Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Motion to Approve

That the draft Regulations laid before the House on 27 April be approved.

My Lords, I thank all noble Lords for attending this debate. These regulations amend Sections 12 and 14 of the Public Order Act 1986, which grant the police the power to place necessary conditions on public processions and assemblies to prevent specific harms from occurring. One of these harms is serious disruption to the life of the community. These regulations do not create new powers but define this harm.

Once in force, these regulations will ensure that public order legislation is clear, consistent and current. They will carry over a definition of “serious disruption” which has already been approved by Parliament and provide greater clarity on the circumstances in which the police can exercise their powers to manage public processions and assemblies. Most importantly, they have given the House of Commons the opportunity to consider these measures.

Without these changes there is potential for confusion over what is the lawful extent of protest activity. The police and public will have to grapple with one threshold for criminal offences in the new Public Order Act and another for the use of discretionary police powers in the 1986 Act. With these changes, it will be easier for all to understand when disruption from a protest is no longer legitimate.

The provisions in these regulations are broadly similar to those brought to the Public Order Act 2023 as a government amendment during its passage through Parliament. The only difference is that these regulations do not allow the police to place blanket conditions on multiple protests. I will detail exactly what the regulations do shortly.

The government amendment was narrowly defeated by 14 votes in this House, and was not considered by the elected Chamber. This vote occurred before the vote for adopting the current definition of “serious disruption” in the 2023 Act, which was approved by both Chambers. As both Houses have agreed on a definition, we are sensibly extending it across the statute book and bringing further clarity to public order law. That is something which has been sought by senior police officers and by many in this Chamber today.

The Commissioner of the Metropolitan Police has said:

“The lack of clarity in the legislation and the increasing complexity of the case law”—

the increasing complexity that the case law is making between the right to protest and the rights of others to go about their daily lives free from serious disruption—

“is making this more difficult and more contested”.

The delegated power being used existed prior to the introduction of the Public Order Act 2023. The power was available for the Government to use during the passage of the Public Order Act 2023. These delegated powers were scrutinised by the Delegated Powers and Regulatory Reform Committee, which recommended that a definition of “serious disruption to the life of the community” be included on the face of the Police, Crime, Sentencing and Courts Act 2022, coupled with a power to amend the definition by affirmative procedure regulations. This recommendation was accepted and implemented in full.

Leave out all the words after “that” and insert “while approving the draft Regulations laid before the House on 27 April, this House regrets that the Regulations propose as secondary legislation, which is subject to reduced scrutiny, measures that were recently rejected in primary legislation, and that His Majesty’s Government has not addressed the concerns raised in the House when the measures were in primary legislation, or undertaken a full public consultation on these controversial measures; and therefore calls on His Majesty’s Government to withdraw the Regulations”.

My Lords, I will make a brief statement before I start my remarks on the regulations. As a Nottinghamshire resident and a former Nottinghamshire Member of Parliament with an obvious close attachment to the city, I am shocked, appalled and saddened at the awful events in Nottingham earlier today—as we all will be. I am sure the whole House will want to join with me in thanking the emergency services and in sending our condolences to the families and friends of the victims and the whole community.

Hear, hear!

My Lords, in moving the regret amendment in my name on the Order Paper, I should say that there were contentious and furious debates over the Public Order Act in the Chamber and beyond, although you would not have recognised that from the Minister’s comments.

Let me spell out from the beginning that I do not defend the actions of Just Stop Oil for one minute and neither does my party; I think that it has gone beyond the bounds of reasonableness. However, the police have the powers to deal with these protests, if they had the confidence to use them. Indeed, I agree with the chief constable of Greater Manchester, who said in the media a couple of weeks ago,

“we have the powers to act and we should do so … quickly”.

Our message to the police should be to use the powers they have and that they have our support.

The regulations before us make very real changes to the public order legislation we have. They reduce the threshold for the policing of protests to prevent serious disruption to the life of the community from “significant” and “prolonged” to “more than minor”. They also refer to the cumulative impact of repeated protests.

I remind the Minister and noble Lords that, in the passage of the then Public Order Bill, I asked whether the Government intended to use secondary legislation to overcome the fact that they had lost their vote on measures that were introduced without the Minister knowing a thing about it—namely, the amendment introduced into the Lords, which the Minister no doubt found out about like the rest of us, when we heard it on the radio in the morning. I specifically asked him about this on 14 March, and he said:

“They do not permit this or any future Government to make changes to the meaning of ‘serious disruption’ in this Bill”.—[Official Report, 14/3/23; col. 1209.]

This is all done without proper consultation. An appalling Explanatory Memorandum was changed only today to try to take account of the criticisms in the 38th report of the Secondary Legislation Scrutiny Committee, which absolutely eviscerates the Government and what they have done. I received an email at 2.27 pm today—I do not know whether anyone else did—saying that the Government were changing their Explanatory Memorandum: “Later today, the House is debating the public order draft, et cetera … The Home Office has just laid a revised memorandum to these regulations”. Honestly, you could not make it up—2.27 pm.

I do not know whether noble Lords will be aware of the extensive publication of this change; why on earth does the Minister think that is acceptable, in particular the way the Government justify themselves in answer to the criticisms of the Secondary Legislation Scrutiny Committee? I will tell noble Lords—

I have not seen the additional Explanatory Memorandum. Would the noble Lord tell us what additional material is in it? If it is substantial, surely it should be provided to all Members of this House before the debate proceeds.

