Public Order Bill

Debate between Lord Sandhurst and Lord Wolfson of Tredegar

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I will speak to my Amendment 55. I am grateful to follow the speech of my noble friend Lord Faulks. My amendment addresses the legal difficulties caused by the judgment of the Supreme Court in 2021 in the case of Ziegler, in respect of offences in which it will be, and will remain, a defence for a person charged to prove that they had a lawful or reasonable excuse for the act in question.

The judgment in Ziegler concerned Section 137 of the Highways Act 1980, which makes it an offence for a person

“without lawful authority or excuse”

wilfully to obstruct

“free passage along a highway”.

The Supreme Court ruled that the exercise of the convention rights to freedom of expression and freedom of assembly and association—which might loosely be summarised as the right to protest—constituted a lawful excuse. This has the effect that, before a person may be convicted of obstructing the highway, the prosecution must prove that a conviction would be a proportionate and thus justified interference with that person’s convention rights. In practice, this has caused real difficulties for the police, who at times have appeared paralysed. It has made it difficult for judges to run trials fairly and for magistrates to reach decisions.

My amendment leaves in the word “reasonable”. It does not make it a strict offence to obstruct the highway. You can still do it if you have a “lawful authority or excuse”. What is to be judged in future would be the duration and nature of what is done, not the fact that you have what you consider to be a high motive—whether it is flat-earth or anti-abortion protesters, it does not matter. It is not about whether you are a good person, or you think you are a good person; it is about what you are actually doing and whether you are stopping ambulances and people going about their daily lives unreasonably and for too long.

The amendment means that conduct being intended or designed to influence government or public opinion will not, of itself, make it reasonable or lawful. That is consistent with the jurisprudence of the Strasbourg court. I stress that the court has said:

“In a democratic society based on the rule of law, the ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”.


However, the law protects only the right to peaceful assembly. Articles 10 and 11 of the convention establish that public authorities are entitled to interfere with the right to protest for legitimate purposes such as the prevention of disorder, the prevention of crime and—importantly—the protection of the rights and freedoms of others. It is not about stopping every march, but about stopping prolonged obstruction. That is what we are about.

The Strasbourg court has gone on to rule that the rights of the public include the right to move freely on public roads without restriction, so there are two rights here; you have a right to protest, but the general public also have a right to move freely on public roads without restriction. It is a balancing exercise. The court has further recognised that states have a wide margin of appreciation in determining necessity when it comes to taking action against those who deliberately disrupt traffic or other aspects of normal life.

The right to protest in a public place exists, but it is not unfettered. It must be balanced against the rights of your fellow citizens. If the public are to be protected in the face of these novel types of protest we have not seen before, which in their duration and nature go far beyond what is fair and reasonable, the police must be able to intervene and not be paralysed by anxiety. Peaceful assembly and ordinary marches will still be protected. The public will still have to suffer and tolerate a measure of inconvenience and delay, but that will be within bounds.

My amendment would end the state of affairs in which persons who obstruct the highway, damage property or seek to avoid arrest can distort and upset the proper balance by asserting their motive. Peaceful protest will be permitted, but the balance will be restored. That is why, at the end of the amendment, it makes it plain that

“this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.

Henceforth, if my amendment is adopted, your assertion of a high motive will not suffice. You will be judged by what you did, how long it went on for, and the effect on other people.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the House has just heard from my noble friend Lord Sandhurst, the area of law we are dealing with is the proportionate interference with convention rights. I respectfully agree with him that the decision of the Supreme Court in Ziegler raises the question of the correct balance and makes it important for the House to legislate in this area. However, it is my misfortune to disagree with him that we should take this opportunity to overturn the decision in Ziegler. Rather, I respectfully commend the approach of the noble and learned Lord, Lord Hope of Craighead, which has been set out for us this evening by the noble Lord, Lord Faulks.

