendment 25 would bring in my test—by now traditional—of being
“necessary and proportionate to protecting the safety or interests of the UK”.
Similarly, Amendment 26
“would narrow the definition of prohibited place”.
Amendment 32 is a suggestion to make it clear that Clause 9 applies only to a military vehicle crash site, as the Government’s Explanatory Notes said it would. That would appear to meet the Government’s intentions. Amendment 34 seeks to ensure that the provisions do not
“impact unduly on the right to protest and on journalism”,
so an exemption is proposed for these. We also ask in Amendment 35 for guidance on the use of these
“powers in respect of a cordoned area”.
Essentially, these offences and powers potentially have an incredibly wide effect and impact, and, indeed, could lead to people being uncertain about whether they are committing a criminal offence. To not even know, I suggest, is a real mischief in a democratic society, and it will have a chilling effect on people having fun and enjoying themselves in the countryside, let alone on protesters and journalists, who have a right to exercise their human rights under the Human Rights Act.
Basically, this part of the Bill requires a considerable amount of work, as suggested in the amendments that I have tried to describe, to make it compatible with people’s normal human rights, civil liberties, freedom of expression, freedom of association and ability simply to go about their normal business. The Government ought to respond positively to these amendments. I beg to move.