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Lord Lester of Herne Hill moved Amendment No. 104:

The noble Lord said: My Lords, in moving Amendment No. 104, which stands in my name and that of my noble friend Lady Linklater, I shall speak also to Amendment No. 104A. I have not previously spoken in any of the debates on the Bill. I do so partly because of my membership of the Joint Committee on Human Rights and the concerns that that committee has expressed about Clause 62, as it now is.

I say at the outset that I am very sorry that the noble Baroness, Lady Scotland, could not be here this evening because it was she and her advisers who very kindly met me in order to discuss this and other issues raised by the Joint Committee. Her absence prevents me from thanking her in person for the courtesy with

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which she and her advisers very carefully considered the points we raised. I am sure my thanks will be passed to her.

The problem that Clause 62 is designed to tackle is that in Section 14 of the Public Order Act 1986, which triggers police powers to control public assemblies, the definition of "public assembly" is numerical—it must consist of 20 or more people. The problem that that creates is that unscrupulous, mischievous or clever barrack-room lawyers quickly realise that if they assemble in groups of 19, 18, 17 or fewer, they can evade police controls under the Act.

I understand that, at a late stage during the Bill's progress through the other place, Clause 62 was inserted without anything like the proper debate. However, in its report on the clause, the Joint Committee made several points. First, it is distinctly odd to speak of two people as a public assembly. As the whole purpose of Section 14 of the Public Order Act 1986 is to allow the police to prevent serious public disorder, serious damage to public property, serious disruption to life of the community or the intimidation of people going lawfully about their activities caused by large groups of people, part of that rationale would be lost if conditions could be imposed on only two people.

The committee expressed its concern that reducing the number on whom conditions could be imposed from 20 to two could undermine the claim that they were being imposed for a legitimate purpose under the Human Rights Act 1998 and the European Convention on Human Rights—in particular, the rights to free speech and peaceful assembly. We were concerned that that would also tend to give rise to a significant risk that the powers would be disproportionately used.

We recognise that a number of safeguards for those rights would remain in place under Section 14. We drew attention to them, but we said that, although those safeguards would be important, we remained concerned about the potential "chilling effect" on freedom of association and of expression of small gatherings of private individuals if the power to impose conditions applied to groups of only two or more people, who are inherently far less likely than are groups of 20 or more to cause serious public order. So we recommended that the Government clarify the mischief at which the extension of the power to impose conditions is aimed.

I am delighted to note that the Government Bench has now been enriched by the presence of the noble Baroness, Lady Scotland. I recap by thanking her for the courteous and careful way in which she and her officials have met us to discuss the problem with Clause 62.

As I was saying, the focus of the Joint Committee on Human Rights was not just on matters of linguistics, but on the severe chilling effect that a provision that allowed the police power to control gatherings of only two or more people might have on freedom of expression and of assembly. What do I mean by "chilling effect"? It is an American phrase, meaning that those who want to gather for lawful purposes in twos, threes or fours may be deterred from doing so by a definition of public assembly as wide as "two or more people".

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So the committee asked the Government to clarify the mischief and explain why existing powers under criminal and civil law could not adequately address the issue. We suggested that that would give the House the chance to consider the necessity for the clause and the proportionality of what is proposed.

I add that during the Bill's passage, an important High Court judgment has made clear that the Protection from Harassment Act 1997 can be used as the source of sweeping injunctions to prevent some animal rights extremists, for example, being able to harass people, whether in their business premises or in their homes. That is an important victory for everyone who believes that the rights to demonstrate and to free expression must be balanced against the rights and freedoms of others, especially where coercion and harassment are being used to destroy their lives and businesses. That is an important weapon.

Amendment No. 104 is intended to get away from a numerical test of two or more and to try to find a description that considers whether the body of persons is sufficiently significant to trigger the police powers. We are trying to steer a course between Scylla and Charybdis: the Scylla of too much legal certainty, on the one hand, given by a figure such as two or more—which is perfectly certain; everyone knows what "two or more" means—and the Charybdis of too much breadth.

If we choose a definition of "two or more", although other qualifications must be met under the Public Order Act to trigger the police powers, there may be a serious chilling effect on lawful citizens going about their lawful business, who will fear that the police in one area may be too ready to use the powers. That is why I sought to find a vaguer provision—"a significant body of persons"—which gives more protection to basic rights and freedoms.