Critically, the presumption of innocence is at the heart of our judicial process, and I do not think that any of these amendments cut across that. There are three reasons why I suggest that the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which is supported by the Government, ought to be accepted. The first is the point made by the Constitution Committee that we need precision in this area. Secondly, there is the fundamental point that we should not be leaving this to the police or the courts to decide on a case-by-case basis; as Parliament, we should take the opportunity, and indeed the responsibility, to draw the bounds of the offences in this area. Thirdly, we need to remember that, at the moment, Section 3 of the Human Rights Act requires the court to read any legislation, if possible, consistently with the convention. Absent, I suggest, the amendment of the noble and learned Lord, Lord Hope of Craighead, there is a real risk that the court will read down clauses to make them consistent with how it considers convention rights should be applied.

On the basis of the approach of the noble and learned Lord, Lord Hope, there is scope for reasonable excuse, but it is limited. That means we do not run the risk of the courts deciding cases on an unanticipated, or perhaps even incorrect, basis. We also do not need—despite my noble friend Lord Sandhurst’s amendment—to overturn the Ziegler case; what we will have, however, is a consistent, clear and precise approach to criminal law, which is precisely what we ought to have. I accept that some of my colleagues at the Bar may not be particularly happy with that, but, in this area and perhaps in others, their loss may indeed be the law’s gain.

Social Welfare Law Cases: Legal Aid

Debate between Lord Sandhurst and Lord Wolfson of Tredegar

Tuesday 1st February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I note that when it is Justice Questions we always seem to have longer questions. We are starting a pilot in both Manchester and Middlesbrough to focus on the point that the noble Lord makes: to what extent can we divert people away and solve their problems at an earlier stage? I am aware of the report the noble Lord mentioned, and of others, but we are starting a pilot, so that we have evidence of what actually works on the ground.

[Lord Sandhurst (Con)]

My Lords, I thank my noble friend the Minister very much for his first Answer. I remind him that the Conservative Lord Rushcliffe’s 1945 report urged that:

“Legal aid should be available in all Courts and in such manner as will enable persons in need to have access to the professional help they require”.


At the last pre-Covid count, in more than half the local authorities in England and Wales, with some 22 million people, there was no provider in the field of housing legal aid. Would it not be a simple first step in the process of levelling up to take immediate steps to fund at least one such provider in each local authority in England and Wales?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am aware of the issue with legal aid for housing. I should make two points. First, we keep this under review and are making special efforts to ensure that we find providers in areas where there are currently no providers. Secondly, as my noble friend will also be aware, wherever you are in England and Wales you can always get legal advice through the CLA telephone service. Legal advice is always available.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Sandhurst and Lord Wolfson of Tredegar

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I support the amendment. I am conscious that the Bill is on Report. This is a probing amendment, but it raises an important and pressing point. I hope I shall be short. I make four points.

If this offence is taken on its own, I think we would all agree that two years is plainly an insufficient maximum. Let us assume for these purposes that an offender comes before the court, is not a murderer and has not been a party to the death of any victim, but has had access to the bodies and has done what Mr Fuller did. It appears that he committed many offences of sexual penetration of corpses to which he had access by virtue of his employment. It may not be common, but we simply do not know what someone may do in the future. It is an appalling prospect, but we simply cannot exclude the possibility that a non-murderous necrophiliac might offend in a similar way. I suggest that we must do all we can both to deter and to punish in that event. If there is no murder but a large number of offences, is 10 years really too long a maximum sentence for someone such as Mr Fuller?

I talk about punishment because it is impossible to contemplate the horror of a relative who learns that their deceased loved one was defiled in this way. We as society owe it to such a relative, who is truly a victim, to show that we respect the dead and will mark such behaviour in a way that demonstrates that respect.

When I was approached by the noble Baroness to help her on this matter, I asked the Library to do some research. It very helpfully uncovered materials relating to the debate that took place in 2003. There was the Home Office’s consultation paper of July 2000, and section 8.6 addressed this issue. It disclosed that at that time, somewhat to the authors’ surprise, there was no offence that made necrophilia illegal. The consultation disclosed that there was

“no firm evidence of the nature or the extent of the problem”,

but agreed that

“human remains should be shown respect”

and noted that

“relatives and friends would be deeply distressed”.

