Lord in Waiting/Government Whip (Lord Katz) (Lab)

My Lords, I am grateful to all noble Lords who took part in this short but important debate, and I am grateful to the noble Lords, Lord Faulks and Lord Davies of Gower, for tabling these amendments which seek to narrow the existing lawful or reasonable excuse defences that may be used for public order offences. It may be helpful to set out how a lawful excuse works in practice. A person is automatically treated as having a lawful excuse only under two specific circumstances. The first is if the defendant honestly believes that the person who is entitled to consent to the damage has given consent or would have consented if they knew of the circumstances—for example, an honest belief that the owner of a car in which a child was locked on a hot day consented, or would have consented, to the defendant smashing the window to get the child out. The second is if the defendant acts to protect their own or someone else’s property and they honestly believe both that the property needs immediate protection and that their actions are reasonable—for example, a person damages one person’s property while accessing the property of another to prevent a fire. It does not matter whether a person’s belief in those circumstances is reasonable or justified; it just needs to be honest. Whatever the failings of, or, indeed, one’s views on, the Ziegler judgment, as the noble Lord, Lord Pannick, said in his sagacious contribution, case law has moved on and the Supreme Court has made subsequent rulings which chart a clearer path. It is the case that the right to private property will always need to be balanced with other convention rights, such as the right to protest and freedom of expression. This will have to be judged on a case-by-case basis, but leading case law has set out the parameters, and the Court of Appeal did not say that the exercise of a person’s convention rights could never form the basis of lawful excuse for criminal damage. While I acknowledge the concerns of noble Lords, I have a great deal of sympathy for the arguments advanced by the noble Lord, Lord Marks. It is for the Crown Prosecution Service and the courts to decide what may constitute lawful or reasonable excuse in individual cases. Further, the current scope of the defence allows the CPS the necessary flexibility to consider the full circumstances of each case on its merits. The types of behaviour that noble Lords have suggested, such as intimidating or harming members of the public or the risk of damaging property, are unlikely to be considered a reasonable excuse. Therefore, I ask the noble Lord to withdraw his amendment.