I realise that reasonable people can disagree about the approach to the problem, but the problem is serious. One answer to the points made by the Joint Committee on Human Rights—and by me—is that the Human Rights Act 1998 will come to the rescue, because if the police abuse their powers, under the Act they are under a duty to act in a way that is compatible with the convention rights to free speech and freedom of assembly, and that we can therefore read those safeguards into the Bill.

That is true; that is always true. But whenever possible, I prefer the law—especially where basic rights and freedoms are at stake—to state clearly what should be the safeguards. It is all very well to achieve legal certainty by saying, "two or more persons"; but we achieve legal uncertainty if, to know to what the safeguards really amount, one must know what the Human Rights Act and the European Convention on Human Rights state.

That is why one way—I do not suggest that it is the only one—to tackle the problem would be to write in the notion of a "significant body of persons". I agree with those who would say that that is vaguer; but I think it would be safer. The other way is, by Amendment No. 104A, to leave out the clause altogether as being unnecessary in view of the battery of criminal and civil sanctions and safeguards that already exist.

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The noble Baroness kindly wrote me a full letter. It will be important for part of it to be on public record and not simply placed in the Library. Perhaps she would also address the problem of "chilling effect", which cannot be met merely by stating how existing law may be cumbersome or ineffective. It is important not to take too many powers that will chill the opportunity for people lawfully to go about their business. I know that it will be said that the other safeguards mean that, if someone misbehaves, the police will use their powers, but not otherwise. However, there is still a problem of only two people suddenly becoming a public assembly, which seems to the committee on which I am lucky to serve to be a very odd concept. We are therefore worried about the mischief to which I have drawn attention. I beg to move.

6.45 p.m.

Lord Monson: My Lords, there is not much to be said in favour of Amendment No. 104A, as the present law clearly leaves too many loopholes about which something must be done. However, the noble Lord, Lord Lester, has made a persuasive case for Amendment No. 104. I agree with him that two is too small a number to constitute a crowd.

I think that there is a misprint in line two of the amendment, which refers to "compromising" a significant body of persons. Is it supposed to be "comprising"?

Lord Lester of Herne Hill: My Lords, it should say "comprising". I am grateful.

Lord Avebury: My Lords, since Committee stage, I have consulted police forces and lawyers who represent clients in cases of harassment by animal rights activists. I confirm, as the noble Baroness told the Committee, that the police want Section 14 of the Public Order Act to be amended. They say that activists are fully aware of the effect of the legislation as it stands and therefore have been turning up in numbers of fewer than 20 so that conditions cannot be imposed on them.

The police also say that other existing powers are inadequate. Section 42 of the Criminal Justice and Police Act 2001 has not worked because, when protesters turn up at the home address of an employee of the target company, they have time in which to intimidate and terrify that person before the police arrive. When directed to move away from the first home, they go to another one by pre-arrangement. There is then a chase around various houses in the neighbourhood, with the police always trying to catch up with the activists. The process leads to key employees resigning from companies. In extreme instances, the company may have to close.

I have figures for up to May 2003 of prosecutions in cases of activists intimidating Huntingdon Life Sciences and its suppliers. There were 31 prosecutions for breaches of Section 14 and only six convictions. Under Sections 3, 4, 4A and 5 of the Public Order Act, there were 202 prosecutions and 65 convictions. There

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were 73 prosecutions for aggravated trespass under Sections 68 and 69 of the Criminal Justice and Public Order Act, resulting in only 11 convictions. As drafted, those provisions apply only to trespass on land in the open air with the intention of disrupting lawful activity taking place on that land or adjacent land in the open air.

We will debate later the variation included in the amendment tabled by the noble Lord, Lord Dixon-Smith, which, I presume, includes premises targeted by animal rights activists who go into offices and factories seriously to intimidate workers. It seems that Section 9(1)(a) of the Theft Act 1968 has not been used, although I am indebted to SHAC for the observation that that is a much wider offence than many realise.

There were 41 cases of obstruction in relation to those activities and 31 convictions. That is the highest success rate that the police have achieved in using any law against activists. There were 13 prosecutions and five convictions for obstruction of a police constable.

