Lord Pannick (CB)

The amendments in this group are motivated by understandable concern about the decision of the Supreme Court in the Ziegler case, which is [2021] UKSC 23. The noble Lords, Lord Davies of Gower and Lord Faulks, made powerful submissions relating to that case. The Committee may wish to be reminded that the Supreme Court reconsidered the statements made in Ziegler in the abortion services case, which was [2022] UKSC 32. Further guidance on the issues in Ziegler was given by the noble and learned Lord, Lord Burnett of Maldon, as the Lord Chief Justice in the Cuciurean case, which is [2022] 3 WLR 446. The Supreme Court said, in the abortion services case, that it is not for the jury or the magistrates in each individual case to assess whether the conduct of the defendant is protected by human rights law. That was the concern, as I understand it, of the noble Lord, Lord Faulks. The right reverend Prelate the Bishop of Manchester suggested that that is highly desirable, but that is not the law. In the abortion services case, in paragraphs 63 to 66, the noble and learned Lord, Lord Reed, who is the President of the Supreme Court, spoke for a seven person Supreme Court. It was an enlarged court because of the importance of the issue. He addressed the principles. The noble and learned Lord, Lord Reed, said at paragraph 63: “The first question was whether, in a case where the exercise of rights under articles 9 to 11 of the Convention is raised by the defendant to a criminal prosecution, there must always be an assessment of the proportionality of any interference with those rights on the facts of the individual case. The answer is no”. In paragraph 64, he said: “The second question was whether, where an offence is liable to give rise to an interference with the exercise of rights under articles 9, 10 or 11 of the Convention, it is necessary for the ingredients of the offence to include (or be interpreted as including) the absence of reasonable or lawful excuse in order for a conviction to be compatible with the Convention rights. The answer is no”. Paragraph 65, says: “The third question was whether it is possible for the ingredients of an offence in themselves to ensure the compatibility of a conviction with the Convention rights under articles 9, 10 and 11. The answer is yes”. The position under the law is that the prosecution will say that Parliament has enacted a specific offence; that is the law of the land, and it is simply not open to the defendant to say that they are entitled to seek to overturn the ingredients of the offence by reference to convention rights. The law of the land is set out in the criminal offence. Therefore, respectfully, 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—notwithstanding Articles 9 to 11 of the convention.