Public Order Bill

My Lords, I must inform the Committee that if Amendment 12 is agreed, I will not be able to call Amendment 13 by reason of pre-emption.

Amendment 12

Moved by

12: Clause 1, page 2, line 2, leave out “to imprisonment for a term not exceeding the maximum term for summary offences,” Member's explanatory statement This amendment, with others in the name of Baroness Chakrabarti, reduces the maximum sentence for the proposed new offence of “locking on” to a fine.

My Lords, I now get the opportunity to congratulate and welcome the Minister —the noble Lord, Lord Murray—to this Committee. I have had the opportunity to welcome him in other ways before, but it is important to be engaged in detailed scrutiny of the Bill for the first time.

This group is about sentencing. Notwithstanding everything that I have said so far—and no doubt will say again, and make the Minister’s ears bleed with my position on the Bill as a whole and specific offences—it is also important to engage with the specific issues of appropriate and proportionate sentencing, how the sentencing framework and different offences in that framework fit together, and whether we in this country should be incarcerating more and more people, including for what may well be peaceful dissent. It is very difficult to separate the issue of sentencing from the other formulation of the offence. When I was young, I was a lawyer in the Minister’s department, and one of the things that we were responsible for at that time in the Home Office was looking at the overall sentencing framework. That may now belong in the Ministry of Justice, but none the less the point was that whenever a new offence was proposed by any government department, it needed to pass some gatekeepers in a little unit in the Home Office who wanted to be clear about the formulation of the offence—mens rea, actus reus, et cetera—but also about the sentence, because in government people look for levers for change and everyone has a new big idea about a new offence.

In particular, in this group, with my first and some other amendments, including those of other noble Lords, I am really probing whether the new proposed offence of locking on—the Minister’s colleague, the noble Lord, Lord Sharpe, who is about to arrive in his place, was discussing that earlier—could even include people who, in a disruptive way, link arms. The noble Lord, Lord Sharpe, made the argument that sometimes linking arms in big enough groups would be just as disruptive as gluing your hands to the road. Are we really suggesting incarceration for up to 51 weeks for an offence that could be perpetrated by people singing “Kumbaya” and linking arms? It is a probe, but it is important that there should be some probes about the sentences for these offences, and not just their intention and formulation. I think that it is very important that we consider how many people we are incarcerating in this country, the trajectory that we are on with imprisonment in this country, and whether we have a criminal statute book—including a sentencing statute book—that is proportionate and coherent to meet the needs of a very troubled and polarised society at the moment. With that, I beg to move.

I look around in vain for anyone else who wants to speak. I agree with the principles that the noble Baroness, Lady Chakrabarti, has just spoken about. Amendment 13, in my name, is based on a recommendation from the Joint Committee on Human Rights. In its report on the Bill, the committee points out that the offence of locking on under Clause 1 is punishable with—as she just said—

“up to 51 weeks in prison.”

The committee states that:

“This sanction is significantly harsher than the maximum penalties that, until recently, applied to existing ‘protest-related’ non-violent offences such as obstructing the highway (level 3 fine) or aggravated trespass (3 months imprisonment).”

The committee notes that there is likely to be a low hurdle for prosecution—again, as the noble Baroness, Lady Chakrabarti, just said. The amendment therefore questions whether the length of potential imprisonment —51 weeks—is proportionate to the offence that is committed. Amendment 13 suggests that this should be reduced to a three-month maximum sentence.

The remaining amendments in my name in this group relate to the level of fine that can be issued to a person who commits an offence under Clauses 1 to 7. They are similar to amendments that I tabled to the corresponding clauses of the Police, Crime, Sentencing and Courts Bill—now an Act—when it was previously debated in this House. However, given the nature of the debate at that stage—in particular, in Committee, we started discussing those clauses at 11.45 pm—I believe that there is merit in discussing this issue again in this Committee.

Under Clauses 1 to 7, a person convicted of an offence may be liable to “a fine”. However, the Bill does not specify what the maximum level of such a fine should be. For each of these new offences, our amendments ask the simple question: is an unlimited fine proportionate for such an offence? In particular, is it proportionate that a person convicted of the offence of being equipped for locking on, for example, should be subjected to an unlimited fine? The Minister may argue that the level of fine suggested in our amendments is too low. At this point, they are simply probing amendments designed to make the principled point that an unlimited fine may be disproportionate for a number of the offences contained in the Bill. Finally, it would also be of benefit to the Committee if the Minister could set out how they intend fines to be applied consistently for these offences, if there is no upper limit as to the fine that can be imposed.