All those figures tend to show that the existing armoury of police powers is not effective against well organised bodies of activists determined to prevent lawful business from operating by means of intimidation and harassment, thus supporting the case made by the noble Baroness in Committee. But the Minister responsible for science said in June that a considerable amount of legislation could be used to prevent harassment, and that perhaps it had not been used to protect companies.

Statistics for Cambridgeshire show a wide variation in the success rate of prosecutions. That may reflect the police's difficulty in framing the most appropriate charges and collecting the necessary evidence to match the increasingly sophisticated methods used by activists. There are, no doubt, even greater difficulties in other counties, where police have had little or no previous experience of that kind of activity. During my enquiries, I was glad to learn that the police college in Bramshill is at a fairly advanced stage in producing guidance on the powers available and how best to use them. Noble Lords will be interested to know that SHAC already has such guidance, which it has published on its website, for its own people.

During the previous debate on the issue, I asked the Minister about the Protection from Harassment Act. Although she did not have the information at the time, I have since ascertained, with the help of our invaluable Library, that the balance has swung effectively against intimidatory protesters.

In June, the High Court confirmed an injunction granted to HLS banning SHAC, its members and other named individuals from assaulting, molesting, harassing, threatening or pestering employees or their families, and creating 50-yard exclusion zones around the homes of employees. Any breach of such an injunction is a criminal offence. So far, it has proved to be effective in that I am not aware of any breaches.

My noble friend also mentioned that SHAC has recently turned its attention to customers, suppliers and shareholders of HLS, particularly a group of Japanese

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companies. Those companies have obtained a similar injunction under the Protection from Harassment Act parallel to the one previously gained by HLS itself. There is no reason to assume that it will not be equally effective for them. However, when I looked at SHAC's website this morning, the names of the five Japanese companies were still listed as "targets", and the so-called "evidence" against them was still being published there. Perhaps the noble Baroness will venture an opinion on whether that might constitute a criminal breach of the injunction against SHAC in respect of those companies.

What about the small firms dealing with HLS that cannot afford the hefty legal fees needed to get such an injunction? Do they need the protection that the clause would afford? Is it necessary to apply Section 14 potentially to any gathering of two people, rather than having a more narrowly aimed provision limited to the firms and individuals that have commercial dealings with HLS?

Undoubtedly, the tactics used by SHAC demand some further measures, but I think that the Government's approach is wrong. My noble friend has proposed an alternative, but we need a comprehensive review of all the available legislation, including the Protection from Harassment Act, so that an injunction might be granted, on the basis of a second application by a person trading with a given enterprise, to all persons or organisations dealing with that enterprise or investing in it, where it was apparent to the court that the purpose of those against whom the injunction was sought was to bring the lawful work of that enterprise to a stop. Under that proposal, when the Japanese companies applied, it would have been open to other victims of animal rights activists to ask the court to extend the injunction to all of them. Without such provision, every company or individual trading with HLS would have to ask for separate injunctions, when the clear purpose of SHAC as openly stated on its website is to attack everyone who trades with HLS, picking them off one by one. Further provision should apply not only to named individuals, but to any person who engages in an activity of the kind mentioned in the injunction following notice served on him by the senior police officer present. That would mean that, to stop somebody from harassing, intimidating or pestering employees of the target company, the police would not have to verify that he was a member of SHAC or one of the persons named in the original injunction.

On its website, SHAC claims not to be involved in activities of a criminal nature such as arson, attacks on companies' websites and threatening letters. However, the knowledge of what happens to anyone who ignores its warnings means that a visit to the supplier's premises and menacing behaviour, although unlikely to result in prosecution let alone conviction, is often enough to persuade the supplier to stop trading with HLS. A Section 14 order would not hinder that type of activity or dam the flood of e-mails, faxes and letters used to bring pressure to bear on companies and their directors.

Of course, everyone should be concerned with the ethical issues arising from the use of live animals for research, but the right approach is an informed

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discussion of the type initiated recently by my noble friend Lord Smith of Clifton on the report of the Select Committee on Animals in Scientific Procedures.

SHAC wants to eliminate discussion, slicing through complicated ethical dilemmas and putting an end to research that saves tens of thousands of human lives. We need to strengthen the law so that companies engaged in or connected with this work can continue without the unremitting molestation of them and some of their employees. Let us tune what we do to the specific threat, not extend the powers of the police to impose conditions on gatherings of two or more people.

