Relevant documents: 17th Report from the Delegated Powers Committee, 1st Report from the Joint Committee on Human Rights, 7th Report from the Constitution Committee
1: Clause 1, page 1, line 5, at end insert “without reasonable excuse”
Member's explanatory statement
This amendment makes the lack of a reasonable excuse a component part of the offence of locking on, thus placing the burden of proof upon the prosecution.
My Lords, I will rise slowly to allow the mass exodus from the Chamber of noble Lords who are fascinated by the civil liberty implications of this terrible draft legislation. The exodus is nearly, if not quite, complete.
I have the unhappy duty of opening the first detailed debate on this Bill, which has so many problems. One of them is that it criminalises innocent, legitimate activity in a way that is so vague and broad it risks a great deal of potential injustice. It is really not appropriate for legislators in either place to allow this kind of shoddy work to pass, risking the liberties of our people, many years into the future.
I am sorry to interrupt at such an early stage. My noble friend rightly said that she has the unhappy duty to move this amendment. It is astonishing that we are considering the Bill and these amendments today. My noble friend has been very much involved in the detailed discussions in relation to the Bill. In view of the outright opposition, right across the country, to some of the provisions in the Bill, have the Government given my noble friend any indication that they propose not to proceed with the Bill? It is outrageous that we continue to consider these details and amendments, and I am sure that my noble friend would agree with me. Surely the Government have had second thoughts on this by now.
I am grateful, as always, to my noble friend, who has been a parliamentarian of distinction in both Houses, over many years, and who cares a great deal about our constitutional climate and integrity in this country. I regret to inform him that I have heard no such cause for comfort or indication of any reflection on the part of the Government in relation to the Bill. I agree with my noble friend that that is a matter of enormous regret. As it happens, I have not heard even a hint of potential listening or movement around the Bill’s detail, let alone what my noble friend and I would prefer, which is that this terrible attack on British liberty is dumped by a Government who have seen reason.
A case in point is the new proposed criminal offence of locking on. As noble Lords will remember, a person commits this offence if they
“attach themselves to another person, to an object or to land … attach a person to another person, to an object or to land, or … attach an object to another object or to land”.
That is very vague and broad. The Bill also says that a person commits this offence if
“that act causes, or is capable of causing, serious disruption”—
it does not define this—
“to … two or more individuals, or … an organisation”,
and if they “intend” the act to have that disruptive consequence or
“are reckless as to whether it will have such a consequence.”
By the way, noble Lords in the Committee will remember the rather colourful and entertaining speech of my noble friend Lord Coaker when these provisions came this way the first time, before the current reheated version. It was either my noble friend Lord Coaker or my noble friend Lord Kennedy who talked about two people linking arms as they went down the road together. It was a rather colourful example of the two of them linking arms and going down the road together, which caused some amusement on all Benches in your Lordships’ House—they would perhaps take up a bit of space, if I can put it like that. But the idea that that simple, innocent act would potentially be impugned by an offence of the breadth that I have just set out is not a laughing matter, despite the amusing example.
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I declare my interests as a council member of the all-party law reform group, Justice, and as a visiting professor of practice in the law department of the London School of Economics, which is down the road. I hope, if the Minister remains confident in the wisdom and integrity of this draft legislation, that he might consider coming to the LSE, this side of Christmas, to listen to the concerns of students, lawyers, journalists and peaceful dissenters. So, in addition to debating the Bill with me, he could hear their concerns directly, allowing for public debate as well as parliamentary debate in this Committee.
With my amendments in this group—Amendment 1, as well as other amendments applying to other offences—I have taken this defence of “without reasonable excuse” and put it into the main body of the offence. This would allow, initially, a police officer when seeking to arrest and, subsequently, a prosecutor both to be clear in their own minds that there was no “reasonable excuse”. If there were a potential “reasonable excuse”, it should be considered as part of the central element of this offence—for example, if I needed to lock my bicycle, or if I were just walking down the road with someone intimate or my friend and, because we are big chaps, we got in the way of a police officer, but we really had a “reasonable excuse” to be linking arms. This is a very modest but essential amendment, not just to this outrageous offence of “locking on”, which should not even be here, but to other offences in this awful Bill. With that, I beg to move.