In section 9.2, that consultation addressed sentences for a range of offences. From my reading of the Government’s response in November 2002—I do not criticise anyone for this—it appears that the authors at that point may have proceeded on the assumption that the offence would follow and be additional to a charge of murder or manslaughter. In other words, it was not looked at on the basis of a stand-alone sexual deviant.

If we are looking for a comparator, brief research has disclosed what happens in Canada, where the offence carries a maximum sentence of five years. I question whether even that is sufficient in the worst case, but I leave it to others to consider.

To conclude, this is a most unpleasant criminal offence. It must be reconsidered as a matter of priority. The current sentence for the stand-alone offence is simply too low. I urge the Government to address this with dispatch and not to delay once the immediate clamour over the Fuller case has died down. It is not difficult. It simply needs a suitably steep maximum sentence to mark its gravity.

[Lord Wolfson of Tredegar (Con)]

My Lords, Amendment 78DA, moved by my noble friend Lady Noakes, is in regard to the maximum penalty for the sexual penetration of a corpse. I first place on record my shock and horror at David Fuller’s horrifying offending; my thoughts are with the victims and their families. I assure the House that the Government are committed to looking in detail at what happened in this appalling circumstance to ensure that it simply never happens again.

As we have heard, just this afternoon Mr Fuller has been sentenced to a whole-life term of imprisonment. An investigation into other aspects of his offending is ongoing. The House will understand why I will not comment on the sentence passed in this case, but I thank all those in the police, the CPS and the wider criminal justice system for bringing him to justice.

The Government have announced an inquiry into the events that occurred in hospitals in Tunbridge Wells. This will help us understand how the offences took place without detection in the trust, identify any areas where early action by the trust was necessary and consider wider national issues, including for the NHS as a whole. The Government have already made good progress in establishing the independent inquiry. I understand from colleagues in the Department of Health and Social Care that the inquiry’s chair, Sir Jonathan Michael, has developed draft terms of reference already and will engage with the families on them in the new year before they are published.

As well as that inquiry, I assure the House that the Ministry of Justice is reviewing the existing penalties available for the offence of sexual penetration of a corpse. The statutory maximum penalty for that offence is, as my noble friend indicated, two years’ imprisonment.

I reassure your Lordships, however, that that is the statutory maximum penalty for one offence. Where the offence is sentenced alongside other offences, each offence will be sentenced individually. The overall sentence passed will therefore reflect the totality of the offending behaviour.

I also pay tribute to my noble friend’s work in supporting the inclusion of this offence when it was debated during the passage of the Sexual Offences Act 2003. It was created primarily to deal with a different circumstance—different circumstances were in mind at the time. The focus was on the situation where a murderer abuses the corpse of their victim after death, and it was therefore perhaps thought likely that those sentenced for this offence would, for the most part, be sentenced at the same time for another offence, such as murder—which of course carries a mandatory penalty of life imprisonment. As we have seen in the Fuller case, that is sometimes the case but may not always be so.

It is therefore right that, in view of this depraved—which is not a word I use often, but I think is appropriate in this context—and horrifying offending where we have seen an individual commit this offence independently of other offending in relation to that victim, we review the current statutory maximum penalty for the Section 70 offence. It may also be that this review, and the public inquiry into the offending in hospitals in Kent, will highlight other issues that need to be considered relating to the existing offences that deal with sexual abuse of corpses.

To be clear, I am not saying—I cannot this afternoon —that the Government will adopt the specific approach taken in this amendment, but neither do I rule out future changes to the maximum penalty. Rather, we are reviewing the maximum penalty in its context, and speaking with DHSC officials to ensure that learning from the inquiry into events in hospitals can be taken into account into our review of the penalty. That is the best way to reach a considered conclusion about how to amend Section 70 appropriately.

As to timing, the inquiry into the events at hospitals in Kent is due to publish interim findings in the new year, with the full report at a later stage. I will write to my noble friend, and place a copy in the Library, with any further information on the inquiry’s timescales as soon as that is available. Our review of the available maximum penalties is likely to follow a similar timescale, to ensure that findings from the inquiry can be taken into account in our conclusions. It is therefore important that we await the findings of the inquiry before amending the current legislation. I listened carefully to how my noble friend opened this short debate, and I therefore ask her formally to withdraw this amendment.