Contribution
My Lords, the recent ruling of the Supreme Court in R v ABJ and R v BDN has thrown the law of public protest into even greater confusion. That case relates to two protesters prosecuted under Section 12(1A) of the Terrorism Act 2000 for expressing public support for Hamas, a proscribed organisation. The appellants claimed that their charges under the Act represented a disproportionate interference with their right to freedom of expression under Article 10 of the European Convention on Human Rights. The Court unanimously dismissed this appeal and, in doing so, ruled that the Section 12(1A) offence in the Terrorism Act does not represent a disproportionate interference with the convention rights.
I raise this ruling because it highlights the confusion around protest law ever since the Supreme Court delivered a different ruling in the case of DPP v Ziegler in 2021. We have discussed the implications of the Ziegler ruling in this House on a number of occasions. Indeed, the noble Lord, Lord Faulks, has again reminded us of the details in that case. There is a clear tension between the court’s ruling in Ziegler and its ruling last week.
The court has made it clear that the Ziegler logic does not apply to the Terrorism Act defence but has not yet rectified the damaging consequences of the Ziegler decision. The basis of the court’s reasoning in Ziegler was the lawful excuse defence in Section 137 of the Highways Act 1980. In Committee, my noble friend Lord Cameron of Lochiel and I tabled amendments to remove the reasonable excuse defences from a number of Acts that are used to prosecute highly disruptive protesters, including the Highways Act and the Public Order Act 2023, and from this Bill.
When I spoke to those amendments, the Minister said that,
“the reasonable excuse defence is necessary in these instances to ensure an appropriate balance between protecting the wider community and the right to protest”.—[Official Report, 13/1/26; col. 1633.]
It is clear that the balance has not been made. I have not tabled those amendments to remove the reasonable excuse defences again, apart from Amendment 377B, which would remove the reasonable excuse defence from Section 137 of the Highways Act. I can think of no possible excuse for anyone purposefully to block the highway unless they are authorised to do so, such as the police or officers of National Highways. Removing that defence would render the issue in Ziegler null and void since that defence was the issue under consideration by the court.
However, I accept that the problem has now grown. The Supreme Court’s decision in the Ziegler case means there is now judicial precedent, and defence lawyers up and down the country have been lining up to utilise that argument so their clients can get off scot free. That is why I will be supporting Amendment 377 from the noble Lord, Lord Faulks. While I would prefer to remove those defences entirely, it would be better that the clarity in the law provided by Amendment 377 was made. His amendment would apply more widely than mine and therefore, I am happy to admit, provides a more substantial solution to the problem.
I would like to pick up on something that the noble Lord, Lord Pannick, said in Committee:
“much of the criticism of Ziegler fails to recognise that the courts themselves have understood that Ziegler went too far, and that what Parliament has determined in relation to the law is the governing law”.—[Official Report, 13/1/26; col. 1623.]
I accept his interpretation that the courts by subsequent decisions have recognised the issue of Ziegler, but the decision in Ziegler still stands as case law. It has not yet been overturned. I think that serves as one of the strongest arguments for Parliament to pass Amendment 377 and rectify the error that the courts have themselves acknowledged.
If the European Convention on Human Rights prevents the application of the law as passed by Parliament or prevents the conviction of those who should be convicted, that demonstrates that we should leave the ECHR, but while we remain within the purview of the Strasbourg court and while the Human Rights Act remains on the statute book, the decision in Ziegler needs to be reversed. Therefore, if the noble Lord, Lord Faulks, wishes to divide the House on Amendment 377, he will have our full support.