My Lords, I have added my name to the other amendments in this group. If noble Lords will indulge me, as is usual with the first group of amendments, I will remind them why we have arrived at this point. The Government had already included draconian anti-protest measures in the Police, Crime, Sentencing and Courts Bill—including giving the police power to place restrictions on meetings and marches if they might be too noisy, including one-person protests—when, just before the Conservative Party conference in 2020, Insulate Britain began a series of protests, including dangerously and recklessly blocking motorways. Allowing a sentence of imprisonment for highway obstruction was proposed and agreed by this House, and now many Stop Oil protestors have been either sent to prison or remanded in custody pending trial.
However, the then Home Secretary felt that she had to say something to appease Tory supporters at the Conservative Party conference: that she would introduce even more draconian anti-protest measures. Despite the PCSC Bill having already passed through the Commons, the Government introduced these even more draconian anti-protest measures, those we have before us today, as amendments in Committee of the PCSC Bill in this House. Apart from custodial sentences for highway obstruction, this House rejected all these measures on Report of the PCSC Bill.
Apart from the new stop and search powers, which some police officers and His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services suggested the Government might introduce, but which the Home Office left out of the original PCSC Bill, none of the measures that we are being asked to agree to today in this Bill was requested by the police, none of the measures was supported by HMICFRS, and some that were considered, such as serious disruption prevention orders, were rejected as contrary to human rights, unworkable and likely to be ineffective.
My Lords, I put my name to Amendments 1 and 7 in the name of the noble Baroness, Lady Chakrabarti, and I support to similar effect Amendment 8 in the name of the noble Lord, Lord Paddick, which coincides with that proposed by the Joint Committee on Human Rights. They relate, of course, to the locking-on offence in Clause 1, which, as the noble Baroness said, is an offence for which the actus reus is extraordinarily broad. You do not have to attach yourself to railings to commit it; it is enough to “attach an object”—any object—
“to another object or to land.”
Nor is there any requirement that serious disruption be caused; it is enough that the act
“is capable of causing, serious disruption”,
a term undefined, at least so far, and that you are “reckless” as to whether it does so.
When I raised this point at Second Reading, the Minister was good enough to say that he would write to me on it, and I thank him for doing so. He makes the point in his letter that the defendant has personal knowledge of the facts, making it reasonable for him to have to establish them. I agree with that: no one, I understand, objects to the evidential burden resting on the defendant, and I apprehend that that is what the noble Lord, Lord Paddick, was just saying, but it is clear from the letter that the Government’s intention is to go further and to place the legal burden on the defendant of proving lawful excuse.
The letter explains that there are times when the evidential and legal burden of proof may legitimately fall on the defendant, notwithstanding the presumption of innocence. One of those times, as the Minister said, is when you are carrying a bladed article in a public place. You may then be expected to prove that you had good reason to avoid conviction under Section 139(4) of the Criminal Justice Act 1988. But as the court said in the relevant case, L v DPP:
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Lord Skidelsky (CB)
My Lords, I am happy to add my name to the group of amendments in the name of the noble Baroness, Lady Chakrabarti, in perhaps a more crusading spirit than the noble Lord, Lord Anderson.
If asked, most people would say that the most important principle in our legal system is that a person is presumed innocent until proven guilty. They would be surprised, and should be alarmed, by the extent to which this principle has been steadily eroded in our legal practice, of which this clause is a good example. As the clause stands, a defendant would have to prove in court that they had a reasonable excuse for committing the offence specified in Clause 1(1)(a).
Our amendment is designed to ensure that the police must prove in court that the defendant had no reasonable excuse for committing the offence. In other words, the police would need to prove that A and B, charged with walking down a street linking arms, had no reasonable excuse for doing so. As the burden of proof will fall on the police, they are less likely to arrest and charge people indiscriminately without a reasonable cause for doing so.