I will read a couple of sentences from it. Paragraph 6.8 provides a reason why the measures are being brought back in this instrument; the justification of promoting “consistency” across the statute book is similar to that provided to the SLSC in advance of the report, and is discussed at paragraphs 16 and 18 of the report. I could not quote what paragraphs 16 and 18 actually are. There is a new paragraph 10.1; it provides a reason why:

“A full consultation was not necessary”.

I have no idea what paragraph 10.1 says, so I apologise to the noble Viscount. And so it goes on. The Government seek to justify themselves—

I am sorry to interrupt my noble friend in full flow, but I am shocked by what he is saying. Can he just confirm that this change to the Explanatory Memorandum was therefore tabled after the House of Commons had its debate?

My noble friend predicts what I was going to say next, in a calm, reasonable, rational way. I was going to ask whether the Minister could confirm whether the other place considered these changes to the Explanatory Memorandum before it had the opportunity to consider the regulations. As a football fan, I say that if this was a football crowd, it would be chanting to the Government, “They don’t know what they’re doing”. It would be quite right.

At heart, what do we believe? I will tell noble Lords what I think, and what I think the SLSC and many noble Lords said. What has taken place is an absolute, fundamental constitutional outrage. This House defeated these, or similar, proposals, brought forward in a panic, as I said, by the noble Lord, Lord Sharpe, without knowing really that he was going to have to do it, earlier this year. Primary legislation was defeated. So what do the Government do? They do not bring forward new primary legislation. They try to sneak through secondary legislation in an underhand way without proper public consultation.

As the Secondary Legislation Scrutiny Committee said:

“We are not aware of any examples of this approach being taken in the past”.

Is this what it has come to? Our Government have, in a shocking betrayal of our unwritten constitution, undermined the conventions on which our way of doing things is based, and on which our Parliament is based. How many times have I stood here and spoken of the need to protect conventions, to recognise the right way of doing things? These conventions protect our democracy, our rights and our freedoms. They are not just something for the Government of the day to dismiss because they are inconvenient. That undermines the workings of our parliamentary democracy. As such, it is shocking.

Of course, the elected Government should have their way, but this was not passed by the other House before being defeated. The Minister says, in a piece of political theatre, “Oh, don’t worry, we passed it yesterday in the House of Commons”. Embarrassed and in a panic in the face of today’s criticism, this was so the Government could say: “Don’t worry about that. We’ll be able to tell Coaker and everybody else who has mentioned it that we passed it yesterday through secondary legislation. That completely torpedoes their argument that the House of Commons hasn’t discussed it”. Such was the rush that they could not even ensure that an amended Explanatory Memorandum was put before the other place before it decided on the legislation.

My Lords, I feel some sense of responsibility for the situation in which your Lordships find yourselves this evening because I devised the formula quoted in the regulations before us.

I drafted that particular formula with very specific reference to the locking-on and tunnelling offences described in the Public Order Act, which we were considering as a Bill at that time. I confess that I was not looking forward at that time to any other use of that formula. I understand why the Government have found it attractive and the point they are making that it is better to have a uniform test across the board. However, as the noble Lord, Lord Coaker, has said, this is a debate about the right way of doing things.

I have been making strenuous efforts on the REUL Bill to make it clear that parliamentary accountability requires debate in the Chamber on things that we can discuss and amend if necessary, and not be driven by statutory instruments. While I stand by the formula which I devised—I believe it is the right formula, pitched at exactly the right point for the police to decide when they should intervene—I deeply regret that the Government have felt it necessary to approach a situation in this way. I endorse exactly what the noble Lord, Lord Coaker, has been saying and therefore wish to make it clear that while I stand by my formula, I greatly regret the procedure that is being adopted.

I actually told the noble and learned Lord, Lord Hope of Craighead, that he should not have helped the Government. I am prepared to forgive him, from a sense of generosity, because I know he was trying to help, but it did not actually help at all. The opening speech by the Minister was quite interesting because it lasted nearly nine minutes and focused almost entirely on what the police and the protesters were going to do. It avoided the talk of the constitutional novelty that the Government have introduced.

For me, this is a make-or-break moment for democracy. It is a crossroads that we really have to face up to because, in spite of what the noble Lord, Lord Coaker, said about respecting conventions, the fact is that the Government have not respected our conventions. There are two issues at stake here. The first is suppression of freedom, with a measure that your Lordships’ House rejected as unreasonable only very recently. In some ways more seriously, and secondly, this government move sets a precedent that the Government can use secondary legislation to overrule Parliament’s will as expressed in votes on primary legislation. This means that any future Minister, at any time, could decide to change any law in any way. This to me is deeply disturbing and we will hear from other people, I hope, who find it disturbing as well.

The shadow Attorney-General has said that we have to stick to the conventions and allow this statutory instrument to pass, but that argument seems to be based on a fundamental misunderstanding of the conventions. By convention, your Lordships’ House does not block primary legislation, but this is not primary legislation. Your Lordships’ House can, does and has blocked statutory instruments. I recognise that there is no convention that the Government cannot use a statutory instrument to overturn parliamentary votes on primary legislation, but that convention does not exist because no Government have ever tried to do this before.

This is an authoritarian law that hands over to the police and the Home Office the power to decide what is a good or a bad protest. It erodes the rule of law because any protest will be permitted only at the discretion of the police, rather than being a fundamental right that can be interfered with only in limited and proportionate circumstances. It is being enacted in an authoritarian manner by ministerial decree. If we let the Government overturn votes by ministerial decree, what is the point of this House and all our work? If the justification for allowing the Government to act in this way is that your Lordships’ House is not elected, then who is left to defend Parliament and the UK’s uncodified constitution against encroachment by an out-of-control Government?