My Lords, I will be extremely brief. I want to reiterate the final two points that the noble Lord, Lord Paddick, made. I speak as a sitting magistrate in London. I occasionally have to deal with unlimited fines, but it is far more straightforward as a magistrate, when you have a level set and an example of what the maximum fine might be for whatever offence one is dealing with at the time. For most offences that we deal with, levels are indeed set; we are given the parameters, if you like, of what would be appropriate. I was going to make the same point as the noble Lord, Lord Paddick: if one wants some form of consistency across the country for these types of offences, it would be useful to have some level of guidance, perhaps setting a level of fine that may be appropriate.

The other point I want to make, which is slightly outside the scope of these amendments, is about the power of the court to set compensation. I have been in a case dealing with relatively minor offences, but the level of potential compensation was absolutely astronomical when we were talking about disrupting train services and things such as that. The level of compensation is a judicial decision but, certainly in my experience, the level of compensation can potentially eclipse the maximum level of any fine the court may give. I do not know whether the Minister is able to say something more about appropriate levels of fines—and appropriate levels of compensation.

My Lords, I thank noble Lords for that short debate, and I particularly thank the noble Baroness, Lady Chakrabarti, for her warm welcome to this Committee. It has been a fascinating exercise to conduct my first Committee stage.

The general intention of this group of amendments is to reduce the maximum fines and the maximum sentences listed in Clauses 1 to 8. The maximum fines and sentences attached to these offences reflect, in the view of the Government, the serious harm and disruption that can be caused by these actions. It may be helpful if I set out just one example of that harm for the Committee. During the targeted and reckless activity by Just Stop Oil in August 2022, protesters dug two tunnels in an attempt to disrupt access to an oil terminal in Essex. This particularly dangerous protest tactic not only disrupted the operation of the terminal but had a knock-on impact on many others. First, it led to full and partial road closures impacting the public, local and private businesses and the council. Secondly, it resulted in ambulances and fire and rescue services being on standby due to the risk of collapse in the tunnel, thereby impacting on availability of those emergency services. Thirdly, it consumed a huge amount of police resources in responding to the operation, impacting on the police as well as the public, as officers had to be diverted from other duties.

Given this example and countless others, the maximum sentences and fines set out in the Bill are not only proportionate to the harm and disruption caused but necessary. It is worth saying that these are maximum sentences and it is plainly not the case that every person convicted under these offences will be given these sentences and penalties. Indeed, it is right to say that the maximum penalties are used only in the most egregious cases. The courts will consider the appropriate penalty in each case and, in response to the point made by the noble Lord, Lord Paddick, they will be considered on a case-by-case basis. For these fundamental reasons, I therefore respectfully disagree with these amendments and ask that Amendment 12 be withdrawn.

Will the Minister address the issue that the noble Lord, Lord Ponsonby of Shulbrede, and I raised about how consistency in the levels of fines being imposed, particularly by lay magistrates’ Benches, will be achieved when there is absolutely no guidance in the legislation on the level of fine that should be imposed?

It is, of course, frequently the case in legislation that there is no guidance on the face of the Bill as to the likely sentences that are imposed. It is very common for there to be sentencing guidelines formulated in the usual way by the judiciary. No doubt that is what will happen in relation to these offences. As I am sure the noble Lord, Lord Ponsonby, will agree, these are the guidelines to which prosecutors routinely refer the court before the court passes sentence.

My Lords, I am grateful to all noble Lords who have participated in this all-too-sparse and short, but very important, debate about maximum sentences for new offences that are incredibly controversial. To address the Minister’s response directly, I am concerned that a briefing pattern is developing in the course of this Committee, where the Minister is given an example of something that protesters did that caused a lot of disruption and harm and so on, but we have yet to really understand why existing criminal law is not capable of addressing that. What is not being offered to the Committee—and perhaps not being advised to Ministers—is where the need is, given the scale of the public order statute book as it is. Within that, specific to this group, we are not being given a picture of where these offences sit in the hierarchy of criminal offences and criminal sentences.