It is a very important point. The effect of this amendment will be to diminish the number of people detained and arrested for no offence. If we can achieve that, it will be an important thing to have done.
My Lords, my noble friend Lord Hendy has added his name to Amendment 60. In his unavoidable absence, I will speak to that amendment in words which are largely his, although I support and endorse all the amendments in this group.
The purpose of Amendment 60 is simple: to make more effective the protection the Government intend to provide for those with a reasonable excuse or those engaged in a trade dispute in the current version of Clause 7. I will focus specifically on trade disputes, with which I have some affinity.
By way of preliminary, it should be noted that the phrase
“in contemplation or furtherance of a trade dispute”
originated in the Trade Disputes Act 1906. It is now found in the Trade Union and Labour Relations (Consolidation) Act 1992, where is also found the definition of a trade dispute. For the purposes of today’s debate, it is sufficient to say that trade disputes encompass disputes over terms and conditions of employment and certain other industrial relations matters.
As drafted, Clause 6 recognises that obstruction or interference, which constitute the offence in subsection (1), may well be applicable to those picketing in the course of a trade dispute. Clause 6(2) seeks to exclude pickets from being found guilty of the subsection (1) offence. However, the way the subsection is drafted means that a person in such a situation, as we have heard, may be arrested, charged and brought before the court. It is only when presenting their defence that the trade dispute defence will achieve the protection afforded by the Bill.
Those who have signed this amendment and the rest of us who support it hope that, if someone is acting in contemplation or furtherance of a trade dispute, they will not be liable, as we have heard from the noble Lord, Lord Paddick, to be arrested, charged or brought to court for a subsection (1) offence. The defence should kick in before that point.
My Lords, it is a pleasure to follow the noble Baroness, Lady Blower, and even more of a pleasure to reflect on the words of our good friend, the noble Lord, Lord Hendy. Before he came into this House, I do not think that we had quite the same level of wisdom and knowledge about the details of trade union legislation.
I too rise to ask that the Minister gives serious consideration to accepting Amendment 60; all it does is make it quite clear that a person, picket or trade union does not commit an offence under the clause by removing the words:
“It is a defence for a person charged with”—
they should not ever be “charged with”. This is a perfectly legitimate action undertaken by people in pursuance of a trade dispute, and quite reasonable. So I ask the Minister to look very carefully at Amendment 60, and when it comes back, to see whether this amendment cannot be accepted, because it is a very sensible amendment.
One could make virtually the same speech on many of the clauses in the Bill. I do wonder: what are we trying to achieve? Most of the things in the Bill are already offences. If we have a problem, it is that the police do not seem to think that it is worth prosecuting them—of course, we saw in the last few days that glorious picture of 11 rather bewildered policemen standing in the middle of the M25, gazing at a gantry.
This is not a sensible way to make laws; I am not sure that it appeals even to the Daily Mail. A lot of the Bill is reflex action stuff. It is man-in-the-pub stuff: “Oh, we don’t like this”—of course we do not want people to stick themselves to the pavement, but the law already exists. Between now and Report, I ask the Minister to have a very careful look at what we are trying to achieve, whether the Bill achieves it and, in particular, Amendment 60 and the Bill’s effect on the trade union movement—I probably should have declared that I am the president of a TUC-affiliated trade union —and its many voluntary workers who spend their leisure time trying to improve the lives of their colleagues. Please can the Minister have another look?
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The only crumb of comfort that the draftsmen and policymakers in the Home Department have offered is a defence—not part of the criminal offence itself—if the person charged proves that they had a “reasonable excuse” for this attachment, be it human to human, bicycle to railings or whatever. So the burden is put upon the accused person, rather than residing where it should in our criminal law: with the prosecution.