7 p.m.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Lester of Herne Hill, for his comments. I apologise for not being here for the first word or two that he uttered, but I had the benefit of a very good discussion with him prior to today. I also thank the noble Lord, Lord Avebury, who gave graphic examples of why this is such a difficult and complex issue. If I may say so, he clearly demonstrated why we need this provision.

It is clear that there are a number of difficulties with Amendment No. 104 tabled by the noble Lord, Lord Lester. I worry about the use of the term "a significant body of persons" because of its imprecision, which is attractive and difficult at the same time. As he is aware, we have spoken to the Association of Chief Police Officers about his amendment. It is concerned that the amendment might leave the police with fewer powers than they already have. A court might take the view that an assembly of 25 persons was not,

    "a significant body of persons".

We could not guarantee how the amendment would work. We share the noble Lord's anxiety about getting precision and ensuring that the provision works in a sensible way, and we have examined the matter carefully.

To make it quite clear, when protesters or individuals are the subject of police actions, they should have a route to challenge those actions. We believe that Section 14 of the Public Order Act 1986 clearly requires the police to act proportionately in imposing conditions on public assemblies. Under Section 14, the police have powers to impose conditions on public assemblies, but they can use those powers only when the senior officer has reasonable grounds to believe that serious public disorder, damage to property or disruption to the life of the community might result, or that the purpose of the demonstration is the intimidation of others with a view to compelling them not to do an act that they have a right to do. Those are high tests to be met.

The conditions that may be imposed include the place where an assembly may be held, its maximum duration and the maximum number of people who may constitute it. So, the police may decide to order a group of protesters to stay in a particular area or limit their protest to four hours, for example. The worst that

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could happen to a group of protesters would be for the police to order them to end their protest, with the risk of arrest if the order were not complied with. In order to police demonstrations effectively—to manage them properly—the police require flexible, clear powers. They are mindful that their role is to allow peaceful protest while at the same time maintaining public order.

Section 14 provides the police with the ability to take action to negate and control the effects of an intimidatory protest without having to arrest large numbers of people, although currently that power can be exercised only in relation to groups of 20 or more. The noble Lord, Lord Avebury, is right—many protesters are becoming very sophisticated in utilising the safeguard provisions in current legislation to their advantage. The amendment of the noble Lord, Lord Lester, would impose an additional test on the police that would make it more difficult for them to use their powers. It is much clearer for a public assembly to be defined in terms of a number of people, although I accept that many will say that the provision lacks elegance and the Scylla of precision is not something that should necessarily be reflected everywhere. However, it has utility in this case.

Turning to Amendment No. 104A, I understand the concerns expressed by the noble Lord, Lord Lester, about Clause 62. However, as I explained, in order to police demonstrations effectively, the police require flexible, clear powers. The problem that the police have at the moment is that they can exercise their powers under Section 14 only when at least 20 people are assembled. Protesters such as animal rights activists know the law well and generally protest in much smaller numbers—or a larger group splits into several smaller groups to frustrate the policing of demonstrations, orchestrating them so that they do not fall foul of the provisions. Clause 62 amends the definition of a public assembly to two or more so that the police can deal with smaller groups such as intimidatory protests conducted by animal rights protesters outside the premises of targeted companies.

Although the police have powers in existing legislation to deal with individual misbehaviour, they need additional power to deal with the collective behaviour of an intimidating group. The imposition of conditions under Section 14 of the Public Order Act is often a more proportionate response to an intimidatory protest than arresting and prosecuting individuals. In the light of that explanation, I hope that the noble Lords will feel more assured.

I will now respond to additional comments made by the noble Lord, Lord Avebury, about how the Protection from Harassment Act 1997 works, because he made some important points about the use of injunctions. We welcome the more energetic use of injunctions. However, the noble Lord will recognise how difficult it has sometimes been to get them. When there is a regular protest by the same group of protesters who are harassing individual employees of a company, for example, the police may be able to use the provisions of the 1997 Act. However, they would have to have evidence that specific individuals had

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been harassed on at least two occasions by specific protesters. It would be difficult for the police to use this legislation in a public order situation when they needed to take immediate action to diffuse a potentially serious situation involving a group of people. The police may be able to deal with the behaviour of an individual under the 1997 Act, but not the entire group.

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