Instead, we are being given a story about something outrageous that some protesters did and told that this is why the whole Bill is justified. We really need to get into a bit more specificity when we are playing with the criminal statute book and potentially sending people to prison or bankrupting them and so on. That is no disrespect to the Minister, his noble friend, his colleagues, or even his advisers. What is more traditional—certainly in this place—is that when offences are offered, and sentences to go with them, we are given a picture of where they sit within the current ecosystem of the criminal law; then we can really drill down into both the formulation of the offence and the sentence. People who disagree with me and, perhaps, welcome the offences, can nonetheless improve them and make sure that they are proportionate in their formulation and sentencing.

That has not happened in this debate, and it really must happen for us to do our duty as a Committee. That really must start to happen during the passage of this Bill, and it certainly will have to happen on Report. Concerns about incarceration, bankruptcy and maximum sentences, as well as fundamental concerns about the formulation of the offences themselves and even prior concerns about the need for them, are going to keep coming, group after group, in this Committee, and they will come again as we go down the road of consideration. I hope, therefore, that Ministers will take that in good part. For the time being, I beg leave to withdraw.

Amendment 12 withdrawn.

Amendments 13 to 17 not moved.

Debate on whether Clause 1 should stand part of the Bill.

I apologise in advance to the Ministers for making their ears bleed. A lot of what I have just said is relevant to this group as well. In previous hours in this Committee, noble Lord after noble Lord from around this Committee—from the Benches opposite, the Cross Benches, lawyers, lay people, people concerned with the balance between peaceful dissent and other rights and freedoms for the rest of the community—has been really concerned about these new offences and the justification for them. There was a real consensus that it is for the Government of the day, and those who propose new restrictions of whatever kind on liberty, to make the case. Particularly when we are talking about coercive police powers at a time when there has been a bit of a crisis of trust in the police, which is not what we want, it is really important that the justification for new offences, new police powers and so on be made before we sign these blank cheques. It is no disrespect to the police. Every day that I come into this place, I am grateful to our wonderful police, who stand out there and protect us all as legislators. I am so grateful to them. Of course, it crosses my mind that I am criticising expansive police powers and so on, but I still feel that is my duty.

I will not take up too much time, but the case for these new offences has not been made by the Government. I tried to make my point in response to the debate on the previous group. We need a statement from Ministers about the existing public order statute book, what these existing offences and powers do and do not do, and what the gaps are thought to be, so that noble Lords in this Committee, including the noble Lord, Lord Carlile of Berriew, who knows a little about the criminal law—he and I have debated it over many years; sometimes we have agreed and sometimes we have disagreed—can bring their minds to this schedule, which hopefully the Government will provide, and ask, “Is there really a gap?”

My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti, and in the widest sense I agree with her—but I come at it from a rather different angle. I am concerned about the integrity of the legal process.

I do not want to repeat what I said earlier. The Minister heard me referring to a very recent statute that came into force in August, I think from memory, which in my view covers all the conduct we are considering here. One has to consider the effect on the legal process of having different provisions, with very different consequences, which are not alternatives to one another; they have to be charged separately. It is not like wounding with intent under Section 18 of the Offences against the Person Act, where Section 20, unlawful wounding, is always an available alternative. These are quite separate offences, in totally separate Acts of Parliament, separated by a little time—though oddly, in this case, if the Bill is enacted, both introduced in the same year by the same Government.

We have to think about the way the process operates. The biggest Crown Court in London has a backlog, partly because of Covid, of nearly 4,000 cases, and we should consider the case management that is placed on the judges there. I have a particular interest in that Crown Court, which I place on the record. My interest in that court leads me to the view that the judges, the prosecutors and probably the defenders there are unlikely to be aware of the alternatives. However, as I suggested earlier, in another Crown Court another charge might be brought under the other Act of Parliament, and the judges there would know about the offences with the lower imprisonment maximum but would not know about the other statute. We will end up with a crowded calendar, with the Court of Appeal eventually having to say, “Why do we have two Acts of Parliament that deal with the same conduct but have totally different consequences?” I am sure that the noble Lord, Lord Ponsonby, who is an experienced, busy and highly regarded lay magistrate, has similar experience of backlogs in the courts in which he sits in London, and the same is true in all the cities around the UK.