This is a terrible offence. The principle of burden flipping—reversing the burden of proof—is in relation to the new proposed offence of “locking on”, but it is present elsewhere with other offences. I object per se to reverse burdens; they are inherently very dangerous. They are sometimes necessary, but, when they are necessary, the actual conduct being impugned must be very tightly limited. It would be one thing to have an offensive weapon without a “reasonable excuse”—because you can license the holding of offensive weapons; that would make sense to me—but it does not make sense to include attaching yourself “to another person” or to property, linking arms with your chum, attaching your bicycle to railings, et cetera. These are all examples of conduct which can be potentially impugned by this criminal offence, and for which one could go to prison for nearly a year. This is totally outrageous and unacceptable.
I have Amendments 8, 29, 40, 55 and 60 in this group, which all relate to reasonable excuse. We saw, with the arrest and detention by the police of a journalist who was reporting on recent protests, the potential danger of only allowing a reasonable excuse defence to be deployed once charged, as the Government propose in this Bill. In other legislation, a person does not commit an offence if they have a reasonable excuse, and therefore cannot be lawfully arrested and detained. I might not go as far as the noble Baroness, Lady Chakrabarti, in saying that it should be for the prosecution to prove that the protestor did not have a reasonable excuse. I am reminded of the wording of Section 1 of the Prevention of Crime Act 1953, where
“Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence”.
If the Government are looking for compromise, as they should in the face of the opposition already expressed to these measures in this House in its consideration of the PCSC Bill and in the views expressed on this Bill at Second Reading, maybe this should be an option that they consider.
This is even more important than the offensive weapon example, in that these are basic human rights under Articles 10 and 11 of the European Convention on Human Rights—the rights of expression and assembly. To allow people who are exercising their human rights, who have a reasonable excuse for what they are doing, to be deprived of those rights by being arrested and detained, as the Government propose, but where the reasonable excuse for exercising their rights can only be considered once they have been charged, cannot be right.
In Clause 3(2), for example, the proposed legislation says, in relation to tunnelling,
“It is a defence … to prove that they had a reasonable excuse for creating, or participating in the creation of, the tunnel.”
Clause 3(3) says,
“a person is to be treated as having a reasonable excuse … if the creation of the tunnel was authorised by a person with an interest in land which entitled them to authorise its creation.”
I am sure that the Minister will correct me if I have this wrong but, say a landowner instructs workers to build a tunnel on her land, which she owns, before it is subject to a compulsory purchase order to facilitate a development, in order to disrupt the development, which she objects to, she and her workers can be arrested, detained and charged, and only then can they deploy the reasonable excuse defence that the Government provide for in the Bill. How can that be right?
In relation to the obstruction of major transport works, the Bill provides specifically, in Clause 6(2)(b), that if the action
“was done wholly or mainly in contemplation or furtherance of a trade dispute”,
the person has a reasonable excuse, but Clause 6(2) says that
“It is a defence for a person charged with an offence”.
Again, the Minister will correct me if I am wrong, but does that mean that lawful pickets, on a picket line, can be arrested by the police, detained, and charged and can deploy the reasonable excuse defence only once charged? The Minister may say that the police would not arrest those engaged in lawful picketing—even though the proposed legislation would allow it—but, presumably, the Minister also believes that a mainstream journalist, with an accredited press pass, reporting on a protest, would not be arrested and detained for five hours by the police, and would also deny that. Similar arguments apply in relation to Amendment 60 to Clause 7.
We have seen from the arrest of the journalist that the police cannot always be trusted in every circumstance to use their judgment and not use the powers given to them in legislation. If someone has a reasonable excuse for their actions—we will come to a discussion of what amounts to a reasonable excuse in the next group—such as an accredited press card holder reporting on a protest, they should not have a defence once arrested, detained and charged, but the police should not be allowed to arrest and detain them in the first place. That is the desired effect of the amendments in this group and we strongly support them.
“There is a strong interest in bladed articles not being carried in public without good reason”.
The public interest in objects not being attached to other objects is less strong, to put it mildly, particularly against the background of the fundamental right to protest.
As Lord Bingham went on to say in Sheldrake, now the leading case on reverse burdens, security concerns do not absolve the state from its duty to observe basic standards of fairness. There are cases not referred to in the Minister’s letter, such as DPP v Wright, a Hunting Act prosecution, in which it was held to be oppressive, disproportionate, unfair and unnecessary to impose a legal burden on the defendant. Then there is the point well made by the Joint Committee on Human Rights: if the reasonable excuse is an afterthought, rather than an ingredient of the offence, protesters will be liable to be arrested whether they had a reasonable excuse or not. It is undesirable in principle for the possible defence to arise for consideration only after arrest or charge.
The curious thing about this debate, it seems to me, is that it is unlikely to affect the ease of conviction one way or the other. Once it is accepted that a protester may legitimately be asked to bear the evidential burden, then the legal burden, whatever the legal significance of the point, will rarely matter much in practice. The court will take its own view on whether the excuse is reasonable or not and not usually spend much time on the technical issue of burden of proof. Indeed, that was another point made by Lord Justice Pill in the L v DPP case, on which the Government relied in the Minister’s letter to me. In other cases where the Government have overstepped the mark by putting a legal burden on the defendant when they should not have done so, Section 3 of the Human Rights Act has come to their rescue, by enabling the reverse burden to be interpreted as a merely evidential burden that does not get in the way of the presumption of innocence. That emergency cord will not be available to the Government if the courts rule against them on reverse burden after the Bill of Rights has removed Section 3, as appears to be their intention.
I approach this issue in a spirit not so much of crusading zeal as of some bafflement that the Government would take such a legally risky course for so little practical advantage. I suggest that the orthodox approach to these offences is also the fairer approach for members of the public, and the safer approach for police, prosecutors and the Government. The prosecution should simply have to prove its case in the normal way.
It is important to bear in mind three points. First, the right to picket in contemplation or furtherance of a trade dispute is a statutory right, now set out in Section 220 of the consolidation Act of 1992 but with its origins in the Conspiracy, and Protection of Property Act 1875. The price of the right to picket was that no protection was given for the offences created by the 1875 Act, such as “watching and besetting”, fascinatingly; nor has it been given for the array of other potential offences such as obstructing a public highway or an officer in the exercise of his duty, or more serious offences.
Since 1875, the right to picket has been regulated and restricted by many amendments to the relevant law, the latest being several requirements imposed by the Trade Union Act 2016, now found in Section 220A of the Trade Union and Labour Relations (Consolidation) Act 1992. This leads to the second point: the amendment seeks only to strengthen the protection against this specific offence; all other potential offences which might occur in the course of a trade dispute remain open to charge. The amendment does not seek to enlarge the right to picket.
The final point is this: a picket in the course of a dispute is not a secret activity; it is not one of which local police will be unaware. The very purpose of a picket—and I can attest to this from having stood on many of them myself—in the words of Section 220 of the 1992 Act is that of
“peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”
To this end, pickets draw attention to themselves, to their union, and to the dispute they seek to further in the hope of persuading others not to cross the picket line. Your Lordships will be familiar with images of picket lines, and over the last few months, perhaps even familiar with actual pickets. The police will have no difficulty in recognising those acting in contemplation or furtherance of a trade dispute long before they, no doubt vociferously, proclaim it.
More than that, under Section 220A, a picket supervisor must be appointed by the union. She or he must be familiar with the very extensive Code of Practice on Picketing, and, most importantly for our purposes, she or he must take reasonable steps to tell the police his or her name, where the picketing will take place, and how he or she may be contacted. The section also requires that the picket supervisor must be in attendance on the picket or able to attend at short notice. She or he must be in possession of a letter of authority from the union which must be produced on demand; significantly hedged about, therefore.
It is right that in the creation of this new offence the Government have not sought to encroach on the protection of the right to picket in industrial disputes, a right which is also protected by Article 11 of the European Convention on Human Rights, and hence the Human Rights Act 1998. This amendment is exceedingly modest: it asks that the protection be made effective by preventing a picket from being charged with a new offence.